K.R. Chavvla v. Rrisihan Divcian

IN Tin: lIKill COURT of dfliii at nkw dkliii
RC Ri:v. 253 201 I
(iP W ADIIAWAN Petitioner rhrough: Mr. K.R. Chavvla & Mr Arvind Varma.
Advoeates.

RRISIIAN DliVCiAN Respondent
Through: Mr. Sunil l.alwani. Ad\oeate.
(ORAM:
IION BLK MR. .11 STICE P.K. BIIASIN
O R 1) E R
% 19.09.2011
1ha\ e heard counsel for the parties.
The petitioner-tenant is aggrie\ed b_\ the order of the Additional Rent Controller
\\hereb\ his application for lea\ e to contest the e\ ietion petition filed b\ the respondent herein under Section 14( 1)(e) of the Delhi Rent Control Act for his eviction from a room m properlN bearing No. 4-.A/49. Old Rajinder Nagar. New Delhi has been dismissed and he has been directed to \ aeate the said shop.
The undisputed facts are that the respondent landlord is living in the aforesaid house along with his wife, two married sons, two daughters-in-law and three grand children, lie pleaded in his eviction petition that the total accommodation in the said properts comprises of one room, one drawing room, one kitchen, bathroom. W.C. on the ground lloor and similar accommodation was there on the llrst foor. The said accommodation was alleged to be highly insufficient for his famih' comprising nine members, fhe detailed reasons for the cwiction of the tenant pleaded in the eciction pelition are as follows:-
"" (viii) Thai the pelilioncr is "6 years old relived Central dk'parliiieni F.niployee. retired from X.R.D.C (Department oj Science and technology) Covernment of India, h'umily of the Petitioner consists of nine members which includes petitioner, his wife, elder son. elder daughter in law. gratuf daughter (elder son's daughter) grand son (elder son's son).
\()unger son. younger daughter in law and grand son (youttger son s son).
RC.REV.253/2011
2011:DHC:16128
I'clilioncr wi/c is '1 years old. sufferedfracture neck femur right fracture of High Hip hall and her hip hall is fractured. Elder son of Petitioner Shri kavinder Devgan is aged about 4H years. liiuI he is in Ciovernment service and presently posted in President's Secretariat. Elder daughter in lav is a hunk employee. Elder son of the petitioner has tvo children i.e. daughter anil a son. Daughter of elder son of Petitioner is IS years old and siudving in a college. Whereas, son of elder son of the Petitioner is HI
\caj-s old anil studying in Sahvan Punhlie School. Second Son of the
Petitioner. Shri Rajiv Devgan is running a shop of Ready Made Cfarments in the same premises, which is shown as Mark X in the site plan filed hy
Petitioner. His wife is a house wife. The younger son of the Petitioner has onlv one son aged 3 years. Beside the aforesaid family members.
Petitioner has a daughter also who is married and she lives at I'ikas Puri
1isiting the Petitioner every now and then and also stays for some days with the petitioner particularly during the vacation of her children. It is also ])ertinent to mention here that Petitioner's elder brother was also running a shop of (jcneral Store on the Ground b'loor which is shown as
Mark ) in the site plan filed by the petitioner. Ihe said brother of the petitioner has already died and the portion offhe property which was being used by the brother of the Petitioner as shown is now being used us store mom after his death. fix! The petitioner had constructed two rooms on. the 1st Eloor also which is shown in the site plan. Presently the accommodation available with the Petitioner is one room, one drawing room, store, verandah (which is being used as a passage), kitchen, bathroom. W.C. and another small store shown as Mark ) and open Court yard on the Ground rioor and one room, one drawing room, one kitchen, covered verandah
Ibeing used as passage) store room, bath room and U'.G. and toilet on the terrace offhe Isl Tloor. The Petitioner along with his wife are living on the
(,round T'loor. Petitioner is a heart patient and getting the treatment at
Ram Manohar Hospital. Petitioner is also suffering from enlargement of
Prostrate (.Hands and is under the treatment of Urology Department in the
R.M.L. Hospital for the last 10 years. Due to his reason, petitioner has developed the tendency ofgoing to urinal for passing urine frequently and ne requires the room near the W.G. on the Ground T'loor. Petitioner 's wife
,s also suffering from osteorafhritis and her hip bad of the right leg nrokern (fracture neck femur) and replacement with Elmer I'ersys Heritage
Bepolar System under Epidural Anesthesia was done at the Orthonova
Hospital. Aeif Delhi. She is totally bed ridden and cannot walk without the help of walker. She is also suffering from kidney trouble and high blood pressure and is under the treatment of R.M.T. Hospital.
Petitioner 's wife require the room near bathroom so that no family member is disturbed in the night in ease jK'titioner and his wife to go for urination.
(x) That the Petitioner 's both sons alongwith their family are living in the pj-eniises and there is acute scarcity of acconimodation. The yand daughter and son IS and 10 years old respectively, yrand daughter at the Petitioner is IS years old rcijuires a separate room for studies besides the Petitioner also recjiiire a (luest Room. lOifa Room and separate room for himself and vife. In fact. Ihnitioner has to accommodate his guests vith great difficulty and hardship whenever the daughter of
Petitioner or any other guest come to stay with the Petitioner, her family members of the Petitioner, have to sleep on the floor and accommodate tiieuiselvcs in the drawing room.
(xi) That the Petitioner requires at least three more room for himself and for the members of his family. Petitioner will merge the ti'najited p/'cmises and the small store room which is shown mark Y into one room and the said room, shall he used by the Petitioner himself and his wife. "
The pctilioner-lcnanl sought leave to defend the e\ iction petition on the ground that the respondent-landlord has more that sufficient accommodation already with him in the propcrl\- in question and further than as far as the petitioner's family members are concerned the\ were not dependent upon him llnaneially or for residence.
The learned trial Court has rejected the petitioner's application for lea\e to contest, \ ariou.s pleas urged by the landlord as well as b\- the tenant have been dealt with m paras no. 8 to 12 of the impugned order and the same are reproduced below verbatim:-
•s.
In the present case, the petitioner is aged about ^6 years and a heart piiiiem iind also suffering froni enlargement of prostrate glands. The wife of petitioner is aged ahoiu id wmrs and suffering from osfeoaiihritis and totally bed
Iidden and cannot walk without help of walker, in my opinion, this Court cannot
(ompel the petitioner landlord and his wife who are senior citizens suffering from multiple diseases to shift to seeond floor fust to protect the respondent tenant occujumcv. h is well established proposition of law that a tenant cannot dictate the teriti.s to the Liindlord as to who the landlord has to live and occupy the portion of ni.s house. In the case law cited as 169 (2010) Delhi Law Times 769 it was held bv the lion ble Delhi High Court that "It is settled law tlmt it is not for a tenant to dictate the terms to the landlord as to how and in what manner he should adjust nuuself without calling upon the tenant to vacate a tenanted premises. While deciding the cjuestion of bonafides of requirement of landlord, it is quite imuecessarv to make an endeavor as to how else the landlord could have adjusted.
When the landlord shows a prima facie case, a presumption that the reipiirement nf the landlord is honafide. is available to he drawn. It is also settled jiosition of taw that the landlord is the best fudge of his requirement for residential or business purpose and he has got complete freedom in the matter and it is no
A iD'U i'ni of llh' ( Oiirls lo clictalc to laiullord how . liik/ in whcil nuinner. he .should
I'nc or lo pre.scrihc for him a re.sidenticil .sloiic/ard ofihcir own. The leuuni euiiiiol i i)iii/>el (I hmdiord to live hi a porliciilar fi.shioii and meihod until and iinle.s.s the requirement shown is totally malafhle or not genuine ".
In view of above, the objection raised bv respondent is not sustainable and same is rejected.
The another objection is that petitioner does not recptire the tenanted shop which ts a small shoji of 6x6 feet for his residence and petitioner has more than sufficient accommodation for himselfand for his wife on the groundfloor. hi the petition, petitioner has averred that he has only one room and a dtawtng room on the ground floor beside kitchen, bath room. H'.C. Ltnd store i-oom and court vard and the shop room vacated by the brother of the petitioner is being used as a store room out of compulsion and can onlv he useful if the same is merged with the tenanted premises. fi) prove this, petitioner hasfiled the site plan on record to show that he has onlv one room and a drawing room on the groundfloor beside kitchen, bath room. IT.C. anil store room and court vard and the shop room vacated by the brother ofthe petitioner is being used as a store room.
On the other hand, respondent has assailed that entire ground floor consisting of one drawing room, two rooms, kitchen, bathroom. WC and store room, open court vard is in occupation ofpetitioner and his wife.
It seems that respondent has stated the passage verandah on the ground floor as room. The respondent has not filed anv site plan to show that petitioner
Ihis wrongl\^ stated one room as passage and to show that there is sufficient space available with petitioner in the suit property. It is well settled proposition of law that tf tenant does not file any site plan, the site planfiled bvpetitioner is assumed to he correct. Hence, it is assumed that site plan filed bv petitioner is correct and no other space in the suit premises is avitilahle withpetitioner.
It iihiv also be seen that petitioner has stated that he recptires at least three more rooms for himself and for his fatnily tnembers. Ifven if verandah assumed to be a room then also petitioner recptires two more rooms as puja room and guest room as his daughter is married used to visit the petitioner offand on and iit laws of his two sons used to visit the petitioner and sons occasionally. Iti case Krishan Kumar Gupta v.v Swadesh Bliuslian Gupta (RC Rev. No.62/2008) cited as 152 (21)08) DLT 556. it has been held bv the Hon ble High Court that retpiirement of landlord to have sufficient accommodation for families of his
\tstting daughter and son is not fanciful requirement. .Is per petitioner, he reciuires one room as puja room. In mv opinion, ifpetitioner wants one room for the worshtp the goddesses then the Court cannotprevent himto do so.
('onsidering the total accommodation and the number of family members.
/ iun satisfied that the available accommodation cannot be said to be sufficient for thepetitioner and his fatnilv members. Further, it is the choice of thepetitioner to have and use the accommodation according to his comfort. This objection is also dismissed
RC.REV. 253/2011 Page4 of 7
Ut. The other oh/ecliotis is tinil peliliotier not required the leticiiited shop for one other faniilv nietiihers and the other faiiiily menihers ore not dependent upon the petitioner for aceointnodalion and petitioner has not stated that his sons are aepeiulent upon him.
I have gone through the petition, in pat\i no.iviit) atid (x). the petitioner ha^ clearly mentioned that his younger soti running a shop of readymade garments in the same premises: that his married daughter used to visit him and also Slavs for some days and that his both sotts along with their family are living in the jiremises and ihere is acute scarcity of accommodation.
The above clearlv shows that petitioner is living in the /dint family and all mimhers of his family are dependent upon the petitioner for the purpose of residence. Merely not mentioning the jnirticular word 'de/ieiulent' in mv opinion
IS no ground for allowing the objectioti raised bv respondent, liven otherwise, in case Dwarka Pnisatl i.v. Niranjan & Another cited as (2003) 4 Supreme Court
Coses 549. it has beeti clearlv held that scope of woni hitnself whether to be confined to the landlord alone or includes the reipiiremenis offamily members of die plaintiff i.e. his sons, brothers and sisters etc.. covers the requirement of a member of fainilv ofthe landlord who is dependent oti the landlord for purposes of residence or for economic consideration. despondent has also contended that elder son of petitioner is in
(iovernment service and his wife is a bank em/dovee and second of petitioner is
'•tinning a garment sho/) and hence, sons ofpetitioner are not ilependent upon the petitioner. In case Sli.Cohuul Das ami others vs. Sh. Kuhlip Siuph cited as 1970
Ml India Rent Control Journal 742 it has been clearlv that the plea that because a person is earning his livelihood he should not be regarded as ilependent upon the landlord, if accepted, would tend to restrict the meaning of the word dependent' used in proviso (e) of Section 14(1/ of the Delhi Rent ( ontrol Act.
T>5S to a person being financially dependent. In case Sh.Lala Ram vs.
Smt.Kalawati hearing SAO No.256 of 1972 decided on 21.05.1974, it has been held by the llon'ble Delhi High Court that "it has already been held by this court in numerous cases that the expression self appearing in the Proviso fe) to
Sector I4i!) of the Delhi Rent Control .ict includes all members of the family of the Land Lord who had been living with the l.attdlord whether as dependent or otherwise, hi view of these judgments, the contention of the respondent that sons ol petitioner beingengagedfor gains are not de/K'ndent upon thepetitioner, is not siistaitiable.
In view of above, this objeclioti raised by respondetit is also not tenable and same is rejected as such.
I T The another objection of the respondent is that petitioner has not filed the
('jiv of sale deed to show that he had actuallv purchased the property from his mother Smt.Mava Devi.
Petitioner in the petition has averred that suit property was originallv idloted to his mother Smt.Mava Devi by the Ministry of Rehabilitation.
(iOvernment of India and his mother had let out the tenanted premises to
1espotident and a retit note was executed between them oti 2'.03.1994. Prior to death of Smt.Mava Devi, she had sold the suit property to his son i.e. petitioner.
RC.REV.253/2011 Page 5of 7
1() prove Ihis hid lluil he has p/aeed on reeord eopv of conveyance deed doled I ~.l>1.2(100. ('oiinsel for pelilioner aryiied lhat on the basis of sale deed, the
I.and ami Developineni Office.Minislrv of If'han Affairs and Kmplovinenl. New l.ieihi has e.xeci/led a eonvevance deed in favour of petitioner, the petitioner has lilso placed on record copy of rent receipt dated 03.I0.200S to show that respondent is tendering the rent to hint.
On the other hand, respondent has not filed any docinnent on record to show that anv person other than petitioner is the landlord of the suit property.
U'/ule tnafiiny the allegation that petitioner is not the owner of the suit property, respondent tnust disclose as to who is the real oM ner of the suit property. .1 tnare bald allegation is not enoiiyh.