Full Text
Order delivered on: December 20, 2013
MOHD AZHAR ..... Petitioner
Through Petitioner in person.
Through Mr.Rajeev Saxena, Adv.
JUDGMENT
1. The present petition has been filed by the petitioner under Section 25B(8) of the Delhi Rent Control Act, 1958 (hereinafter referred to as “the Act”) against the order dated 1st April, 2010 passed by learned ARC (East) Delhi, allowing the leave to defend application of the respondent in an eviction petition filed by the petitioner in respect of a flat bearing no. H-204, Taj Sartaj Group Co-operative Housing Society (Taj Enclave), Geeta Colony, Delhi-31 (hereinafter referred to as “the tenanted premises”).
2. The petitioner had stated in an eviction petition that he bonafidely required the tenanted premises for himself and his family consisting of his wife, 5 daughters of who 2 were married and 3 were unmarried, one married son and his wife. Two unmarried daughters were stated to be aged about 20- 22 years old, at the time of filing of the eviction petition, while the third unmarried daughter was stated to be mentally challenged, requiring constant care. 2013:DHC:6592
3. It was stated in the petition that the petitioner required at least 7 rooms for himself and his family members, including the two daughters who paid occasional visits to the petitioner. It was also stated that the petitioner himself was living as a tenant in part of first floor of property bearing NO. 1168, Mahal Sarai, Churiwalan and that the landlord therein had been asking the petitioner to leave the said premises. It was further stated that the petitioner intending to shift his two unmarried daughters and the married son with his family to the tenanted premises so that the daughters could study in a peaceful and conducive atmosphere.
4. In the leave to defend application, the respondent besides raising other grounds, contended that the petitioner is the owner of the entire property bearing No. 1168, Mahal Sarai, Churiwalan and was not residing therein in the capacity of a tenant. It was contended that the petitioner had another residential house bearing No. 2906, Gali Captain Wali, Kucha Chela, Daryaganj constructed uptil 2nd floor and that the petitioner’s son had been residing therein and also doing his business from the ground floor thereof. It was also contended that the 2nd floor of this property was recently let out to someone by the petitioner. It was further contended that petitioner is the original allottee of flat no. D- 202 in the same Society i.e. Taj Enclave and that the petitioner had also purchased another flat bearing no. 302 which was in the possession of the petitioner.
5. The petitioner filed reply to the application of the respondent along with counter affidavit and documents on record to prove his ownership of the suit property including GPA, Agreement to Sell, Will, Affidavit and Receipt of consideration dated 2nd September, 1999, executed by Munshi Mohd. Salam, (previous owner) in petitioner’s favour. Petitioner also filed another set of documents i.e. GPA and Agreement to Sell dated 25th February, 1989 executed by Sh. Mustaq Ali (original allottee) in favour of Sh.Munshi Mohd. Salam (previous owner). The petitioner also filed Conveyance Deed dated 23rd August, 2008 executed by Super Lessor DDA whereby the lease hold rights of the premises in question converted into free hold rights in favour of the petitioner. Petitioner had also filed latest/current survey report/rough assessment report of the properties alleged by respondent and a list of members of Taj Sartaj Cooperative Group Housing Society issued and certified by its President and Secretary and a certificate issued by its secretary. The certified copy of the counter affidavit is annexed herewith as Annexure P-4. The photocopy of the letter issued by Secretary of the society is annexed herewith as Annexure P-5. Documents executed by original allottee of the flat is annexed as P6(Collly). The documents i.e. agreement to sell, GPA, Will, affidavit and receipt of consideration in favour of the petitioner is annexed as Annexure P-7 (colly). The conveyance deed executed by Super Lessor i.e. DDA in favour of the petitioner is annexed as Annexure P-8.
6. Despite of giving his explanation in reply to the application about the present accommodation available with him and his requirement on the basis of size of the family, the learned trial Court opined that all the grounds raised by the respondent were sufficient to arrive at the conclusion that the leave to defend application deserved to be allowed. It was also noticed by the learned Trial Court that petitioner in his counter affidavit had stated that he had acquired the tenanted premises vide conveyance deed dated 23rd July, 2008, which in view of the learned Trial Court led to the question as to whether the petition was hit by provisions of Section 14(6) of the Act and required adjudication.
7. With these observations, the learned trial court passed the impugned order allowing the leave to defend application of the respondent. Aggrieved thereof the petitioner filed the present petition.
8. I have heard the petitioner in person. No one appeared on 2nd December, 2013 on behalf of the respondent when the matter was taken up.
9. It is true that in the main eviction petition, the petitioner’s evidence has been recorded and closed on 13th November, 2012 and the matter is now at the stage of completion of evidence on behalf of the respondent and the matter is put in 2014 as the same was adjourned on the last date mainly on the reason that the respondent wishes to examine two more witnesses from the office of DDA and Taj Sartaz Housing Society in order to demolish the case of the petitioner about his ownership and to establish the case of Section 14(b) of the Act. Despite of such situation, the petitioner is pressing for hearing of present petition on merit.
10. After hearing the petitioner, I am of the considered opinion that there is no relevance in calling witnesses from DDA and Society when the ownership of flat is not disputed. The flat in question was admittedly let to the respondent in the year 1997 @ `3000/- per month w.e.f. 1st August,
1997. But, he is receiving the rent at the rate of `800/-. The respondent’s objection under Section 14(b) is without any force. The execution of Conveyance Deed subsequently does not give any benefit of Section 14(b) of the Act in view of date of occupancy of tenanted premises which was itself 1997. The petition was admittedly filed after the statutory period of 5 years. It was alleged by the petitioner that prevalent rent of similar flat in Taj Enclave is more than `12000/- per month, who also states that the respondent is a practicing lawyer and pressing him to sell the flat to him at the cost of his choice. He is above 70 years old residing in rented premises. In view of the above said facts and reasons, I am of the view that the learned trial Court has totally ignored all the relevant facts and law and granted the leave when no triable issues were existing. The order of the learned trial Court is totally perverse and against the law, therefore, the request of the petitioner to hear the matter on merit is proper and reasonable.
11. After examining the entire gamut of the matter, I am of the view that the impugned order is not sustainable in law and is liable to be quashed on the following reasons:-
(i) It is admitted position that the respondent has not filed any document in support of his contention which could connect the petitioner or any of his family members with the said properties. There is no material to show even prima facie that the petitioner is related to the said properties in any manner.
(ii) The learned ARC did not appreciate that the respondent in his affidavit had alleged that certain properties belong to the petitioner and his son though the petitioner has filed the current/latest survey report/rough assessment report dated 7th January, 2009 in respect of the said properties after obtaining the same under Right to Information Act from the Assistant Assessors or Collector MCD City Zone and the same was ignored in the impugned order.
(iii) The learned ARC did not take into account that the current/latest survey report/rough assessment report dated 7th January, 2009 filed by the petitioner show that none of the properties referred by the respondent in his affidavit belong to the petitioner. The name of the owners and occupants are given in the said survey report of the said properties.
(iv) The learned ARC did not appreciate that the petitioner is living in a rented accommodation and his landlord is pressing hard to vacate the tenanted premises. The petitioner has also filed the rent receipt and current/latest survey report/rough assessment report dated 7th January, 2009 of the rented property which shows his status as a tenant in the property in which the petitioner is living i.e. 1168, Mahal Sarai, Churi Walan, Delhi-110006.
(v) The learned ARC has ignored the fact that in counter to the allegation regarding another flat of the petitioner in the same society i.e. Taj Enclave Geeta Colony, Delhi, petitioner has filed a certificate dated 9th November, 2008 issued by Honorary Secretary, Taj Satraj Cooperative Group Housing Society Ltd. alongwith a list of members of the said society which shows that petitioner is the owner of only one flat i.e. suit premises i.e. Flat H-204, Taj Enclave, Geeta Colony, New Delhi. The allegation of the respondent that the petitioner is having another flat in the same society is not correct on the face of it.
(vi) The opinion of the learned ARC recorded in impugned order to the effect that the petitioner had not acquired the property in question through General Power of Attorney, Agreement to Sell, Will, Affidavit, Receipt of consideration executed on 2nd August, 1999 in his favour by said Sh.Munshi Mohd. Salam (previous owner) has caused injustice to the petitioner. The conveyance deed dated 23rd August, 2008 by super lessor DDA while converting the flat in question from lease hold right to free hold right from which the learned ARC took into consideration 23rd August, 2008 as the date of acquisition of the property is incorrect as it is the admitted position that the tenanted premises was let out to the respondent in the year 1997 by the petitioner himself who is owner of the flat in question. The said enquiry under circumstances was not necessary and was not a triable issue.
(vii) The learned ARC did not understand that the affidavit filed by the respondent alongwith application for leave to defend does not raise any triable issue. The learned ARC has not understood that all the allegations leveled by the respondent in his application for leave to defend and its supporting affidavit, have been duly replied by the petitioner who has also filed necessary documents in support of his reply and counter affidavit. In fact, in the present case, the petitioner filed the documents of his ownership of the suit property since 2nd August, 1999, which had remained uncontroverted. The petitioner has also proved on record by filing the relevant documents i.e. current survey/rough assessment report issued by the Competent Authority and the list of members of the Taj Sartaj Group Housing society alongwith certificate issued by Honorary Secretary of the said society, which remained unimpeached.
12. Under these circumstances, the prayer made in the present petition is allowed. The order dated 1st April, 2010 is set aside. The respondent is granted six months time to vacate the tenanted premises i.e. Flat No.H-204, Taj Sartaj Group Co-operative Housing Society (Taj Enclave) Geeta Colony, Delhi-110031 and to hand over the vacant and peaceful possession thereof to the petitioner. During this period, the respondent shall not sublet or create third party interest in the tenanted premises and shall not change the nature of construction of the tenanted premises in any manner.
13. The petitioner is also entitled for cost of Rs.10,000/- which shall be paid by the respondent at the time of delivering the possession of the tenanted premises.
JUDGE DECEMBER 20, 2013