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2006 DIGILAW 1237 (DEL)

SHAKUNTALA DEVI v. DALIP KUMAR

2006-07-27

SANJAY KISHAN KAUL

body2006
SANJAY KISHAN KAUL, J. ( 1 ) THE petitioner filed an eviction petition against the respondents under section 14 (1) (e) of the Delhi Rent Control Act, 1958 (hereinafter referred to as the ?said Act?) on account of bona fide requirement of the petitioner-landlord in respect of the tenanted premises for the residence of herself and her family. ( 2 ) THE petitioner is a senior citizen and the tenanted premises consists of a two room set with a kitchen and a combined bath room and latrine, a common court yard on the ground floor of the property bearing no. 1826-27, Chunna Mandi, paharganj Mandi, New Delhi. The premises were stated to be let out to smt. Bhajan Kaur Predecessor in interest of the respondents for residential purposes. Smt. Kaur passed away on 16. 08. 1996 and thereafter the respondents are stated to have become joint tenants in the tenanted premises by operation of law. ( 3 ) THE petitioner claims right of ownership being a landlady of the property in question in pursuance to a registered sale deed dated 16. 05. 1977. The extent of accommodation available with the petitioner is a drawing room, a dining room, two bed rooms besides kitchen, store etc on the first floor and a two room set on the second floor. The family of the petitioner consists of two sons and three daughters who are all married. The younger son of the petitioner was stated to residing on the first floor of the property and her married daughter smt. Usha Malik was stated to be looking after in her old age. ( 4 ) MRS Usha Malik was stated to be utilizing the second floor and the petitioner is stated to have even executed a registered Will in her favour. The younger son of the petitioner has a wife and two daughters and both the son and daughter in law are stated to be employed in a bank. The accommodation available on the first floor is also stated to be insufficient. The petitioner being 76 years old finds it inconvenient to climb to the first and the second floor. ( 5 ) THE respondents sought leave to defend the eviction petition claiming that the premises had been let out to their father and had been used for residential-cum-commercial purposes. The petitioner being 76 years old finds it inconvenient to climb to the first and the second floor. ( 5 ) THE respondents sought leave to defend the eviction petition claiming that the premises had been let out to their father and had been used for residential-cum-commercial purposes. The premises are stated to consist of one shop, one room, a store, a kitchen and a shed along with common courtyard, a latrine and a bath room. The father of the respondents is stated to have carried on business of jaggery without any objection from the previous owners. The business is stated to have even changed to tailoring in 1980 and now being carried on in the name and style of M/s Groversons Tailors. The eviction petition was also claimed to be only in respect of that part of the tenanted premises and the petitioner was alleged to have sufficient accommodation available with her. The petitioner was stated to be in occupation of one room and store on the ground floor which was being kept locked for the last ten years. The accommodation on the first floor was alleged to consist of three rooms, two stores, a kitchen and a covered verandah and three rooms, store and terrace on the second floor. The petitioner was alleged to be residing with her younger son on the first floor who had been taking care of her and Mrs. Usha Malik, daughter of the petitioner was alleged not to be in occupation of any portion of the property except that her husband was running a business of selling components of computers in one shop on the ground floor as a tenant. Smt. Usha Malik was stated to be residing at 19/36, Old Rajinder Nagar, New Delhi and further stated to own another house in Vasant Kunj, New Delhi. The petitioner was alleged to be employing a pressurizing tactic for increase of rent/seeking eviction to sell the property. ( 6 ) THE relationship of the landlord and tenant was not disputed. The site plan was denied and the married daughters forming family of the petitioner were also denied. ( 7 ) THE application for leave to contest the petition was allowed on 07. 12. 1998 by a consent order and thereafter both the parties led evidence. The petitioner examined herself and her daughter Mrs. Usha Malik. The site plan was denied and the married daughters forming family of the petitioner were also denied. ( 7 ) THE application for leave to contest the petition was allowed on 07. 12. 1998 by a consent order and thereafter both the parties led evidence. The petitioner examined herself and her daughter Mrs. Usha Malik. ( 8 ) THE trial court found that there was consensus between the parties that the original premises had been let out to Sh. Charanjit Lal, father of the respondents and the respondents had become tenants by operation of law. ( 9 ) THE petitioner established that she was the owner of the property in question. The rent was also being paid to the petitioner. There was a dispute about the purpose of letting and the said aspect has been dealt with in detail by the Additional Rent Controller. It was found that the let out was for residential purposes. The initial purpose of letting was undisputedly residential and consent on the part of the landlord to carry on any commercial trade in the premises had been denied. The trial court found that the petitioner herself was a tenant in the property prior to purchasing the same in May, 1997 and was thus personally aware of the purpose of letting. The extent of tenanted premises and the purpose of letting was clearly stated in the sale deed Exaw1/1. There was no evidence to suggest that there was any consent for commercial use of the suit premises. In fact the MCD Survey Report Exaw3/1 and Exaw3/r1 were found to be showing user as residential. The last survey report even bore the signatures of tenant Sh. Charanjit Lal. Despite a categorical assertion the tenants failed to produce any rent receipt containing description of tenancy as established etc. ( 10 ) THE third ingredient about availability of an alternative residential accommodation did not exist because there was not even an averment that the petitioner was owning any other residential accommodation. However on the last aspect of bona fide requirement, the Additional Rent Controller in terms of the impugned order dated 31. 05. 2002 found that the petitioner had failed to make out a case and it is this aspect for which arguments have really been advanced by learned counsel for the parties. ( 11 ) A perusal of the impugned order shows the testimony of Mrs. 05. 2002 found that the petitioner had failed to make out a case and it is this aspect for which arguments have really been advanced by learned counsel for the parties. ( 11 ) A perusal of the impugned order shows the testimony of Mrs. Usha Malik to the effect that she was coming to the premises to look after her mother has been relied upon by the Trial Court to come to the conclusion that the second floor was not given to her for residence. The petitioner was found to have a habitable room and a tin shed which can be better used as store on the ground floor of the property. But she claimed to be residing on the first floor with a family of her son. It has been stated that no reason has been given for not using the room available to her on the ground floor when she claims to be feeling difficulty in climbing stairs. It was thus found that the accommodation available to the petitioner on the second floor and the ground floor would suffice. ( 12 ) LEARNED counsel for the parties were heard at length and some time was even given to the parties to arrive at a mutual settlement but that was not found feasible. The petitioner had offered that the respondents may shift to the second floor and make available the complete ground floor to her. But the same was not acceptable to the respondents who claimed that they were running a shop on the ground floor and did not accept the switch in the tenancy as proposed by the petitioner. The respondents not only wanted the complete second floor but also wanted to retain a part of the ground floor which was naturally not acceptable to the petitioner. ( 13 ) IT has to be appreciated that the petitioner is now 84 years old. The petitioner in her deposition has stated that she has great difficulty in climbing stairs and that her daughter Mrs. Usha Malik looks after her. The petitioner also stated that though Mrs Usha was having her own house but she resides with her especially as she has one shop in the suit property. The petitioner in her deposition has stated that she has great difficulty in climbing stairs and that her daughter Mrs. Usha Malik looks after her. The petitioner also stated that though Mrs Usha was having her own house but she resides with her especially as she has one shop in the suit property. The ground floor accommodation stated to be available with her was set out as not sufficient for her and it was categorically stated that she needed ground floor of the premises bona fide. ( 14 ) THE younger son of the petitioner is residing on the first floor. It cannot be said that the petitioner is not entitled to provide accommodation to her son. The family of the son consists of his wife and two children who are now aged 21 and 24 years. The children have also thus grown up. The accommodation available with the son on the first floor is of two bed rooms apart from drawing and dining areas. The age of the children is as such that they are soon going to be of marriageable age. The son would also need some accommodation for guests. The first floor accommodation can hardly be sufficient for the son and it would be naturally expected that the second floor can also be utilized if so required. It appears from the testimony of the witnesses that what the petitioner actually stated was that she had made provision for the second floor to ultimately devolve on her daughter. The requirement of the aged landlady to stay on the ground floor and not be compelled to climb to the first and the second floor can hardly be brushed aside. The landlady cannot be compelled or expected to stay in discomfort at this age even when the possibility of availability of accommodation on the ground floor is present. The real question thus to be considered is whether there is sufficient accommodation available on the ground floor with the petitioner. ( 15 ) THE trial court found that the petitioner had a habitable room and a tin shed which can be better used as store on the ground floor. The petitioner has already stated that considering her age, her daughters have to come and look after her. In such a situation the petitioner would have requirement of a accommodation at least of two rooms if not three. The petitioner has already stated that considering her age, her daughters have to come and look after her. In such a situation the petitioner would have requirement of a accommodation at least of two rooms if not three. If any of the daughters comes to visit or temporarily stay with the petitioner, accommodation would be required for the same. The petitioner is also required at least one room for drawing-cum-dining. The accommodation available with the petitioner can hardly be said to be sufficient for her requirement. The trial court fell into a grave error of law in holding that one single room available on the ground floor can be sufficient for the petitioner. It is not as if the landlady has to compress here requirement to suit the tenant as long as the requirement is not fanciful. It cannot be expected that the petitioner would live in one room, a daughter who would come to look after her would also stay in the same room and the drawing and dining arrangement must also be made in that room in order for the respondents, who are the legal heirs of the original tenant, to continue to occupy the same. ( 16 ) THE petitioner was more than fair in offering a switch over to the respondents of the second floor with the accommodation available with the respondents on the ground floor. It must be noticed that the ground floor accommodation available with the respondents is of two room set with a kitchen and a combined bath room and latrine and common courtyard. There is accommodation on the second floor of two rooms and a drawing room. This switch over was offered by the petitioner apparently to buy peace since if the overall requirement of the son of the petitioner and the visits of her other family members is concerned, the petitioner would fall short of accommodation. ( 17 ) I am thus of the considered view that the petitioner has made out a bona fide requirement for the tenanted premises and eviction order is liable to be passed in favour of the petitioner and against the respondents in respect of the tenanted premises. Ordered accordingly. The respondents are granted six months' time from today to vacate the tenanted premises. The petition is allowed with costs of Rs 5,000/ -.