NISAR AHMED Vs. SHAKUNTALA DEVI

JUDGEMENT

(1.) This petition is directed against the order dated 13.3.2002 of the Additional Rent Controller, Delhi in E-74/2001 whereby the learned Controller on a petition by the respondent herein under Section 14D of the DELHI RENT CONTROL ACT, 1958 (hereinafter called the Act) has refused permission to leave to defend to the petitioner herein under Section 25B of the Act.

(2.) Brief facts of the case as noted by the Additional Rent Controller are as follows:- Petitioner in her petition U/S.14D DRC Act submitted inter-alia that ground floor portion of H.No.6, Devi Bhawan comprises of three rooms, kitchen, bath, strone, latrine and open courtyard partly covered with tin shed specifically shown red in the site plan was let out to the respondent without any written agreement on a monthly rent of Rs.233.60 excluding electricity and water charges. She also submitted that she is the owner of the property in dispute specifically shown red in the site plan and respondent is a tenant in respect of a portion of the ground floor. The premises was let out for residential purposes to the respondent and now she requires for her own residence and for the residence of his family members dependent upon her. She also submitted that she is a widow and premises was let out to the respondent by her late husband Sh. Banwari Lal Gupta. She also submitted that she is aged about 82 years and residing alone on the first floor and suffering from various ailments and she feels difficulty in climbing the stairs. Now she wants to reside on the ground floor along with her son Sh. Narinder Prakash Gupta and daughter-in-law Pushpa Gupta, who at present are residing at G-18A, Hazrat Nizamuddin(West), which is a tenanted premises and which is owned by Braham Bhatt Shiv Mandir. She also submitted that she is desperate that her son should live with her so that she may be looked after property. Her daughter-in-law is suffering from cancer and heart problem, who has also been operated upon in AIIMS and at present under the treatment of R.M.L. Hospital. Her son and daughter-in-law have agreed to live and reside with the petr. provided there is suitable accommodation. She also submitted that at present she is in possession of two rooms. Out of which, one is a small room with kitchen, latrine on the 1st floor and one room on the barsati floor. There is no bath room on the 1st floor and no latrine, bath room and kitchen on the barsati floor. All the accommodation available with her is shown green in the site plan. She has no other reasonably suitable accommodation. She also submitted that she and her son also own property No.74, Basti Hazrat Nizamuddin, which is 1-1/2 furlong from the premises but the same is occupied by tenant. She has also half undivided share in the property No.82/86, Hazrat Nizamuddin, which is commercial and factory is being run, which is far away from the main road. On these grounds, she sought eviction of the tenant from the tenanted premises. An application for leave to defend was filed by the respondent submitting interalia that on receipt of notice, a leave was filed in time. He also submitted that he is a tenant in the suit premises for the last 35 years and making payment of rent regularly. He also submitted that petr. is living alone after the death of her husband and no one is living with her to look her after. She has no other income except the rental. She also filed a petition earlier against one Mohd. Aslam, who was paying rent at the rate of Rs.200/- but the petition was withdrawn when the rent has been increased to Rs.800/- and the present petition is also filed for the enhancement of rent. He also submitted that the adopted son Sh. Narinder Kumar Gupta never lived with the petr. nor he ever visited her. Hence, it is not possible that he and his family would live with her. He also submitted that neither petr. nor her adopted son require the premises in dispute. He also submitted that petr. is claiming that her son is living as a tenant in G-18A, Hazrat Nizamuddin(W) while the litigation is under adjudication in the court of Smt. Preeti Aggarwal, Ld. Civil Judge for the ownership of the said property. Hence, it is wrong that her son is living as a tenant. In fact, he is owner of the property. He also submitted that petr. has taken all false pleas. Hence, he should be given leave to defend and contest the present petition. Reply to the application for leave to defend was filed by the petitioner who denied all the contentions of the respondent affirming inter-alia that it is wrong that in earlier suit against Mohd. Aslam, it was filed for enhancement of rent and at present, he is paying rent at the rate of Rs.73.21 p.m. and in fact she has filed another suit against the same tenant Mohd. Aslam on the ground of mis-use of property and the same is pending before this Hon'ble Court. She also denied that her son and her daughter-in-law would never reside with her. In fact, her son and daughter-in-law have agreed to live with her and at present her son is living separately due to non-availability of the premises. She also reasserted that she is suffering from various ailments. She also denied any litigation in the court of Mrs. Preeti Aggarwal, Ld. Civil Judge for the ownership of the property. In fact, her son is a tenant in that property Sh. Jai Bhagwan and others have filed a suit for possession for the land underneath and the said property after demolition of the super-structure and that suit is pending. It is not out of place to mention that even UOI through L&DO are also claiming ownership over that property and the proceedings have been filed by UOI against the son of the petitioner. Rejoinder to the reply was filed by the respondent, who denied all the contentions of the reply of the petitioner and reasserted the plea taken by him in the application for leave to defend.

(3.) It is contended by counsel for the tenant, petitioner herein that during the pendency of the proceedings a portion of the premises which was in the tenancy of Hazrat Begum on the ground floor has fallen vacant. In view thereof the requirement of the landlady stands satisfied and, therefore, the permission under Section 25B of the Act should be granted.