* IN THE HIGH COURT OF DELHI AT NEW DELHI
% RC.REV. NO. 273/2010
+ Date of Decision: 19th October, 2011
# MOHD. HANIF ...Petitioner
! Through: Mr. Ram Kishan Saini, Advocate
Versus
$ SHAMSUN NISA(DECD.) THR LRS ...Respondents
Through: Mr. Vijay Tandon, Advocate
CORAM:
* HON'BLE MR. JUSTICE P.K.BHASIN
1. Whether Reporters of local papers may be allowed
to see the judgment? (No)
2. To be referred to the Reporter or not? (No)
3. Whether the judgment should be reported in the digest? (No)
ORDER
P.K BHASIN,J:
This revision petition is under Section 25-B(8) of the Delhi Rent
Control Act, 1958(in short ‘the Act’) and has been filed by the
petitioner-tenant against the order dated 7th August, 2010 passed by the
Additional Rent Controller whereby his application for leave to contest
the eviction petition filed by his landlady, late Shamsun Nisa, under
Section 14(1)(e) of the Act to have the possession from him of the
premises bearing no. 2466-68, Second Floor, Gali Kuenwali, Haveli
Mahawat Khan, Bazar Chitie Qabar, Jama Masjid, Delhi-
RC.REV.273/2010 Page 1 of 12
110006(hereinafter to be referred as ‘the tenanted premises’) has been
dismissed and an eviction order has been passed .
2. The facts entitling the deceased landlady, who died during the
pendency of the eviction petition and thereafter was being represented
by her legal representatives, to secure the eviction order against the
petitioner were pleaded in detail in para no. 18 of the eviction petition
and the averments which alone are relevant for the disposal of the
revision petition are re-produced below:
(i) ………….The tenanted portion comprising of one room,
kitchen, attached latrine and bathroom alongwith open
space situated on the second floor, was let out to the
respondent……………………………………………………
……
(ii ) That the petitioner is presently residing in a portion
of property No. 2466 -68, Second Floor, Gali Kuenwali,
haveli Mahawat Khan, Bazar Chitli Qabar, Jama
Masjid, Delhi-110006 comprising of two rooms,
kitchen, toilet. The portion in possession of the
petitioner is shown in Green Colour in Annexure-A. the
same is also situated on the Second Floor. In the said
portion, besides the petitioner, her daughter-in-law
Mst. Amreen Beg, her unmarried grand-daughters
namely Miss Farzana and Mst. Jareena age 28 years &
26 years respectively are also residing. Besides them,
her two grandsons Mohd. Arfeen is residing with his
family consisting of his wife and a child of 8 months.
The other grandson Mhd. Imran is also residing in this
very property and these persons are dependent upon the
petitioner for residential accommodation and the
accommodation already available with the petitioner is
only the Green portion in Annexure-A. this Green
portion shown in Annexure-A is highly insufficient forRC.REV.273/2010 Page 2 of 12
residence of number of people. It is however added that
Mohd. Arfeen who is the owner of another house No.
1521, Bazar Chitli Qabar, Delhi has filed another
eviction petition for his use and occupation which is
also pending in the Court of The Rent Controller, Delhi
but till date the said petition has not yet been allowed
and as such he is dependent upon the petitioner for his
residence.
(iii) That if the said grandson Mhd. Arfeen shift with his
sister to his house, even then the tenancy premises is
required by the petitioner for her bona fide need and
for the bona fide need of her family members i.e.
daughter in law and son Imran. It is pertinent to
mention that Imran is highly educated and has already
cleared B.Com and presently he is pursuing Chartered
Accountant Course. He is also of a marriage age and
require the premises in his favour. The petitioner
requires the premises bona fide and the alternative
accommodation available with her is not reasonably
suitable taking into consideration her need and the
need of her family members. It is further stated that
the petitioner have got married her granddaughters
who have been visiting the house of petitioner with their
families quite often and reside there with their families
and as such the residential accommodation available is
highly insufficient. The married grand-daughters are
namely Mst. Khurshida Begum W/o Mohd.Munir, Mast.
Feroza Beg W/o Mohd. Akhlaq, Mst. Nasreen W/o
Mohd. Naeem & Mst. Shehnaaz W/o. Mohd. Shakeel.”
3. The petitioner-tenant had sought leave to contest the eviction
petition on various pleas which have been noticed, dealt with and
rejected by the learned Additional Rent Controller in the impugned
order. The relevant parts from that impugned order where the pleas,
RC.REV.273/2010 Page 3 of 12
which only were urged before this Court, have been dealt with also re-
produced below:-
11. First of all, the respondent has not disputed the
relationship of landlord and tenant between the parties. The
respondent has also not disputed the ownership of the petitioner
over the premises in question. Although, in the application u/s
151 CPC and additional affidavit which has been filed by the
respondent after filing the leave to defend application the
respondent has alleged that this court has no jurisdiction to
entertain the present eviction petition as relationship of
landlord and tenant ceased to exist by virtue of agreement to
sell dated 09.09.1991 by which the respondent has agreed to
purchase the premises in question for a sum of Rs. 70000/- out
of which Rs. 50000/- was paid to Mst. Shamsun Nisha, the
owner of the premises in dispute and balance of Rs. 20000/- was
to be paid at the time of execution of the sale deed. The
respondent further submits that his possession is protected u/s
53A of the Transfer of Property Act. The petitioners have
disputed the alleged agreement to sell as false and fabricated
which has been prepared by the respondent after change of the
counsel in order to delay the proceeding of the case.
12. A perusal of the record reveals that the present petition
was filed on 19.07.2008 and the respondent was duly served
with the summons in compliance of schedule III of DRC Act and
filed the leave to defend application on 03.09.2008. A perusal of
the leave to defend application filed by the respondent reveals
that no such plea was raised by the respondent about the
alleged agreement to sell executed between the petitioner and
the respondent dated 09.09.1991. There is no single whisper
that the petitioner has agreed to sell the premises in question for
a sum of Rs. 70000/- vide agreement to sell dated 09.09.1991. It
is for the first time that this plea has been taken by the
respondent in the application u/s 151 CPC and additional
affidavit filed by the respondent on 11.05.2010 which has been
filed after lapse of more than one year and 9 months of filing the
leave to defend application. Therefore, plea of the respondent
about the alleged agreement to sell dated 09.09.1991 appears to
be an afte thought. Had there been any agreement to sell it
would have found mentioned in the leave to defend application
which has been filed more than 1 ½ year ago as it was such a
vital document and it cannot be believed that the counsel for theRC.REV.273/2010 Page 4 of 12
respondent had omitted to file the same though told by the
respondent as alleged in the application filed by the respondent
seeking to place on record the additional affidavit. Even
otherwise also if the agreement to sell is considered photocopy
of which has been placed by the respondent by way of additional
affidavit and application u/s 151 CPC, still it would not be of
any help to the respondent to claim protection u/s 53A of the
Transfer of Property Act that he is in possession of the premises
in question in the part performance of the agreement.
13. The photocopy of agreement to sell dated 09.09.1991
categorically reveals that relationship of landlord and tenant
did not cease to exist between the parties or that the possession
of the suit premises has been given by the petitioner to the
respondent in terms of the agreement to sell towards part
performance. It has not been mentioned in the agreement to sell
that relationship of landlord and tenant ceased to exist. Rather
it has been categorically mentioned that ‘the second party will
pay rent of the above property under stalle till the time of
payment of balance sale consideration to the first party’. Again
in the concluding para, it has been mentioned that ‘the first
party has delivered the physical possession of the above
property under the sale to the second party. The second party
agreed to pay rent to the first party till the payment of balance
sale consideration and registration of sale deed’. If these
recitals made in the agreement to sell are looked into, it is
crystal clear that relationship of landlord and tenant did not
cease to exist and what had been agreed upon by the parties is
that the rentals shall be paid by the respondent till the payment
of balance sale consideration and registration of sale deed.
Therefore, the respondent cannot claim that he is in possession
of suit premises by virtue of agreement to sell and that his right
is protected u/s 53A of the Transfer of Property Act.
14. Other interesting aspect is that although the respondent
has given explanation that the fact of the execution of agreement
to sell was not mentioned in the leave to defend application as
sale transaction had not been completed and it was completed
when the respondent paid the balance amount to Mst. Shamsun
Nisha on 25.12.2007 and this fact has been confirmed by Smt.
Shakeela Begum in writing on 19.11.2009, one of the LR of
deceased petitioner. It has also been contended that it is
admitted fact that the respondent stopped payment of rent after
2007 and despite making payment of balance amount to Mst.
Shamsun Nisha on 25.12.2007 she could not execute the sale
deed due to pressure exerted by her LR no. 1 and 2 andRC.REV.273/2010 Page 5 of 12
transaction became complete only when Smt. Shakeela Begum
one of daughter of the deceased petitioner on 19.11.2009 gave
in writing in presence of witnesses that her mother has received
the balance consideration on 25.12.2007.
15. Again, story se tup by the respondent does not appear to
be appealing. First of all, it is not an admitted fact that the
respondent has stopped paying rent to the petitioner after 2007
as the petitioner has no where admitted this fact in the petition
or in the reply to the leave to defend application that she has
received rent upto September, 2007. Rather the case of the
petitioner is that the respondent is the tenant at the rate of Rs.
40/p.m. later on same was enhanced to Rs. 50/p. m. and lastly
the rent was paid by the respondent five years ago and
thereafter the respondent has not paid any rent to the petitioner.
The petition has been filed in the year 2008 and as such, as per
the petitioner, the respondent has paid rent lastly in the year
2003. While the respondent has alleged that it is admitted fact
that the petitioner has received the rent up to September, 2007
which is not the pleading of the petitioner and it is beyond
imagination that how the respondent is claiming it to be an
admitted fact. Moreover, in the petition, the petitioner has
alleged that the respondent has not paid rentals since the year
2003. The respondent has not disputed the said fact in the leave
to defend application. Had the respondent paid the rentals till
September, 2007 he would have definitely taken the said plea in
the leave to defend application. Therefore, the plea of the
respondent that since the petitioner has received balance
consideration amount of Rs. 20000/- on 25.12.2007, she stopped
receiving the rent is without any merit. Moreover, even own
version of the respondent does not appear to be logical that he
did not file the agreement to sell as transaction was not
completed because even after making payment of balance
consideration amount of Rs. 20000/-, the sale deed was not
executed as there was no confirmation and it was only
confirmed when Smt. Shakeela Begum on 19.11.2009 gave in
writing in presence of witnesses that her mother has received
the balance consideration on 25.12.2007. I fail to understand
that how completion of transaction was dependent upon
confirmation to be made by the daughter of the petitioner Smt.
Shakeela Begum. If the respondent alleged that he has paid Rs.
20000/- as balance sale consideration to the petitioner on
25.12.2007, he would not have kept silent till date as when he
had already fulfilled his part of obligation by making the
payment of remaining sale consideration of Rs. 20000/-, despiteRC.REV.273/2010 Page 6 of 12
this fact he kept waiting and he did not file any suit for specific
performance of contract. This conduct of the respondent shows
that the plea set up by the respondent is false and frivolous
without any substance. Hence, there is no merit in the aforesaid
contention of the respondent that by virtue of agreement to sell
dated 09.09.1991, the respondent is in possession of the suit
premises and his possession is protected u/s 53A of the Transfer
of Property Act and therefore, this court has no jurisdiction to
entertain the present petition.
16. In the leave to defend application the respondent has
alleged that the site plan filed by the petitioner is incorrect and
stated that the petitioner is the owner of basement, one room at
third floor, two rooms at fourth floor and two rooms at fifth
floor of the property no. 2468. The petitioner has denied that
fourth and fifth floor ever exist. First of all, so far as the
basement is concerned, as per municipal by laws basement
cannot be used for residential purposes. Moreover, said
basement is not available to the petitioner as one Mohd. Munir
is doing his business activities from the same. So far as
availability of one room on third floor, two rooms at fourth floor
and two rooms at fifth floor of the property no. 2468 is
concerned, the petitioner has stated same to be incorrect. The
petitioner has categorically stated that on the third there was
tenant namely Late Mohd. Hanif and now his LRs are tenants
who have illegally raised two tin shed over their tenanted
portion which are in their possession and theses premises are
not available to the petitioner for residence nor are suitable for
the petitioner or her dependents for residence. Although in the
rejoinder affidavit the respondent has stated that the petitioner
has got one room on the second floor and two rooms on the
third floor and two rooms on the fourth floor but inadvertently
in the application for leave to defend instead of second, third
and fourth floor it was mentioned as third, fourth and fifth floor.
As such, the respondent himself is not sure about the extent of
accommodation in the property no. 246668. Though, the
respondent has alleged that there are two rooms on third floor
and two rooms on fourth floor but the respondent has not filed
any site plan to show the extent of accommodation available
with the petitioner on the aforesaid floors as alleged by the
respondent. In the absence of any site plan filed by the
respondent, it cannot be said that the site plan filed by the
petitioner is incorrect and not according to the site. The
respondent has only raised a bald plea which is not
substantiated by any material on record.
RC.REV.273/2010 Page 7 of 12
17. Another contention of the respondent that the petitioner
is having property no. 1521 in the name of her grandson Mohd.
Arfin is concerned, the petitioner has stated that said property
belongs to her grandson Mohd. Arfin and he will shift there for
which he has already filed an eviction petition. Although, the
respondent in the rejoinder has stated that Mohd. Arfin has got
an eviction order in his favour in respect of three rooms, one
barasti etc. and after receiving the possession of the said
premises, the alleged need will be fulfilled. First of all even as
per the respondent also only eviction order has been passed and
grandson Mohd. Arfin has not received the possession of the
aforesaid premises. Further, after getting the possession of the
aforesaid premises the grandson of the petitioner namely Mohd.
Arfin will shift to the premises no. 1521 and therefore, obtaining
of eviction order in respect of premises no. 1521 is of no avail to
the petitioner as that property belongs to Mohd. Arfin and not to
the petitioner. Apart from this, family of the petitioner consists
of her daughter in law Mst. Amreen, her unmarried
granddaughters namely Miss Farzana and Mst. Jareena aged
about 28 years and 26 years respectively, and another grandson
namely Mohd. Imran who are also residing in this very property
apart from Mohd. Arfin, his wife and a child. As such, the
petitioner requires one room for herself, one room for daughter-
in-law Amreen, one room each for her unmarried
granddaughters, one room for grandson Imran and one drawing
room, one dining room, one guest room, totalling to eights
rooms even if the requirement of family of Mohd. Arfin is not
considered. The petitioner is in possession of two rooms, kitchen
and toilet which is highly insufficient keeping in view the size of
the family of the petitioner. Further, the suit property is more
suitable to the petitioner which is adjacent to the property
already in possession of the petitioner on the second floor.
19. So far as the contention of the respondent that two
granddaughters of the petitioner are of marriageable age and as
and when their marriages are solemnized, the alleged need of
the petitioner shall automatically be finished is concerned, it is
a settled law that the landlord is the best judge of his
requirement and neither the tenant nor the Court can suggest
him. It has been held in R.C. Gupta Vs. Brahma Nand 1992 (1)
RCR 66 that landlord is the best judge of his residential
requirement. Owner can very well plan how his family want to
lead comfortable life in his own house. It is not the function of
Rent Controller to suggest to landlord how he should make use
of space available him’. Similarly, in the present case also, it isRC.REV.273/2010 Page 8 of 12
not the business of the respondent to dictate that after marriage
of the aforesaid two grand daughters the requirement of the
petitioner will come to an end as the petitioner has categorically
stated that there is no marriage alliance of the aforesaid two
granddaughters presently going on.”
4. Feeling aggrieved, the petitioner has invoked the revisional
jurisdiction of this Court under Section 25(8) of the Act.
5. It was contended by the learned counsel for the petitioner that the
learned Additional Rent Controller has exceeded to a great extent the
limited jurisdiction vested in him under Section 25-B(5) of the Act
whereunder all that the Controller is required to consider at the stage of
consideration of an application for leave to contest of a tenant is
whether the tenant has raised any triable issue(s) which would disentitle
the landlord from getting an eviction order if those pleas are established
after evidence. Counsel further contended that in the present case the
petitioner had raised very serious triable issues which have been
brushed aside by detailed discussion and reasoning by the trial Court as
if the same was being done after full trial and appreciation of evidence
without even affording any opportunity to the petitioner to establish his
pleas.
RC.REV.273/2010 Page 9 of 12
6. On the other hand, learned counsel for the respondents fully
supported each of the reasons given by the trial Court for declining
leave to the petitioner to contest the eviction petition and contended that
there is no scope whatsoever for any interference by this Court in
exercise of its revisional jurisdiction which has a very limited scope.
7. After having given my thoughtful consideration to the rival
submissions and going through the impugned order I find that there is
no merit in this revision petition and the same is liable to be dismissed.
The main plea raised before the learned Additional Rent Controller as
well as before this Court was that there was an agreement between the
deceased landlady and the petitioner for sale of the premises in question
to him and, therefore, the landlord-tenant relationship between the
parties had ceased to exist and his possession was protected under
Section 53-A of the Transfer of Property Act even if no formal sale
deed was executed. However, in my view this plea could not be
entertained and has been rightly rejected for the reason that when leave
to contest application was filed within the stipulated prescribed period
of 15 days no such plea was taken at that time by the petitioner in his
affidavit. Under Section 25-B(4) of the Act a tenant seeking leave to
RC.REV.273/2010 Page 10 of 12
contest the eviction petition is supposed to file an affidavit disclosing
such facts which would disentitle the landlord from obtaining the order
of eviction in case those pleas are established. This provision of law
does not contemplate that additional pleas can also be raised by way of
additional affidavit after the expiry of original period of 15 days. The
Rent Controller is expected to decide leave to contest application based
on the pleas raised in the affidavit of the tenant filed within the
prescribed period of 15 days. In case the contention of the learned
counsel for the petitioner – tenant is accepted that an additional
affidavit can be filed after filing of the first affidavit within the
prescribed period of 15 days then that would be an unending process
and that would defeat the very purpose of enacting a provision like 25-
B(4). I, therefore, do not find any illegality committed by the learned
Additional Rent Controller for not granting leave to contest to the
petitioner – tenant on the ground that there was an Agreement to Sell in
respect of the premises in question between the petitioner – tenant and
the deceased landlady. However, I am also of the view that the learned
Controller should not have given any findings in respect of the alleged
agreement to sell being relied upon by the petitioner. So, if at all the
petitioner decides to have recourse to some legal remedy for the
RC.REV.273/2010 Page 11 of 12
enforcement of the sale agreement the observations made in respect
thereof shall not come in his way.
8. As far as the bona fide requirement of the tenanted premises is
concerned, the learned counsel for the respondents did not seriously
dispute the observations of the learned Additional Rent Controller in
the impugned order that the respondents were in possession of two
rooms only and that much accommodation was highly insufficient for
them in view of the size of their families even after excluding the
requirement of the grandson of the deceased landlady who himself also
had sot an eviction order against his tenant in respect of his own
elsewhere and that fact that deceased landlady had also expired. I am
even otherwise also satisfied with the decision of the learned Additional
Rent Controller to the said effect and do not find any infirmity therein
justifying any interference by this Court.
9. This revision petition is dismissed.
P.K. Bhasin, J
October 19, 2011/sh
RC.REV.273/2010 Page 12 of 12