IN THE COURT OF SH. PULASTYA PRAMACHALA, ARC01, EAST, KARKARDOOMA COURTS, DELHI. [CASE NUMBER] E40/2011 Smt. [ENTITY] W/o Late Bhagwati Parshad Saraff R/o G19, Preet Vihar, Delhi110092. Petitioner Versus Sh. [ENTITY] S/o Late Abdul Hameed R/o C/42, Street No.11, Kanti Nagar Extension, Krishna Nagar, Delhi 110051 Also at: 32/1A, First Floor, 'B' Block, Gali No.3, East Azad Nagar, Delhi110051. Respondent E40/2011 Page no. 1 of 9 Application for leave to defend moved on behalf of respondent in Eviction petition no. E40/2011 Date of institution of petition : 23/02/2011 Date on which Order was reserved : 01/02/2012 Date of Order : 03/02/2012 Final Order : Application for leave to defend allowed. ORDER
1. Vide this order, I shall decide the application filed by the respondent seeking leave to defend and contest the eviction petition in hand.
2. Petitioner has filed this eviction petition under [SECTION] of the [ACT].
3. Briefly stated, the case of the petitioner is as follows: Petitioner and her brother in law Sh. [ENTITY] had purchased a property bearing no. 32/1A and 32/2A, 'B' Block, Gali no. 3, East Azad Nagar, New Delhi110051, measuring 883 sq. yds., in two parts from Late [ENTITY] in the year 1977 and 1978. Thus they became absolute owner of the suit property. In the year 2004, petitioner inducted respondent as tenant in respect of a part of first floor in one part of this property comprising of two rooms, kitchen, lavatory and bathroom, measuring about 1500 sq. ft. for residential purpose. In the E40/2011 Page no. 2 of 9 year 2009, petitioner executed a written rent agreement dated 01/06/2009 with the respondent in respect of same property for a rent of Rs.3,300/ per month. Petitioner is 75 old lady and is staying at G19, Preet Vihar, New Delhi92 alongwith family of her brother in law Sh. [ENTITY] comprising of his wife Smt. [ENTITY], Sh. [ENTITY] (son of Sh. [ENTITY]) and his wife; Sh. [ENTITY] (son of petitioner), his wife and two daughters and Sh. [ENTITY] (son of petitioner), his wife and his two sons. Now the said property has become over crowded as in the past, the younger son of petitioner Sh. [ENTITY] was residing in USA, but he has come back to India to settle down here with his family. In the past, Sh. [ENTITY] (son of Sh. [ENTITY]) was not married, however, he has his family now and all are residing in the same property. Husband of petitioner expired in the year 2008. Hence, the present petition for eviction of tenant / respondent.
4. In the application for leave to defend and affidavit, respondent has taken following relevant plea:
(a) Petitioner has forged the signature of Late [ENTITY] with intention to create ownership title of the suit property comprising the tenanted premises. She has also forged the signatures of respondent upon the rent agreement, which was never signed by the respondent.
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(b) Respondent was never inducted by the petitioner as tenant and there is no relationship of landlord and tenant between them.
(c) Respondent was inducted as tenant since 07/01/2001 by Late [ENTITY] and he is paying rent to his legal heir [ENTITY] @ Rs. 3,500/ per month.
(d) Since there was no relationship of landlord and tenant between the parties, therefore, there was no question of paying any rent to the petitioner.
5. In reply, petitioner reiterated the facts as stated in her petition and denied the allegations of forging the signature of respondent in the rent deed.
6. Petitioner also filed written arguments and relied upon following case laws to say that mere the denial of the ownership title or the relationship of landlord and tenant cannot be sufficient to allow the respondent to contest this case.
1. [PRECEDENT]
2. [PRECEDENT].
3. [PRECEDENT]
4. [PRECEDENT]
5. [PRECEDENT]
6. Sh. [PRECEDENT] [CASE NUMBER].
7. [PRECEDENT].
8. [PRECEDENT].
9. [PRECEDENT]
10.Sh. [PRECEDENT].
11. [PRECEDENT]
12. Lt. Gen. [PRECEDENT].
7. It was further argued on behalf of petitioner that the requirement under [SECTION] of the Act is that landlord should be a widow and the tenanted premises should be required by her for her use.
8. On the other hand, it was argued on behalf of respondent that petition as well as legal notice relied upon by the petitioner show that this case cannot be maintained before this Court because rate of rent at the time of filing of the petitioner was projected to be Rs.3,795/ per month by the petitioner, therefore, [ACT] is not applied and petition is not maintainable.
9. On merits, it was argued by counsel for respondent that petitioner has come up with false claim of her being owner as well as landlord in respect of the tenanted premises. Though as a matter of fact, respondent E40/2011 Page no. 5 of 9 was never inducted as tenant by the petitioner in the property.
10. Petitioner in support of her petition filed copy of ownership documents, copy of site plan of the whole property as well as of the tenanted property, copy of rent agreement dated 01/06/2009, copy of legal notice dated 03/12/2010 served upon the respondent and two postal receipts, copy of reply dated 28/12/2010 sent by the respondent in response to notice dated 03/12/2010 and copy of order dated 14/02/2011 passed in civil suit filed by the petitioner against [ENTITY] by High Court of Delhi.
11. On the other hand, respondent filed copy of rent agreement between him and [ENTITY] dated 07/01/2001, rent receipt issued by [ENTITY] in respect of the tenanted premises and photographs of certain properties.
12. I have given due consideration to the rival contentions made before me and perused the record of this case as well as case laws. However, I do not intend to reproduce the ratio of each and every case law, for the sake of brevity. I shall evaluate the facts of this case on the parameters of legal principles recognized in aforesaid case laws.
Findings:
13. I shall first deal with the requirement under [SECTION] of the [ACT] to seek eviction of a tenant. In order to evict a tenant under Section [SECTION] of the [ACT], petitioner has to satisfy following ingredients.
i) Petitioner should be widow landlady. ii) The tenanted premises should have been let out by the widow or her husband and the tenanted
premises should be required bonafidly by widow for her own use.
14. There is no doubt that in normal circumstances, a tenant is stopped from challenging the title of his landlord by virtue of [SECTION] of the [ACT]. However, in order to apply this estoppel, there must be a relationship of landlord and tenant between the parties.
15. In the present case, tenant has denied the existence of relationship of landlady and tenant between the parties. It has to be seen that this has been simplicitor negative plea of the respondent or is there any substance in such plea? It is worth to be seen that in the legal notice dated 03/12/2010, the petitioner herein while terminating the tenancy of the respondent did not make any reference of existence of this tenancy since 2004 as pleaded in this petition. In that legal notice, it was stated by the petitioner that respondent was inducted as tenant while executing a rent agreement dated 01/06/2009 without referring to existence of an oral rent agreement between the parties since 2004. In her petition, petitioner has alleged in paragraph no. 14 that since 01/11/2009 till date of filing of this E40/2011 Page no. 7 of 9 petition, respondent was not paying the monthly rent. The question is if the respondent was paying rent since the year 2004 upto 31/10/2009 to the petitioner, then, petitioner must would have issued rent receipts, however no such rent receipt have been placed by the petitioner on the record. The respondent has specifically denied his signature on the rent agreement dated 01/06/2009, which has been relied upon by the petitioner to show the relationship of landlady and tenant between the parties.
16. It is settled law that at this stage of hearing both the parties, this Court is not supposed to give a final finding in respect of merits of the contentions of either of the parties. It is even otherwise not possible because it has to be established in this proceedings that the rent agreement dated 01/06/2009 was signed by the respondent and thus the relationship of landlady and tenant between the parties was brought into existence.
17. In these circumstances, I find that the case laws relied upon by the petitioner does not help her case because in the present case, respondent has not only denied the relationship but has specifically denied his signature on the alleged rent agreement. He has also pleaded about his landlord, who inducted him as tenant in the tenanted premises. All these disputed facts are very material to decide the case in hand. However, the E40/2011 Page no. 8 of 9 case cannot be decided without holding a trial in respect of aforesaid disputed fact i.e. relationship between the parties. Therefore, in my considered opinion, respondent is entitled to contest this eviction petition on a limited ground i.e. whether there exits the relationship of landlady and tenant between the parties?
18. Hence, application of the respondent is allowed and he is given leave to contest this petition on the limited question i.e. whether there exits the relationship of landlady and tenant between the parties and whether respondent was inducted as tenant in this premises in the year 2004 by the petitioner?
(Announced in the open (PULASTYA PRAMACHALA) Court on 03/02/2012) ARC01, East, Karkardooma, (This order contains 9 pages) 03/02/2012 E40/2011 Page no. 9 of 9