Thursday, June 8, 2017

REPLY TO LEAVE TO DEFEND BY PETITIONER FOR EVICTION OF TENANT UNDER SECTION 14D READ WITH SECTION 25-B OF THE DELHI RENT CONTROL ACT, 1958.

BEFORE THE RENT CONTROLLER: ….,

……. COURT, DELHI


EVICTION PETITION NO.______ OF 20..


In the matter of:

abc
                                                        ……..             Petitioner

 

 

Versus


xyz
                                                        ……..         Respondent

REPLY TO LEAVE TO DEFEND BY PETITIONER FOR EVICTION OF TENANT UNDER SECTION 14D READ WITH SECTION 25-B OF THE DELHI RENT CONTROL ACT, 1958.



THE HUMBLE PETITION OF THE PETITIONER ABOVE NAMED

MOST RESPECTFULLY SHOWETH:

1.           It is submitted that the petitioner has filed a petition before this Hon’ble Court under Section 14D read with Section 25-B of the Delhi Rent Control Act, 1958 for passing decree of eviction against the respondent in respect of the tenanted shop bearing no... ... It is submitted that the Hon’ble Court after hearing the matter was pleased to issue notice to the respondent under Section 14D read with Section 25-B of the Delhi Rent Control Act, 1958.
2.           It is submitted that the respondent has filed its leave to defend … before this Hon’ble Court which contains false, misleading and baseless averments and that the leave to defend filed by the Respondent is liable to be dismissed with cost. An order allowing the petition under Section 14D specially enacted under the Delhi Rent Control Act, 1958 for the landlord who is widow and having right to recover immediate possession of the premise as required for her own use, shall sub-serve the ends of justice.
3.           It is submitted that the shop was let out / tenanted in the year ….as ANNEXURE P-9.
4.           It is submitted that the respondent after the death of the husband of the petitioner had been paying the monthly rent to the petitioner till date. Thus, the respondent also acknowledges the petitioner as the owner of the said property including the shop.
5.           It is submitted that the Petitioner is a widow and an old lady of around …therefore, the Petitioner wishes to reside at the ground floor of the property for the sake of convenience and living a decent life and thus filed the present petition. It is submitted that the petitioner relied upon the judgment passed by the Hon’ble Supreme Court in In Ragavendra Kumar v. Firm Prem Machinery & Co. 2000 (1) SCC 679 para 10, it was held as follows:
“………….
It is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter.
……………”

6.           It is submitted that as far as the size of the family is concern, the said property is inadequate, insufficient and too small for the whole family to reside and hence the petitioner requires the area of the shop for the residential accommodation. It is submitted that the Hon’ble High Court in the matter of Rampratap Sharma vs. Smt. Rukmani Devi 2000 (1) RCR 209 held that the landlord's requirement for even separate pooja room is bonafide requirement. In present day society landlord cannot be compelled to have a pooja room in dining room or bed room. In the present petition the Petitioner is in genuine need of staying in ground floor of her own property.
7.           It is submitted that the respondent (age of the respondent) started the shop in the year.
8.           It is submitted that after the year 2012, the respondent wound up the .
9.           It is further submitted that the Respondent has already enjoyed the tenanted shop for more than ..members she is not even able to bear her medical expenses as well as medical expenses of the surviving son. It is submitted that the Hon’ble Supreme Court in the matter of Baldev Singh Bajwa vs. Monish Saini (2005) 12 SCC 778 held that whenever the landlord would approach the court his requirement shall be presumed to be genuine and bonafide, which has been recently considered by Delhi High Court in the matter of Tarseem Singh vs. Gurvinder Singh 2010 SCCOnline Del 3537 para 18, which is reproduced as below:
“…………………………
18. In Sarwan Dass Bange v. Ram Parkash, 2010 IV AD (Delhi) 252, observations made by Supreme Court in Baldev Singh Bajwa v. Monish Saini, (2005) 12 SCC 778, have been quoted as under:
“…………………
It was held that the legislative intent is of expeditious disposal of the application for ejectment of tenant filed on the ground of requirement by the landlord of the premises for his own occupation; a special category of landlords requiring the premises for their own use has been created; if there is any breach by the landlord, the tenant is given a right of restoration of possession; the landlord who evicts a tenant on the ground of own requirement is not only prohibited from letting out the premises or disposing of the same but also required to use the same for his own residence only. It was held that these restrictions and conditions inculcate in built strong presumption that the need of the landlord is genuine; the conditions and restrictions imposed on the landlord make it virtually improbable for the landlord to approach the Court for ejectment of tenant unless his need is bona fide—no unscrupulous landlord in all probability, under this section, would approach the Court for ejectment of the tenant considering the onerous conditions imposed on him. It was further held that this in-built protection in the Act for the tenants implies that whenever the landlord would approach the Court his requirement shall be presumed to be genuine and bona fide. It was further held that a heavy burden lies on the tenant to prove that the requirement is not genuine. The tenant is required to give all the necessary facts and particulars supported by documentary evidence if available to prove his plea in the affidavit itself so that the Controller will be in a position to adjudicate and decide the question of genuine or bona fide requirement of the landlord; a mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine.
………………..”
  
10.       It is submitted that the Petitioner does not have any other property/ accommodation/premises except his right, title and interest as owner in the said.. .New Delhi-. where the subject shop is situated.
11.       It is submitted that the important aspect is the Petitioner in order to see her family members settle in their life wanted to reconstruct the entire property and divide and allocate the said property proportionately among the family members so that they can have the enough space for the next generation and also to start up a retail outlet and earn their livelihood. The petitioner also wants to secure the future of her family so that they do not have any difficulty in sustaining themselves either for a dwelling accommodation or shop so as to expand their small family business. It is submitted that the petitioner relied upon the judgment passed by the Hon’ble Delhi High Court in Mahendra Trivedi v. Jai Prakash Verma ILR(2009)III Delhi 676. Relevant para of the said judgment is reproduced herein:
“……………….
19. It is settled law that each member of the family requires atleast a comfortable place where he/she can sleep. There exists a bonafide need
for the respondent to evict the petitioner from the disputed property and the landlord is not expected to hurdle up together his grown up sons and daughters in an uncomfortable place and can claim legitimately additional accommodation which is in possession of the tenant for making his own life and that of his family members comfortable. The learned Additional Rent Controller thus carefully considered all the evidence on record and facts and circumstances of the present case and rightly passed the eviction order in favour of the respondent and against the petitioner in respect of the suit property.
20. There are around 9 members in the family existing and the landlord has no separate pooja ghar with him. It is settled law that neither the court nor the tenant can dictate to the landlord the mode and manner in which he should live or to prescribe for him the residential standard on their own. The landlord must be left to assess his requirement in the background of his position, circumstances and status in the life and social and other responsibilities and other relevant factors. In judging his special needs and convenience, certainly the landlord would have a choice. The tenant cannot compel the landlord to live in a particular manner and it would be open to the parties to file an application for appointment of an advocate commissioner to enable the ARC to appreciate not only the topography of the premises in question but also to appreciate whether the requirement of the respondent is bonafide or not.
…………………’

12.       It is submitted that the requirement of the petitioner is absolutely bona fide inasmuch as, in case the respondent vacates the tenanted shop, the petitioner would be able to stay at the ground floor since the petitioner is an old lady and is difficult to climb upstairs at this age. It is submitted that the petitioner relied upon the judgment passed by the Hon’ble Delhi High Court in Vimla Sharma vs. Veeran Devi 2001 SCC Online Del 857 para 5-6. Relevant para of the said judgment is reproduced herein:
“……………………..
5. The Hon'ble Supreme Court has repeatedly held that the provisions of Section 14-D are calculated to alleviate the plight of a widow. A liberal approach, as compared to the attitude while dealing with similar cases under Section 14(1)(e) of the Delhi Rent Control Act, has been advocated by the Apex Court. Little significance can be attached to the fact that a Relinquishment Deed has been executed by the parties in 2000. Indubitably, the respondent is a widow and even de hors the Relinquishment Deed is at very least, a joint owner of the demised premises, by operation of the laws of Succession. The requirement of Section 14-D of the DRC Act are, therefore, met even without the Relinquishment Deed being considered.
6. The next question is whether a bona fide case has been established. The petitioner/tenant has herself pleaded that the respondent/landlady is 70 years old. When this fact is kept in mind it will become immediately obvious that it would be reasonable for her to claim the eviction of the petitioner herein on the grounds that she wished and intended to reside in the premises alongwith her family members. A reading of Section 14-D of the DRC Act does not indicate that the need should be exclusively of the widow or that the widow should be the exclusive owner of the property. As in Section 14(1)(e) of the Delhi Rent Control Act the residential need of members dependent upon her or as in the present case where the landlady is dependent on members of her family should also be legitimately taken into view. There is, therefore, no appreciable significance in the argument that Section 14-D of the DRC Act does not permit or envisage an eviction on the grounds of the residential needs of members other than the widow herself. If the respondent herein, for reasons of old age, requires her children to shift with her in her home, the need still remains legitimate and bona fide.
…………………”
13.       It is submitted that the petitioner also relied upon the judgment passed by the Hon’ble Delhi High Court in Pradeep Kumar Khaneja v. Jagrani 2014 SCC Online Del 1733 para 2,3,5. Relevant para of the said judgment is reproduced herein:
“…………….
2. The case of the respondent/landlady, and who was 75 years of age when the eviction petition was filed and is now about 80 years, was that due to her old age she cannot climb to the first floor of the property where she is presently residing and therefore she needs the property for her bonafide need. Respondent-landlady also pleads that her brother-in-law's family is living with her. In my opinion, however, the only issue is as to whether respondent/landlady is entitled to shift to the ground floor in view of her old age and which is presently 80 years as stated above.
3. The Additional Rent Controller has decreed the bonafide necessity eviction petition on the ground that the respondent/landlady who is an aged person of 75 years, cannot be forced to climb to the first floor and therefore she has a bonafide necessity for the room on the ground floor which is with the petitioner/tenant.
5. All the arguments urged on behalf of the petitioner/tenant do not carry any weight. The petition is therefore liable to be dismissed and reasons are given hereinafter.
…………………”

14.       It is submitted that the petitioner also relied upon the judgment passed by the Hon’ble Delhi High Court in M/s Satish Raheja vs. Prakashwati Gupta ILR(2008) Delhi483. Relevant para of the said judgment is reproduced herein:
“………………
7. For purposes of Section 14D it is immaterial whether the premises have been let out for residential, commercial or for any other purpose. What is of relevance is that the widowed landlady bona fide requires the premises for her own residence. Therefore, if the premises is capable of being used as a residence, or a part of a residence, and she is otherwise not in occupation of sufficient accommodation to meet her needs, the widowed landlady would be entitled to seek eviction of the tenant under Section 14D of the Act. In the present case it is has come on record that the petitioner-landlady who is now 78 years of age and is suffering from various ailments is being looked after by her only married daughter, son-in-law and two grand children.
………………”

15.       It is submitted that the petitioner also relied upon the judgment passed by the Hon’ble Delhi High Court in Gurcharan Singh vs. Saraswati Devi 2009 (109) DRJ 424 para 6,7 & 13. Relevant para of the said judgment is reproduced herein:
“………………….
6. Before I deal with petitioner's submissions, I would like to refer to Section 14D of DRC Act, which reads as under:
“14D. Right to recover immediate possession of premises to accrue to a widow.—
(1) Where the landlord is a widow and the premises let out by her, or by her husband, are required by her for her own residence, she may apply to the Controller for recovering the immediate possession of such premises.
(2) Where the landlord referred to in sub-section (1) has let out more than one premises, it shall be open to her to make an application under that sub-section in respect of any one of the premises chosen by her.”
7. Since the present eviction petition has been filed by. respondent-landlady on the ground of Section 14-D of DRC Act, she has to prove only the following three requirements:
(i) She is a widow;
(ii) She is a landlady;
(iii) She requires the premises for her own residence.
………………”
PARAWISE REPLY TO THE PARAS UNDER THE CAPTION ‘TRUE FACTS’

16.       It is submitted that the contents of para 1 are incorrect and vehemently denied. It is wrongly submitted by the respondent that the petition has been filed against wrong person with malafide intention to get eviction decree against the tenant.
17.       It is submitted that the contents of para 2 are wrong and vehemently denied.       
PARA WISE REPLY TO THE GROUNDS


18.       It is submitted that the contents of para 1 of page 4 are wrong and vehemently denied. It is wrongly submitted by the respondent that the ingredients / elements / requirement of Section 14(i)(d) & (e) of the DRC Act are not made out as such the petition is bad in law ab – initio and is liable to be dismissed, the petition is otherwise hit by the provisions of order 7 Rule 11 of CPC and is liable to be dismissed with cost. The averment made is completely baseless and denied. 
It is pertinent to mention here that the petition has been filed under Section 14D of the DRC Act and alternatively also prayed under Section 14(i)(b) & (e) read with Section 25-B of the DRC Act, 1958. Contents of section 14D are reproduced as below:
14D. Right to recover immediate possession of premises to accrue to a widow. –
(1)    Where the landlord is a widow and the premises let out by her, or by her husband, are required by her for her own residence, she may apply to the Controller for recovering the immediate possession of such premises.
(2)    Where the landlord referred to in sub-section (1) has let out more than one premises, it shall be open to her to make an application under that sub-section in respect of any one of the premises chosen by her.


19.       It is submitted that the contents of para 3 are wrong and vehemently denied. It is wrongly submitted by the respondent that the site plan attached with the petition is false and incorrect and the petition is otherwise liable to be dismissed for want of true and correct description of the property.
It is pertinent to mention here that the site plan attached with the petition is true and correct. For more clarity with respect to the suit property / shop, a coloured copy of the map is attached as ANNEXURE P-11.

20.        It is submitted that the contents of para 4 are wrong and vehemently denied. It is wrongly submitted by the respondent that the space available with the petitioner is more than sufficient and she does not require the shop for any purpose whatsoever,

21.       It is submitted that the contents of para 5 are wrong and vehemently denied. It is wrongly submitted by the respondent that only two years back
………
22.       It is submitted that the contents of para 3 of page5 are wrong and vehemently denied. It is wrongly submitted by the respondent that
23.       It is submitted that the contents of para 4 of page5 are wrong and vehemently denied. It is wrongly submitted by the respondent that the averments made in the petition are self- destructive which clearly shows that the petitioner does not have any bonafide requirements. It is also wrong to submit that even otherwise, all the ingredients of section 14 (1) (e) of the DRC are not made out.
It is pertinent to mention here that the petition has been filed under Section 14D of the DRC Act and alternatively also prayed under Section 14(i)(d) & (e) read with Section 25-B of the DRC Act, 1958 and covers all the ingredient as mentioned in Section 14D, Section 14(i)(d) & (e) read with Section 25-B of the DRC Act, 1958.

24.       It is submitted that the contents of para 5 of page5 are wrong and vehemently denied. It is wrongly submitted by the respondent that petitioner has several properties but she is concealing the same from this Hon’ble Court to misuse the process of law under section 14 (1) (d) & (e) and section 25B of the DRC Act.

25.       It is submitted that the contents of para 6 of page 5 are wrong and vehemently denied. It is wrongly submitted by the respondent that the petitioner has numerous properties both residential and commercial in the Delhi and out of Delhi which have been concealed by the petitioner which are lying vacant and locked. It is also wrongly submitted by the respondent that the petitioner has more than sufficient accommodation.
        It is pertinent to mention here that the Petitioner does not have any other property/ accommodation/premises except his right, title and interest as owner in the said property bearing …where the subject shop is situated
26.       It is submitted that the contents of para 7 of page 6 are wrong and vehemently denied. It is wrongly submitted by the respondent that the contents of the petition are vague and contradictory.  The judgments relied upon by the Respondent has no bearing to the facts of the present case and are based on a completely different set of facts.
               
27.       It is submitted that the contents of para 8(i) are wrong and vehemently denied. It is submitted that the other legal heirs does not have any objection with respect to this petition. The no objection certificate of the legal heirs in the form of an affidavit are also attached.
28.       It is submitted that the contents of para 8(ii) are wrong and vehemently denied. It is wrongly submitted by the respondent that the respondent has been paying the rent of both the shops amounting
29.       It is submitted that the contents of para 8(iii) are wrong and vehemently denied. It is wrongly submitted by the respondent that the petitioner is suffering from any ailments.

30.       It is submitted that the contents of para 8(iv) are wrong and vehemently denied. It is wrongly submitted by the respondent that the petitioner cannot live a descent life in the suit property.
It is also pertinent to mention here that on one hand the respondent in para 3 of page
31.       It is submitted that the contents of para 8(v) are wrong and vehemently denied. It is wrongly submitted by the respondent that the petitioner has another property in .
32.       It is submitted that the contents of para 8(vi-vii) are wrong and vehemently denied. It is wrongly submitted by the respondent that
33.       It is submitted that the contents of para 8(viii) are wrong and vehemently denied. It is wrongly submitted by the respondent that the petitioner has sufficient property which is quite specious for her needs and she has a…which has been concealed.
It is pertinent to mention here that the aforesaid property of …

34.       It is submitted that the contents of para 8(ix-x) are wrong and vehemently denied. It is wrongly submitted by the respondent that the petitioner’s son is not suffering from liver disease and is employed.
It is pertinent to mention here that the petitioner’s son namely …..
35.       It is submitted that the contents of para 8(xi) are wrong and vehemently denied. It is wrongly submitted by the respondent that the petitioner and the family has a big residential building in.. Nagar, several vacant shops on the first floor and has let out a shop at the ground floor one and a half year back and tenant is running boutique business.
It is pertinent to mention here that the above wrong submissions made by the respondent has already been dealt with in para 32 & 33 of this reply.

36.       It is submitted that the contents of para 8(xii) are wrong and vehemently denied. It is wrongly submitted by the respondent that the petitioner does not have any need for the suit property.
It is pertinent to mention here that the important aspect is the Petitioner in order to

37.       It is submitted that the contents of para 8(xii) are wrong and vehemently denied. It is wrongly submitted by the respondent that the petitioner that the para 18(a) (xiii) of the petition are vague, self contradictory and mutually self destructive.
It is submitted that it is none of the concern of the respondent with respect to arrangement of funds as well as sanctioning site plan from MCD and other concerned authorities. The respondent should mind their own business with respect to the fund arrangement, sanction plan as well as arrangement with tenant
38.       It is submitted that the contents of para 9(i-viii) are wrong and vehemently denied. It is wrongly submitted by the respondent that the respondent is using his shop as his office as well as warehouse. It is again wrongly submitted by the respondent that the respondent has changed his business of selling of surgical goods to have started running …
(i).    It is pertinent to mention here that the respondent started the shop in the year
(ii)    That after the year
(iii)   That recently it has come to the knowledge of the Petitioner that the person
(iv)   That on … afternoon,
(v)    That upon hearing the aforesaid from the grandson, the whole family including the Petitioner was surprised and shocked which leads the petitioner to enquire about ….

 (vi)  That by making some enquiry about …., it seems that the Respondent has sublet/assigned the rental property to her without any written consent from the Petitioner.

(vii)  It is submitted that the respondent categorically stated that the respondent has not
(viii) It is pertinent to mention here that the respondent has categorically denied any sublet of the property of Women’s World is being operated by from the premises in question.  Thus it is evident that the respondent has filed a false affidavit before this Hon’ble Court in order to somehow mislead this Hon’ble Court in believing that the respondent has not sublet the premises.  The petitioner most respectfully states that this Hon’ble Court may initiate appropriate proceedings against the respondent for filing a false affidavit. It is prayed accordingly.

 (ix) It is reiterated and again denied that the petitioner has any other property/ accommodation/premise apart from the property where the suit property is situated. It is also submitted that the requirement of the petitioner is under the realm of Section 14D as well Section 14(1) (b) and (e) of the DRC Act and is absolutely bonafide.

39.       It is submitted that the contents of para 10-16 are wrong and vehemently denied. It is wrongly submitted by the respondent that there is no cause of action and no grounds under section 14(1) (d) and (e) of the DRC Act. It is again wrongly submitted by the respondent that the petitioner is trying to create false ground for eviction and wants the property to further let out on higher rate of rent. It isdenied that the petition has not been properly signed and verified and contains a false affidavit.

     It is pertinent to mention here that the petition has been filed under Section 14D of the DRC Act and alternatively also prayed under Section 14(i)(d) & (e) read with Section 25-B of the DRC Act, 1958 and covers all the ingredient as mentioned in Section 14D, Section 14(i)(d) & (e) read with Section 25-B of the DRC Act, 1958. It is again submitted by the petitioner that the suit shop is required for the personal use of the petitioner as the petitioner is old lady and cannot climb stairs therefore requires a space in the ground floor of the property.

40.       It is submitted that the contents of para 17 are wrong and vehemently denied. It is wrongly submitted by the respondent that

41.       It is submitted that the contents of para 18 are wrong and vehemently denied. It is wrongly submitted by the respondent that no notice was ever served upon the respondent prior to filing of the present petition before this Hon’ble Court.

 It is pertinent to mention here that a prior legal notice was served to the respondent which also has been duly admitted by the respondent in para 7 of page 6 of the leave to defend wherein the respondent has categorically stated that a legal notice was duly served to the respondent.

42.       It is submitted that the contents of para 19-20 are wrong and vehemently denied. It is wrongly submitted by the respondent that the petitioner has no bonafide requirement and the petitioner has more than sufficient accommodation lying vacant. It is again wrongly submitted by the respondent that the respondent has a very good defence which infact he does not have.

It is pertinent to mention here that the petition is filed by …The petitioner seeks dismissal of the leave to defend filed by the respondent and an order evicting the respondent under Section 14. In view of the facts and submissions made hereinabove the present petition deserves to be allowed.  It is prayed accordingly.  






Petitioner
Through:


Delhi                                                                         ADVOCATE
,
Dated:__.10.2016                                                                     
NEW DELHI-


Verified at New Delhi on this the        day of April, 2017 that the contents of the above affidavit are true to my knowledge derived from the official records of the respondent and also on the basis of information received and believed to be correct.  No part of it is false and nothing material has been concealed therefrom.



Petitioner