IN THE COURT OF SH. PULASTYA PRAMACHALA, ARC01, EAST, KARKARDOOMA COURTS, DELHI. [CASE NUMBER] Smt. [ENTITY] W/o late [ENTITY] Arora R/o KD14, First Floor, Krishan Nagar, Delhi. Petitioner Versus Sh. [ENTITY] S/o Late Gajanand Shop at: KD14, Ground Floor, Krishan Nagar, Delhi. Respondent Application for leave to defend of eviction of tenant under [SECTION]/[SECTION] of [ACT] and Application under [SECTION] [ACT] moved on behalf of respondent. Date of institution of petition : 14/02/2011 Date on which Order was reserved : 18/01/2012 Date of Order : 21/01/2012 Final Order : Application under [SECTION] [ACT] as well as eviction petition is dismissed. E72/2011 Page no. 1 of 13 ORDER
1. Vide this order, I shall decide the application under [SECTION] [ACT] and application for leave to defend and contest the eviction petition in hand, both filed by the respondent.
2. Briefly stated, the case of the petitioner is as follows: Petitioner is a widow and respondent is an old tenant in a shop in property no. KD, Ground Floor, Krishan Nagar, Delhi51 since the year about 1977. The shop has been shown in red colour in the site plan. The respondent was let out the tenanted shop long back ago for a period of eleven months only. Since the demise of her husband, the petitioner became landlady of the tenanted property and respondent attorned her as landlady and had being paying rent to her. Petitioner had bonafide requirement due to which, she had filed a petition under Section 14 (1)
(e) [ACT] around two years back. However, due to change in circumstances, she has filed the present petition. Petitioner is suffering from various ailments including high blood pressure, kidney and joint pains, knee pain and is not in a position to climb stairs on the first floor. She needs support of twothree persons for reaching first floor wherein, she is living alongwith her son Sh. [ENTITY]. The tenanted premises is required by the petitioner for her residence and she has no other suitable E72/2011 Page no. 2 of 13 place or accommodation to satisfy her requirement. The remaining portion on the ground floor are shops being run by three sons of the petitioner independently and one tenant in respect of one other shop. Petitioner needs airy and comfortable place to live as well as some place to do worship, for which, the tenanted premises is suitable accommodation. Petitioner was compelled to transfer two shops to the old tenants namely Sh. [ENTITY] and M/s. Chaudhary Dairy about five and ten years back respectively due to increasing needs of her family. Petitioner undertakes that she will use the tenanted premises for her own use and residence and would not relet or transfer to any third person.
3. In the application for leave to defend and affidavit, respondent has taken following relevant pleas:
(a) Present petition under [SECTION] [ACT] is not maintainable and the necessary ingredients of the same have not been pleaded.
(b) Petitioner is not the owner of the property in question and has been changing the site plan for malafide reasons. In previous petition, she had filed different site plan and that petition was withdrawn with ulterior motives.
(c) There is no facility of WC and bath at ground floor at the property in question, therefore, the tenanted premises cannot be a suitable E72/2011 Page no. 3 of 13 accommodation for the purpose of residence of the petitioner.
(d) Petitioner can avail the benefit of widow only once and in the year 2006, she had got the shop evicted from a tenant and after reconstructing the same, it was sold to Sh. [ENTITY]. Had the petitioner was in actual need, she would not have sold this shop.
(e) Petitioner got vacated another shop from Sharma Tailors in the year 2008 and converted it into a big shop. She also got vacated a shop from Sharma Electricals, which was amalgamated in a big shop.
(f) Petitioner has recently sold two shops to M/s. Chaudhary Dairy. The size of the tenanted premises herein is merely 9 X 13 feet, while the other shops in possession of the sons of the petitioner are bigger in size.
(g) Petitioner is keeping two cows in the property and the place being occupied by the cows is bigger in size than the tenanted shop.
(h) Present petition has been filed only to get the tenanted premises sold to some other buyer.
(i) Petitioner has ample accommodation at ground floor which has been malafidely shown in the possession of her sons, though the petitioner can occupy those accommodations.
4. In reply, petitioner has pleaded that only two ingredients are required to file petition under [SECTION] of the [ACT] i.e. the petitioner E72/2011 Page no. 4 of 13 should be widow and the premises should be required by her for own residence. She further pleaded that tenant cannot challenge the title of landlord and has stated that she had already filed medical papers on the record to show her bonafide requirement. She has denied that in the year 2006, she evicted a tenant and sold a shop to Sh. [ENTITY]. She has further pleaded that the site plan has been filed by her according to the actual position. In respect of contentions relating to vacation of other shops from Sharma Tailors and Sharma Electricals, petitioner has pleaded that the allegations are related to very old period and did not have any bearing on the subsequent development.
5. A rejoinder was also filed by the respondent, wherein respondent stated that the tenancy in dispute was created by Sh. [ENTITY] in the year 1977, who died on 26/09/1990 and thus, this tenancy was not created either by the petitioner or by her husband late [ENTITY], therefore, [SECTION] of the [ACT] is not applicable.
6. This was a fact, which was stated in support of the contentions made in the previous affidavit that this petition is not maintainable and in response to the reply of the petitioner that petition is maintainable under [SECTION] of the [ACT], because only two ingredients are required to be satisfied. During the course of the arguments, the aforesaid fact was E72/2011 Page no. 5 of 13 not disputed by the petitioner.
7. I have given due consideration to the contentions made before me and perused the record of this case.
8. First of all, I shall take up application under [SECTION] [ACT] moved on behalf of respondent for taking notice of subsequent events in order to consider the same while deciding the leave to defend application. Alongwith this application, one additional site plan was filed by the respondent. It was contention of the respondent that petitioner during pendency of the petition raised a partition wall in a shop on ground floor and same is required to be also considered while deciding the application for leave to defend.
9. According to petitioner, this application is not maintainable as there is no subsequent event nor any alleged portion has been converted into the two shops as per allegations made.
10. In order to appreciate the rival contentions, it is relevant to know the scope of applicability of [SECTION] [ACT] in the present proceedings. In [PRECEDENT], Supreme Court held that there is no such thing as any inherent power of court to condone delay in filing proceedings before a court/authority concerned, unless the law warrants and permits it, since it has a tendency to alter the E72/2011 Page no. 6 of 13 rights accrued to one or the other party under the statue concerned.
11. It is worth to mention that aforesaid observations were made by the Court while dealing with eviction petition under [ACT] and in respect of summary procedure provided to deal with such petition. Similarly, Supreme Court in [PRECEDENT], held as follows: "In view of our discussions made hereinabove that [SECTION] has been inserted by the legislature for eviction of a tenant of certain classes of landlords, in which the entire procedure has been given, it is difficult for us to hold that [SECTION] of the Rules can be applied in the present case in view of the specific provisions provided in [SECTION] of the [ACT]. Accordingly, we are of the view that [SECTION] has no manner of application. "
12. In view of the aforesaid observations made by Supreme Court in respect of procedure to be adopted in eviction petition filed on the grounds as mentioned in [SECTION] of the [ACT], [SECTION] [ACT] cannot be applied in order to deviate from the procedure provided in [SECTION] of the [ACT]. Therefore, this application is found to be not maintainable, hence, it is dismissed.
13. Now I shall come back to the question of granting leave to respondent on the basis of affidavit filed by him alongwith his application for leave E72/2011 Page no. 7 of 13 to defend. The first question which was argued vehemently by both parties is in respect of ingredients to be satisfied to maintain eviction petition under [SECTION] of the [ACT].
14. According to the counsel for respondent, since the respondent was not inducted as tenant by petitioner or her husband, therefore, the petitioner cannot bring this eviction petition on the ground mentioned in [SECTION] of the [ACT].
15. Ld. Counsel for petitioner contending contra, submitted that since the property in question was let out to respondent by father in law of the petitioner and it was not received by the petitioner out of any transfer, therefore, this petition is maintainable.
16. Both parties relied upon certain case laws in support of their contentions.
17. Ld. counsel for petitioner relied upon following case laws:
1. [PRECEDENT]
2. Mrs. [ENTITY] v. Gadore Tools (P) Ltd., 1993 RLR
3. [PRECEDENT].
4. [PRECEDENT].
5. [PRECEDENT].
6. [PRECEDENT].
7. [PRECEDENT].
E72/2011 Page no. 8 of 13
8. [PRECEDENT].
9. [PRECEDENT].
10. Rajaswari vs. Bombay Tyres Int. Ltd., 1994 RLR (SC)
[PRECEDENT]
[PRECEDENT].
[PRECEDENT].
[PRECEDENT].
[PRECEDENT].
16. [PRECEDENT].
18. Ld. counsel for respondent relied upon following case laws:
1. [ENTITY] v. Radha Devi Gupta, 2005 (2) SCC 271.
2. [PRECEDENT] Page 247.
3. [PRECEDENT].
4. [PRECEDENT].
5. Prakash Chand Gupta v. K. S. Gupta, 1999 (4) SCC
6. [PRECEDENT].
7. Precision Steel Engg. v. Premdev Niranjadev, RLR SC
8. Santosh Devi Soni v. Chand Kiran, J.T. 2000 (3) SC
9. [PRECEDENT] Page no. 9 of 13
10. [PRECEDENT].
19. Ld. Counsel for petitioner took support from judgment passed in Mrs. [ENTITY]'s case (Supra), wherein High Court of Delhi held that "the expression let out by her, or by her husband is employed in [SECTION] of the Act, would take within its ambit the predecessor in interest of the husband, who had originally let out the premises to the tenant. " This decision was given on 28/09/1992.
20. On the other hand, ld. Counsel for respondent relied upon case law cited as [ENTITY] v. Radha Devi Gupta, (2005) 2 SCC
271. Findings:
21. It is worth to be seen that judgment relied upon by the petitioner was passed by Single bench of High Court of Delhi. While the judgment relied upon by the counsel for respondent was passed by five Judge bench of the Supreme Court. Supreme Court was dealing with specific question of maintainability of eviction petition by a widow in respect of premises which was not let out by her or her husband.
E72/2011 Page no. 10 of 13
22. Supreme Court in [ENTITY]'s case (Supra) while giving its final decision on this question made following observations: "The very fact that the section specifies that the premises must be one which was let out by the widow or by her husband implies that the provision would not apply to a premises let out by any other person. If the intention of the legislature was to confer an unlimited right on a widow landlord, the use of the words "the premises let out by her, or by her husband" would have been unnecessary and the section would have simply read as follows:
"Where the landlord is a widow and the premises are required by her for her own residence, she may apply to the Controller for recovering the immediate possession of such premises."
By expressly providing that the premises must be one let out by her or by her husband, the legislature has clearly excluded from the purview of the said provision "premises let out by any other person" even if in course of time the widow may have become its landlord. We are obliged to read the provision as it is, and cannot give it a meaning by deleting an expression expressly employed by the legislature. The expression "let out by her, or by her husband" is not an expression which permits of any ambiguity. We must, therefore, give it its normal meaning. So understood the conclusion is inescapable that the legislative intent was only to confer a special right on a limited class of widows viz. the widow who let the premises or whose husband had let the premises before his death, and which premises the widow requires for her own use. "
E72/2011 Page no. 11 of 13
23. In the aforesaid reasoning of the Supreme Court, Supreme Court has left no scope for letting out of the premises by any other person, if an eviction petition has been filed under [SECTION] of the [ACT]. Supreme Court has also made it clear that even if the widow may have become landlady of the tenanted premises in course of time, she shall not be eligible to bring eviction petition under [SECTION] of the [ACT], if the premises was not let out by her or by her husband.
24. In view of aforesaid unambiguous reasons and decision given by the Supreme Court in [ENTITY]'s case (Supra), there remains no debate over this question. It is settled that if the premises was let out by any other person rather than widow or her husband, then the provisions under [SECTION] of the [ACT] would not be applicable. Therefore, the judgment relied upon by the petitioner cannot help the case of the petitioner.
25. In view of aforesaid law laid down by Supreme Court, I do find that since the tenanted premises in this case was not let out by the petitioner or her husband (though petitioner has not specifically pleaded about the person, who let out the property to the respondent, but during the course of arguments, it was admitted by counsel for the E72/2011 Page no. 12 of 13 petitioner that it was not let out by the petitioner or her husband), therefore, this eviction petition under [SECTION] [ACT] is not maintainable.
26. In [ENTITY]'s case (Supra), Supreme Court has set aside the order of eviction by making following observations:
"Since we have held that the respondent was not entitled to invoke the provisions of [SECTION] of the Act, it would be futile to remit the matter to the Court of Additional Rent Controller for granting leave to defend. We therefore, allow this appeal and set aside the judgment and order of the High Court as well as that of the Additional Rent Controller, Delhi and dismiss the application filed by the respondent under [SECTION] of the Act."
27. Even in the present case, I find it to be futile exercise to hold a trial by allowing the respondent to defend this eviction petition because I have already come to the conclusion that this eviction petition is not maintainable, therefore, there remains no occasion to hold trial of any other fact. Hence, this eviction petition is dismissed.
28. File be consigned to record room.
(Announced in the open (PULASTYA PRAMACHALA) Court on 21/01/2012) ARC01, East, Karkardooma, (This order contains 13 pages) 21/01/2012. E72/2011 Page no. 13 of 13