Ashok Kumar (Deceased) Thr. Lrs. vs Kewal Kumar
2015 Latest Caselaw 8833 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+            RC. Revision No.616/2015 & CM APPL.28340/2015

                                     Decided on: 27th November, 2015

ASHOK KUMAR (DECEASED) THR. LRS.            ...... Petitioner
            Through: Mr. B.L. Mehta, Advocate with
                     Mr. Shagun Mehta, Advocate

                         Versus

KEWAL KUMAR                                         ...... Respondent
                       Through:

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is a revision petition filed by the petitioner against the order

dated 05.05.2015 by virtue of which the leave to defend application

of the petitioner was dismissed and an order of eviction was passed

in case titled Kewal Kumar v. Ashok Kumar (since deceased),

bearing E No.76/2012.

2. I have heard the learned counsel for the petitioner and have also

gone through the record.

3. The respondent-landlord had filed an eviction petition against the

present petitioner-tenant under Section 14 (1) (e) of the Delhi Rent

Control Act, 1958 in respect of a Janta Flat bearing No.208-A,

Ground floor, Paschim Puri, New DDA Market, Landmark Khati

Restaurant, opposite Ordinance Depot, New Delhi-110063.

4. The case which was set up by the respondent-landlord is that he is

living in a tenanted premises in DDA Flat No.15/388, Madangir,

New Delhi-110062.

5. It has been stated that the family of the respondent-landlord

consisting five members including the petitioner, his wife and three

adults sons and the respondent-landlord's heath is not very sound

because of which he is not able to bear the expenses of rentals apart

from the expenses of his family members who are dependent on

him. Therefore, the respondent-landlord desires to shift to his own

flat in order to save the money. The respondent-landlord has also

stated that he has no other suitable alternative accommodation

available to him. So far as the present petitioner-tenant is

concerned, it was stated that he was paying rent of Rs.2,000/- per

month and the premises were being used by him for residential

purposes.

6. On the notice being served, the petitioner-tenant filed his leave to

defend application raising pleas regarding the bona fide

requirement of the respondent-landlord. It was also stated that he is

not the owner of the flat and that the respondent-landlord does not

require the premises for his own use. During the pendency of the

eviction petition the petitioner-tenant Ashok Kumar died and his

legal heirs, namely, widow and the daughter were substituted as

parties. The learned Additional Rent Controller, West District, Tis

Hazari Courts, Delhi passed an order of eviction after rejecting the

leave to defend application by observing that the petitioner-tenant

was not able to make out a triable issue which would disentitle the

respondent-landlord from claiming back the possession of the

premises.

7. I have considered the submissions carefully and have gone through

the impugned order.

8. I am fully satisfied that the petitioner-tenant has not been able to

point out any illegality, impropriety or jurisdictional error in

rejecting the leave to defend application of the present petitioner-

tenant and consequently passing an eviction order against him.

The reason for this is that the points which are raised by the

petitioner-tenant are not such, which if proved would disentitle the

respondent-landlord from claiming back the possession. The

relationship of landlord and tenant is not disputed by the petitioner

although he has disputed the ownership of the respondent-landlord

in respect of the property in question. It has been held by the

learned ARC and rightly so that for claiming the possession, the

respondent-landlord does not have to be the absolute owner of the

suit property. An absolute owner would be one in whose favour

there is registered documents in respect of the property which

could be called Sale Deed, Title Deed or Conveyance Deed, but in

the instant case the flat in question has been allotted admittedly to

the respondent-landlord by the DDA and that is considered to be

good enough by the Rent Controller to establish his ownership qua

the entire world to have a better title to occupy the property.

9. In addition to this, the Rent Controller has rightly observed that

since the petitioner is claiming himself to be the tenant under the

respondent-landlord, he is estopped from challenging the title of

the respondent-landlord in the eviction petition in question in view

of Section 116 of the Evidence Act, 1872. Rightly so, it has been

held in catena of authorities that the petitioner will be permitted to

challenge the ownership of a party only if he has not attorned or

paid rent to the respondent. In this case that situation is absent.

The petitioner/tenant has admitted that he has been paying rent to

the respondent-landlord as a matter of fact he has assailed the rate

of rent. Therefore, admittedly, there is relationship of tenant and

landlord and the petitioner is stopped from retracing his step by

challenging the title of the respondent-landlord.

10. So far as the question of bona fide requirement of the respondent-

landlord is concerned, it has been the endeavour of the learned

counsel for the petitioner to get the case tagged along with other

cases which are stated to be still pending for consideration of this

Court.

11. I do not agree that the decision in the present case be deferred or

the present case be adjourned to a date in future so as to club this

case along with other cases. The respondent-landlord has been

admittedly living in a rented accommodation and because of his

adult sons he wants to shift to his own property, which he has

created with his sweat and blood, then the tenant must be refused

leave to defend. The landlord should be permitted to decide for

himself in case he wants to shift to his own and sole property

unless there are compelling circumstances to show that his desire is

not genuine and it is actuated by ulterior consideration.

12. In the instant case the issue of bona fides is not successfully

assailed by the petitioner/tenant. He does not dispute the number

of family members or the nature of job of the respondent-landlord

and thereby admitting indirectly the bona fide requirement of the

respondent-landlord. I do not feel that anything remains to be done

by the respondent in this regard.

13. Regarding the availability of an alternative accommodation, the

respondent has categorically stated that there is no other

accommodation owned by him or his dependent family members,

and therefore, this point also goes against the present petitioner.

The totality of the circumstances and the examination of the order

clearly show that if a person is living in a tenanted premises and is

not getting huge money from his own premises then his desire to

shift to his own premises ought to be permitted. It is the earnest

desire of a right thinking person to have a shelter over his head

where he could lock his room and keep his personal belongings and

yet does not suffer from any anxiety syndrome or live the way he

wants to.

14. Therefore, I feel that the petitioner-tenant do not have any issue up

their sleeves, which if permitted to be proved by the Court to them

which would disentitle the respondent-landlord from claiming back

possession of the suit premises.

15. I therefore, hold that the present revision petition is totally

misconceived and is accordingly dismissed.

16. Pending application also stands disposed of.

V.K. SHALI, J.

NOVEMBER 27, 2015 vk