* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision:05.08.2014 + RC.REV. 547/2011 & CM 23541/2011 JAGANNATH Petitioner Through: Mr. [ENTITY], Advocate versus SHANTI DEVI Respondent
Through: Mr. [ENTITY], Advocate CORAM:
HON'BLE MR. JUSTICE [ENTITY] % MR. JUSTICE [ENTITY]
1. This petition has impugned an order of 30th September, 2011 in [CASE NUMBER] whereby the respondent-landlady's eviction petition under [SECTION] has been allowed, the petitioner's leave to defend under [SECTION] of the [ACT] (the Act) was dismissed and eviction order with respect to the tenanted premises i.e. shop bearing No. 5357, Laddu Ghati, Paharganj, New Delhi has been passed. The landlady's case was that the tenanted premises are the only commercial accommodation available to her. She needs it for herself as well as her son Mr. [ENTITY] who lost his right leg in the year 2005 in an accident. The said son was a truck driver and is now totally dependent upon his mother for starting a new business so as to earn a regular livelihood to maintain his two minor daughters and a son. The landlady's case was also that the house in which she was living is woefully insufficient to accommodate her, her husband and her six sons and their respective wives and children. In the application for leave to defend the petitioner-tenant had argued that the petition was not bona fide. In support he had (i) listed eleven properties as being available to the landlady, (ii) that the premises were in a slum area and permission ought to have been taken from the competent authority to seek the eviction of the tenant, (iii) that the eviction petition did not specify the boundaries' or dimensions of the tenanted premises and
(iv) finally, that she did not provide documentary details of ownership of the premises.
The landlady denied ownership of all the eleven properties except of properties No. 5355, 56 and 57. She submitted that except for the tenanted shop, the other properties were residential in nature and were already leased out. Therefore, they could not be used for commercial purposes. She reiterated that the suit premises were most suitable for her bona fide need.
The Trial Court found none of the tenant's arguments to constitute a triable issue. The Court reasoned that although the tenant had denied the relationship of landlord and tenant, he failed to disclose as to who else was the owner of the suit property or to whom was he paying the rent. On the contrary, the landlady had placed on record a copy of a sale deed in her favour along with rent receipts to establish that the tenant had paid rent to her, therefore admitting that the eviction-petitioner was the landlady. Furthermore, the Trial Court was of the view that the tenant was estopped under [SECTION] of the [ACT] from challenging the title of the eviction- petitioner. The tenant's objection on this ground was found to be baseless, hence rejected. The Trial Court was of the view that no permission was required from the competent authority regarding slum areas since the landlady was not under any obligation to do so. Reliance was placed upon the judgment of this Court cited as [PRECEDENT]; it holds that [ACT] do not apply to an eviction petition under [SECTION] and [SECTION] of the Act. Accordingly, this objection was too rejected. Upon examination of the medical documents apropos the disability of the landlady's son Mr. [ENTITY] including the disability certificate issued by a prominent government hospital i.e. Ram Manohar Lohia Hospital, New Delhi, certifying the son's permanent disability upto 70% in relation to his whole body, along with FIR No. 701 regarding the accident on 16.8.2005, the Trial Court found that the disability/handicap of the son stood established: The tenant, on the other hand, had not filed any document to substantiate his dispute regarding the said son's disability, therefore this issue too was not found triable. The Trial Court was further of the view that simply because a son is earning a livelihood through some means, it could not be deemed to be a lack of his dependency upon his parent within the definition of word "dependent" under the Act. What is to be seen is whether the son had sufficient accommodation of his own to defeat the eviction motion based upon his dependency. The objection of the tenant that the site plan of the tenanted premises was incorrect was rejected since the tenant himself did not file anything to the contrary. It has been held that when the tenant does not file any site plan, the site plan filed by the landlord is assumed to be correct.1 Accordingly, the site plan filed [PRECEDENT] & Jagmohan Singh v. K.M. by the petitioner was assumed to be correct and that there was no other shop in premises No. 5357 which was lying vacant. The Trial Court then dealt with each of the properties mentioned in the application for leave to defend and concluded that either they were not owned by the eviction-petitioner or were residential in nature or were otherwise leased out. Therefore, neither of them could be said to be suitable alternate accommodation. Accordingly, none of the issues raised were considered triable.
2. In the arguments before this Court as well as the written synopses of arguments filed, the tenant has reiterated the same arguments as were made in his application for leave to defend. On the basis of record the Trial Court found that property No. 5234, Bharat Nagar, Paharganj was owed by the landladys' son [ENTITY], whereas property No. 5235 did not belong to either her or any of the family members. Therefore neither of the property was available to the petitioner. The shop at Chuna Mandi, Paharganj was owned by her other son Sh. [ENTITY]. The shop at Rama Krishan Mission, Paharganj was under tenancy of her husband hence it too was [PRECEDENT].
not available to her for occupation and use. The property at 219, DSIDC Okhla Industrial Area, Phase-I was being used by her other son [ENTITY], who engaged was in water-supply business, under the name of M/s. Mittal Water Supplies; this property too did not belong to the landlady/eviction-petitioner. The shop at Panchkuian Road Furniture Market too was under tenancy hence not vacant for her use. The Sainik Vihar, Pitam Pura property was residential in nature. The tenant had not filed any document to show that this property was being used for commercial purposes, whereas the conveyance deed dated 9.12.1999 in the landlady's favour showed that there was no shop/commercial space in the said property. This was not challenged by any contrary site plan/document by the tenant. In respect to property No.5356, Laddu Ghati, Paharganj, New Delhi adjacent to the shop in question, it was contended by the tenant that the shop was lying vacant and in possession of the landlady. The Trial Court observed as under:
"12. The respondent further contended that petitioner got vacated one shop from Sh. [ENTITY] on 24.01.2009 bearing no.5356, Laddu Ghati, Paharganj, New Delhi just adjacent to shop of respondent, in possession of the petitioner, lying vacant.
I have seen the translated copy of sale deed filed on record. It shows that Sh. [ENTITY] was tenant inducted by the erstwhile owner in respect to rooms behind and front at the rate of 19.75 per month and 25 paisa for water. This belies the contention of respondent that Sh. [ENTITY] vacated the shop while it is a fact that he was inducted as tenant in respect of two rooms and not with respect to shop. The respondent has placed on record the original copy of challan and copy of money order to show that Sh.[ENTITY] was in possession of one room and one shop in premises no.5355, 5356. I have seen both the documents. The narrator of both the documents was Sh.[ENTITY]. The respondent has not filed any document filed by petitioner before the Court in those proceedings against Sh. [ENTITY] to show that petitioner herself admitted Sh.[ENTITY] was tenant in respect of one shop and one room. Besides, the photographs filed by clearly shows that there is no shutter in the shop situated in premises no.5356. Hence, it may be possible that Sh. [ENTITY] was initially inducted as tenant for residential purposes in two rooms and lateron, he used one room out of said two rooms for commercial purposes but the said room was not constructed shop and therefore, cannot said to be suitable to the petitioner. Moreover, the respondent has not filed on record any document to show that Sh. [ENTITY] got vacated the said premises on 24.01.2009."
3. It is settled law that the tenant cannot dictate as to how and which property the landlady should use for which purpose so as to adjust and meet the requirement of her bona fide need, without calling out the tenant to vacate the tenanted premises.2 It is not for the tenant Kishan Lal v R.N. Bakshi, 169 (2010) Delhi Law times 769 or the Court to expect a landlady to make adjustments in the accommodation available to her to meet her bona fide need or requirement. The respondent-landlady has argued that the son who suffers from permanent severe disability is unemployed and has not found any accommodation to start his own business so as to earn his livelihood therefore he is dependent upon her mother-the landlady for the provision of a suitable commercial accommodation. That the eviction petition was filed for the bona fide requirement by the landlady and her son. This Court is of the view that each arguments raised in the leave to defend application has been adequately dealt with. None of the issues raised in it found to be triable. The legal arguments were duly dealt with in accordance with law; the impugned order does not suffer from any material irregularity warranting the interference of this Court in this petition. The petition lacks merit. Accordingly, it is dismissed.
[ENTITY] (JUDGE) AUGUST 05, 2014