Mr. Sharafat Ali vs Mrs. Khateeja Begum
2014 Latest Caselaw 4429 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  RC. REV. No. 301/2014 and C.M. No.15182/2014

%                                                   15th September, 2014

MR. SHARAFAT ALI                                      ......Petitioner
                          Through:       None.


                          VERSUS


MRS. KHATEEJA BEGUM                                        ...... Respondent

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. No one was present for the petitioner on the first call. No one is

present for the petitioner even on the second call. I have therefore gone

through the record and am proceeding to dispose of the petition on merits.

2. By the impugned order dated 4.7.2014, the Additional Rent

Controller has dismissed the leave to defend application filed by the

petitioner/tenant in a bonafide necessity eviction petition filed under Section

14(1)(e) of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the

Act') by the respondent/landlady with respect to the tenanted premises

comprising of one room with attached bathroom in property no.A-35/5,

Block A, First Floor, Joshi Colony, I.P. Extension, Delhi-92.

3. The facts as pleaded by the respondent/landlady were that in her

family besides herself there is her husband and three sons. The three sons on

the date of filing of the eviction petition in the year 2012 were 19 years, 12

years and 9 years old respectively. The respondent/landlady's elder son is

doing his second year of Engineering from IEC College of Engineering &

Technology, Greater Noida and he needs the tenanted premises so that he

can commute to his college easily. The respondent/landlady is presently

residing at 27, Navpura East, Mau Nath Bhanjan, U.P. and the premises are

also required as her husband who is B. Tech and M. Tech from IIT, Kanpur

is presently jobless and carrying on charitable work in the premises owned

by the respondent at U.P. There is a charitable society which is running a

school and the husband of the respondent is a President of the society but the

post is a honorary post which the husband of the respondent is occupying

and he is not getting any salary. The accommodation available in the other

portion of the property where the tenanted premises are situated comprises

of only two bed rooms and which are insufficient for the need of the family

of the respondent, and hence the bonafide necessity eviction petition.

4. Petitioner appeared and contested the leave to defend

application by pleading that the tenanted premises are not required because

the husband of the respondent is in fact carrying on a school at the premises

in U.P. In the leave to defend application, it is also pleaded that there is no

bonafide need with respect to the requirement of the son who is staying in

Greater Noida. Petitioner also denied that the respondent is the

owner/landlady of the suit premises.

5(i) At this stage, it is necessary to refer to para 10 of the impugned

judgment and which shows that the petitioner/tenant did not appear and

argue the leave to defend application in spite of various opportunities and

therefore the leave to defend application was decided by the Additional Rent

Controller as per record in view of the non-appearance of the petitioner.

Paras 10 and 11 of the impugned order read as under:-

"10. On 16.01.2014, matter was adjourned for arguments on the application of leave to defend in presence of respondent for 19.04.14. On 19.04.2014, Sh. M.M. Ansari, Ld. Counsel for respondent had appeared and sought time for arguments, time was granted subject to cost of Rs. 500/- to be deposited in DLSA and the matter was fixed for 03.06.2014 as last opportunity for argument on the application for leave to defend. On 03.06.2014, respondent appeared but his counsel did not appear despite the fact that it was last opportunity and opportunity was given subject to cost. Hence, this Court thought it appropriate to decide the present matter on merits. Respondent was also given liberty to file his written submissions within 3 days from 03.06.14 but no such written submissions were filed.

11. The court has considered the respective affidavits of the parties and the submissions f Sh. Vijay Chawla, Ld. Counsel for petitioner and perused the material on record carefully.

(ii) Clearly therefore petitioner tenant was deliberately and malafidely

delaying the disposal of the leave to defend application.

6. So far as the aspect of relationship of landlord and tenant is

concerned, the Additional Rent Controller has rightly held this issue in

favour of the respondent/landlady by observing that the petitioner did not

deny the title of the respondent/landlady since the year 2009. The

Additional Rent Controller has further observed that making a bald assertion

that the respondent/landlady is not the owner of the property does not raise a

triable issue, and rightly so, inasmuch as it has to be also stated by the

petitioner that if the respondent was not the owner then who else is the

owner. The Additional Rent Controller has referred to the partition deed as

per which the respondent/landlady is the owner of the tenanted premises. I

completely agree with these observations made in para 14 of the impugned

judgment and which para reads as under:-

"14. It is apparent that the respondent did not deny the title of the owner as petitioner since the year 2009. In fact, he admitted in para no. 7 in the affidavit filed by him that the petitioner became the owner of the tenanted premises in which respondent is residing with his family members in the years 2009. The respondent has made a bald assertion that the petitioner is not the owner of the property in

question. Besides, the petitioner is not the owner of the property in question. Besides, the petitioner filed a copy of the property in question. Besides, the petitioner filed a copy of the partition deed dated 27.01.2009 in favour of Mrs. Qamrunnnisa W/o Mr. Shaukat Ali Ansari and Mrs. Khateeja Begum W/o Mr. Shahid Anwar9the petitioner) qua the property in question and property bearing no. A- 35/6. Perusal of the partition deed shows the Mrs. Qamrunnisa W/o Shri Shaukat Ali Ansari and Mrs. Khateeja Begum W/o Mr. Shahid Anwar are the joint owners of property Muncipal Nos. A=35/6 and A- 35/5."

7. So far as the aspect of the requirement of the son is concerned,

it is noted that the premises in possession of the petitioner are required for

the elder son of the respondent who is doing engineering from a college in

Noida and which aspect is not denied in the leave to defend application with

the supporting affidavit. Also, the Additional Rent Controller rightly notes

that two bedrooms are additionally required for the other two sons aged

about 12 years and 9 years, but, the respondent/landlady has only one room

in U.P. where the family is presently staying and which is therefore

insufficient for her needs and needs of her family members. I may also note

that respondent's husband is not running any school and in fact the school is

only a tenant in the U.P. property and therefore it cannot be held that

husband of the landlady is not jobless. These relevant observations are made

in paras 34, 35 and 38 of the impugned judgment and which read as under:-

"34. The family of petitioner comprises of 5 members including petitioner. It is seen that elder son of petitioner is doing engineering from a College a Greater Noida. This fact has not been denied by respondent in his affidavit. Undoubtedly, this son of petitioner would require greater space/independent room for his studies. The other two sons of petitioner of the age of 12 and 9 years who are of growing age also need one bedroom for them apart from the bed room of their parents (petitioner and her husband ) as one bed room is not sufficient for four members of a family. The petitioner is also not unreasonable in wanting a room for their own exclusive use apart from a room for guests.

35. The Court finds the disclosure of the requirement for accommodation by the petitioner to be neither whimsical nor fanciful. The respondent has admitted that two bed rooms, one drawing cum dining room are in possession of the petitioner. This accommodation would be insufficient for the needs of growing children of petitioner on the standards of a reasonable person in law. The facts disclosed in the petition prima-facie constitute the very epitome of the term bona fide requirement. The respondent cannot interpolate his own version of utilization of space into the exercise which remains the sole prerogative of the petitioner.

Xxxxxx

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38. Perusal of the documents filed by petitioner with regard to the School shows that husband of petitioner namely Mr. Shahid Anwar is president of Society. It is also stated in the document that husband of petitioner does not draw any salary from the School, he takes Rs. 96,000/- per annum as rent from School of his building. It clearly shows that husband of petitioner is not running the School. There is no doubt on the submission that respondent has admitted that petitioner is likely to shift as it is mentioned in para no. 4 of affidavit filed with the application for leave to defend that there is chance to

shift the petitioner alongwith her family members in the tenanted premises."

8. In view of the above, it is clear that the accommodation

available for the respondent/landlady as compared to her family members is

clearly insufficient. The existing premises at Delhi which the

respondent/landlord has consists of two bedrooms of which one bedroom is

required for the respondent/landlady and her husband, one bedroom is

required for the elder son who is doing engineering and two other bedrooms

would be required for the two other sons besides the requirement of a

drawing room, dining room etc. Hence the tenanted premises of one room

with attached bathroom with the petitioner/tenant are required for the family

of the respondent. The need of the respondent to shift to Delhi in the facts of

the present case cannot be said to be fanciful.

9. Dismissed.

SEPTEMBER 15, 2014                                VALMIKI J. MEHTA, J.
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