* IN THE HIGH COURT OF DELHI AT NEW DELHI
% RC.REV. 93/2011
+ Date of Decision: 22nd September, 2011
# KAMLA DEVI ...Petitioner
! Through: Mr. P.D. Gupta, Advocate
Versus
$ DHARMANAND PANDEY
(DECD) THRU LRS ....Respondents
Through: Mr. L.N. Jha, 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 under Section 25-B(8) of the Delhi Rent
Control Act,1958(hereinafter called „the Act‟) has been filed by the
petitioner-tenant against the order dated 03-12-2010 passed by the
Additional Rent Controller whereby her application for leave to contest the
eviction petition filed against her by her landlord, who died during the
pendency of the eviction petition, under Section 14(1)(e) of the Act to
RC.REV. 93/2011 Page 1 of 7
have the possession of one shop in property bearing no. B-1C-164,
Chander Lok, Main Mandoli Road, Delhi-110093(hereinafter to be
referred as the „tenanted shop‟) on the ground that he required the same
bona fide for his residence and that of his dependant family members has
been dismissed and she has been ordered to vacate the tenanted shop.
2. The deceased-landlord claimed in his eviction petition that he was
earlier the owner of property bearing no. B-1C-164, Chander Lok, Main
Mandoli Road, Delhi-93, of which the tenanted shop was a part, but in the
year 2002 some part of this property was gifted by him to his deceased
sister‟s daughter and her son. Thereafter the petitioner along with his
family consisting of his wife, two sons and two unmarried daughters were
residing in the back portion of the tenanted shop. However, the said
portion of the building was an old one and it had collapsed and thereafter,
the petitioner and his family members, having no other accommodation,
had taken shelter in the gifted portion of his sister‟s daughter Smt.
Bhagwati Joshi. The petitioner is a physically disabled person and senior
citizen and was not having good health and so had no occupation also to
earn his livelihood and, therefore, he required the tenanted shop as well as
another shop also let out to another tenant for the residence of his family
members and for some occupation. It was further pleaded in the eviction
petition that the tenanted shop was in dilapidated condition and required
RC.REV. 93/2011 Page 2 of 7
immediate repairs and re-construction. On these averments, the eviction
petition was filed by the deceased-landlord.
3. An application under Section 25-B(4) of the Act was filed by the
petitioner-tenant for grant of leave to contest the eviction on the following
pleas in para nos. 4, 5, 7 & 10 of the leave application :-
“4. That the petitioner is not the owner of the tenanted premises hence is
not entitled for the recovery of the possession of the tenanted premises
under section 14(1)(e) of the Delhi Rent Control Act, 1958.
5. That the tenanted premises is not requirement bona fide by the
petitioner for his residence and occupation for himself or for the member
of his family members dependent upon the petitioner for their residential
accommodation. There were five shops initially on the front portion of the
premises/building. Out of four shops one is big shop in size having two
shutters. The petitioner is a quarrelsome person and regularly harassing
the respondent, her family members since 1996 and the other tenant Shri
Prakash Gupta with an intention to get vacated the tenanted shop from the
respondent and other tenant Shri Prakash Gupta. In the year 2007 the
petitioner himself has demolished his back portion of the premises in
which the petitioner was residing with his family members and also has
demolished the roof of his one shop in which the petitioner was also
carrying his business and now has shown that shop as a Gallery between
the shops of the respondent and other tenant Shri Prakash Gupta. The
petitioner still in possession of three shops. The petitioner has not filed the
true and correct site plan of the premises. The petitioner has falsely shown
one shop in the possession of Guddu Pandey and one shop in possession
of Bhagwati Joshi. The petitioner is carrying seasonal items business
along with wooden ladder/Sidhi, Bans and Balli. The petitioner is habitual
to encroach upon the Government Road to harass the respondent and the
other tenant by creating nuisance. The petitioner is residing on the 1st floor
of the premises of the northern side and also carrying his business of
cotton spinning machine in winter season on the 1st floor portion of
southern side of the premises, with the help of employees. The petitioner
has also taken false plea that the petitioner has gifted some portion of the
premises to one Bhagwati Joshi and Sonu Joshi. The complete premises is
in exclusive possession of the petitioner, which is more than 200 sq. yds.
at the spot.
7. That the petitioner is also owner of the premises no. E-551 Gali No, 18
Shastri Gali, Ashok Nagar, Shahdara, Delhi, measuring about 200 sq. yds.,
having sufficient alternative residential accommodation, which the
petitioner has willfully concealed from the Hon‟ble Court.
RC.REV. 93/2011 Page 3 of 7
10. That the petitioner has not given the detail of his bona fide
requirements. The petitioner has displayed a board at the premises
“MAKAN DUKAN BIKAU HAI” house and shops are for sale.”
4. The respondent filed a reply to the leave to defend application denying
the allegations made by the tenant.
5. The learned Additional Rent Controller rejected the tenant‟s application
vide impugned order in which the various pleas of the tenant were dealt with
and rejected in the following paras of the impugned order:-
“In sub-para 5 of the para 16(1) of the petition, the petitioner has
also mentioned that the tenanted shop is in dilapidated condition and
requires immediate repair and reconstruction. The present petition is
under Section 14 (1) (d) of the DRC Act which is concerned with the
limited scope of bona fide requirement of the landlord and his family
members and other grounds cannot be looked into. Ld. Counsel for the
petitioner has also conceded during arguments that the averments
regarding the dilapidated condition of the tenanted shop is a passing
reference and his prayer is for an eviction order on the ground of bona
fide requirement only.
The respondent has not disputed the landlord tenant relationship.
The respondent has, however, averred that the petitioner is not the owner
of the tenanted premises. It has not been stated who is the actual owner
of the tenanted premises if not the petitioner. The petitioner has averred
in his petition that initially he had purchased land measuring 150 sq. yds.
but, out of love and affection, he gifted a portion measuring 6‟ x 35‟ to
the daughter of his sister and her minor son vide a Gift Deed dated
21.03.2002. Copy of this Gift Deed has been filed on record. Now, he is
left with the portion, as shown in the site plan which includes open space,
gallery and two tenanted shops. It has been argued on behalf of the
respondent that this Gift Deed is unregistered and insufficiently stamped
and therefore, it is invalid. On this ground, the respondent claims that the
petitioner has entire area of 150 sq. yds. at his disposal to meet his
requirements. On the one hand, the respondent has disputed the
ownership of the petitioner, on the other hand, he claims that the entire
150 sq. yds. belongs to him. The respondent cannot blow hot and cold atRC.REV. 93/2011 Page 4 of 7
the same time. There is also nothing on record to rebut the case of the
petitioner that he has gifted a portion measuring 6‟ X 35‟ to Smt.
Bhagwati Joshi and her minor son.
It has been alleged by the respondent that the back portion of the
property of the deceased petitioner Sh. Dharmanand Pandey was
deliberately demolished by him and has been shown as open space in the
site plan. He has also argued that the portion shown as gallery was, in
fact, a third shop which was also deliberately demolished by the
petitioner. These allegations of the respondent further make it clear that
now the open space and the portion shown as gallery are not available to
the legal heirs of the deceased petitioner for running their business or for
residence.
It has also been argued on behalf of the respondent that the
petitioner is also the owner of the premises no. E-551, Gali No. 18,
Shastri Gali, Ashok Nagar, Shahdara , Delhi measuring 200 sq. ydd.
Which is a sufficient alternate residential accommodation. The petitioner
has specifically denied this allegation. During the course of arguments,
Ld. Counsel for the respondent conceded that he does not have any
documentary evidence in support of his assertion and has argued that
since the respondent is a tenant of the petitioner, he has come to know
that the petitioner is the owner of the abovesaid premises also. The Court
concurs with the argument of the petitioner that mere assertion of the
tenant would not be sufficient to rebut the strong presumption in
landlord‟s favour that he does not have a suitable alternate
accommodation to meet his requirement. The tenant should have brought
some material on record to corroborate his assertion. No such document
has been placed on record.
It is well settled that the expression „bonafide requirement‟ menas
that the requirement of the landlord is genuine and his claim is not
motivated by the extraneous consideration. The respondent has failed to
establish „extraneous consideration‟ and to bring anything on record that
rebuts the strong presumption of bonafide requirement in favour of the
petitioner.”
6. It was contended by learned counsel for the petitioner that the
deceased – landlord‟s case that a part of the property owned by him had
been gifted by him to his sister‟s daughter and her grandson was not
RC.REV. 93/2011 Page 5 of 7
acceptable since the copy of the Gift Deed which the deceased – landlord
had placed on record did not bear the signature of his sister‟s daughter or
her grandson and, therefore, that document could not be considered to be a
Gift Deed in law and based on that document the landlord could not have
claimed that the accommodation where he was living along with his family
members did not belong to him and belonged to his sister‟s daughter. It
was further contended that even though the deceased – landlord had
claimed in the eviction petition that some portion of the property on the
back side of the tenanted shop had collapsed but, in fact, it was the
landlord himself who had intentionally pulled it down to create artificial
scarcity of accommodation with him. Another point urged before this
Court by the learned counsel for the petitioner was that the legal heirs of
the deceased – landlord had themselves now put up a notice for sale of the
property which shows that they were no more interested in having the
possession of that property and wanted to give it to some builder to make
money.
7. On the other hand, learned counsel for the respondents submitted
that the Gift Deed was of the year 2002 and the petitioner-tenant had no
right to challenge the gift and the gift deed on the ground on which it is
being challenged here as it was not taken in the leave application. It was
also contended that part of the property had collapsed on its own and the
RC.REV. 93/2011 Page 6 of 7
deceased landlord had not demolished it only to create grounds for the
eviction of the tenant.
8. As noticed already, learned Additional Rent Controller has dealt
with all these pleas which were raised there also at the time of hearing of
the petitioner‟s leave to contest application and the same have been
rejected and in my view no fault can be found with the decision of the
learned Additional Rent Controller in rejecting all these pleas which, in my
view also, do not give rise to any triable issue. It was not the ground taken
by the petitioner in her leave application that there was no legal gift deed in
existence because of the reason being urged before this Court. So, the
landlord‟s case that he was living in the house which did not belong to him
cannot be doubted and no mala fides could be attributed to him in filing the
eviction petition against the petitioner.
9. This revision petition accordingly is dismissed.
P.K.BHASIN, J
September 22, 2011
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