Sh. Ram Chander Vs. Smt. Ram Pyari - Court Judgment

Excerpt:
delhi rent control act, 1958 - eviction--leave to defend--jurisdiction of rent control court--existence of landlord and tenant relationship, condition precedent therefore--plaintiff filing eviction petition on the ground of bona fide requirement--defendant claiming to be the owner of the premises in dispute by virtue of adverse possession--title to the property to be decided in a title suit through civil proceedings--denial of ownership of or landlordship of plaintiff by defendant--leave to defend the suit not be granted to defendant. - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained behind in india. the husband thereupon started procededings before the high court of justice, family division. u.k. praying for an order that the minor child be made a ward of the court and for a direction upon the wife to return the minor child to the jurisdiction of the said court. a further direction was given for the passport and other international travel documents of the minor child to be handed over to the solicitors of the husband. a petition seeking protection of minor child was thereupon filed by father of the husband before delhi high court. a direction for handing over custody of child to father of husband was also sought. the high court considering fact that the u.k. court was already in seisin of matter and had passed an interim order and by relying on principle of comity of nations and comity of judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to u.k.or hand it over to father of husband to be taken to u.k. as measure of interim custody and that it would be for the u.k. court to decide the question of custody - order was challenged by wife - held, the order of high court was not liable to be interfered with. although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of u.k. court cannot be lost sight of., the order of u.k. court except for insisiting that the minor be returned to its jurisdiction, the english court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. the ultimate decision in that regard has to be left to the english court having regard to the nationality of the child and the fact that both the parents had worked for gain in the u.k. and had also acquired permanent resident status in the u.k. english court has not directed that the custody of the child should be handed over to the father but that the child should be returned to the jurisdiction of the courts in the u.k. which would then proceed to determine as to who would be best suited to have the custody of the child. the high court has taken into consideration both the questions relating to the comity of courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child. - on the contrary, the respondent land lady, who claims to have inherited the ownership of the premises from her husband, has produced house tax receipt a well as one agreement executed between her husband and the petitioner way back in the year 1967 showing the relationship of landlord and tenant.j.d. kapoor, j 1. petitioner has been refused the leave to contest the eviction petition filed on the ground of bonfire requirement of the premises vide order dated 19.7.2003. 2. the sole ground and the premise on the basis of which the impugned order is being challenged is that the petitioner claims himself to be the owner of the premises on the strength that he occupied the premises in the year 1972 and since then he is occupying the premises and thus he has become owner of the premises by virtue of his adverse possession. on the contrary, the respondent land lady, who claims to have inherited the ownership of the premises from her husband, has produced house tax receipt a well as one agreement executed between her husband and the petitioner way back in the year 1967 showing the relationship of landlord and tenant. 3. learned counsel for the petitioner contends vehemently that once relationship of landlord and tenant is challenged, tenant is entitled to leave to contest the eviction petition. there is no dispute as to this proposition of law as it is the owner of the premises who has right to seek eviction of the tenant and none less on the ground of bonfire requirement of the premises. in this case petitioner claims himself to be the owner of the premises and not as a tenant. the authority of the supreme court relied upon by the learned counsel for the petitioner in manoj kumar v. bihari lal (dead) by lrs 91(2001) dlt 25 (sc) is not at all applicable in the given facts and circumstances of the case as any person who denies to be a tenant and claim to be the owner of the premises cannot claim to be granted leave to defend eviction petition as eviction proceedings initiated under the delhi rent control act cannot be converted into a title suit. the title of the party is always decided though civil proceedings. as such claim of the petitioner that he is the owner of the premises and not the tenant could have been vindicated by way of filing civil suit and not in the eviction proceedings. 4. the first and foremost requirement to become entitled to leave to defend is that there should exist relationship of landlord and tenant between the parties. by denying the ownership or land lordship of the petitioner and claiming himself as owner, the petitioner cannot be granted leave to defend the eviction petition. 5. further more denial of agreement is also not a ground to grant leave to defend as it is inconceivable that the party will set up a document which was executed more than 30 years back and would fabricate the same for the purpose of seeking eviction. 6. in view of the foregoing reasons i do not find any merit in the petition and dismiss the same.