Full Judgment Text
* HIGH COURT OF DELHI AT NEW DELHI
+ RC. Revision No.616/2015 & CM APPL.28340/2015
th
Decided on: 27 November, 2015
ASHOK KUMAR (DECEASED) THR. LRS. …… Petitioner
Through: Mr. B.L. Mehta, Advocate with
Mr. Shagun Mehta, Advocate
Versus
KEWAL KUMAR …… Respondent
Through:
CORAM:
HON’BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. ( ORAL)
1. This is a revision petition filed by the petitioner against the order
dated 05.05.2015 by virtue of which the leave to defend application
of the petitioner was dismissed and an order of eviction was passed
in case titled Kewal Kumar v. Ashok Kumar (since deceased),
bearing E No.76/2012.
2. I have heard the learned counsel for the petitioner and have also
gone through the record.
3. The respondent-landlord had filed an eviction petition against the
present petitioner-tenant under Section 14 (1) (e) of the Delhi Rent
RC. Rev. No.616/2015 Page 1 of 7
Control Act, 1958 in respect of a Janta Flat bearing No.208-A,
Ground floor, Paschim Puri, New DDA Market, Landmark Khati
Restaurant, opposite Ordinance Depot, New Delhi-110063.
4. The case which was set up by the respondent-landlord is that he is
living in a tenanted premises in DDA Flat No.15/388, Madangir,
New Delhi-110062.
5. It has been stated that the family of the respondent-landlord
consisting five members including the petitioner, his wife and three
adults sons and the respondent-landlord’s heath is not very sound
because of which he is not able to bear the expenses of rentals apart
from the expenses of his family members who are dependent on
him. Therefore, the respondent-landlord desires to shift to his own
flat in order to save the money. The respondent-landlord has also
stated that he has no other suitable alternative accommodation
available to him. So far as the present petitioner-tenant is
concerned, it was stated that he was paying rent of Rs.2,000/- per
month and the premises were being used by him for residential
purposes.
RC. Rev. No.616/2015 Page 2 of 7
6. On the notice being served, the petitioner-tenant filed his leave to
defend application raising pleas regarding the bona fide
requirement of the respondent-landlord. It was also stated that he is
not the owner of the flat and that the respondent-landlord does not
require the premises for his own use. During the pendency of the
eviction petition the petitioner-tenant Ashok Kumar died and his
legal heirs, namely, widow and the daughter were substituted as
parties. The learned Additional Rent Controller, West District, Tis
Hazari Courts, Delhi passed an order of eviction after rejecting the
leave to defend application by observing that the petitioner-tenant
was not able to make out a triable issue which would disentitle the
respondent-landlord from claiming back the possession of the
premises.
7. I have considered the submissions carefully and have gone through
the impugned order.
8. I am fully satisfied that the petitioner-tenant has not been able to
point out any illegality, impropriety or jurisdictional error in
rejecting the leave to defend application of the present petitioner-
tenant and consequently passing an eviction order against him.
RC. Rev. No.616/2015 Page 3 of 7
The reason for this is that the points which are raised by the
petitioner-tenant are not such, which if proved would disentitle the
respondent-landlord from claiming back the possession. The
relationship of landlord and tenant is not disputed by the petitioner
although he has disputed the ownership of the respondent-landlord
in respect of the property in question. It has been held by the
learned ARC and rightly so that for claiming the possession, the
respondent-landlord does not have to be the absolute owner of the
suit property. An absolute owner would be one in whose favour
there is registered documents in respect of the property which
could be called Sale Deed, Title Deed or Conveyance Deed, but in
the instant case the flat in question has been allotted admittedly to
the respondent-landlord by the DDA and that is considered to be
good enough by the Rent Controller to establish his ownership qua
the entire world to have a better title to occupy the property.
9. In addition to this, the Rent Controller has rightly observed that
since the petitioner is claiming himself to be the tenant under the
respondent-landlord, he is estopped from challenging the title of
the respondent-landlord in the eviction petition in question in view
RC. Rev. No.616/2015 Page 4 of 7
of Section 116 of the Evidence Act, 1872. Rightly so, it has been
held in catena of authorities that the petitioner will be permitted to
challenge the ownership of a party only if he has not attorned or
paid rent to the respondent. In this case that situation is absent.
The petitioner/tenant has admitted that he has been paying rent to
the respondent-landlord as a matter of fact he has assailed the rate
of rent. Therefore, admittedly, there is relationship of tenant and
landlord and the petitioner is stopped from retracing his step by
challenging the title of the respondent-landlord.
10. So far as the question of bona fide requirement of the respondent-
landlord is concerned, it has been the endeavour of the learned
counsel for the petitioner to get the case tagged along with other
cases which are stated to be still pending for consideration of this
Court.
11. I do not agree that the decision in the present case be deferred or
the present case be adjourned to a date in future so as to club this
case along with other cases. The respondent-landlord has been
admittedly living in a rented accommodation and because of his
adult sons he wants to shift to his own property, which he has
RC. Rev. No.616/2015 Page 5 of 7
created with his sweat and blood, then the tenant must be refused
leave to defend. The landlord should be permitted to decide for
himself in case he wants to shift to his own and sole property
unless there are compelling circumstances to show that his desire is
not genuine and it is actuated by ulterior consideration.
12. In the instant case the issue of bona fides is not successfully
assailed by the petitioner/tenant. He does not dispute the number
of family members or the nature of job of the respondent-landlord
and thereby admitting indirectly the bona fide requirement of the
respondent-landlord. I do not feel that anything remains to be done
by the respondent in this regard.
13. Regarding the availability of an alternative accommodation, the
respondent has categorically stated that there is no other
accommodation owned by him or his dependent family members,
and therefore, this point also goes against the present petitioner.
The totality of the circumstances and the examination of the order
clearly show that if a person is living in a tenanted premises and is
not getting huge money from his own premises then his desire to
shift to his own premises ought to be permitted. It is the earnest
RC. Rev. No.616/2015 Page 6 of 7
desire of a right thinking person to have a shelter over his head
where he could lock his room and keep his personal belongings and
yet does not suffer from any anxiety syndrome or live the way he
wants to.
14. Therefore, I feel that the petitioner-tenant do not have any issue up
their sleeves, which if permitted to be proved by the Court to them
which would disentitle the respondent-landlord from claiming back
possession of the suit premises.
15. I therefore, hold that the present revision petition is totally
misconceived and is accordingly dismissed.
16. Pending application also stands disposed of.
V.K. SHALI, J.
NOVEMBER 27, 2015
vk
RC. Rev. No.616/2015 Page 7 of 7
+ RC. Revision No.616/2015 & CM APPL.28340/2015
th
Decided on: 27 November, 2015
ASHOK KUMAR (DECEASED) THR. LRS. …… Petitioner
Through: Mr. B.L. Mehta, Advocate with
Mr. Shagun Mehta, Advocate
Versus
KEWAL KUMAR …… Respondent
Through:
CORAM:
HON’BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. ( ORAL)
1. This is a revision petition filed by the petitioner against the order
dated 05.05.2015 by virtue of which the leave to defend application
of the petitioner was dismissed and an order of eviction was passed
in case titled Kewal Kumar v. Ashok Kumar (since deceased),
bearing E No.76/2012.
2. I have heard the learned counsel for the petitioner and have also
gone through the record.
3. The respondent-landlord had filed an eviction petition against the
present petitioner-tenant under Section 14 (1) (e) of the Delhi Rent
RC. Rev. No.616/2015 Page 1 of 7
Control Act, 1958 in respect of a Janta Flat bearing No.208-A,
Ground floor, Paschim Puri, New DDA Market, Landmark Khati
Restaurant, opposite Ordinance Depot, New Delhi-110063.
4. The case which was set up by the respondent-landlord is that he is
living in a tenanted premises in DDA Flat No.15/388, Madangir,
New Delhi-110062.
5. It has been stated that the family of the respondent-landlord
consisting five members including the petitioner, his wife and three
adults sons and the respondent-landlord’s heath is not very sound
because of which he is not able to bear the expenses of rentals apart
from the expenses of his family members who are dependent on
him. Therefore, the respondent-landlord desires to shift to his own
flat in order to save the money. The respondent-landlord has also
stated that he has no other suitable alternative accommodation
available to him. So far as the present petitioner-tenant is
concerned, it was stated that he was paying rent of Rs.2,000/- per
month and the premises were being used by him for residential
purposes.
RC. Rev. No.616/2015 Page 2 of 7
6. On the notice being served, the petitioner-tenant filed his leave to
defend application raising pleas regarding the bona fide
requirement of the respondent-landlord. It was also stated that he is
not the owner of the flat and that the respondent-landlord does not
require the premises for his own use. During the pendency of the
eviction petition the petitioner-tenant Ashok Kumar died and his
legal heirs, namely, widow and the daughter were substituted as
parties. The learned Additional Rent Controller, West District, Tis
Hazari Courts, Delhi passed an order of eviction after rejecting the
leave to defend application by observing that the petitioner-tenant
was not able to make out a triable issue which would disentitle the
respondent-landlord from claiming back the possession of the
premises.
7. I have considered the submissions carefully and have gone through
the impugned order.
8. I am fully satisfied that the petitioner-tenant has not been able to
point out any illegality, impropriety or jurisdictional error in
rejecting the leave to defend application of the present petitioner-
tenant and consequently passing an eviction order against him.
RC. Rev. No.616/2015 Page 3 of 7
The reason for this is that the points which are raised by the
petitioner-tenant are not such, which if proved would disentitle the
respondent-landlord from claiming back the possession. The
relationship of landlord and tenant is not disputed by the petitioner
although he has disputed the ownership of the respondent-landlord
in respect of the property in question. It has been held by the
learned ARC and rightly so that for claiming the possession, the
respondent-landlord does not have to be the absolute owner of the
suit property. An absolute owner would be one in whose favour
there is registered documents in respect of the property which
could be called Sale Deed, Title Deed or Conveyance Deed, but in
the instant case the flat in question has been allotted admittedly to
the respondent-landlord by the DDA and that is considered to be
good enough by the Rent Controller to establish his ownership qua
the entire world to have a better title to occupy the property.
9. In addition to this, the Rent Controller has rightly observed that
since the petitioner is claiming himself to be the tenant under the
respondent-landlord, he is estopped from challenging the title of
the respondent-landlord in the eviction petition in question in view
RC. Rev. No.616/2015 Page 4 of 7
of Section 116 of the Evidence Act, 1872. Rightly so, it has been
held in catena of authorities that the petitioner will be permitted to
challenge the ownership of a party only if he has not attorned or
paid rent to the respondent. In this case that situation is absent.
The petitioner/tenant has admitted that he has been paying rent to
the respondent-landlord as a matter of fact he has assailed the rate
of rent. Therefore, admittedly, there is relationship of tenant and
landlord and the petitioner is stopped from retracing his step by
challenging the title of the respondent-landlord.
10. So far as the question of bona fide requirement of the respondent-
landlord is concerned, it has been the endeavour of the learned
counsel for the petitioner to get the case tagged along with other
cases which are stated to be still pending for consideration of this
Court.
11. I do not agree that the decision in the present case be deferred or
the present case be adjourned to a date in future so as to club this
case along with other cases. The respondent-landlord has been
admittedly living in a rented accommodation and because of his
adult sons he wants to shift to his own property, which he has
RC. Rev. No.616/2015 Page 5 of 7
created with his sweat and blood, then the tenant must be refused
leave to defend. The landlord should be permitted to decide for
himself in case he wants to shift to his own and sole property
unless there are compelling circumstances to show that his desire is
not genuine and it is actuated by ulterior consideration.
12. In the instant case the issue of bona fides is not successfully
assailed by the petitioner/tenant. He does not dispute the number
of family members or the nature of job of the respondent-landlord
and thereby admitting indirectly the bona fide requirement of the
respondent-landlord. I do not feel that anything remains to be done
by the respondent in this regard.
13. Regarding the availability of an alternative accommodation, the
respondent has categorically stated that there is no other
accommodation owned by him or his dependent family members,
and therefore, this point also goes against the present petitioner.
The totality of the circumstances and the examination of the order
clearly show that if a person is living in a tenanted premises and is
not getting huge money from his own premises then his desire to
shift to his own premises ought to be permitted. It is the earnest
RC. Rev. No.616/2015 Page 6 of 7
desire of a right thinking person to have a shelter over his head
where he could lock his room and keep his personal belongings and
yet does not suffer from any anxiety syndrome or live the way he
wants to.
14. Therefore, I feel that the petitioner-tenant do not have any issue up
their sleeves, which if permitted to be proved by the Court to them
which would disentitle the respondent-landlord from claiming back
possession of the suit premises.
15. I therefore, hold that the present revision petition is totally
misconceived and is accordingly dismissed.
16. Pending application also stands disposed of.
V.K. SHALI, J.
NOVEMBER 27, 2015
vk
RC. Rev. No.616/2015 Page 7 of 7