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2008 DIGILAW 145 (DEL)

HARI RAM SHARMA v. NARAINI DEVI SHARMA

2008-02-08

VIPIN SANGHI

body2008
JUDGMENT CM No. 1876/2008 Vipin Sanghi, J.-Allowed, subject to all just exceptions. CM(M) No. 188/2008 and CM No. 1875/2008 This petition has been filed to impugn the order passed by the learned Additional Rent Controller (ARC), Delhi in E. 462, 463, 464 and 465/07/05 dated 6.10.2007, whereby the learned ARC has rejected the leave to defend applications filed by the respective tenants in the four petitions filed under Section 14(1)(e) of the Delhi Rent Control Act filed by the respondent. The petitioner before me was the respondent/tenant in E. 463/07/05. 2. Admittedly, the property in question was purchased by the respondent/landlady on 23.12.1999 from the previous owner Sh. Ram Jot Vyas. The petitioner and the other tenants were already occupying the different portions in the property in question bearing Ward No. IV, Kucha Latto Shah, Dariba, Delhi- 06. The petition was filed in 2005 after waiting of the statutory period of 5 years from the date of purchase. Learned ARC has taken note of the fact that the respondent/landlord has four married sons, two of whom viz. Sh. RK. Sharma and Sh. Rajkumar Sharma are residing with the respondent with their respective families, while two other sons are residing in separate accommodation with their respective wives. The case made out by the respondent/landlady was that she bona fide needs the accommodation not only for meeting her present needs but also claimed that her two married sons, who are residing in separate accommodations also desire to live with her in her old age. The learned ARC has examined the bona fide need of the respondent even by ignoring the need of the respondent in respect of her two sons not presently residing with her, and on the basis of the need made out and founded upon the family members in fact residing in the portion in her possession. No dispute with regard to the ownership and purpose of letting was raised by three of the tenants and only one tenant raised a dispute with regard to the purpose of letting by contending that the purpose of letting was residential-cum-commercial. The petitioner is not the tenant, who had raised the dispute about the purpose of letting being residential. 3. No dispute with regard to the ownership and purpose of letting was raised by three of the tenants and only one tenant raised a dispute with regard to the purpose of letting by contending that the purpose of letting was residential-cum-commercial. The petitioner is not the tenant, who had raised the dispute about the purpose of letting being residential. 3. The requirement of the respondent/landlord and the family was pleaded on the basis that she along with her husband, her two married sons, five grand-daughters aged 22 years, 20 years, 18 years, 17 years and 15 years and three grand-sons aged 20 years, 18 years and 14 years were residing with her. The bona fide need of the respondent and her family has been discussed in paras 6 to 10 of the impugned order, which read as follows: "6. Now we come to the bona fide requirement of the petitioner regarding qua size of her family. Although the respondent cannot take the plea that two sons, residing separately, are not dependent upon the petitioner for residence or that they cannot wish to live with their old aged mother, yet for the sake of arguments even if it is considered that these two sons namely Vijesh Sharma and Rakesh Sharma have independent accommodation with them lets consider the size of the family of the petitioner who is residing at the suit property with her. The family of the petitioner consists of three couples i.e. petitioner and her husband, her two married sons and apart from them she has five grand-daughters aged 22 years, 20 years, 18 years, 17 years, 15 years and three grand-sons aged 20 years and 18 years and 14 years, which makes the total size of the family of 14 persons. 7. Admittedly three bed rooms are required for each couple and for eight grown up grand-sons the petitioner at least requires four bedrooms as they consists of five grown up grand-daughters and three grown up grands-sons, so the petitioner at least requires seven bed rooms, one guest room, one drawing-cum-dining room and one study room, which makes out the total number of rooms to be ten. Admittedly all these rooms should be habitable i.e. having the size of more than 100 sq. ft. Admittedly all these rooms should be habitable i.e. having the size of more than 100 sq. ft. and should also have independent entrances, reliance for which can be placed on judgments reported in 1984 Delhi 1987 followed by 2000(1) RCR 87, 2006(91) DRJ 558 wherein it has been categorically held that a room having a floor area of less than 100 sq. feet and having no independent entrance, can be counted as a habitable independent room. 8. Now as per the site plan, filed by the respondent, though the same is in dispute, the petitioner has two rooms on the ground floor having the size of 13 x 7 and 7 x 6 and on the second floor the petitioner has four rooms having the size of 7 x 6, 7 x 11,7 x 6 and 11 x 7. Out of all these alleged rooms, available with the petitioner, none of the rooms is having the size of 100 sq. ft. which shows that none of them is a habitual room. Apart from that the room on the first floor having the size of 7x6 have no independent entrance, similar is the condition of two rooms on the second floor having the size of 7x6 each. Since none of these rooms have independent entrance, they cannot be counted as separate rooms. Even in the case of the respondent is admitted to be correct, the petitioner is not having even a single habitable room in the entire premises owned by her. Though the site plan filed by the petitioner shows a different story. As per the petitioner, she has only one room on the ground floor, one room on the first floor and one room on the second floor. Though the site plan filed by the petitioner shows a different story. As per the petitioner, she has only one room on the ground floor, one room on the first floor and one room on the second floor. Admittedly, the room alleged by the respondents as a room on the ground floor, is actually bath as the Counsel for the respondent; during the course of the arguments, have not been able to show a single bath room in the entire premises consisting of three floors in the site plan bath room in the entire premise consisting of three floors in the site plan, which means that the case of the petitioner that there is only one bath room on the ground floor seems to be the correct position, which shows that only one room of 13x7 is available with the petitioner on the ground floor and one room of 11x7 on the first floor and one room of 11 x7 on the second floor. Even by the size given by the petitioner none of these rooms is habitable and on the other hand it has already been said that the petitioner requires at least 10 habitable rooms for her family. 9. Now, we come to the accommodation available with each respondent. The respondent Ram Babu is having with him two rooms on the ground floor having the size of 12 x 6 and 7 x 6, the respondent Hem Chander is having two rooms with him on the first floor having the size of 7 x 6 and 11 x 7. The respondent Hari Ram is having two rooms with him the size of which has not been given by any of the parties and respondent Durga Ram is having one room on the first floor and one room on the second floor the sizes of which is not given by any of the parties. Even the rooms in possession of the respondent, the size is less than 100 sq. feet and even they are not considered to be habitable rooms, however, in the calculation they come to six rooms in all. It means the entire property in possession of the respondent collectively will not be able to satisfy the bona fide need of the petitioner. feet and even they are not considered to be habitable rooms, however, in the calculation they come to six rooms in all. It means the entire property in possession of the respondent collectively will not be able to satisfy the bona fide need of the petitioner. It has been held in the judgments reported in 1983 (2) RCR 311, 1982(1)RLR Delhi 332 and 1976 RCR Delhi 249 that the landlords requirement for one separate room for each member of his family including himself and his wife cannot be said to be unreasonable. It has further been held in the judgment reported in 2000(10) RCR 439 that for the landlords family consisting of 10 members including growing children, the need for 11 rooms is a bona fide need. In the judgment reported in 1999 (1) RCR 152 the accommodation of eight rooms, available for the family of 12 members of the landlord, was held to be insufficient. It was further stated in this judgment that- It was illogical to hold that minor children can be accommodated with the elders of the family. 10. It has also been held in 2000(1) RCR 20 that the children between the age of 7 to 11 years cannot be asked to share the bed room with their parents and therefore need separate accommodation for themselves. It has been held in the judgment reported in 2000 RCR 463 that the Court has to consider the entire material placed on record including the supporting documents to take into consideration the case of the parties and if the tenants plea did not make out any case, leave to defend should be refused." 4. The first submission of the learned Counsel for the petitioner before me is that when the respondent purchased the property in the year 1999, she was aware of the fact that the petitioner and the other tenants were already in occupation. She was aware of the accommodation that would become available to her for her occupation and for the occupation and her family members. Therefore, it cannot be said that her need was bona fide. This submission, to my mind, has no force. The petition has been filed after the expiry of a period of five years from the date of purchase of the property by the landlady. Therefore, it cannot be said that her need was bona fide. This submission, to my mind, has no force. The petition has been filed after the expiry of a period of five years from the date of purchase of the property by the landlady. The law puts an embargo that the landlord, who has purchased the property, cannot sue for eviction on the ground of bona fide requirement in the first five years from the date of purchase of the property. Therefore, I reject this submission. It cannot be said that the requirement of the landlady was not bona fide for the aforesaid reason. It is next contended that the application seeking leave to defend filed by the petitioner could not have been decided by a common order and the application filed by each of the tenants in the different eviction petitions should have been heard and decided separately. He submits that each tenant has different accommodation and facts of each case were different. I do not see any merit in this argument. Though the four eviction petitions have been decided by a common order, the learned ARC has taken note of the accommodation available with all the tenants, separately. In fact, if anything, it was to the advantage of the tenants that all the petitions were decided simultaneously. Even after taking into account the accommodation with all the tenants it cannot be concluded that the respondents needs are fully met. The learned ARC had all the facts before him to decide that the accommodation that would become available to the landlady upon eviction of all the tenants would still be insufficient to meet all her needs. I see no merit in this petition. Dismissed. 5. On the request made by the petitioner, I direct that the that the petitioner be not dispossessed till 6.5.2008. Result: Petition dismissed.