National Association Of States ... vs Dr (Mrs) Rajinder Kaur & Ors
2016 Latest Caselaw 3854 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                    Date of Judgment : 23.05.2016

+   RC.REV. 290/2016, Cav No.450/2016 & C.M.Nos.19733-35/2016
    NATIONAL ASSOCIATION OF STATES AGRO INDUSTRIES
                                                         ..... Petitioner
                    Through    Mr.M.L. Sharma, Adv.
                    versus
    DR (MRS) RAJINDER KAUR & ORS
                                                    ..... Respondents

                    Through    Mr. Gurinder Pal Singh, Adv.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (oral)

1 Order impugned before this Court is the order dated 27.11.2015. The

eviction petition filed by the landlady (Dr. Rajinder Kaur) under Section 14

(1) (e) of the Delhi Rent Control Act (DRCA) stood decreed in her favour.

The application filed by the tenant (National Association of States Agro

Industries) seeking leave to defend had been dismissed.

2 Record shows that the present eviction petition has been filed by the

landlady on the ground of bonafide requirement. She claimed herself to be

the co-owner of the suit property. Suit property is at first floor, 2 Tansen

Marg, New Delhi. Contention in the eviction petition was that this property

comprised of ground, first and second floor. The first floor had been tenanted

out to the tenanted described in the site plan as Annexure II. The rent was

Rs.1,500/- per month; a lease agreement was entered into between the father

of the petitioner (late S. Sajjan Singh) and the tenant on 09.03.1976. The

tenancy was w.e.f. 10.03.1976. The petitioner is the daughter of S. Sajjan

Singh. She has become the exclusive owner of the suit property by virtue of

a family settlement which settlement is dated 27.09.2013. This family

settlement had been placed a record before the Trial Court. Averments in this

family settlement have been perused. Prior to this family settlement, a suit

for partition had been filed inter-se the siblings of the petitioner. This was

after the death of her father S. Sajjan Singh. This partition suit stood

compromised on 13.08.2013 and by virtue of this compromise decree, the

petitioner had become co-owner of the suit property. This factum is not

disputed. Thereafter, after this decree of 13.08.2013 (passed on an

application under Order XXIII Rule 3 of the CPC), a family settlement had

been arrived at on 27.09.2013 which was also inter-se all the siblings and

children of deceased S. Sajjan Singh. The first floor of the petitioner, in

terms of this family settlement, fell to the share of the petitioner exclusively.

This family settlement has been signed by all the members of the family.

None of them have disputed this document.

3 The bonafide need of the landlady was contained in para 18 of the

eviction petition. This was the need of the landlady (stated to be 72 years old

widow) who was a qualified medical doctor but because of her illness, (both

physical and mental) which included loss of bladder movement, dysphagia,

guillain barre syndrome, diabetes mellitus with an organic brain syndrome

along with a major depressive disorder had made her bed ridden for which

she required constant medical supervision as also a round the clock medical

assistance. She also required physiotherapy. Her younger daughter Harjyot

Kaur was living in a tenanted property at Chitranjan Park. Copy of the

registered lease deed entered between Harjyot Kaur and her landlord had

been placed on record.

4 In this eviction petition, it has been disclosed that the husband of the

landlord had died in the year in 1991. She has two daughters of whom the

elder daughter was married and is living in United Kingdom. Her younger

daughter was living in a rented accommodation and she constantly looking

after the needs of her mother (petitioner) who was staying with her daughter

in this rented accommodation. Harjyot Kaur has also a sister-in-law who also

visited her frequently; the requirement of the landlady is thus for a guest

room as well in order to accommodate her guests. She also needed a

Gurudwara being involved in religious activities as she could not go to the

Gurudwara because of her ill-health. The petitioner did not have any source

of income. She was unable to hire a full time medical attendant to look after

her due to lack of sufficient space. She needed at least two full time

attendants. She accordingly required the aforenoted accommodation

bonafide to accommodate herself and her daughter. The petitioner-landlady

was earlier living in United Kingdom but because of her ill-health, she was

now continuously living in Delhi along with her daughter. The need has been

described as the need of the landlady as also of her daughter and two grand

children as also the guests who would be visiting her. There was no other

alternate accommodation available with the petitioner. This has also been

specifically stated in the eviction petition. Eviction petition was accordingly

filed.

5 An application seeking leave to defend has been filed by the tenant. In

this application, it had been stated that there was no relationship of landlord-

tenant between the parties. Orally it has been submitted by the learned

counsel for the petitioner that he had recognised only S. Sajjan Singh as his

landlord and not the present petitioner. His submission is that although a

letter dated 07.10.2013 (letter of attornment sent by the present landlady to

the tenant) had been sent but the same had not received by him. He had also

disputed the family settlement as also the compromise in the partition suit.

The application seeking leave to defend is in fact an application running into

4- ½ pages but the only triable issue which can be deciphered from this

application (along with the accompanying affidavit) is that the relationship

of landlord-tenant is not recognised by the tenant. On this count, learned

counsel for the petitioner also fairly concedes that in this application seeking

leave to defend, there is probably no other triable issue which has been

raised by him. His additional submission however is that he had also sought

permission of the learned ARC to place on record an additional affidavit but

that was declined without any reason on 18.11.2015. To support his

submission that such an additional affidavit should have been taken on

record, he has placed reliance upon AIR 1982 Delhi 205 S.K. Arora Vs. S.L.

Sarna as also nother judgment of this Court reported in AIR 1979 Delhi 245

Jijar Singh Vs. Smt. Mohinder Kaur.

6 Per contra, learned counsel for the landlady has disputed this

proposition. Submission is that the additional affidavit was rightly declined

on 18.11.2015. It is submitted that if the additional affidavit was taken on

record and new grounds were permitted to be raised by way of an additional

affidavit, the whole purpose of summary procedure would be defeated and to

support this proposition he has placed reliance upon MANU/DE/6806/2011

Syed Mohammed Main Nizami (deceased) represented by Syed Maanzoor

Nizami and Others Vs. Qasima Khatoon and Others

7 Arguments have been heard. Record has been perused.

8 The eviction petition as noted supra has been filed by the landlady to

accommodate herself and her daughter who is presently living in a rented

accommodation. The first floor of the suit property is required not only by

the landlady, her daughter but also by her two grand children apart from a

guest room she also required a Gurudwara room. The submission of the

landlady that she has no other reasonably suitable accommodate has in fact

not been disputed.

9 The only averment made in the application seeking leave to defend is

that there is no relationship of landlord-tenant between the parties.

10 This Court has time and again reiterated that for a petition to succeed

under Section 14 (1)(e), it is not ownership in the strict sense which has to be

established.

11 In this context the observations of a Bench of this Court in 1995 RLR

162 Jiwan Lal Vs. Gurdial Kaur & Ors. are relevant:-

"There is a tendency on the part of tenants to deny ownership in cases under Section 14(1)(e). To test the substance of such a plea on the part of the tenants the Courts have insisted that they should state who else is the owner of the premises if not the petitioner. In the present case it is not said as to who else is the owner. Further these cases under Section 14(1)(e) are not title cases involving disputes of title to the property. Ownership is not to be proved in absolute terms. The respondent does not claim the owner of the premises."

12 The relationship of the landlord-tenant in his view of this Court stands

admitted. The fact that the tenant has admitted that there was a earlier lease

deed dated 09.03.1976 entered into between S. Sajjan Singh (HUF) and the

petitioner-tenant; admittedly, S. Sajjan Singh has died during the pendency

of these proceedings and admittedly the petitioner is the daughter of S.

Sajjan Singh. The partition suit in terms of which a compromise decree had

been arrived at inter-se the children of S. Sajjan Singh dated 13.08.2013 is

also a document which has not been challenged. It is an admitted document.

This document was also not challenged in the application seeking leave to

defend. The submission of the petitioner that a family settlement which is not

registered cannot be read in evidence is an argument bereft of force as even

this document has not been disputed by the tenant; it is thus deemed to be

admitted. That apart the decree was passed in the partition suit on 13.08.2013

and which is a Court order wherein part ownership had vested with the

landlady and even presuming that the family settlement has to be ignored,

the decree passed in the partition suit has since become final.

13 It is also well settled that a co-owner without impleading other co-

owners, can also file an eviction petition. In AIR 2004 SC 1321 M/s India

Umbrella Manufacturing Co. & Ors. vs. Bhagabandei Agarwalla (dead) by

L.Rs. & Ors. it has been held that one of the co-owners can file a suit for

eviction of a tenant in the property owned by co-owners; this principle is

based on the doctrine of agency; one co-owner filing a suit for eviction

against the tenant does so on his own behalf in his own right and also on

behalf of the other co-owner.

14 The Trial Court had also noted that the additional affidavit which had

been filed much after the application seeking leave to defend was beyond the

stipulated period of 15 days. This additional affidavit was rightly declined on

18.11.2015 which order has now become final. What is challenged before

this Court is the eviction decree passed on 27.11.2015. The judgment dated

27.11.2015 on no count suffers from any infirmity as the procedure

prescribed under Section 25-B of the DRCA is a strict mandate which castes

a duty upon the ARC and he has to strictly follow the procedure contained

therein. This procedure presupposes that an application seeking leave to

defendant along with accompanying affidavit has to be filed within 15 days

from the date of service. Fresh grounds which were sought to be raised by

way of additional affidavit and which was declined by the order dated

18.11.2015, if permitted, would have ignored the procedure as mandated in

Section 25-B of the DRCA which, at the cost of repetition, is a pronoun laid

down not only by the Legislature but reiterated by the pronouncements of

various courts including the Apex Court.

15 The judgment of S.K. Arora (supra) does not benefit the petitioner as

the Apex Court has been strict on this procedure. The following observations

of the Apex Court in this context in the judgment of MANU/SC/1920/2009

Prithipal Singh Vs. Stapal Singh (D) Th. Lrs. which had while dealing with

the procedure under Section 25-B of the DRCA and contention of the

petitioner in that case which was that the affidavit filed by him was after a

delay of eight days i.e. beyond the period of 15 days, the Court had made the

following observations which are relevant in the context of the instant

matter.

" Next comes the very important provision in Section 25B of the Rent

Act, i.e., sub-section (4) of the same. It clearly provides that a tenant on

whom the summons is duly served in the form specified in the Third Schedule

shall not contest the prayer for eviction fromt eh premises unless he files an

affidavit stating the grounds on which he seeks to contest the application for

eviction and obtains leave from the Controller, as hereinafter provided, and

in default of his appearance in pursuance of the summons or his obtaing

such leave, the statement made by the landlord in the application for eviction

shall be deemed to be admitted by the tenant and the applicant shall be

entitled to an order for eviction on the ground aforesaid.

From a careful perusal of sub-section (4) of Section 25B of the Rent

Act, it would be clearly evident that the tenant shall not be permitted to

contest the prayer for eviction unless he files an affidavit before the

Controller stating the ground on which he seeks to contest the application

for eviction and obtains leave from the controller. Thbis Section also clearly

indicates that in default of his appearance in compliance with the summons

or his obtaining such leave, the statement made by the landlord in the

eviction proceedings shall be deemed to be admitted by the tenant and the

landlord shall be entitled to an order for eviction on the ground mentioned in

the eviction petition.

At this stage, we may also note that in sub-section (4) of Section 25B

of the Rent Act read with Third Schedule, it has been made clear by the

Legislature that if the summons of the proceedings is received by the tenant

he has to appear and ask for leave to contest the eviction proceedings within

15 days from the date of service of notice upon the tenant and if he fails to do

so, automatically, an order of eviction in favour of the landlord on the

ground of bon fide requirement shall be made.

In view of our discussions made hereinabove that Section 25B has

been inserted by the Legislature fro eviction of a tenant of a certain classes

of landlords, in which the entire procedure has been given, it is difficult for

us to hold that Rule 23 of the Rules can be applied in the present case in

view of the specific provisions provided in Section 25B of the Rent Act.

Accordingly, we are of the view that Rule 23 has no manner of application.

That being the position, if Rule 23 cannot be applied in the present

case because of applicability of Section 25B, which is a special code and

specific procedure for eviction of a tenant by a landlord on the ground of

bona fide requirement, we cannot agree with the courts below that in view of

Rule 23 of the Rules, the provisions of the Code can be applied in the present

case and therefore, we are of the view that the High Court had acted

illegally and with material irregularity in the exercise of its jurisdiction in

setting aside the order of eviction and in allowing the affidavit filed by the

tenant for the purpose of defending the proceedings for eviction."

16 The delay of eight days in filing the affidavit had not been condoned

by the Apex Court in that case.

17 The impugned order in this background, does not suffer from any

infirmity. Eviction petition was rightly decreed as no triable issue had arisen

on any count. Petition is without any merit. Dismissed.

INDERMEET KAUR, J

MAY 23, 2016

A