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2008 DIGILAW 1027 (DEL)

PRAVEEN JAIN v. VIMLA

2008-11-04

SHIV NARAYAN DHINGRA

body2008
JUDGMENT Shiv Narayan Dhingra, J.-The petitioners nave assailed an order dated 11.4.2007 passed by learned ARC dismissing an application under Section 25-B of the Rent Control Act seeking leave to defend. 2. The relevant facts for purpose of deciding this petition are that the respondent, a widow aged around 79 years filed an Eviction Petition under Section 140 against the petitioners who were in occupation of second floor of property No. IX/13 (old No. 1004/4), Main Road, Kailash Nagar consisting of 7 rooms plus balconies. She submitted that she required the property for herself and her family. Earlier she was in occupation of property No. 45/9-A, Mall Road as a tenant. The landlady of that property had filed an Eviction Petition against her which she lost. She preferred a revision before this Court. She lost the revision and she had given an undertaking to the Court that she would hand over the possession of the property to her landlady by 31st December, 2005. In accordance with this undertaking given by her, she handed over the possession of tenanted premises to her landlord. That was the only residential premises available to her. She had no other suitable accommodation for her and her family's residence. Her husband, Kaviraj Harnam Das, expired on 19.8.1971. Her family consisted of her elder daughter Ms. Nalini alias 'Baby' who was married and had one son. She along with her family was permanently residing with her. Her other daughter Ms. Anu alias Biky, unmarried, was also permanently residing with her. Her other two daughters were married and were residing in Delhi with their respective spouses and children and their families regularly used to visit her. 3. The tenant/petitioners filed leave to defend taking a stand that the premises was let out for commercial purpose and was also used by the defendant for commercial purpose. The other stand taken by the tenant was that the landlord had concealed alternate accommodation available to her. It was stated that the entire ground floor and first floor of the property in question was available with the landlady and was more than sufficient for her requirement. It was further submitted that the front portion on the ground floor was being used for commercial purpose having been let out by the landlady. The landlady also let out rear portion on the ground floor after filing of the petition. It was further submitted that the front portion on the ground floor was being used for commercial purpose having been let out by the landlady. The landlady also let out rear portion on the ground floor after filing of the petition. The first floor of the premises was converted into commercial use by letting out for running a play school in the name of 'Tender Hands'. The petitioner also submitted that the landlady was having residential accommodation available to her at first floor of property No. 1379, Chandni Chowk where she was residing. She was in possession of 4 bed rooms, one drawing-dining, apart from kitchen, WC, bath and the terrace. It was also submitted that premises in question was situated on second floor and the landlady; aged around 80 years, would find it difficult to climb the stairs. The premises was not fit for residential purpose as it was commercial premises. 4. The landlady in counter affidavit denied that any facts were concealed. She rather stated that it was the petitioner/tenant who had concealed the facts. She pleaded that the premises was given initially for residential purpose to the father of the present petitioners. Although, it is not denied that it was put to commercial use by father of the present petitioner and NOC was granted by the landlady. Regarding ground floor she submitted that it was already in possession of two tenants and rear portion was under tenancy of one Mr. Devan who sub-let the premises in favour of a third party. The mezzanine floor portion was being used by the petitioner herself as her consulting room and a pathology laboratory was being run by her. The rear portion of mezzanine floor was also in possession of the petitioner and she had given it on license to one Ms. Vibhuti. The mezzanine floor was not at all fit for occupation as residence. Regarding play school, she submitted that it was set up by her daughter more than 2 years prior to filing of the Eviction Petition, for under-privileged children, just to help out the poor, destitute children whose parents cannot afford to give education to their children, on account of poverty and lack of opportunity. Regarding property No. 1379, Chandni Chowk, she stated that the entire first floor of this property was being used by her as her medical clinic. Regarding property No. 1379, Chandni Chowk, she stated that the entire first floor of this property was being used by her as her medical clinic. She has been practising since long and only in exigencies, a portion of the first floor was being used by her for residence because after surrender of the property at Mall Road she had no alternative but to use a part of her clinic as residence. She submitted that so long as she was living as a tenant at property No.45/9-A, Mall Road, she had not filed Eviction Petition against the present petitioner. She was compelled to file this Eviction Petition only because she had herself to vacate and hand over the possession of the tenanted property where she was living. She had no alternative, proper accommodation for her and her family's residence. 5. The Trial Court considered the different pleas raised by the petitioner and came to conclusion that when leave to defend is sought, the tenant must make out a prima facie case giving rise to triable issue. Only frivolous defences may not entitle the tenant a leave to defend. The Trial Court observed that when a petition is filed under Section 14-0, the landlady has to prove that she was a widow and she required the premises for her own residence. The test under Section 14-0 was not as rigorous as under Section 14(1)(e) of Delhi Rent Control Act. The Trial Court relied on Kishan Lal v. Devki, 85 (2000) DLT 326. 6. After considering entire facts, the Trial Court came to conclusion that property No. 1379, Chandni Chowk had always been there with the landlady even during life time of her husband and it was being used by her as a clinic and not as a residence. Had this property been sufficient for her and her 4 daughters residence; one of whom with her husband was living with the landlady, she would not have been living as a tenant at Mall Road. The landlady contested the Eviction Petition filed by her landlord of Mall Road property for about 40 years and she had to vacate the premises No. 45/9A, Mall Road after losing the legal battle. During the period she was contesting the Eviction Petition against her, she had not filed an Eviction Petition against her own tenant, neither asked the present tenant to vacate the property. During the period she was contesting the Eviction Petition against her, she had not filed an Eviction Petition against her own tenant, neither asked the present tenant to vacate the property. She filed two Eviction Petitions, one on the ground of bona fide requirement under Section 14(1)(e) and other under Section 14-0, only after she had to vacate the premises at Mall Road. Her requirement therefore cannot be doubted. The Trial Court therefore dismissed the application under Section 25-B. 7. Learned Counsel for the petitioner raised the issue of commercial use of the premises by the petitioner. However, he conceded that in view of the judgment in Satyawati Sharma (deceased) though LRs v. Union of India and Anr., 148 (2008) DLT 705 (SC)=III (2008) SLT 553= 2008 (5) SCC 587 , this ground Was not available to the petitioner. 8. The other contention of the petitioner is that premises at Mall Road was got vacated from the respo.'1denJ under Section 14(1)(d) namely that she was not living in the premises for 6 months prior to the filing of the petition and not on any other ground. The Trial Court therefore wrongly came to conclusion that the premises was bonafidely required by the petitioner. I consider that this contention must fail. The Trial Court had considered the entire family of the petitioner and the extent of premises allegedly in her occupation and after considering the entire premises as alleged by the petitioner to be available with the landlady, the Trial Court came to conclusion that there was genuine requirement of the landlady of the premises in question for her and her family's residence and then only passed an order for eviction. 9. It is submitted that the learned ARC on the same day passed two orders one in Eviction Petition filed on the basis of bonafide requirement under Section 14(1)(e) and other under Section 14-0. The test for bonafide requirement under Section 14(1)(e) and 14-0 is the same and the Trial Court wrongly came to conclusion that two different tests are to be applied; one for bonafide requirement and other under Section 14-0. 10. It is settled law that the requirement of the landlady herself and her family is to be considered by the ARC while considering a petition under Section 14-0. 10. It is settled law that the requirement of the landlady herself and her family is to be considered by the ARC while considering a petition under Section 14-0. The landlady's requirement of the premises 'for her own use' is not confined to actual physical user by the landlady herself. The requirement includes the requirement of other family members of the landlady who are living with her and are dependent on the landlady for residence or on whom the landlady is dependent for her care, security and well-being and who are living with the landlady because of bond of love and affection. The test to be applied is whether the requirement pleaded may properly be regarded as landlady's own requirement and the requirement of the family members, i.e., her sons and daughters living with her. While considering this requirement, the Court has to take into consideration the profession of the landlady, her lifestyle, standard, etc. 11. In K. Pula Raju v. A. Hanumagowda, Civil appeal No. 5648/2008 decided on 15.9.2008, the Supreme Court while considering Section 31 of the Karnataka Rent Act 1999 enacted in respect of a) senior citizens, b) a widow, c) a handicapped person observed that the special provisions are introduced by the Legislature to reflect the policy of the Legislature for speedy justice to the landladies belonging to the special categories of citizens namely widow, handicapped person and a person who is citizen of above 65 years. The Legislature has introduced this provision for purpose of giving immediate possession of the premises to such landladies. These provisions are independent of each other and they can be set in motion in individual fields. 12. The provisions of Section 31 of Karnataka Rent Act, 1999 are similar to Section 14-0 read with Section 25-B of Delhi Rent Control Act and above observation of Supreme Court are equally applicable to Delhi Rent Control Act. Thus, the Court while considering 'requirement' under Section 14-0 has to act independent of the 'consideration' under Section 14(1)(e). The Trial Court therefore committed no wrong by allowing the application of the landlady under Section 14-0 because the standard of requirement under Section 14(1)(e) was more rigorous than under Section 14-0. 13. Thus, the Court while considering 'requirement' under Section 14-0 has to act independent of the 'consideration' under Section 14(1)(e). The Trial Court therefore committed no wrong by allowing the application of the landlady under Section 14-0 because the standard of requirement under Section 14(1)(e) was more rigorous than under Section 14-0. 13. The powers of this Court under Section 25B(8) are not appellate powers and this Court has only to see that the Trial Court had acted in accordance with law and not transgressed the limits of its jurisdiction. I find that the Trial Court had taken all relevant factors into consideration while dismissing the application of the petitioner under Section 25B(8) seeking leave to defend. I find no ground to interfere in the order of the Trial Court. The petition is hereby dismissed. Petition dismissed.