Full Text
HIGH COURT OF DELHI
Date of Decision: 21st August 2020
SMT. VIDYAWATI ..... Petitioner
Through: Mr. Rajesh Yadav, Advocate with Mr. Dhananjay Mehlawat, Advocate.
Through: Mr. Preet Pal Singh, Advocate with Ms. Priyam Mehta, Advocate and Mr. Saurabh Sharma, Advocate for respondent Nos.1(c)(i), 1(c)(ii), 2, 3(a) & 3(b).
JUDGMENT
(‘subject premises’, for short) impugns order dated 15.05.2018 passed by the learned Additional Rent Controller, Pilot Court, CCJ-cum-ARC
(Central) Tis Hazari Courts, Delhi in case bearing No.E-795/17 titled
2020:DHC:2599 ________________________________________________________________________________________________
Smt. Vidyawati vs. Shri Gautam Mahajan & Ors. By order dated
15.05.2018 the learned ARC has been pleased to allow the respondents’ application under section 25B (8) of the DRC Act and has thereby granted to the respondents leave-to-defend the eviction petition filed by the petitioner.
Petitioner’s contentions :
2. A conspectus of the case as argued by Mr. Rajesh Yadav, learned counsel appearing for the petitioner is the following:
(i) The subject premises was let-out by the predecessorin-interest of the petitioner, Rao Jaswant Singh, to the respondents vidé agreement dated 27.02.1975 at a monthly rent of Rs.660/- per month excluding all other charges;
(ii) The subject premises was inherited by the petitioner and her four sisters as legal heirs of their brother Rao Jaswant Singh, who passed away on 26.02.1997. Thereupon, three of the petitioner’s sisters executed release deeds and the fourth sister executed a sale deed, all dated 27.04.2016, in respect of the subject premises in favour of the petitioner; and thereby the petitioner became sole and absolute owner of the subject premises;
(iii) By way of the eviction petition, the petitioner who was then 86 years of age, sought eviction of the respondents citing bona fidé requirement for herself and of her two married daughters, Smt. Hemant Yadav and Smt. Neena Yadav. The bona fidé requirement pleaded in relation to Smt. Hemant Yadav was that she planned to run a coaching-cumtuition centre from the subject premises; and that the subject premises was most suitable since the Karol Bagh area is central, well connected by road and metro transport to other parts of the city and is adjoining Rajender Nagar, which has become a hub of coaching centres. It was further pleaded that Smt. Hemant Yadav was well-qualified, eligible and competent to run a coaching-cum-tuition centre, being an M.A. in History and a B.Ed. from Delhi University. The requirement cited in relation to the other daughter, Smt. Neena Yadav/Neena Singh was that she plans to start a consultancy business in human resources from the subject premises, for which she is well-qualified, having earned an M.A. degree in Sociology from Delhi University and having previously worked as Additional Secretary at the PHD Chambers of Commerce & Industry. It was further pleaded that the petitioner’s daughters were her only children; that neither the petitioner nor her daughters had any alternate, reasonable and suitable accommodation for the purpose for which eviction was sought; and accordingly, the daughters were dependent upon the petitioner for commercial accommodation as aforesaid, which purposes could be served by the subject premises;
(iv) Furthermore, the details of the accommodation available with the petitioner for the aforesaid purposes were set-out in the eviction petition, including the exact requirement of space for the respective businesses that the two daughters proposed to run from there;
(v) It was also disclosed in the eviction petition that though the petitioner had a 20% undivided share in another property, bearing No.1000 Shivaji Street, Arya Samaj Road, Karol Bagh, (‘Arya Samaj Road property’, for short) that property was however not available for use of the petitioner’s daughters since it was jointly-owned by the petitioner and the petitioner’s three sisters; and accordingly the said other property could not be considered suitable, alternate accommodation in the hands of the petitioner for the purpose for which eviction was sought;
(vi) It was averred that the petitioner had filed all relevant documents alongwith the eviction petition, including original rent agreement dated 27.02.1975, three release deeds and one sale deed executed by the petitioner’s sisters releasing/transferring their undivided share in the subject premises in the petitioner’s favour. It was stated that the petitioner had also filed a copy of order dated 06.12.2017 made in another matter EP No. 542/07/02 between the petitioner and the respondents, whereby the ARC in that case had allowed an application filed by the petitioner under Order 22 Rule 10 of the Code of Civil Procedure 1908, thereby holding that the petitioner had become sole and absolute owner of the subject premises; arguing therefore, that there was no dispute as to the petitioner’s ownership of the subject premises. The petitioner is also stated to have filed on the record of the ARC the educational degrees of her daughters in support of the claim that they were qualified to conduct the businesses proposed to be run from the subject premises;
(vii) It was further averred in the eviction petition that though Smt. Hemant Yadav’s husband owns the first floor of a property bearing No. FU-68 Pitampura, Delhi, that property is a residential house; and further that Smt. Hemant Yadav’s husband also has a share in an ancestral property at Village Badli; but that neither of those two properties is suitable, alternate accommodation for purposes of running a coaching institute;
(viii) It was also averred that though Smt. Neena Yadav’s husband owns the first floor of a property bearing No.D-226A Sarvodaya Enclave, New Delhi, that property is again a residential house and is not suitable for running the proposed consultancy business.
3. It may be mentioned that only some of the tenants in the subject premises filed leave-to-defend applications while others did not. The principal ground for claiming leave to defend the eviction petition was that since the petitioner’s daughters were married and living with their respective husbands in their own respective homes, the daughters were not ‘dependent’ on the petitioner; and that therefore, the petitioner was not entitled to invoke the provisions of section 14(1)(e) of the DRC Act to seek eviction for the bona fidé requirements of her daughters. It was further contended in the leave-to-defend application that the plea of bona fidé requirement was also false, since going by their own allegations, Smt. Hemant Yadav had obtained her B.Ed. degree some 39 years back and Smt. Neena Yadav had obtained her Master’s Degree in Sociology about 32 years ago; and the plea that they were proposing to open a coaching centre and a consultancy business respectively after all these years was ex-facie unbelievable and false. It was further contended that Smt. Hemant Yadav was running a gas agency alongwith her husband and that the couple owned other properties as well. It was also alleged that Smt. Neena Yadav was a Director in various companies. It was contended that Smt. Neena Yadav had the first floor of property No. D-226A Sarvodaya Enclave, New Delhi comprising 5-6 rooms and another property in Sarvodaya Enclave comprising 4-5 rooms owned by her husband, available for her use. It was further contended that, in any case, the petitioner has suitable, alternate accommodation available to her since one big shop on the ground floor and four rooms on the first floor of the subject premises are lying vacant; and further that the petitioner is also the owner in exclusive possession of property bearing No.1000 Arya Samaj Road, Karol Bagh, which is a commercial premises with 15-16 rooms. All these premises were stated to be available for the requirements of the daughters.
4. The petitioner refuted the allegations made in the leave-todefend application; the details whereof may however not be relevant for the purpose of deciding the present petition.
5. By the impugned order, the ARC has granted leave-to-defend to the respondents principally on two grounds: firstly, that the petitioner cannot seek eviction for the alleged bona fidé requirement of a married daughter, since after marriage the daughter must be held to be dependent upon the husband and her in-laws and not on her parents. The ARC has purported to find support for this proposition in a decision of a learned single Judge of this court in Bhim Singh Saini vs. Preeti Gupta: 223 (2015) DLT 303. Secondly, the ARC holds that the petitioner had failed to file any document to show that she was owner of only 20% undivided share in the Arya Samaj Road property, especially since the petitioner herself had placed on record a sale deed showing that one of her sisters had sold 1/5th share in that property to the petitioner. This however is evidently incorrect on point of fact, inasmuch as it has been clarified in the course of arguments in these proceedings, that this was plainly an erroneous reading of the document filed, since the sale deed filed related to the Abdul Rehman Road property, namely the property of which the subject premises is a part and not to the Arya Samaj Road property. The document in question is the sale deed by one of the petitioner’s sisters, who sold her 1/5th share to the petitioner, which share alongwith the other 3/5th share of the other three sisters which they relinquished in the petitioner’s favour, made the petitioner sole and absolute owner of the subject premises. It was further clarified, that in any case, the Arya Samaj Road property had since been sold by the petitioner alongwith her sisters vidé separate sale deeds dated 25.09.2018; and is therefore no longer available for use at all. This sale is an event subsequent to the passing of the impugned order; and it was urged that the effect of this sale may also be considered by the court in these proceedings.
6. At this point, it is relevant to extract the reasoning given by the ARC in the impugned order granting leave-to-defend to the respondents, as contained in paras 21 and 22, which read as under:-
7. In support of his contention that the ARC erred in holding that married daughters cannot be taken to be dependent for accommodation upon the petitioner, counsel for the petitioner has relied upon the following judgments: (a) Joginder Pal vs. Naval Kishore Behal: (2002) 5 SCC 397 (b) Sunder Singh Talwar vs. Kamal Chand Dugar: 2018 SCC OnLine Del 8376: (2018) 249 DLT 94
(c) Krishan Kumar Gupta vs. Swadesh Bhushan
(d) Rajender Prasad Gupta vs. Rajeev Gagerna: ILR
(2014)
IV DELHI 2241 (e) Sarvan Dass Bange vs. Ram Prakash: 2010 (167) DLT 80: 2010 (4) AD (Delhi) 252
8. The petitioner relies first upon Joginder Pal (supra) wherein the Supreme Court has interpreted the words ‘for his own use’ in section 13(3)(a)(ii)(a) of the East Punjab Urban Rent Restriction Act 1949. Although the facts of the case were limited to the bona fidé requirements of the landlord’s son, the Supreme Court said that the bona fidé requirement of the landlord would include the requirements of family members including a widowed daughter. The petitioner next relies upon Sunder Singh Talwar (supra) whereby a single Judge of this court, while upholding the eviction order granted on the ground of bona fidé need inter alia of the landlord’s married daughter, has held that in the present day and age, it would be futile to contend that a daughter, once married, ceases to be the responsibility of her father. In the decision in Krishan Kumar Gupta (supra) a single Judge of this court has upheld the ARC’s order declining leave-to-defend to the tenant, where the ground for eviction inter alia was the bona fidé requirement of a married daughter who was stated to be dependent on her father for residential accommodation. The petitioner further relies upon a decision of a single Judge of this court in Rajender Prasad Gupta (supra), whereby the court rejected the tenant’s contention that the bona fidé requirement of the landlord’s daughter would not sustain since she was of marriageable age; holding that a daughter’s ties with her family do not end upon her marriage. The petitioner also relies upon Sarvan Dass Bange (supra) in which case a single Judge of this court has held that the tenant is required to give all necessary particulars in support of his plea in the affidavit itself; and that a mere assumption on the tenant’s part would not be sufficient to rebut the strong presumption in the landlord’s favour that his requirement is real and genuine. Respondents’ contentions:
9. Controverting the case set-up by the petitioner, Mr. Preet Pal Singh, learned counsel appearing for the respondent has contended that: (a) The petitioner has failed to make-out any case of material legal irregularity in the impugned order that would warrant re-assessment or re-appreciation of the case in the limited revisional jurisdiction of this court under section 25B(8) of the DRC Act; (b) At the stage of deciding the leave-to-defend application, the ARC is not expected to assess whether the pleas taken by the respondents would ultimately succeed or fail. At this stage the ARC has only to examine if the tenant has been able to ‘disclose’ a triable issue, which issue can only be decided after evidence is led during trial;
(c) The petitioner’s wish and desire to give the subject premises to her married daughters to use for their business purposes cannot be said to comprise bona fidé requirement; and at the very least, it is a triable issue which can be adjudicated only after evidence is led;
(d) Whether her married daughters can be said to be dependent upon the petitioner; whether selfsupporting daughters can be deemed to be dependent upon the petitioner; and also whether her married daughters in fact want to start the businesses as alleged, are all triable issues which can be adjudicated only after leading evidence; (e) According to the respondents, the bona fidé requirements of the petitioner and her two married daughters canvassed in the eviction petition are a 'set-up' and manipulated case, based on imaginary ideas to raise a false plea of bona fidé requirement. Both daughters are in fact well-settled and are conducting their well-established businesses, apart from having other accommodation available to them, as detailed by the respondents in their leaveto-defend application; (f) In response to the disclosures relating to the petitioner made by the respondent in the leave-todefend application, the petitioner has sought to give explanations; however without filing, and in fact by concealing, documents to contradict such disclosures. It is urged that such concealment vitiates the proceedings; (g) The petitioner has in her possession other accommodation on the entire first floor and the second floor of the subject premises, which is lying vacant and which can admittedly be used for commercial purposes; (h) The petitioner had let-out the first floor of the subject premises to one M/s Punjab Khadi Mandal, which got vacated about three years ago and which is still lying vacant, under lock and key; and is available with the petitioner. Furthermore, the second floor of the subject premises was also let-out by the petitioner to M/s Punjab Khadi Mandal, which also the petitioner has got vacated in May 2018 and which again continues to be kept vacant, under lock and key, with the petitioner;
(i) On the date of filing of the eviction petition as also at the time when the leave-to-defend application was decided, the petitioner was also co-owner of commercial property on Arya Samaj Road with about 15-16 rooms, which is situate on the main Arya Samaj Road; and so long as the said property was not divided among the co-owners, the petitioner had a share in each and every portion of the said property, which the petitioner could have used since that property was also lying vacant under lock and key; (j) If the petitioner's requirement for herself and for her daughters were genuine, the upper floors of the subject premises as also the Arya Samaj Road property would not have been kept vacant for the last number of years, which again shows that the requirement cited is only a concocted plea, canvassed mala fidé to obtain eviction on false pretext; (k) The sale of the Arya Samaj Road property, though made after the passing of the impugned order, shows the petitioner's real intention even in relation to the subject premises, namely that the petitioner would sell the subject premises as well after obtaining possession;
(l) In the year 2002 the petitioner had filed an eviction petition against the respondents on the grounds available under section 14(1)(a), (b) and (j) of the DRC Act. The petition under section 14(1)(a) and (b) was dismissed vidé judgment dated 03.11.2017; while the petition under section 14(1)(j) is still pending since the respondents have challenged the findings on section 14(1)(j) by way of an appeal;
(m) For the foregoing reasons, the petition under section
10. In support of their contentions, the respondents have relied upon the following judicial precedents: (a) Sarla Ahuja vs. United India Insurance Company Ltd.: (1998) 8 SCC 119 (b) Tarun Pahwa vs. Pradeep Makin: 2013 (1) RLR 15
(c) Inderjeet Kaur vs. Nirpal Singh: 2001 (1) SCC 706
(d) Santosh Devi Soni vs. Chand Kiran: 2001 (1) SC 255
(e) D.N. Gupta vs. Jaswant Singh: 1982 (21) DLT 8 (f) Prit Pal Singh vs. Ramesh Kumar Dora: 2014 (4) AD (Delhi) 83 (g) Bhim Singh Saini vs. Preeti Gupta (supra)
11. The respondents first rely upon Sarla Ahuja (supra) whereby the Supreme Court has reiterated the scope of the revisional power of the High Court under section 25B(8) of the DRC Act, observing that that may include reappraisal of evidence only to the extent of ascertaining whether the conclusion reached by the fact-finding court is wholly unreasonable. The respondents also rely upon Tarun Pahwa (supra) in which case the court reiterates that when there is alternate accommodation in his possession, the burden to prove bona fidé requirement falls upon the landlord. The respondents also rely upon Inderjeet Kaur (supra) to contend that at the stage of granting leave, the real test should be whether the facts disclosed in the tenant’s affidavit prima facie show that the landlord would be disentitled from obtaining an order of eviction; and not whether the defence may fail at the end. The respondents next rely on Santosh Devi Soni (supra), in which the Supreme Court has held that normally leave-to-defend should not be refused in cases where the landlord has additional accommodation available. The respondents then rely upon judgments of single Benches of this court firstly in D.N. Gupta (supra), whereby the single Judge has held that where there are disputed questions of fact, such as whether the landlord’s son was dependent on him and whether other existing accommodation owned by the son was suitable alternate accommodation, leave-to-defend could not be refused. The respondents further rely upon Prit Pal Singh (supra) in which the court held that where there is a doubt as to whether a particular accommodation can be reasonably suitable, a decision on that aspect should be taken based on findings of fact, after trial. Finally, the respondents rely upon Bhim Singh Saini (supra) to contend that the landlord’s daughter, once married and having ceased to live with him, cannot be considered dependent on him; rather she would be dependent on her husband. Discussion and conclusions:
12. Relying upon the judicial precedents cited and based upon direct or inferential reasoning, it is essentially the petitioner's endeavour to show that the bona fidé requirement of a married daughter can be considered in an eviction petition under section 14(1)(e) of the DRC Act. It is found that this issue has been considered and a consistent view has been taken in some subsequent judgments as discussed below.
13. On the other hand, the judicial precedents cited on behalf of the respondents are mainly on the scope of the revisional power of this court under Section 25B(8) and on the situations where leave-todefend may be allowed; and the only judgment cited on whether the bona fidé requirement of a married daughter can form the basis of a section 14(1)(e) petition is Bhim Singh Saini (supra), in which a single Judge of this court has taken the view that once a daughter gets married, for the purpose of any accommodation, she would be dependent on her husband and not on her father. As discussed in greater detail below, I am afraid this view is based on an erroneous reading of earlier precedents and is therefore a discordant note in an otherwise consistent judicial view on the issue.
14. One of the earlier decisions in this regard is by a Division Bench of this court in Gobind Dass vs. Kuldip Singh[1], where the court has held that an extended meaning is to be given to the word ‘family’, observing that: (ILR pp. 588-589) “The word “family ”has not been defined in the Act and we feel advisedly so, the concept of what constitutes a family when a number of persons are related ro are living together is not something static or capable of concise definition. What constitutes a family in a given set of circumstances or in a particular society depends upon the habits and ideas of persons constituting that society and the religious and socio-religious customs of the community to which such persons may belong.… * * * * * …“. A remote relation may, in a given case of set circumstances be treated as a member of the family, whereas in another set of circumstances the same relation may not be legitimately called as a member of the family. ”…
15. Another decision is Sunder Singh Talwar vs. Kamal Chand Dugar[2], in which, while dealing with a similar fact situation, a single Judge of our High Court has held as under: