Delhi District Court
Sh. Prem Prakash vs M/S. Babaji Medicos on 21 January, 2012
IN THE COURT OF SH. PULASTYA PRAMACHALA,
ARC01, EAST, KARKARDOOMA COURTS, DELHI.
Unique Identification No. : 02402C0275542011
E158/2011
Sh. Prem Prakash
S/o. Sh. Ram Dass
R/o. C2/1, Temple Road, Krishna Nagar
Delhi110051. ................ Petitioner
Versus
M/s. Babaji Medicos
Through its Partner
Shop Private no. 3
C2/1, Temple Road, Krishna Nagar
Delhi110051. ................ Respondent
Eviction petition under Section 14 (1) (e) r/w Section 25 (B) of D.R.C Act
Date of institution of petition : 12.09.2011
Date on which Order was reserved : 12.04.2012
Date of Order : 21.04.2012
Final Order : Eviction petition is hereby
allowed.
E158/2011 Page 1 / 12
ORDER
1. Vide this order I shall decide application filed by respondent u/s 14(1)(e) read with Section 25B of the Delhi Rent Control Act, 1958, seeking leave to defend this eviction petition.
2. Petitioner has filed present petition for eviction of respondents u/s 14 (1)
(e) of the Delhi Rent Control Act, 1958.
Briefly stated, the relevant contentions of the petitioner are as follows: a. Petitioner is the landlord and owner of property no. C2/1, Krishna Nagar, Delhi51. On representation of the respondent firm's partner namely Sh. Deepak Khanna, on 01.11.1978 they were inducted as tenant by the petitioner in shop bearing private no. 3 in aforesaid property vide the rent agreement dated 01.11.1978. The present rate of rent is Rs. 266/ p.m excluding other charges and tenanted shop is shown in red colour in the site plan. b. There are three other tenanted shops in this property bearing property no. 1,2 and 4 and remaining portion of the property is residential, wherein petitioner alongwith his family is residing.
c. Petitioner requires the tenanted shop in question, out of his bonafide need as his dependent son namely Sh. Kuldeep Goswami is unemployed for last 34 years and he wants to open a general store in the tenanted shop, which is more E158/2011 Page 2 / 12 suitable to run this business. Petitioner has no other alternate suitable shop in Delhi, hence, this petition.
3. In the affidavit and application filed by Sh. Bharat Bhushan following relevant contentions have been taken: a. The applicant was partner of respondent firm alongwith Sh. Deepak Khanna at the time of creation of tenancy on 01.11.1978. b. Present petition having being filed only against the firm without impleading the partners as respondent, is not maintainable.
c. The partnership firm between Sh. Deepak Khanna and applicant was dissolved on 10.03.1981 vide a dissolution deed thereafter, applicant had introduced Smt. Kailashwati as partner in the said firm on 11.03.1981. The partnership firm in the name of respondent was running upto 31.03.2006 and after that the applicant is running the business of property consultancy from the premises in question in his individual capacity.
d. Applicant was the main tenant at the time of inception of tenancy and even now, he has deposited the conversion charges and paid the electricity bill to the concerned authority.
e. The petitioner has concealed the fact that a commercial typing college was being run in the same property under control of his son Kuldeep, which has been closed recently by removing the shutter and putting a door. f. Petitioner has not filed any document to show that his son is unemployed E158/2011 Page 3 / 12 and as per knowledge of applicant, his son Kuldeep is in employment. g. The site plan filed by the applicant shows the space which is available with the petitioner, where commercial typing college was being run in the past and after 2002, it was looked after by his son Kuldeep.
h. Petitioner and his family members have acquired two properties in Delhi, which are situated in the commercial locality.
4. Petitioner had filed certain documents at the later stage, pertaining to removal of his son from the services. Applicant Bharat Bhushan had filed his additional affidavit pertaining to these documents. In this additional affidavit, the applicant stated that these documents do not bear the seal and stamp of Govt. office and petitioner has deliberately not filed statement of bank account of his son which could clarify the salary received by him from his office.
5. In the counter affidavit, petitioner took following plea: a. The rent deed dated 01.11.1978 was executed by respondent's firm through its partner Sh. Deepak Khanna and thereafter, petitioner has no information regarding the change in the constitution of tenanted firm. The applicant was not a part of this firm at the time of inception of tenancy as at that time, Sh. Deepak Khanna and Sh. Jugal Kishore had approached the petitioner for letting out of the shop.
b. The rent agreement clearly mentions that premises was let out to the partnership firm for the purpose of running a Chemist shop. Therefore, present E158/2011 Page 4 / 12 petition is well maintainable.
c. Present petition has been filed under Section 14(1)(e) of the Act, wherein no notice is required to be executed.
d. The electricity bill filed by the applicant shows that respondent firm is a tenant and it is denied for want of knowledge that applicant is running the business of property consultancy from the said shop. e. The present application has been filed by a stranger and therefore, it is not maintainable.
f. The commercial typing college was being run by wife of petitioner in one of their residential room which was closed down about 12 years back and the said room is being used for residential purposes only.
g. The son of the petitioner Sh. Kuldeep was employed with the Ministry of Defence and since the year 2007, he is unemployed.
h. Petitioner and his family members have not acquired two properties in Delhi as alleged by the applicant.
6. Ld. counsel for petitioner relied upon the following case laws: a. Gian Chand v. Roop Narain, 1979 RLR 469.
b. Kishore Lal Krishan Kumar v. Ankit Rastogi, 184(2011) DLT 130.
c. Prativa Devi v. T.V. Krishanan JT 1987(1) SC 764.
d. Yadvendra Arya v. Mukesh Gupta, AIR (2008) SC 773.
E158/2011 Page 5 / 12
e. Abdul Malik Anr. v. Shashi Bala 186(2012) DLT 669.
f. Mukesh Kr. v. Rishi Prakash 174(2010) DLT 64.
g. A.K. Jain v. Prem Kapoor (2008) 8 SCC 593.
7. Ld. counsel for respondent relied upon the following case laws: a. Nand Kishore v. Kaishav Dadaji, AIR CJ 1980(1)(BOM). b. Bhupinder Singh v. Ram Niwas RCJ 2007(2)177(RAJ).
c. Banarasi Dass v. Om Prakash 2002 RLR (N) 128.
d. Nitin Garg vs. Naresh Arora CM(M) 1164/20089 decided by High Court of
Delhi on 23.10.2009.
8. I have given due attention to the rival contentions and perused the record of this case as well as caselaws. I don't intend to reproduce decision in all case laws and shall refer to the relevant principle at appropriate place as per requirement.
Findings:
9. I shall first deal with the requirement under Section 14 (1) (e) DRC Act to seek eviction of a tenant. Under Section 14 (1) (e) DRC Act, petitioner has to satisfy the following ingredients.
i) Petitioner has to be landlord as well as owner of the tenanted property.
E158/2011 Page 6 / 12
ii) The premises should be required bonafidly by the landlord for his occupation or for occupation of any member of his family dependent upon him.
iii) Landlord or such person dependent upon landlord should not have other reasonable or suitable accommodation in Delhi.
10. In the present case, there is no challenge to the title and status of petitioner as owner/landlord of tenanted property. The rent agreement dated 01.11.1978 is also undisputed document. This rent agreement shows that the tenancy was created between respondent firm through its partner Sh. Deepak Khanna with the petitioner on 01.11.1978. The document relied upon by the respondent regarding partnership deed between applicant and Sh. Deepak Khanna dated 12.11.1978, shows that on the date of inception of tenancy, this document was not in existence but in any case, if document relied upon by the respondent is assumed to be correct and genuine, even then I find that no dispute is raised in respect of status and title of petitioner and the fact that the tenancy was created in the name of respondent firm. Present petition mentions the name of tenant as M/s. Balaji Medicos through its partner and I do not find that it is necessary for the petitioner to mention the name of each and every partner. In fact, the plea taken by the applicant itself shows that the original partnership firm does not exist and as on this date, there are no other partners of this firm. It is not expected from the petitioner that he shall know each and every internal development of respondent firm. In fact he has shown his ignorance E158/2011 Page 7 / 12 about any change in the constitution on this firm. The electricity bill as well as tax assessment relied upon by the applicant, also show that each and every thing had been in the name of respondent firm. Therefore, it can not be said that petition is bad on account of not mentioning of name of the partner. In fact, when no partner existing on this date, then there could not be such occasion account to mention the name of any partner. However, the fact remains that tenancy was created in the name of a firm and now if version of applicant is believed upon, then he is occupying this tenanted shop in the name of same firm i.e., respondent firm, in whose name the tenancy was created.
11. The judgment passed by Bombay High Court in Nand Kishore's Case (supra), does not say that all the partners of a firm must be impleaded in eviction proceedings. It simply says that partner of a firm in possession of tenanted premises is in possession in his individual capacity, but so far as the landlord is concerned, any one of the partner of the original firm was entitled to continue in possession until the tenancy rights were determined in accordance with law. The present eviction proceeding is not guided by a general law of tenancy i.e., Transfer of Property Act. There is no concept of termination of tenancy in Delhi Control Act. Present petition is based on one of the grounds provided in the Act for eviction of a tenant and the applicant has to establish those facts on the record, which could disentitle the landlord from seeking order of eviction.
12. The applicant has filed one site plan stating that one typing college was E158/2011 Page 8 / 12 being run in this property which has been closed by the petitioner recently. However, he has not mentioned the date when this typing college was closed. The site plan filed by him does not present a different picture in respect of description of tenanted property as well as other portions of property except to the effect that on the back side of shops, he has shown one commercial typing college, which is admittedly closed at this moment. Applicant has not disputed the description of family of petitioner, which consists of petitioner, his wife and three sons. The site plan filed by the applicant shows only three rooms apart from the commercial typing college. This portion has been shown to be a residential room by the petitioner and even, as per applicant, this portion is no more being used for commercial purpose. Applicant has no right to dictate the landlord as to how he should manage his need for residential accommodation and family of five members can not obviously accommodate in only three rooms. Therefore, the use of this portion as a residential room can not be said to be out of any malafide intention.
13. Applicant has stated that petitioner and his family own two more properties in Delhi, however, he himself has not furnished any particulars of those properties as well as any supporting documents.
14. In Nem Chand Daga vs. Inder Mohan Singh Rana, 94 (2001) Delhi Law Times 683, High Court of Delhi rejected the contentions that the relevant stage of filing and production of documents would be after the grant of leave to contest E158/2011 Page 9 / 12 i.e. at the time of written statement. The Court held that it would frustrate the summary provisions of the Act introduced by Chapter III A thereof. Such observations were made by the Court while dealing with objection in respect of denial ownership of landlord.
15. In Mukesh Kumar vs. Rishi Prakash, 174 (2010) Delhi Law Times 64, it was held by High Court of Delhi that :
"As held by this Court in K. K. Sarin (Supra), while deciding the application seeking leave to defend, what is required of the Rent Controller is to observe the rules of natural Justice and to give opportunity to both the parties to produce the facts and the material on which they rely. When the leave to defend is sought by the tenant he must make out a prima facie case raising such pleas from which triable issue would emerge. A bald plea, without anything more, particularly when the nature of the plea in defence is such that, if true, it would leave a trail of evidence to estabish its existence, and which would be easily available for everyone to see and pick up, cannot be accepted as prima facie disclosing a triable issue. .........
The tenant, no doubt, is entitled to raise all defences available to him in his application seeking leave to defend, but he cannot be seen to be shooting in the dark and raising all and sundry frivolous pleas in an irresponsible manner, only with a view to somehow get the desired leave to defend the eviction petition. Such conduct of the tenant E158/2011 Page 10 / 12 will certainly mar his credibility and the Controller will see through such tactics on his part. He will not succumb to such moves of the tenant. Else, the same would defeat the purpose of providing a summary procedure for the disposal of such cases, and would lead to miscarriage of justice."
16. Hon'ble High Court of Delhi in a case titled as Rajender Kumar Sharma and Ors. vs. Leela Wati and Ors., 155 (2008) DLT 383 held that:
"mere assertions made by tenant in respect of landlord's ownership of other buildings and in respect of alternate accommodation are not to be considered sufficient for grant of leave to defend. Leave to defend not to be granted to tenant on the basis of false affidavit and false averments and assertions. Only those averments in affidavit are to be considered by Rent Controller which have some substance in it and are supported by some material".
17. In view of aforesaid caselaws there remains no doubt that the aforesaid vague plea of applicant can not be entertained in order to grant leave to defend.
18. The applicant has also disputed the factum of unemployment of son of petitioner and has stated that his son is in employment. However, once again he himself has not furnished particulars of the place where Sh. Kuldeep is E158/2011 Page 11 / 12 presently working. Thus, his plea is once again found to be mere a vague plea and negative plea raised with only intention to obtain leave. Such vague plea can not be sustained until and unless it is substantiated with relevant information and material.
19. Thus, from my aforesaid observations and findings, I find that applicant has failed to disclose any such fact, which could disentitle the petitioner from seeking an eviction order.
20. Hence, application for leave to defend is dismissed. Eviction petition is hereby allowed. Respondent is directed to vacate the tenanted premises i.e., no. C2/1, Krishna Nagar, Delhi51 as shown in red colour in the site plan, within 6 months as provided u/s. 14(7) of DRC Act.
File be consigned to Record Room.
(Announced in the open (PULASTYA PRAMACHALA)
Court on 21/04/2012) ARC01, East, KKD,21/04/2012
E158/2011 Page 12 / 12