JUDGMENT
Usha Mehra, J.
(1) It is established principle of law that in order to obtain leave to defend the tenant must make out a prima facie case thereby raising such pleas and issue which if proved would disentitle the landlord of an order of eviction.The triable issues should be sufficient to grant leave. The test is triable issue and not the final success. At the same time, while considering the leave application extraneous and frivolous defense cannot be considered.
(2) Keeping this principle in mind we have to see whether the defense raised by the present petitioner amounted to triable issue or was frivolous and extraneous.Let us have quick glance to the leave affidavit filed by the petitioner. The pleas raised therein can be summarised, under following heads, namely, (1) the motive of seeking eviction was to pressurise the tenant to increase the rent. In this regard here lied on a notice issued by the landlady dated 8/12/1985. Secondly, the need of the landlady was not bonafide. The first floor of the property bearing No.K-73 (having separate No. K-74), West Patel Nagar was in occupation of another tenant Mr. Gubux Singh. He vacated the same which was concealed by the landlady.First floor inspite of being vacant had not been occupied by the landlady. The accommodation on the first floor is identical as on the ground floor. If her need bonafide she would have occupied the first floor. Thirdly, landlady possessed another house bearing No. B-3, Parijat Apartment, Pitam Pura, New Delhi which happened to be a three room flat alongwith drawing, dining, bath, kitchen on the first floor.Fourthly, the accommodation available with her i.e. Government allotted house bearing No. J-573, Mandir Marg, opposite Kali Bari, Delhi, comprising of two living rooms with drawing, dining, kitchen, bath, latrine and big balcony, is sufficient to accommodate her and her family consisting of her son and a daughter. That Government allotted accommodation is suitable and more convenient because it is nearer to the place of her work. Moi-‘over, her son is already settled at Ahmedabad.She is residing with her daughter at Mandir Marg. Finally, she has no intention to shift because after getting it vacated she wants to sell the same for which purposes he has already contacted number of property dealers. The petition in the present form is not maintainable because she has sought part eviction.
(3) The leave was contested by the respondent herein by filing her own affidavit staring therein that the tenant (petitioner herein) got her own house in Baljit Nagar which she purchased Benami in the name of her uncle Shri Krishan Chand.That the petitioner/tenant in order to vacate the tenanted premises demanded a premium of Rs. 1,50,000.00. This amount was demanded by her through her son Mr.Rajiv Nagpal in writing by sending a note date 6/12/1994. It was mentioned in the said note that the amount of Rs. 1,50,000.00 be paid by 6/01/1995. The present respondent being a widow lady showed her inability to pay such huge amount as she was financially hard pressed. She further testified the enhanced rent claimed at the rate of Rs. 5,000.00 was under compelling circumstances. The petitioner herein had not been paying the rent regularly, therefore, in order to threaten him that in case rent due is not paid she would claim damages at the rate of Rs. 5,000.00 per month. Coupled with this fact, she testified that she had been paying Rs. 400.00 per month as rent for the Government accommodation in her occupation at Mandir Marg. This amount was deducted from her salary. Her salary was Rs. 2,900.00per month. Paying Rs. 400.00 as rent was a financial crunch. That she wanted to shift to her own house. So far as the vacation of first floor of the premises in question the same was vacated by Shri Gurbux Singh on 12/06/1996. where as she filed the petition in August, 1995, therefore, could not have mentioned this fact of vacation of first floor by Shri Gurbux Singh. Shri Gurbux Singh paid rent tillDecember, 1995 by cheque and thereafter in cash till he vacated on 12/06/1996.The accommodation on the first floor of the premises according to her, was also not sufficient to accommodate her whole family. Moreover, the first floor premises being in a damaged state required extensive repairs to make it habitable. Her son had gone to Ahmedabad to do M.B.A. and after completing his study had settled in Delhi. Her daughter was studying in University. Therefore, her minimum requirement was about four rooms, one for herself, one for son, one for her daughter and one for guests. The Government allotted accommodation consisting of two rooms was not sufficient. The first floor vacated in June, 1996 by Shri Gurbux Singh did not meet her requirement. Therefore, she required the whole house i.e. the first and the ground floor. As regards the flat allotted by the Society at Parijat Apartment,Pitam Pura, New Delhi, she sold it in 1991 whereas the petition was filed in 1995.In 1991 she did not require accommodation and, therefore, sold the same.
(4) It was in this background that the learned Additional Rent Controller (inshort, ARC) considered the requirement of the respondent/landlady under Section 14-D of Delhi Rent Control Act (in short the Act) and granted decree of possession in her favour.
(5) The main attack to the impugned order is that none of the pleas raised by the petitioner were considered by the Rent Controller. Decree of eviction was granted without discussing the fact that if any of the plea raised by the petitioner was established it would have disentitled the respondent from an order of eviction.Admittedly, to succeed in getting possession under Section 14-D of the Act, the classified landlord has to establish two things that she is a widow and required the premises herself. The word “Required by her” in Section 14-D of the Act clearly stipulates that her need is genuine and justified. The requirement of the landlord or the member of her family must be for residence. Therefore, the word “required” used in Section 14-D of the Act involves something more than a wish and it has an element of need to an extent atleast. The need of the landlord has to commensurate with the size of her family, social status, social habits and style of living. If it is found that eviction has been sought in good faith then it is a case in which she requires their premises for her own residence. In the present case, the respondent is occupying Government accommodation for which she has to pay Rs. 400.00 per month. In the Government allotted accommodation admittedly there are only two rooms: Where as her family consists of herself, her son and a daughter. Her son was 27 years old when petition was filed in August, 1995 and daughter 20 years old. Landlady’s family is to grow. Her son is of marriageable age. He had already completed M.B.A. from Ahmedabad and has settled with his mother at Delhi. In this view of the matter, the Additional Rent Controller rightly came to the conclusion that Government accommodation with her was not sufficient.
(6) Now the question for consideration is whether her need was bonafide. If she really needed bigger accommodation she could not have sold the flat allotted in her favour by the society. To this query her answer inspires consideration as it appears to the truthful and straight forward. She explained in her affidavit supported by the documents which documents from part of her affidavit that the said flat she sold in 1991 as her children were getting education and she was not in need of that flat. She being a widow had this house with her. It has been testified that she could not bear the financial burden. If in these circumstances she sold the flat in 1991 no mala fide can be attributed to her. The flat at Pitampura was sold in the year 1991 and the eviction petition was not filed immediately thereafter. THE petition for eviction was filed in 1995 almost four years after. Therefore, her explanation that at that time she was not in need of additional accommodation as the children were getting education and she being a widow needed the finance hence on this ground she cannot be disentitled to the recovery of possession nor it would amount to concealment. The said flat was not in her possession when she filed the petition, hence there was no question of her mentioning the same.
(7) As regards the first floor vacated by Shri Gurbux Singh, she has testified that the said tenant vacated the first floor on 12/06/1996. He paid the rent till 12/06/1996. Rent by cheque was paid upto December, 1995 and thereafter by cash till 12/06/1996. Therefore, when she filed the petition in August, 1995 the first floor had not been vacated by the said tenant. The premises remained locked by the said tenant till June, 1996. The very fact that the said tenant paid rent upto 12/06/1996 shows that till the time of filing of the petition in August, 1995, the first floor was not in her possession. Therefore, there was no question of concealment of this fact by her. Her case was that she required minimum four rooms to accommodate herself, her two children and the guests. Even if the accommodation on the first floor has become available during the pendency of this petition,according to her this is not sufficient. On the first floor there is only one room as per the landlady and two rooms as pe the tenant/petitioner. Even for the sake of argument if the version of this petitioner is accepted to be correct still the accommodation on the first floor is not sufficient for the landlady to accommodate herself and her family. On the ground floor there is a tin-shed accommodation in the possession of the landlady which is improvised and, therefore, cannot be called a living room habitable for the landlady to live. The tin-shed room cannot be equated with a proper living room. She had in her reply affidavit indicated that as soon as the premises gets vacated she would occupy the entire house herself. Section 19 of the Act envisages that if landlady does not occupy the premises after getting it vacated, the tenant can get back the possession. Therefore, on this count also the apprehension of the petitioner that respondent/landlady wants to sell the house after getting it vacated are without basis.
(8) Supreme Court in the case of V. Rajeshwari v. Bombay Tyre Int. Ltd., 1994RLR (SC) 365=54 (1994) Dlt 494 (SC), has held that while deciding a petition ofa widow under Section 14-D of the Act Court has only to look two things, namely,whether she is a widow and that her requirement is bonafide. In this case so far as the first is concerned that is obvious. Unfortunately respondent is a widow. So faras her requirement, the same has been properly appreciated and discussed by the learned ARC. As pointed out above she needs larger accommodation to accommodate herself and the dependent members of her family. Because of the growingneed, she requires more accommodation. As at present her minimum requirement is three to four rooms which she does not have. The learned are rightly came to the conclusion that the petitioner has not raised any triable issue for which leave could be granted. On the contrary the letter written by the son of the present petitioner thereby claiming a premium of Rs. 1,50,000.00 to vacate the tenanted premises show that the defense raised by the present petitioner was with a view to assert pressure on the landlady to shell out money.
(9) Regarding demand of Rs. 5,000.00 as rent per month, that was properly explained by the landlady hence does not raise any triable issue. Even if it is established that she asked to enhance the rent that does not prove that she was getting the premises vacated because she wants to relet the same. Her explanation being already on record shows under what circumstances she claimed the rent at that rate. Hence on this count also leave cannot be granted.for the reasons stated above, I find no merits in the petition. Dismissed.