Daya Ram Prajapati vs Smt. Vidya Devi
2012 Latest Caselaw 5674 Del

*      THE HIGH COURT OF DELHI AT NEW DELHI

+             R.C.Rev. 458/2012, CM 15720-15721/2012

                                                 Date of Decision: 20.09.2012

DAYA RAM PRAJAPATI                                   .... PETITIONER
                Through:                Mr. S.D.Singh, Adv.

                           Versus

SMT. VIDYA DEVI                                    ....RESPONDENT
                           Through:     Mr. Jagdish Chandra, Adv.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J.

1. This revision petition under Section 25B(8) of the Delhi Rent Control Act (for short 'the Act') impugns order dated 05.06.2012 of the Additional Rent Controller (ARC), North whereby leave to defend application filed by the petitioner, in the eviction petition, was dismissed.

2. The petitioner is tenant in respect of one room on the ground floor of property bearing No. 184, Gali No. 2, Padam Nagar, Kishan Ganj, Delhi - 110007. His eviction is sought by the respondent/landlady on the ground of bonafide requirement of the tenanted room by herself and her younger son Mahesh Kumar for their residence. It is stated that the present accommodation with them on the ground floor, first floor and second floor is not sufficient to meet their bonafide requirement. It is averred that, she being an old lady, aged about 80 years and suffering old age related diseases, needs a room on the ground floor, where presently she has only one room

and which is occupied by her aged husband and one store. One room on the ground floor is in the possession of the petitioner and another room with another tenant Roshan Lal, which has now been vacated on 31.10.2011; but that does not fulfill their requirement. It is also stated that one room and tin shed on the first floor and one room and tin shed on the second floor, which are in their possession, are not sufficient to meet their requirement. The second floor room and tin shed are stated to be with her younger son Mahesh Kumar, where he is living with his wife and a daughter who is studying in a school.

3. It is averred that they require one pooja room on the ground floor and one guest room for accommodating her four married daughters and their families and also two married sons and their children on their frequent visits.

4. The petitioner filed leave to defend application on various grounds. The learned ARC vide the impugned order declined leave to defend application, and he consequently, passed the eviction order against the petitioner. The said order is challenged in the instant petition.

5. Being mindful of the scope and extent of revisional power of this court under Section 25-B (8) of the Act, which is not that of the appellate power, I have examined the impugned order in the light of the averments taken by the petitioner in the leave to defend application and the submissions made before me. The learned counsel for the petitioners has assailed the impugned order stating that the petitioner has raised various triable issues, which have been erroneously negated by the learned ARC.

6. It is settled law that the at the stage of granting leave to defend, the test that is applied is whether in the facts disclosed in the affidavit, filed seeking leave to defend, prima facie shows that the landlord would be disentitled to obtain an eviction order and not, where at the end, the defence taken by the tenant may fail. If the application filed under Section 25B disclosed some substantial triable issues, then it would be grave injustice to brush them outrightly, without testing the veracity of the claims made by the tenant/applicant. The law in this regard has been well settled in various pronouncements and reference can be made to Inderjeet Kaur Vs. Nirpal Singh, (2001) 1 SCC 706.

7. In the instant case, the petitioner disputed the respondent/landlady to be the owner of the tenanted premises. In response to this, the respondent/landlady had stated having purchased the suit premises through documents such as GPA etc. dated 13.03.1974. The learned ARC relied on these documents, and rightly so, to record that the petitioner was stopped from challenging the title of the respondent/ landlady in view of provisions of Section 116 of Indian Evidence Act.

8. It is seen that though these documents like GPA, Agreement to Sell etc. are in favour of Prabhati Lal, husband of the respondent/landlady, but undisputedly, the petitioner had been paying rent to the respondent, and has not alleged that if the respondent is not the owner, then who else is the owner of the premises. It was not that anyone else, other than the respondent had ever set up claim of ownership of the suit premises or demanded rent from him at any point of time.

9. The law with regard to the concept of ownership in the context of Clause (e) to Section 14 (1) of the Act is trite and leaves no doubt that the 'ownership' contemplated in this provision is viz-a-viz 'tenant', which means that the ownership is something more than the tenant. The concept of absolute ownership, which is ordinarily understood, is not required to be determined in such cases. I do not see any illegality or infirmity in the finding of the ARC in this regard.

10. The petitioner had also disputed the correctness of the site plan filed by the respondent, and has filed his own site plan to assert that the present accommodation with the respondent was much more than what was shown in her site plan or that was averred in the petition. In this regard, the petitioner also sought to rely upon the aforesaid GPA to contend that in the said document also the accommodation, at the time of execution of these documents on 13.03.1974, existing on the ground floor comprised of one shop, 10 rooms, open courtyards and the area of the land of the premises measured 164 square yards. In this regard, there is no dispute raised by the respondent/landlady. However, it was her case that this was the accommodation which existed on the ground floor as on 13.03.1974; but later on two portions of the property were sold by them in two parts; firstly on 19.11.1979, an area admeasuring about 55 sq. yards was sold to one Asha Ram, and another portion admeasuring 48.5 sq. yds. was sold to one Devender Pal Singh on 24.03.2004. She has filed supporting documents of transfer of these portions in favour of the purchasers. It was in this way that the respondent was stated to be in possession of the accommodation existing on the remaining plot of about 60 sq. yds. Based on this premise, the present

accommodation was stated to be rightly shown in the site plan. The learned ARC, taking note of this factual situation, recorded that there was no difference in the first and second floor of the site plan filed by the petitioner and the respondent. The difference that was projected by the petitioner was of the ground floor portion, which had been sold by the respondent and her husband, as noted above, in 1979 and in 2004. In this way, the present accommodation in possession of the respondent was found to be as correctly reflected in the site plan filed by the respondent.

11. It was rightly observed by the ARC that there is only one room on the ground, which measures 15.9 ft x 8 ft and which is habitable for the purpose of residence. All other rooms being less than 100 square feet could not be said to be habitable for residence.

12. This room measuring 15.9 ft. x 8 ft., which was earlier in the tenancy of Roshan Lal, has now been vacated by him and is in possession of the respondent. Thus, there can be said to be only one room on the ground floor available with the respondent which can be said to be usable for the purpose of residence. On the first floor, there exists two rooms of the size of 7 ft. x 11 ft. and 7 ft. x 8 ft., which also cannot be said to be regular rooms. Similarly, on the second floor also there exist two rooms of the size of about 8 ft. x 11 ft. and 8 ft. x 12 ft., and these also cannot be said to be regular rooms, being of less than 100 square feet area. In any case, even if it is taken that some of these rooms can be used for residence, but that could only be due to paucity of accommodation, and by squeezing the occupants within the available accommodation. The present accommodation with Mahesh Kumar

on the second floor is only of small room and tin shed, where he is accommodating with his wife and a school going daughter. He does not have kitchen on this floor and is having his kitchen on the first floor. There is no dispute that the respondent has four married daughters, and two married sons and all their families and children do frequently visit and stay with the respondent. The present accommodation available with the respondent by any means cannot be said to be sufficient to accommodate all her siblings on their visits. The requirement of sufficient accommodation for them, and also for a drawing room and pooja room, cannot be said to be unreasonable and fanciful.

13. The petitioner has also alleged the respondent to be having several other properties such as House No. 213/2 Gali No. 3, Padam Nagar, Kishan Ganj, C-195, Mohan Garden Nawada Road, New Delhi and C-19, Mohan Garden, Nawada Road, New Delhi. The respondent has categorically denied to be owning these properties.

14. With regard to property No. 213/2, Gali No. 3, Padam Nagar, Kishan Ganj, her case was that it was already sold by them on 11.03.1998. The property at C-195, Mohan Garden Nawada Road, New Delhi was stated to be in the name of one Gulshan Gahlot, and with which they have no concern whatsoever. Similarly, she stated to be having no concern of any kind with property No. C-19, Mohan Garden, Nawada Road, New Delhi. There is nothing on record to controvert these assertions of the respondent/landlady. These are all vague pleas, which have been taken by the petitioner, without caring to verify as to the ownership of all these properties.

15. The other pleas which are taken by the petitioner that the respondent tried to dispossess him and also disconnected his electricity to pressurize to increase the rent or to sell the same, are all irrelevant and imaginary.

16. Having seen that the present accommodation with the respondent is not sufficient to meet her requirement, and that she bonafide required the tenanted premises for residence of herself and that of her son Mahesh Kumar, 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.

SEPTEMBER 20, 2012 awanish