Delhi High Court

Jagannath vs Shanti Devi on 5 August, 2014

Author: Najmi Waziri

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                           Date of Decision:05.08.2014

+      RC.REV. 547/2011 & CM 23541/2011
       JAGANNATH                               ..... Petitioner
                       Through: Mr. Ajay Bahl, Advocate

                          versus

       SHANTI DEVI                               ..... Respondent

Through: Mr. Rajeev Bajaj, Advocate CORAM:

HON'BLE MR. JUSTICE NAJMI WAZIRI

% MR. JUSTICE NAJMI WAZIRI

1. This petition has impugned an order of 30th September, 2011 in

Eviction Petition No. E-4/2010 whereby the respondent-landlady's

eviction petition under Section 14(1)(e) has been allowed, the

petitioner's leave to defend under Section 25-B of the Delhi Rent

Control Act, 1958 (the Act) was dismissed and eviction order with

respect to the tenanted premises i.e. shop bearing No. 5357, Laddu

Ghati, Paharganj, New Delhi has been passed. The landlady's case

was that the tenanted premises are the only commercial

accommodation available to her. She needs it for herself as well as

her son Mr. Hariom Mittal who lost his right leg in the year 2005 in an

accident. The said son was a truck driver and is now totally dependent

upon his mother for starting a new business so as to earn a regular

livelihood to maintain his two minor daughters and a son. The

landlady's case was also that the house in which she was living is

woefully insufficient to accommodate her, her husband and her six

sons and their respective wives and children. In the application for

leave to defend the petitioner-tenant had argued that the petition was

not bona fide. In support he had (i) listed eleven properties as being

available to the landlady, (ii) that the premises were in a slum area and

permission ought to have been taken from the competent authority to

seek the eviction of the tenant, (iii) that the eviction petition did not

specify the boundaries' or dimensions of the tenanted premises and

(iv) finally, that she did not provide documentary details of ownership

of the premises.

The landlady denied ownership of all the eleven properties

except of properties No. 5355, 56 and 57. She submitted that except

for the tenanted shop, the other properties were residential in nature

and were already leased out. Therefore, they could not be used for

commercial purposes. She reiterated that the suit premises were most

suitable for her bona fide need.

The Trial Court found none of the tenant's arguments to

constitute a triable issue. The Court reasoned that although the tenant

had denied the relationship of landlord and tenant, he failed to disclose

as to who else was the owner of the suit property or to whom was he

paying the rent. On the contrary, the landlady had placed on record a

copy of a sale deed in her favour along with rent receipts to establish

that the tenant had paid rent to her, therefore admitting that the

eviction-petitioner was the landlady. Furthermore, the Trial Court was

of the view that the tenant was estopped under Section 116 of the

Indian Evidence Act from challenging the title of the eviction-

petitioner. The tenant's objection on this ground was found to be

baseless, hence rejected. The Trial Court was of the view that no

permission was required from the competent authority regarding slum

areas since the landlady was not under any obligation to do so.

Reliance was placed upon the judgment of this Court cited as 17

(1980) Delhi Law Times 344; it holds that Slum Areas (Improvement

and Clearance) Act, 1956 do not apply to an eviction petition under

Section 14(1) Proviso (e) and 25-B of the Act. Accordingly, this

objection was too rejected. Upon examination of the medical

documents apropos the disability of the landlady's son Mr. Hariom

Mittal including the disability certificate issued by a prominent

government hospital i.e. Ram Manohar Lohia Hospital, New Delhi,

certifying the son's permanent disability upto 70% in relation to his

whole body, along with FIR No. 701 regarding the accident on

16.8.2005, the Trial Court found that the disability/handicap of the son

stood established: The tenant, on the other hand, had not filed any

document to substantiate his dispute regarding the said son's

disability, therefore this issue too was not found triable. The Trial

Court was further of the view that simply because a son is earning a

livelihood through some means, it could not be deemed to be a lack of

his dependency upon his parent within the definition of word

"dependent" under the Act. What is to be seen is whether the son had

sufficient accommodation of his own to defeat the eviction motion

based upon his dependency. The objection of the tenant that the site

plan of the tenanted premises was incorrect was rejected since the

tenant himself did not file anything to the contrary. It has been held

that when the tenant does not file any site plan, the site plan filed by

the landlord is assumed to be correct.1 Accordingly, the site plan filed

R.K. Bhatnagar v. Sushila Bhargava 1986, RLR 232 & Jagmohan Singh v. K.M.

by the petitioner was assumed to be correct and that there was no other

shop in premises No. 5357 which was lying vacant. The Trial Court

then dealt with each of the properties mentioned in the application for

leave to defend and concluded that either they were not owned by the

eviction-petitioner or were residential in nature or were otherwise

leased out. Therefore, neither of them could be said to be suitable

alternate accommodation. Accordingly, none of the issues raised were

considered triable.

2. In the arguments before this Court as well as the written

synopses of arguments filed, the tenant has reiterated the same

arguments as were made in his application for leave to defend. On the

basis of record the Trial Court found that property No. 5234, Bharat

Nagar, Paharganj was owed by the landladys' son Shiv Kumar Mittal,

whereas property No. 5235 did not belong to either her or any of the

family members. Therefore neither of the property was available to

the petitioner. The shop at Chuna Mandi, Paharganj was owned by

her other son Sh. Radha Raman Mittal. The shop at Rama Krishan

Mission, Paharganj was under tenancy of her husband hence it too was

Bhatnagar, 1995 RLR 527.

not available to her for occupation and use. The property at 219,

DSIDC Okhla Industrial Area, Phase-I was being used by her other

son D.K. Mittal, who engaged was in water-supply business, under the

name of M/s. Mittal Water Supplies; this property too did not belong

to the landlady/eviction-petitioner. The shop at Panchkuian Road

Furniture Market too was under tenancy hence not vacant for her use.

The Sainik Vihar, Pitam Pura property was residential in nature. The

tenant had not filed any document to show that this property was being

used for commercial purposes, whereas the conveyance deed dated

9.12.1999 in the landlady's favour showed that there was no

shop/commercial space in the said property. This was not challenged

by any contrary site plan/document by the tenant. In respect to

property No.5356, Laddu Ghati, Paharganj, New Delhi adjacent to the

shop in question, it was contended by the tenant that the shop was

lying vacant and in possession of the landlady. The Trial Court

observed as under:

"12. The respondent further contended that petitioner got vacated one shop from Sh. Leela Dhar Gupta on 24.01.2009 bearing no.5356, Laddu Ghati, Paharganj, New Delhi just adjacent to shop of respondent, in possession of the petitioner, lying vacant.

I have seen the translated copy of sale deed filed on record. It shows that Sh. Leeladhar was tenant inducted by the erstwhile owner in respect to rooms behind and front at the rate of 19.75 per month and 25 paisa for water. This belies the contention of respondent that Sh. Leeladhar vacated the shop while it is a fact that he was inducted as tenant in respect of two rooms and not with respect to shop. The respondent has placed on record the original copy of challan and copy of money order to show that Sh.Leeladhar was in possession of one room and one shop in premises no.5355, 5356. I have seen both the documents. The narrator of both the documents was Sh.Leeladhar. The respondent has not filed any document filed by petitioner before the Court in those proceedings against Sh. Leeladhar to show that petitioner herself admitted Sh.Leeladhar was tenant in respect of one shop and one room. Besides, the photographs filed by clearly shows that there is no shutter in the shop situated in premises no.5356. Hence, it may be possible that Sh. Leeladhar was initially inducted as tenant for residential purposes in two rooms and lateron, he used one room out of said two rooms for commercial purposes but the said room was not constructed shop and therefore, cannot said to be suitable to the petitioner. Moreover, the respondent has not filed on record any document to show that Sh. Leeladhar got vacated the said premises on 24.01.2009."

3. It is settled law that the tenant cannot dictate as to how and

which property the landlady should use for which purpose so as to

adjust and meet the requirement of her bona fide need, without calling

out the tenant to vacate the tenanted premises.2 It is not for the tenant

Kishan Lal v R.N. Bakshi, 169 (2010) Delhi Law times 769

or the Court to expect a landlady to make adjustments in the

accommodation available to her to meet her bona fide need or

requirement. The respondent-landlady has argued that the son who

suffers from permanent severe disability is unemployed and has not

found any accommodation to start his own business so as to earn his

livelihood therefore he is dependent upon her mother-the landlady for

the provision of a suitable commercial accommodation. That the