Devki Nandan & Anr. vs Ravi Kant
2014 Latest Caselaw 3367 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RC. REV. No. 423/2011

%                                                           28th July, 2014

DEVKI NANDAN & ANR.                                        ......Petitioner
                 Through:                Mr. Rahul Rohtagi and Mr. Hemant
                                         Kumar, Advocates.


                          VERSUS

RAVI KANT                                                 ...... Respondent

                          Through:       Mr. B.L.Chawla, Advocate


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 (in short 'the Act') is filed challenging the impugned judgment of the

Additional Rent Controller dated 5.5.2011 by which the Additional Rent

Controller has after trial decreed the eviction petition for bona fide necessity

under Section 14(1)(e) of the Act in favour of the respondent herein/landlord

and against the petitioners/tenants with respect to first floor and second floor

of the property bearing no. 387(386-D), Bagh Kare Khan, Delhi. The

tenanted premises comprises of two rooms, kitchen, latrine and bathroom as

shown in red colour in the site plan attached to the petition.

2. Respondent/landlord claimed the tenanted premises for bona fide

residential use of his family which comprised of himself, his wife, one son

Sandeep aged 20 years and two daughters namely Shikha, aged about 23

years and Poonam, aged about 21 years respectively. Respondent stated that

he was living in property no. 388, Gali no. 5, Bagh Kare Khan, Delhi-7

which belonged to his mother Smt. Vidyawanti having been purchased by

her vide sale deed Ex.PW1/7. Not only that this property belonging to the

mother was not available to the respondent and his family as of right, but

also the fact of the matter is that the respondent was having in the property

of his mother only one room besides kitchen and common bath, latrine on

the ground floor shown 'X' and in yellow colour in site plan, and which

accommodation was grossly insufficient for needs of the respondent and his

family. The other portion of the property of the mother was occupied by the

mother herself (marked as 'X-1'), three other sons and three daughters.

Portion marked as 'X-2' in the site plan was with one son Pawan and his

family members whereas the portion marked 'X-3' and 'X-4' situated on the

first floor was in the possession of Sh. Anil Kumar (another son) and his

family members. Portions 'X-5' and 'X-6' were with another brother of the

respondent namely Lalit and which portions were on the second floor. The

married sisters of the respondent also visited and stayed with the mother of

the respondent in the property. The respondent therefore had been in need

of the tenanted premises not only because the premises in which he was

staying he had no right but also the accommodation was grossly insufficient

for the respondent and his family because each of the child of the respondent

needed separate rooms including for their studies.

3. The eviction petition was contested by the petitioners/tenants denying

the relationship of landlord and tenant. It was also contended that the

property no. 388 (belonging to the mother), belonged to the respondent and

was an alternative suitable accommodation. It was also claimed by the

petitioner that there is difference and confusion in the numbering of the

tenanted premises as to whether the same is numbered 386-D or is numbered

387, and therefore, eviction petition could not be filed. Another ground of

defence was that without obtaining permission under Section 19 of the Slum

Areas(Improvement and Clearance) Act, 1956, eviction petition could not be

filed because the tenanted premises were situated in slum area.

4. A reading of the impugned judgment shows that the Additional Rent

Controller has rightly arrived at the finding of relationship of landlord and

tenant because the petitioners admitted that the suit premises were let out by

the respondent herein. Even in the earlier petition the witness of the

petitioners RW-1 on cross-examination admitted that petitioner was paid the

rent. In any case, in law once the respondent was admitted to be a landlord

of the suit property, and petitioners were tenants, as per Section 116 of the

Evidence Act, 1872 petitioners were estopped from challenging the

ownership of the respondent. This aspect has been rightly dealt with by the

court below in para 8(A) of the impugned judgment and which reads as

under:-

"8(A). The first ground taken is that the petitioner is not the owner of the suit premises and property no. 386-D, Bagh Kare Khan, Delhi-110006 belongs to M/s. Hansraj and the property bearing no. 387 belongs to Slums and J.J. Department and are two different properties and, thus, petitioner has no locus-standi to file the present petition, However, in the W.S., in replay of para 3-A and B, respondent has not denied the relationship of landlord and tenant and even has admitted that the suit premises was let out by the petitioner and even in the earlier petition, RW-1 has admitted in his cross examination that nobody else except the petitioner has claimed the rent of the tenanted premises and though the documents are placed on behalf of the respondent on record pertaining to information obtained under Right to information Act, but none of the documents have been proved as per Law and being the tenant, respondents have no right to challenge the ownership of the petitioner in view of the provision under Sec. 116 of the Evidence Act and on the other hand, petitioner has shown himself more than tenant and, thus, it can be safely held that for the purpose of present petition, petitioner has been able to prove his ownership qua the present respondents and respondents

have failed to prove that property no. 386-D and 387 are different properties or anybody else is the owner of suit property."

5. On the aspect of the property no. 388 belonging to the mother being

an alternative premises is concerned, the Additional Rent Controller notes

that the property is not owned by the respondent but is owned by his mother

and which is proved from the sale deed in favour of the mother Ex.PW1/7

and thus it could not be said that the property no. 388 was owned by the

respondent. Even if the property no. 388 was available to

respondent/landlord, such property had inadequate accommodation to house

the respondent and his family members in view of the large number of

children of the mother of the respondent who lived alongwith their families

in different portions of the property no.388. These aspects have been dealt

with by the Additional Rent Controller in Para 8(C) and 8(D) of the

impugned judgment and which read as under:-

"8 (C). So far as the property no. 388, Bagh Kare Khan, Delhi is concerned, the site plan Ex. pW-1/8 of the said property makes it clear that the said property is consisting of three rooms along with Kitchen, Bathroom and latrine at ground floor, two rooms and one big hall at the first floor and two halls at the second floor and though the said property is alleged to be owned by the petitioner but there is nothing on record to prove that the petitioner is the owner of the said property and on the other hand, petitioner has provide vide Sale Deed Ex. PW-1/7 that the said property is owned by the mother

of the petitioner Ms. Vidyawati Devi and in the cross examination, respondent himself has admitted that the petitioners are four brothers and they are married and are having grown up children and even no counter site plan has been filed on behalf of the respondent of the property no. 388 and otherwise also, it is settled Law that every person has right to reside in his own property and in this regard reliance may be placed upon the judgment reported in 172 (2010) DLT 2004 and, thus, from the above discussion it is clear that it can be safely held that premises no. 388, Gali no. 5, Bagh Kare Khan, Delhi can not be considered to be the alternative suitable accommodation available with the petitioner. 8(D). So far as number of the family members are concerned, petitioner has proved vide his Ration Card Ex. PW-1/9 that his family consists of himself, his wife and three grown up children and there is no specific denial of the number of the family members, but there is bald denial that there is no bonafide requirement as the petitioner is having sufficient alternative accommodation and from the number of family members it is clear that they at least require four bed rooms, one for the petitioner and his wife and one bedroom each for three grown up children and even if for the sake of arguments it is assumed that there is no strained relations between wife of petitioner and his mother but from the bare perusal of the suit plan as well as testimony led on behalf of the parties, it is clear that only six rooms are available in the said property and atleast from the admission of RW-1, it is clear that petitioners are four brothers and there is nothing on record to show that two brothers and mother are not residing in the said property as alleged by respondents, thus, it can not be said that the petitioner is having possession of sufficient accommodation in the said property and, thus, it can be safely held that the requirement of the petitioner is bonafide as he is having no alternative suitable accommodation available with him." (underlining added)

6. So far as the argument that there is discrepancy as to the property

number, the Additional Rent Controller has rightly rejected this argument by

observing that once the tenanted portion is shown in the site plan Ex.PW1/6

and RW-1 in cross-examination has himself admitted that the tenanted

portion was one shown in red colour in the site plan, identity of the tenanted

premises stood established, and hence the contention of the petitioners with

respect to confusion in the property number was misconceived for the same

to be used as a basis to dismiss the petition. Para-8 (E) of the impugned

judgment which discusses this aspect reads as under:-

"8(E). One ground taken is that the actual number of property is 386-D, bagh Kare Khan, Delhi and not House No. 387, Bagh Kare Khan, Delhi but in the cross examination RW-1 himself has admitted that he is in occupation of portion shown in red colour in the site plan attached with the petition which is Ex. PW-1/6 and, thus, identity of the suit property has been clearly established and proved by the petitioner and in this regard reliance may be placed upon the judgment reported in 2007(1) RCR 414."

7. So far as the aspect that prior permission was to be taken under

Section 19 of the Slum Areas Act, the Additional Rent Controller rightly

notes that since the petition is for bona fide necessity, no prior permission

was required before filing the petition for bona fide necessity, in view of

catena of judgments of this Court which hold that since there is non-obstante

clause with respect to the procedure for eviction for bona fide necessity

under Section 14(1)(e) read with Section 25(B) of the Act, no prior

permission is required of the Slum Authority under the Slum Areas Act even

if the tenanted premises are situated in a slum area.

8. All the arguments which were raised before this Court were the same

arguments which were raised before the Additional Rent Controller and

Additional Rent Controller with the correct reasoning has rejected those

arguments of the petitioner/tenants. I completely agree with and adopt as

already reproduced above the reasoning and conclusions of the Additional

Rent Controller, and therefore, I do not find any fault in the impugned

judgment decreeing the case for bona fide necessity.

9. In the present case, eviction order was passed over three years back on

5.5.2011. Today we are in the end of July, 2014. Statutorily only six months

are granted for vacating the suit premises ie till 5.11.2011, but, petitioner has

continued to stay in the suit premises well beyond the statutory period of six

months, and therefore, the present petition is dismissed with costs of

Rs.50,000/-. 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 frivolous litigations, exemplary 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. In the facts of the present case, interim order with respect to

payment of interim user charges at the rate of Rs.4000/- per month passed on

1.2.2012 is also confirmed subject to the right of the respondent to claim

further and additional mesne profits in accordance with law.

JULY 28, 2014                                    VALMIKI J. MEHTA, J
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