Smt. [ENTITY] Vs. Shri [ENTITY] IN THE COURT OF SH. [ENTITY] ACJCCJARC(EAST), KARKARDOOMA COURTS, DELHI Petition No.: E 05/14 Case ID No.: 02402C016472014 Smt. [ENTITY] W/o Late Shri Deo Narain R/o H. No. 30/477, Extra 30 Block, Trilokpuri, Delhi 91. Petitioner VERSUS Shri [ENTITY] S/o Sh. Jagat [ENTITY] R/o H. No. 30/477, Ground Floor, Extra 30 Block, Trilokpuri, Delhi 91. Respondent UNDER SECTION : 14(1)(e) [ACT] DATE OF INSTITUTION : 17.01.2014 DATE OF RESERVING THE ORDER : 11.11.2014 DATE OF ORDER : 11.12.2014 APPLICATION FOR LEAVE TO DEFEND MOVED BY THE RESPONDENTS O R D E R
1. Vide this order, I shall decide the application filed by the respondent seeking leave to defend the eviction petition in hand.
2. Briefly stated, the case of the petitioner is as follows: Smt. [ENTITY] Vs. Shri [ENTITY] The petitioner is owner of property bearing no. 30/477, Extra 30 Block, Trilokpuri, Delhi - 91 measuring 221/2 sq. yards and suit property is ground floor of this property consisting of one room and varanda as shown in red colour in site plan. Its first floor consisting of one room and varanda is occupied by petitioner and her family members which consist of twelve persons including the petitioner. The petitioner is also owner of property no.36/164, Trilokpuri, Delhi consisting of ground floor and first floor consisting of one room and varanda on each floor. This property is occupied by Smt. [ENTITY], married daughter of petitioner, who is residing in this property alongwith her husband and three children. As per petition, the respondent was inducted as tenant in the suit property about 5/6 years back and at that time no written agreement was executed between the petitioner and respondent and with passage of time, respondent started getting troubles for the petitioner, due to which rent agreement was got executed between the petitioner and respondent on 28.09.2013. The petitioner is facing acute paucity of accommodation due to increase in the family of petitioner and family members dependent upon her in terms of accommodation. The eldest son of petitioner namely Sh. [ENTITY] some time resides at native place at village in UP and some time he resides at Delhi and children of [ENTITY] oftenly visit Delhi to meet their grand mother but due to paucity of space it is very difficult for the petitioner to accommodate her visiting son, daughterinlaw and their four children. As per petition, the Smt. [ENTITY] Vs. Shri [ENTITY] petitioner has become octogenarian and due to old age it is very difficult for the petitioner to climb the stairs to reach the first floor and she requires separate space at ground floor for herself.
3. It is prayed that a decree of eviction of the tenant be passed in favour of petitioner and against the respondents for the tenanted premises as shown in red colour in the site plan.
4. In application and affidavit, respondent (hereafter referred to as the respondent) has taken following main pleas:
(I) There is no relationship of owner and tenant between the petitioner and the respondent. Son and daughterinlaw of respondent are residing in the suit property and they both are owners of the suit property.
(II) Property in suit is a DDA Land and same is not covered under [ACT] and cannot be given on rent.
(III) Site plan filed by petitioner is wrong, incomplete and against the spot position.
(IV) Rent agreement filed by petitioner is false, forged and fabricated one and no agreement was executed between the petitioner and respondent at any point of time.
(V) Alleged requirement of petitioner is not bonafide.
(VI) Petitioner has concealed accommodations which are in possession and occupation of the petitioner and her family members.
5. Reply alongwith affidavit filed on behalf of petitioner discloses the following material grounds: Smt. [ENTITY] Vs. Shri [ENTITY] (I) It is denied that petitioner is not the owner of suit property. It is also denied that son and daughterinlaw are residing in suit property or they both are the owners of suit property. The respondent has not filed material to substantiate his allegation in respect of the same. (II) It is denied that suit property is a DDA Land or same is not covered under [ACT] or cannot be given on rent. (III) It is denied that site plan filed by petitioner is wrong or misleading or incomplete.
(IV) It is denied that rent agreement filed by petitioner is false or forged or fabricated or that no agreement was executed between the petitioner and respondent at any point of time. It is further mentioned that respondent has vaguely denied the execution of rent agreement without giving any cogent and plausible reasoning. (V) It is denied that requirement of petitioner is not bonafide or that she has concealed any material fact.
(VI) It is denied that petitioner has intentionally concealed any accommodation which is in possession or occupation of family members of the petitioner. It is further mentioned that petitioner has mentioned in her petition regarding her family members and the accommodation occupied by them and also placed documentary proof.
6. The Ld. counsel for the petitioner argued that none of the grounds raised by the respondent constituted a triable issue. Also, that the landlord was the best judge of his requirement for space and retained the prerogative to utilize her own property in a manner of her Smt. [ENTITY] Vs. Shri [ENTITY] choice.
7. The Ld. counsel for the respondent argued that the present petition was only a ploy to evict him without any bona fide requirement of the petitioner who was in possession of alternative accommodation. The Counsel agitated that trial was required on the aspect of availability of alternative accommodation.
8. Petitioner has relied upon the case laws viz [PRECEDENT].
9. The court has considered the respective affidavits of the parties and the submissions of Shri [ENTITY], Ld. Counsel for petitioner and Sh. [ENTITY], Ld. Counsel for respondent.
10. As per [SECTION] of [ACT], the petitioner seeking eviction of a tenant, has to satisfy the following ingredients:
i) Petitioner has to be landlord as well as owner of the tenanted property.
ii) The premise should be required bona fide by the landlord for his occupation or for occupation of any member of his family dependent upon him.
iii) Landlord or such person dependent upon landlord should not have other reasonable or suitable accommodation in Delhi.
11. The aspect of ownership of the property in question may be taken up first. Respondent has challenged the ownership of Smt. [ENTITY] Vs. Shri [ENTITY] petitioner over the property in question.
12. Ld. Counsel for respondent has contended that there is no landlord tenant relationship between the petitioner and respondent and his son and daughterinlaw are owners of tenanted premises. On the other hand , it has been contended by Ld. Counsel for petitioner that there is landlord tenant relationship between the parties and petitioner is owner of the same.
13. Perusal of the file would show that the respondent has taken the plea that his son and daughterinlaw are owners of tenanted premises. But, no documentary proof has been filed on behalf of respondent for showing the ownership of his son and daughterinlaw. Even the proof of possession of his son and daughterinlaw has not been placed on record by the respondent. On the other hand, the petitioner has placed on record photocopy of notarised GPA and agreement in favour of petitioner in respect of suit property. The petitioner has also relied upon rent agreement dated 28.9.13 allegedly executed between the petitioner and the respondent. The respondent has contended that said rent agreement is false and fabricated and he has stated that same was not signed by him. The respondent has not placed on record any document showing that alleged signature does not belong to him. The petitioner has also placed on record photocopy of verification form of tenant given to Delhi Police in which the name of respondent alongwith his family members has been mentioned. No contrary proof has been filed on behalf of respondent. Mere alleging Smt. [ENTITY] Vs. Shri [ENTITY] that petitioner is not the landlord or owner or alleging that rent agreement in question is false is not sufficient for granting leave to defend in the absence of some substantial proof.
14. The Court would cite here the observations in [PRECEDENT] interalia that:
"12. It is settled law that for the purpose of [SECTION] of [ACT], a landlord is not supposed to prove absolute ownership as required under [ACT]. He is required to show only that he is more than a tenant."
15. The Court finds that the objections to ownership raised by the respondent are only in the nature of bare denial and do not merit the framing of a triable issue. Leave to contest cannot be granted on this ground.
16. The Court may refer here to the decision in [PRECEDENT], cited by the Counsel for the petitioner, wherein it was held by the Hon'ble High Court of Delhi that:
"A bald plea, without anything more, particularly when the nature of the plea in defence is such that, if true, it would leave a trail of evidence to establish its existence, and which would be easily available for everyone to see and pick up, cannot be accepted as prima facie disclosing a triable issue "
17. The respondent has also taken the plea that suit property is a DDA Land and same is not covered under [ACT] and he further Smt. [ENTITY] Vs. Shri [ENTITY] took the plea that site plan filed by petitioner is wrong, incomplete and against the spot position. The petitioner has denied the abovesaid averments.
18. Perusal of the file would show that no proof has been filed by respondent for showing that suit property in question is a DDA Land. He has also not filed any alternate site plan or apprise the court regarding the details how the site plan is incomplete. As per site plan the tenanted portion has been shown in red colour on ground floor and there appears no ambiguity in the same.
19. Hence, no case for granting leave to defend on this ground is made out in favour of respondent.
20. Learned counsel for respondent contended that the petitioner or any of his family members have no bonafide requirement of tenanted premises. On the other hand it was contended on behalf of petitioner that space is required for the family members of the petitioners and petitioner being age of 71 years wants to shift on ground floor as it is very difficult for her to stay on first floor.
21. Perusal of the petition would show that in para no.3, the petitioner has mentioned the details of her family members who are sons, daughterinlaw, her grand children and total number of 12 including herself has been mentioned. She has stated that she is residing on first floor of the same premises bearing no.30/477 which consist of one room and Varandah attached to the said room. The measurements of the room has been mentioned as 10' X 10' and same Smt. [ENTITY] Vs. Shri [ENTITY] are the measurements of [ENTITY] Court Yard. The petitioner has growing grand children for whom space is required and it will also be convenient for the petitioner to reside on ground floor keeping in view her old age. Petitioner has also alleged in her petition that she has son and his children who oftenly come to Delhi to meet her and space is required for them also.
22. Further it is not the prerogative of tenant to advice the landlord how the space is to be utilised by the landlord. It is settled law that tenant cannot dictate terms to the landlord in selection of manner of use of space of which he or she is landlord.
23. The Court refers to the observations of the Apex Court in [PRECEDENT], wherein it was observed that:
"The need of the landlord is to be presumed as genuine and bona fide and it is not for the tenant to prove that the need is not bona fide. Heavy burden lies on the tenant to prove that the need is not genuine."
24. The respondent is not entitled to leave to contest the petition on this ground.
25. A tenant cannot dictate terms to a landlord in the matter of using his property in a particular manner.
26. The Court would cite here the decision of the Apex Court in [PRECEDENT] wherein it was held that:
Smt. [ENTITY] Vs. Shri [ENTITY] "It is always the privilege of the landlord to choose the nature of the business and the place of the business."
27. In [PRECEDENT], it was observed that:
"Landlord is the best judge of his requirement. It is not open to the Court to dictate him in what manner he should use his premises. He has got complete freedom in the matter."
28. Ld. Counsel for respondent contended that petitioner has concealed accommodations which are in possession and occupation of petitioner and her family members. On the other hand it is contended by Ld. Counsel for petitioner that the petitioner has already disclosed about another property of petitioner bearing no.36/164, Trilokpuri 91 in which married daughter of petitioner is residing alongwith her husband and three children. He further contended that no triable issue arises from the leave to defend and respondent does not have right to contest the present petition.
29. Perusal of the file would show that in her petition, the petitioner has mentioned about abovesaid property stating that same consists of ground floor and first floor having one room on each floor and area of the same is 22 Sq. Yds and same is occupied by Smt. [ENTITY] who is her married daughter who is residing in the property alongwith her husband and three children. Voter Icard of Smt. [ENTITY], her husband Sh. [ENTITY] and of two children has been placed on record in which the address of 36/164 Block 36, Smt. [ENTITY] Vs. Shri [ENTITY] Trilokpuri, Delhi has been mentioned. The abovesaid documents, primafacie proves the possession of the married daughter of petitioner and her family members. No contrary proof has been filed on behalf of respondent showing that they are not residing there or the said premises is vacant. Mere assertion on behalf of respondent is not sufficient. No details of any other property has been disclosed by respondent which is lying vacant and can be used by the petitioner.
30. The court would rely upon the following judgment : [PRECEDENT], the Court held that:
"Mere assertions made by a tenant in respect of landlord's ownership of other buildings and in respect of alternate accommodation are not to be considered sufficient for grant of leave to defend. If this is allowed, the whole purpose of [SECTION] shall stands defeated and any tenant can file a false affidavit and drag a case for years together in evidence, defeating the very purpose of the statute."
31. In the present facts, the respondent has failed to show that petitioner is having any other suitable accommodation.
32. None of the grounds asserted in the affidavit of the respondent seeking leave to contest disclose such facts as would disentitle the petitioner from obtaining an order with regard to the possession of the tenanted shop on the ground specified in [SECTION] [SECTION] of the [ACT].
Smt. [ENTITY] Vs. Shri [ENTITY]
33. The application for grant of leave to defend, filed on behalf of the respondent, is dismissed.
34. An eviction order is passed against the respondent qua Ground Floor portion measuring 22 Sq. Yds. Consisting of one room and a Veranda, situated in property No.30/477, Extra Block 30, Trilokpuri, Delhi 110091, as shown in the red colour in the site plan filed with the present petition.
35. The petitioner would not be entitled to obtain possession of the above shop before the expiration of a period of six months from the date of this order in terms of [SECTION] of the [ACT].
36. File be consigned to Record Room.
Announced in open Court.
Delhi Dated the 11.12.2014 This Judgment contains 12 pages and each paper is signed by me.
([ENTITY]) ACJcumCCJcumARC(E) KKD Courts, Delhi