Research › Search › Judgment

Delhi High Court · body

2008 DIGILAW 1156 (DEL)

Choti Devi v. Anar Devi

2008-12-11

SHIV NARAYAN DHINGRA

body2008
JUDGMENT: 1. The petitioner is aggrieved by an order dated 22nd September 2006 of learned Additional Rent Controller (ARC) whereby her eviction petition under Section 14(1)(e) read with Section 25-B of Delhi Rent Control Act (DRC Act), was dismissed. 2. The petitioner filed an eviction petition in respect of one room in occupation of respondent on the ground of bonafide requirement of herself and family stating therein that the family of the petitioner consisted of herself, two married sons and one married daughter. The elder son Pawan, of the petitioner was having five daughters aged between 8 to 22 years. Her other son Kailash was having two children aged 9 and 15 years respectively. She submitted that she was in possession of one room on the ground floor, four rooms and a tin shed on the first floor. The room on the ground floor was being used by elder son Pawan for running his business of embroidery work. Out of the four rooms on the first floor, two rooms were in possession of her son Kailash Chand and his family and two rooms were in possession of son Pawan Kumar and his family. The petitioner herself was residing in a rented accommodation of one room on the first floor in the property bearing number 10417, Bagichi Allauddin, Paharganj, Delhi. The accommodation available with the petitioner was highly insufficient to meet the requirement of herself and her family members. The requirement of her family was of seven rooms and she required one room for herself. It was also stated that she was an old lady aged around 70 years, unable to climb stairs and she wanted to reside on the ground floor. She also required one guest room and one study room for school going grandchildren and she required separate room for her growing granddaughters. 3. The respondent in the written statement had taken a stand that the petitioner was not the owner of the property in question and it was the DDA who was the owner of the property. The property was in slum area and the petitioner had not obtained permission to file the eviction petition. Regarding bonafide need it was stated that the sons of the petitioner had been residing separately at different places in Delhi. They were settled at their respective places. The property was in slum area and the petitioner had not obtained permission to file the eviction petition. Regarding bonafide need it was stated that the sons of the petitioner had been residing separately at different places in Delhi. They were settled at their respective places. The petitioner had never occupied any portion of the property and used to re-let the vacant rooms from time to time at higher rate of rent. The tenant gave instances of one room having got vacated from one Sardarji and re-let at higher rent and another room got vacated from another tenant and not occupied by the petitioner, one room and kitchen got vacated from one Daulat Ram and re-let at higher rent, another room got vacated from another tenant and re-let to one Raju at higher rent and when Raju vacated, it was converted to commercial use by the petitioner’s elder son Pawan Kumar. It was further submitted that in 1997, an eviction petition on the ground of bonafide necessity filed by the petitioner against a tenant was allowed and possession of the room was taken on 6th October 1999 but the same room was never occupied by the petitioner and was again let out. After making these averments, the tenant admitted in subsequent paragraphs of written statement that two sons of the petitioner namely Pawan and Kailash were living on the first floor in four rooms and Mr. Pawan Kumar was doing embroidery work on ground floor. He stated that the petitioner also had a third son Mr. Radhey Shyam, who was living separately. 4. After appreciating evidence, the learned trial court came to conclusion that the petitioner proved her ownership, since she had been receiving rent from the respondent in her own right. The learned ARC also held that there was relationship of landlord and tenant. As far as bonafide requirement was concerned, he observed that the accommodation available with the petitioner was sufficient for her and family needs and she failed to prove her bonafide requirement. 5. The order of the learned ARC is assailed on the ground that learned ARC ignored law and evidence in respect of bonafide necessity and gave findings contrary to the evidence and the pleadings. He wrongly held that the petitioner was having sufficient accommodation in her occupation. 5. The order of the learned ARC is assailed on the ground that learned ARC ignored law and evidence in respect of bonafide necessity and gave findings contrary to the evidence and the pleadings. He wrongly held that the petitioner was having sufficient accommodation in her occupation. The learned ARC failed to consider that the petitioner was around 75 years old lady and she was living in one tenanted room and the rest of four rooms available in the premises were in occupation of her two sons and their family, who were residing there. The total family members of the petitioner was 13 in number. The grandsons and granddaughters of the petitioner were all school and college going and each one of them required a separate room. 6. It is submitted by counsel for the petitioner that learned ARC also failed to appreciate that when the property was purchased there were 10 tenants in the property and when the petition was filed there were admittedly only five tenants and the five rooms vacated by the tenants were in occupation of the petitioner’s family members i.e. her two sons and none of the vacated rooms had been re-let. The respondent made vague allegations about re-letting of the rooms and in cross examination, he failed to disclose the name of any of the person who was re-let the vacated room. 7. A perusal of the order of the learned ARC shows that the learned ARC had given contradictory observations in the judgment. In paragraph 6 of the judgment, learned ARC observed that the averments of the respondent was that the petitioner, apart from the tenanted room in the property number 10417, had physical possession of four rooms, latrine and bathroom in the property in dispute but in paragraph 22, learned ARC observed that the tenant averred that the petitioner was in occupation of four rooms in tenanted premises. Order further states that her stand was that she was the tenant only in the one room and she failed to place on record evidence in rebuttal that she was in occupation of only one room and not four rooms in the tenanted premises. In fact this was never the case of the petitioner or of the respondent. The petitioner had categorically stated that she was having one tenanted room in her occupation in the premises bearing number 10417. In fact this was never the case of the petitioner or of the respondent. The petitioner had categorically stated that she was having one tenanted room in her occupation in the premises bearing number 10417. The respondent had not stated that the petitioner was in occupation of four more rooms in the tenanted premises. Neither it is the case of the respondent in the evidence or in the pleadings. Rather the pleadings of the respondent show that the landlady had one tenanted room and four rooms in the premises in dispute. It is strange that learned ARC came to conclusion that the petitioner was having four more rooms in the tenanted premises. Learned ARC observed about petitioner’s admission that there were 6 rooms on the ground floor and five rooms on the first floor and that she raised construction on the first floor of the property before filing of the eviction petition. In fact the judgment shows misreading of the pleadings and evidence, both, by the learned ARC. The petitioner case all along had been that she had purchased the premises in question when the premises was in occupation of the tenants and thereafter she got some rooms vacated from the tenants for her own necessity. The respondent in his affidavit of examination in chief categorically admitted that the tenanted premises where petitioner herself lived was adjacent to premises in question. The rooms on the first floor were in occupation of the petitioner’s son Kailash and one room on the ground floor was in occupation of Pankaj embroidery work and her third son was living separately. There was no other vacant room and all other rooms were with the tenants. 8. The petitioner in her petition had talked only of her two sons. During testimony it came to light that she was having three sons and the third son was living separately. In fact, the petitioner was not supposed to tell details of those family members, who were not living with her. If she disclosed about two sons who were living with her, she had done nothing wrong by not stating that she had third son also who was living separately from her. However, the learned ARC took exceptions to this and considered it a concealment of facts, which is unlawful. 9. If she disclosed about two sons who were living with her, she had done nothing wrong by not stating that she had third son also who was living separately from her. However, the learned ARC took exceptions to this and considered it a concealment of facts, which is unlawful. 9. The tenant’s pleadings and evidence shows that the tenant leveled vague allegations about the premises being vacated by certain tenants and the same not having been occupied by the petitioner. In cross examination when he was asked to tell the name of Sardarji referred to by him in paragraph 5A of his affidavit, he stated that he does not remember the name of Sardarji, neither could tell the date and month of vacating the premises. When he was asked to tell the name of Punjabi tenant referred to by him in paragraph 5B of his affidavit, he stated that he did not remember the name of Punjabi tenant also. When he was asked about Daulat Ram about which he referred in paragraph 5 C of the affidavit, again his answer was same. About Rajender he stated that he was not aware of the fact that he was brother in law of the petitioner. The pleadings and affidavit in evidence filed by tenant had contradictory assertions. 10. The learned ARC passed the impugned order without appreciating the evidence and even without going through the pleadings of both sides carefully. He assumed that the petitioner was to prove negative. The petitioner, by her evidence proved that she was in occupation of one tenanted room. It was for tenant to prove that she was in occupation of more tenanted accommodation and not for petitioner to prove that she was not in occupation of more tenanted accommodation. The order of the learned ARC suffers from material illegality, since it put onus of proving negative on the petitioner. 11. The petitioner had successfully proved that the petitioner was in occupation of only four rooms on the first floor. She herself was living in a tenanted premises. Her family consisted of two married sons and her seven grandchildren. It is not disputed that she was aged around 75 years. Her bonafide necessities could not be doubted in view of the large family, including the grandchildren who were all school going and needed separate study room. She also needed a guest room. Her family consisted of two married sons and her seven grandchildren. It is not disputed that she was aged around 75 years. Her bonafide necessities could not be doubted in view of the large family, including the grandchildren who were all school going and needed separate study room. She also needed a guest room. Hence the total requirement of the petitioner of seven rooms was quite justified. Her necessity was bonafide. 12. In view of the foregoing facts and circumstances, I, allow this petition. The order passed by learned ARC is hereby set aside and the eviction petition is hereby allowed in favour of the petitioner and against the respondents.