Delhi High Court
Karori Mal vs Smt. Santosh Kumari on 16 July, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RC Rev. No. 455/2013
% 16th July , 2014
KARORI MAL ......Petitioner
Through: Mr. Anil Sharma, Adv.
VERSUS
SMT. SANTOSH KUMARI ...... Respondent
Through: Mr. Manmohan Swaroop and Ms.
Sanyogita Swaroop, Advs.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This petition under Section 25(B) (8) of the Delhi Rent Control Act,
1958 is filed against the impugned judgment of the Additional Rent
Controller dated 23.10.2013 by which the Additional Rent Controller has
dismissed the leave to defend application filed by the present petitioner and
decreed the eviction petition with respect to one shop measuring 8'x10' in
the property bearing no.1/7220, Shivaji Park Chowk, Shahdara, Delhi.
2. In a petition for bonafide necessity it has to be seen that the petitioner
before the Additional Rent Controller is the owner/landlord of the suit
RC.Rev. 455/2013 Page 1 of 6
premises. It is settled law that even a co-owner can file a petition for
bonafide necessity in view of the catena of judgments of the Supreme Court.
The second requirement is that the petitioner requires the premises
bonafidely for her use or for use of family member. Petitioner is a
landlady/respondent herein and she stated that she is a widow receiving
minor pension and she wants to open a tea shop in the tenanted shop in
question.
3. The court below has held that the respondent herein is the landlord of
the premises and therefore, an eviction petition will lie. Of course, this
reasoning is not correct because the petitioner in the court below i.e landlord
also has to be the owner in a bonafide necessity petition, however, a reading
of the admitted facts show that the respondent has been admitted to be co-
owner as also the landlord of the suit premises. In this regard, I would like
to refer to paras-4 and 6 of the affidavit filed in support of the leave to
defend application and which read as under:-
"4. That the Petitioner is not the co-owner/landlady of the suit
property. She requested to pay the rent being the old lady and she
claimed co-owner of the property, the Respondent paid the rent @
Rs.200/- per month but later on she asked to enhance the rent from
Rs.200/- to Rs.2000/- per month. The Respondent refused and
agreed to increase the rent of 10% than she has filed this petition.
The Respondent deposited the rent in the court under protest.
RC.Rev. 455/2013 Page 2 of 6
6. That the Respondent came to know that the sister of the Petitioner
Late Smt. Sudesh Rani Sood filed a suit for partition and
permanent injunction against her brothers and the Petitioner in this
case. The Ld. A.D.J. Ms Shailender Kaur passed in order on
17.08.2005 and parties were directed to maintain status quo of the
property in suit. The above named Sh. Harbinder Kumar Sood and
Sh. Jitender Kumar Sood have filed their written statement and
will claiming themselves as absolute owners/landlords of the
property and case is pending in the court of Sh. Pitamber Dutt,
ADJ, Tis Hazari Court, Delhi and fixed for evidence on
18.03.2013. The matter is subjudice regarding ownership of the
suit property. The certified copy of the order and copy of the
written statement and will filed by Sh. Harbinder Kumar Sood and
Sh. Jitender Kumar Sood are attached herewith and hence petition
is not maintainable. The evidence by way of affidavit filed by Sh.
Jitender Kumar Sood is also attached."(underlining added)
4(i). In law, once a person is paid rent, such a person becomes a
landlord in view of the definition of landlord contained in Section 2(e) of the
Delhi Rent Control Act, 1958. Section 2(e) specifically states that landlord
means a person who for the time being is receiving the rent.
(ii) So far as the aspect of ownership is concerned, it is clear and
not disputed that the respondent-landlady is a co-owner of the suit premises
in view of para 6 of the affidavit filed in support of leave to defend
application and that there is no objection by any other co-owner.
(iii) It is also required to be noted that a tenant cannot dispute the
title/ownership of the landlord in view of Section 116 of the Indian Evidence
Act, 1872 and since the respondent is admitted to be the landlady to whom
RC.Rev. 455/2013 Page 3 of 6
rent is paid the ownership of respondent cannot be denied. In fact the
petitioner/tenant has admitted the respondent to be the landlady in the
petition under Section 27 of the Delhi Rent Control Act where rent was
deposited by the present petitioner.
5. Learned counsel for the petitioner wanted to argue that the respondent
is a co-owner, and that already suits for partition are pending, however, all
that would make no difference once the respondent-landlady is a co-owner
of the premises, and so specifically admitted in para-6 of the affidavit of
leave to defend application which is reproduced above. Also, learned
counsel for the petitioner sought to urge before this Court that the
petitioner/tenant was paying rent to the respondent/landlady in the name of
the father of the respondent/landlady, but when asked to point out any such
averment made in the leave to defend application that the
respondent/landlady is being paid rent not for her own sake but on account
of the father being the landlord, no such averment could be pointed out.
6. I may note that the courts while dealing with the applications for leave
to defend are necessarily confined only to averments made in the application
for leave to defend alongwith supporting affidavit. Supreme Court in the
judgment in the case of Prithipal Singh Vs. Satpal Singh (dead) through
RC.Rev. 455/2013 Page 4 of 6
LRs (2010) 2 SCC 15 has held that the statutory period for filing the leave to
defend application is sacrosanct and delay of even one day cannot be
condoned. Therefore, if all that has to be stated for taking leave to defend
has to be stated in 15 days, neither the Additional Rent Controller nor this
Court can consider pleas which are not found in the leave to defend
application because it will amount to allowing of leave to defend application
/additional affidavit like a leave to defend affidavit beyond 15 days. Also, if
one ground which is not found in the leave to defend application is allowed
to be urged, then why not various other grounds which can be at different
points of time sought to be urged by filing of additional affidavits, but this
cannot be so once the statutory period of 15 days has been held to be
sacrosanct in Prithipal Singh's case (supra) .
7. So far as the issue of bonafide necessity is concerned nothing could be
argued before me by the petitioner because respondent/landlady who is a
widow wants to open a tea shop in the suit premises and which is clearly a
bonafide necessity.
8. Learned counsel for the petitioner finally sought to argue that the
eviction petition was originally filed as a conjoint petition for subletting as
also bonafide necessity, but since the subletting part was subsequently
RC.Rev. 455/2013 Page 5 of 6
withdrawn, the petition for bonafide necessity cannot lie. The argument
urged on behalf of the petitioner in fact inverses the logic because no doubt a
conjoint petition cannot be filed for subletting and bonafide necessity, but, if
the petition is treated only for bonafide necessity by not pressing the
subletting aspect, there is no law that such a petition should be dismissed
although it is only pressed so far as the aspects of bonafide necessity under
Section 14(1)(e) of the DRC Act is concerned. It would have been
otherwise only if the petition was pressed both for the grounds of subletting
and bonafide necessity, but that is not so.
9. In view of the above, there is no merit in the petition and the same is
therefore dismissed with costs of Rs.15,000/- to the respondent/landlady.
Costs shall be paid within a period of four weeks from today. I may note that
the Supreme Court in the judgment in the case of Ramrameshwari Devi &
Ors. Vs Nirmala Devi & Ors. (2011) 8 SCC 249 has held that it is high time
that in certain litigations, costs be imposed. I am empowered to impose
costs in terms of Volume V of the Punjab High Court Rules and Orders
(as applicable to Delhi) Chapter VI Part I Rule 15.
JULY 16, 2014/ib VALMIKI J. MEHTA, J.
