Pushpa Sehgal vs Punjab Khadi Mandal
2013 Latest Caselaw 5756 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Order delivered on: December 13, 2013

+                          RC. Rev. No.327/2013

       PUSHPA SEHGAL                                            ..... Petitioner
                   Through              Mr.Satish Bajaj, Adv. along with
                                        petitioner in person.

                           versus

       PUNJAB KHADI MANDAL                      ..... Respondent
                    Through Mr.Anil Misra, Adv.

       CORAM:
       HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (ORAL)

1. The petitioner/landlord has challenged the order dated 5th June, 2013 whereby the application filed by the respondent/tenant under Section 25-B (4) of the Delhi Rent Control Act, 1958 (in short, called the "DRC Act") seeking leave to defend was allowed.

2. The petitioner filed the eviction petition bearing No.E-145/12 under Section 14(1)(e) read with Section 25-B of the DRC Act against the respondent. The following are the grounds made in the eviction petition by the petitioner:-

(i) The tenanted premises, i.e. one room, lobby, bathroom, WC, Kitchen and open courtyard on the first floor of the premises bearing No.F-29, First Floor, DBG Market, DBG Road, Karol Bagh, Delhi-110005, as shown in red colour in the site plan attached with the eviction petition, is the ancestral property of

the petitioner and the same was let out to the respondent for use and occupation of its employees which was being provided by the respondent by virtue of the employment to its employees from time to time. At present, the same is being used for the residence of employee of the respondent, Sh.Arvind Chauhan.

(ii) The services of said Sh.Arvind Chauhan was terminated by the respondent for committing some wrongful acts and he was liable to surrender the possession to the respondent after termination of services by the respondent but he is wrongfully and unlawfully occupying the same.

(iii) The petitioner requires the suit premises for her use and occupation for residence. At present, the petitioner is residing in a house of about 40 sq. yards on 3rd floor along with her son who has children of marriageable age. The grand-son of the petitioner is likely to be married soon and he is already employed. The present accommodation comprising of a room and a lobby on 3rd floor of a house of about 40 sq. yards is insufficient for six members, i.e. the petitioner, her son, daughter-in-law and three children of marriageable age.

(iv) Moreover, it is very difficult for the petitioner to reside on 3 rd floor in this age as it is very difficult for the petitioner to climb stairs and due to this reason she has to keep staying in the room for days together.

(v) The petitioner requires the suit premises for her residence and for the residence of her dependent son and grand-son who is a

member of her family, as the premises in occupation is highly insufficient.

3. Upon service, the application for leave to defend was filed by the respondent through an affidavit of Sh.Amarnath Tiwari, Chairman of the respondent-Mandal, who deposed in the affidavit that the petitioner has sufficient alternative accommodation, thus, the claim of bonafide necessity is false and frivolous. It is also stated that the property bearing No.5012, Gali No.4, Sant Nagar, Karol Bagh, New Delhi is a three storeyed building consisting of four living rooms on each floor with all other amenities and one hall on the ground floor which is lying vacant and is in possession of the petitioner and she is using the same for living purposes whereas the tenanted premises consists of only first floor with one big room, two other rooms with open courtyard along with kitchen, bath and WC. The site plan was also filed by the respondent/tenant. It was also alleged in the application for leave to defend that neither the son of the petitioner, nor her grand-sons are dependent upon her or residing with the petitioner on the third floor of the house, as both the sons are living in two different floors of the property bearing No.5012 comfortably with their respective families. Therefore, no accommodation is required by the petitioner for their residence.

4. In reply to the leave to defend application/affidavit, it was specifically submitted by the petitioner that the above said house No.5012 was an ancestral house owned by all the legal heirs of Manik Chand and was even sold more than 10 years ago. At present, the petitioner is only in occupation of its third floor comprising of only 40 sq. yards approximately. It is a very small space wherein three families are residing, i.e. the petitioner herself, her son Satish Sehgal, having three children and now one of the sons of Satish

Sehgal, namely, Kunal Sehgal is also married and is also residing in this very place. Therefore, it is a bonafide requirement.

5. By the impugned order dated 5th June, 2013, the learned trial Court allowed the application for leave to defend, mainly, on the reason that the petitioner could not produce the documents in support of her claim regarding sale of the property bearing House No.5012 about 10 years back or her occupation of only third floor thereof with her family members. The description of the suit property is also not correctly shown in the site plan. Since the respondent has alleged that the sons of the petitioner are occupying different floors of property No.5012, thus, it is a serious issue raised by the tenant which requires a trial in the matter.

6. It is true that the revision under Section 25B(8) of the Act cannot be regarded as a first appeal, however, this Court would have jurisdiction to interfere if it is of the opinion that there has been gross illegality which has been committed by the Controller who acted in excess of his jurisdiction or has not exercised the jurisdiction vested in him.

7. After having heard both the parties and having considered the pleadings as well as the impugned order, I am of the considered view that the impugned order is liable to be set-aside, as the same has been passed contrary to law. The reasons for the same are given as under:-

(I) The issue of ownership was decided by the learned trial Court in favour of the petitioner and against the respondent/tenant.

(II) The tenanted premises was let out to the respondent to be used for residence of his employee who has already been terminated by the respondent.

(III) The finding of the learned trial Court is that the two sons of the petitioner are occupying different floors of the property, thus, it has become a serious issue. However, the learned trial Court did not consider the main plea of the petitioner that she is residing at third floor and it was difficult for her to climb at the said floor. She has specifically made the statement that the area of the first floor where she is residing is about 40 sq. yards and three families cannot be adjusted in the said property. With regard to property bearing No.5012, Gali No.4, Sant Nagar, Karol Bagh, New Delhi, a specific statement has been made that the said property has already been sold by the legal heirs about 10 years ago from the date of filing of the eviction petition. No contrary evidence was even prima-facie produced by the respondent/tenant. Thus, there was no any triable issue raised by the respondent in the matter. The finding of fact arrived at by misleading which has also resulted in gross injustice being caused to the petitioner.

(IV) Even otherwise, the learned counsel for the respondent during the course of arguments has not denied the fact that the premises was let out to the employee of the respondent who has already been terminated. The learned counsel for the petitioner has also informed the Court that though the possession of the tenanted premises is with the respondent but it is not being used by the respondent for the last many years.

8. Considering the overall facts and circumstances of the case, the present petition is allowed. The impugned order dated 5 th June, 2013 is set- aside as it was passed contrary to the facts averred. The respondent is

directed to vacate the tenanted premises, i.e. one room, lobby, bathroom, WC, Kitchen and open courtyard on the first floor of the premises bearing No.F-29, First Floor, DBG Market, DBG Road, Karol Bagh, Delhi-110005, as shown in red colour in the site plan attached with the eviction petition within a period of six months from today. It is directed that the respondent shall hand over the vacant and peaceful possession of the above said tenanted premises to the petitioner immediately after the expiry of said six months. It is also directed that during this period, the respondent shall not sublet or create third party interest in the tenanted premises and shall also pay the agreed rent and other charges to the petitioner regularly.

9. The present petition is accordingly disposed of.

(MANMOHAN SINGH) JUDGE DECEMBER 13, 2013