Delhi High Court
Mirajuddin & Ors vs Kabir Ul Haque (Since Deceased) ... on 27 April, 2018
$~6
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on:- 27th April, 2018
+ R.C. REV. 5/2011 and CM No. 17571/2013
MIRAJUDDIN & ORS ..... Appellants
Through: Mr. Saif Islam Israily and Mr.
M. Mohsin Israily, Advs.
versus
KABIR UL HAQUE (SINCE DECEASED) THR.LRs.
..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL
1. The eviction petition in which the impugned order dated
21.09.2010 was passed by the Additional Rent Controller was
instituted on 30.09.2005 by Kabir-Ul-Haque, an ordinary resident of
Kanpur in Uttar Pradesh. He had presented the said eviction petition
(E-210/2009) against the petitioners in respect of premises described
as first floor of property bearing municipal no. 6394, Gali Ishwari
Prasad, Bara Hindu Rao on the ground of bona fide need of the same
for residence of self and members of the family under Section 14 (1)
(e) of Delhi Rent Control Act, 1958 claiming to be the owner-cum-
landlord qua the petitioners in respect of the said premises.
RC Rev. 5/2011 Page 1 of 4
2. Having regard to the nature of the case, the special procedure in
Section 25 B, Delhi Rent Control Act, 1958 was invoked and in
response to the summons served on the petitioners they moved an
application seeking leave to contest. The consideration of the said
application took five years before the Additional Rent Controller, it
eventually leading to the order dated 21.09.2010 whereby the
contentions in the application of the petitioners were repelled and in
the result the eviction order was granted.
3. The above-said eviction order was challenged by the petition at
hand instituted on 10.01.2011. Notice was issued to the respondent.
Pertinent to note here that on 25.04.2011 it was reported that the
respondent had refused to receive the paper book tendered to him. Be
that as it may, he appeared through counsel on 26.07.2011.
Thereafter, the matter remained pending for quite some time, the
respondent taking no interest in expeditious hearing. He died on
31.03.2016, this leading to application (CM No. 18358/2014) being
submitted for substitution by his legal heirs under Order XXII Rule 4
of the Code of Civil Procedure, 1908. The said application was
allowed by order dated 29.09.2016. Pertinent to note here that as per
the application under Order XXII Rule 4 CPC, the respondent is
survived by his wife Nargis Jamal, his son Sameer and his daughter
Mrs. Mariyam Fatima.
4. It may be noted here that the respondent in the eviction petition
had described himself to be a resident of 95/94, Munna Lal Street,
Parad, Kanpur in the State of Uttar Pradesh. The description of the
legal heirs i.e. the widow, son and daughter of the respondent indicates
RC Rev. 5/2011 Page 2 of 4
that they are residents of 14/4 Civil Lines, Kanpur, U.P. Inspite of
being served, the legal heirs have chosen not to appear or to contest
the revision petition by making any submissions on any of the
effective dates on which the matter came up before the Court.
5. It is against the above backdrop that it needs to be noted that the
respondent had prayed for eviction on the ground of bona fide need
stating that he required the subject premises "for his residence as well
as for residence of his family members dependent upon him for
residence", describing his family to include himself, his wife and his
daughter Mrs. Mariyam Fatima. Noticeably, he did not mention the
members of the family dependent for residence to include the son.
Further, in the eviction petition it was stated that the respondent was
residing on rent in Kanpur in the above-mentioned property 95/94,
Munna Lal Street, Parad, Kanpur, U.P. There was no reference to the
property of Civil Lines to which reference later came to be made. He
indicated his desire to "shift to Delhi" and settle in his own house here,
adding that the premises in Kanpur where the respondent „was
working‟ had been demolished by the authorities of Kanpur.
6. Though in the application for leave to contest, the petitioner had
questioned the maintainability of the petition for eviction, denying the
relationship of landlord and tenant between the parties, such plea
having been rejected by the additional rent controller with reference to
a decision of civil court in suit no. 523 decided on 09.03.2005, the
impugned order denying leave to contest rejecting the other
contentions cannot be upheld for the reason that in the eviction
petition there is no clarity as to why a person settled in Kanpur, U.P.
RC Rev. 5/2011 Page 3 of 4
had the desire or reason to shift to Delhi. The eviction petition
vaguely referred to premises where the respondent was working at that
time having been demolished by authorities of Kanpur. It would not
specify as to what was the connection of the respondent with the
premises which had been demolished and as to how such demolition
had brought about a situation where he would be compelled to shift his
house from city of Kanpur in U.P. to Delhi with his family. The
petition would also not give the particulars of the family or the nature
of the avocation in which the members thereof were then engaged.
The plea of the respondent that he desired to shift to Delhi, in these
circumstances, could not have been accepted on its face value. It
required to be tested and, for this reason, the petitioners should have
been granted the leave to contest.
7. For the foregoing reasons, the petition is allowed. The
impugned order is set aside. The proceedings in the eviction case of
the respondent before the additional rent controller stand revived. The
said matter shall be taken up by additional rent controller for further
proceedings in accordance with law on 29th May, 2018. The parties are
directed to appear before the additional rent controller on the said date.
Needless to add, the petitioners will be obliged to submit their written
statement on the date fixed above.
8. The petition and the pending application stand disposed of in
above terms.
R.K.GAUBA, J.
APRIL 27, 2018/nk
