Delhi District Court
Sh. Rajnesh Kumar vs Sh. S.S. Aggarwal on 11 December, 2018
IN THE COURT OF SH. GAJENDER SINGH NAGAR,
ADMINISTRATIVE CIVIL JUDGE CUM ADDITIONAL RENT
CONTROLLER (CENTRAL) : DELHI
E413/13 (Old), 77745/16 (New)
In the matter of :
Sh. Rajnesh Kumar,
S/o Late Sh. Kanhiya Lal,
R/o 1625, Second Floor,
Outram Lane, G.T.B. Nagar,
Delhi110009. ......Petitioner
Versus
1. Sh. S.S. Aggarwal,
2. Sh. T.R. Baisiwala,
S/o Late Sh. R.S. Baisiwala,
Both partners of
M/s Baisiwala Bros.,
2711, Lothian Road,
Kashmere Gate, Delhi110006.
Both R/o 5/23B, Roop Nagar,
Delhi. ......Respondents
Date of Institution : 19.10.2013 Date of order when reserved : 06.12.2018 Date of order when announced : 11.12.2018 J U D G M E N T:
1. Vide this judgment, the undersigned shall dispose of the present eviction petition filed by the petitioner against the respondents/ tenants U/s 14 (1) (e) of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'Act'), in respect of one godown on Ground Floor of property no. 1156, E77745/16 Page 1/12 situated at Bara Bazar, Kashmere Gate, Delhi110006, as shown in red colour in the site plan annexed alongwith the petition.
2. The averments as mentioned in the petition are reproduced in brief here as under :
(a) That the petitioner is owner and landlord of Ground Floor of property no. 1156, situated at Bara Bazar, Kashmere Gate, Delhi110006 as shown in pink colour in the site plan vide partition decree. The tenanted premises was let out by the petitioner to the respondents for commercial purposes.
(b) That the Ground Floor of the suit property which fallen into share of the petitioner is bonafidely required by the petitioner for his own use to expand his business of motor parts and accessories as well as for the use of his two sons namely Sh. Amit Gupta and Sh. Sumit Gupta who want to start their separate business of motor parts, truck parts and accessories. The petitioner requires two shops and two godowns for his sons. The petitioner and his sons are running business in the portion shown in black colour in the site plan. The shop in possession of the petitioner cannot accommodate two persons.
(c) That the family of the petitioner comprises of the petitioner himself, his wife, two sons, their wives, two grandsons and one granddaughter.
(d) That the petitioner owns one residential flat on first floor bearing no. 40, West Mukherjee Nagar, Delhi110009 which has been rented out to E77745/16 Page 2/12 Sh. Ram Dhawan. The petitioner is residing with his family on the second floor flat owned by his wife. The petitioner, or his family members does not own any other reasonably suitable accommodation.
3. The summons of the petition were served upon the respondents, however no application for leave to defend has been filed by the respondent no.1. The respondent no.2 has filed application for leave to contest the petition seeking permission to contest the petition mainly on the following grounds :
(a) That the petitioner is not the owner of the suit property. The case titled as Satish Chander Vs. Kamla Devi filed amongst members of the petitioner's family was a collusive suit which is apparent from the fact that the counsel appearing on behalf of the petitioner in the present petition had appeared against him in that Civil Suit. The other parties of the compromise deed in the previous suit have alleged that they were misguided by the present petitioner. Thus, nonjoinder of other owners namely Sh. Satish Chander and Sh. Murari Lal makes the petition liable to be dismissed.
(b) That the petition is bad on account of misjoinder of M/s Baisiwala Bros. as it has no entity and nothing to do with the tenanted premises and the name of real tenant is M/s Baisiwala Brothers Pvt. Ltd. The said Company is in liquidation, hence eviction petition cannot lie against subsidiary. Earlier, Sh. R.S. Baisiwala was a partner and after his death, his son Sh. P.K. Baisiwala and daughter Ms. Purnima Garg alongwith the respondent no.2 became joint tenant, but they have not been added as party. The respondent no.1, Sh. S.S. Aggarwal is no more a partner, hence he has been wrongly joined as party in the matter.
E77745/16 Page 3/12(c) That the petitioner has deliberately not shown the commercial accommodation/ shops available with him on the ground floor and first floor of the suit property. He has not filed complete site plan, per contra the respondent has filed complete site plan. The entire suit property is commercial. The petitioner is doing his own independent business in shop marked as MarkA in the site plan filed by the respondent no.2. The shop marked as MarkB is lying vacant under the locks and keys of the petitioner. The petitioner is also in possession of two shops on the first floor of the suit property marked as MarkC & MarkD and two godowns marked as MarkE & MarkF. The sons of the petitioner are living separately at West Mukherjee Nagar. The petitioner has also acquired a property at Ganpati Apartments, Civil Lines, Delhi. The property no. 40, West Dr. Mukherjee Nagar, Delhi is a big property measuring about 160 sq. yds., out of which the ground floor is owned by two sons of the petitioner, while the first floor is owned by the petitioner. The two sons of the petitioner are doing their independent business from the ground floor and a portion of the first floor of the said property.
4. Reply to application for leave to defend of respondent no.2 was filed by the petitioner. The petitioner has denied the allegations of the respondent no.2 and has reiterated the same facts as averred in the petition. It is stated that original tenant was M/s Baisiwala Bros. and Company M/s Baisiwala Brothers Pvt. Ltd. has nothing to do with the tenanted portion. It is denied that shop marked as MarkB is in possession of the petitioner and is lying vacant. It is denied that the petitioner is having possession of two shops on the first floor marked as MarkC & MarkD and two godowns marked as MarkE & MarkF in the suit property. It is denied that the E77745/16 Page 4/12 ground floor of property no. 40, West Dr. Mukherjee Nagar, Delhi is owned by the two sons of the petitioner and first floor is owned by the wife of the petitioner. It is denied that the sons of the petitioner are doing independent business from Mukherjee Nagar.
5. The respondent no.2 has filed rejoinder and allegations leveled by the petitioner have been controverted and rebutted. The averments made in application for leave to defend have been reiterated and reaffirmed.
6. The undersigned has heard the submissions of the Ld. Counsel for the parties and perused the record carefully.
7. The essential ingredients which a landlord/ petitioner is required to prove for the purpose of getting an eviction order for bona fide needs are
(i) the petitioner is the owner/ landlord of the suit premises (ii) the suit premises are required bona fide by the landlord for himself or any of his family members dependent upon him (iii) the landlord or such other family members has no other reasonable suitable accommodation.
Ownership as well as existence of landlordtenant relationship :
8. The contention of the respondent no.2 that the petitioner is not the owner of the suit property is not tenable as the petitioner has filed on record a settlement whereby the property was partitioned between the petitioner and his family members. The said settlement decree has been registered. As per the said settlement decree, it is apparent that the petitioner is the owner of the suit premises.
E77745/16 Page 5/129. The contention of the respondent no.2 that the petition is bad on account of nonjoinder of other owners namely Sh. Satish Chander and Sh. Murari Lal is not tenable as from the settlement deed it is apparent that the suit premises falls into the share of the petitioner. Even otherwise, it is admitted position of law that one cosharer/ coowner can file eviction petition against the tenants, reliance being placed upon the judgment in case titled as M/s India Umbrella Manufacturing Co. & Ors. Vs. Bhagabandel Agarwalla (dead) by LRs & Ors., AIR 2004 Supreme Court 1321 decided by Hon'ble Supreme Court wherein it was held that one of the coowners can file a suit for eviction of a tenant in the property generally owned by the coowners. This principle is based on the doctrine of agency. One co owner filing a suit for eviction against the tenant does so on his own behalf in his own right and as an agent of the other coowners. The consent of other coowners is assumed as taken unless it is shown that the other co owners were not agreeable to eject the tenant and the suit was filed inspite of their disagreement. In the present case nothing could be brought on record to suggest that other coowners have any objection to filing of the present petition.
10. The contention of the respondent no.2 that the real tenant is M/s Baisiwala Brothers Pvt. Ltd. and not M/s Baisiwala Bros. and the said Company is in liquidation, hence eviction petition cannot lie against subsidiary, is not tenable as the petitioner has specifically stated in his reply to application for leave to defend that M/s Baisiwala Bros. has nothing to do with the tenanted portion. The petitioner has also filed a copy of rent receipt in support of his contention to show that the tenant is M/s Baisiwala Bros.
E77745/16 Page 6/12and not M/s Baisiwala Brothers Pvt. Ltd. Further, the contention of the respondent that the petition is bad on account of nonjoinder of other legal heirs of Sh. R.S. Baisiwala alongwith the respondent no.2 is not tenable as in case titled as Suresh Kumar Kohli Vs. Rakesh Jain & Anr., 2018 SCC OnLine SC 424 it was held that when original tenant dies, the legal heirs inherit the tenancy as joint tenants and occupation of one of the tenant in occupation of all the joint tenants. It is not necessary for landlord to implead all legal heirs of the deceased tenant, whether they are occupying the property, or not. It is sufficient for the landlord to implead either of those persons who are occupying the property, as party. There may be a case where landlord is not aware of all the legal heirs of deceased tenant and impleading only those heirs who are in occupation of the property is sufficient for the purpose of filing of eviction petition. An eviction petition against one of the joint tenant is sufficient against all the joint tenants and all joint tenants are bound by the order of the Rent Controller as joint tenancy is one tenancy and is not a tenancy split into different legal heirs. Thus, the plea of the tenants on this count must fail.
11. In view of the same, the Court holds that the petitioner is owner of the tenanted premises and he is the landlord in respect of the tenanted premises, qua the respondents.
Nonavailability of reasonably suitable alternative accommodation in Delhi
12. The contention of the respondent no.2 that the petitioner is in possession of two shops on the first floor of the suit property marked as E77745/16 Page 7/12 MarkC & MarkD and two godowns marked as MarkE & MarkF is not tenable as as per the settlement, it is apparent that the petitioner was given only the ground floor and one room on the first floor of the property in question and nothing else. Hence, it is to be noted that there is only one room available with the petitioner at the first floor. Further, room on the first floor is not having same commercial value as room on the ground floor. Reliance placed upon judgment delivered by Hon'ble Supreme Court in Udai Shankar Upadhyay Vs. Naveen Maheshwari, (2010) 1 SCC 503 and Dhanna Lal Vs. Kalawatibai, (2002) 6 SCC 16 that it is in common knowledge that commercial premises have different value depending upon the location and the floor at which they are situated and shops situated at an inconvenient location do not attract customers and no lucrative business can be carried on therefrom as from a shop located strategically. Further, it is settled law that the landlord is master of his choice and tenant or the court cannot compel a landlord to choose a particular place against his choice as in "Ragavendra Kumar Vs. Firm Prem Machinery & Company", AIR 2000 SC 534, it was observed by Hon'ble Supreme Court that 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 (reliance placed upon "Prativa Devi Vs. T.V. Krishnan, (1996) 5 SCC 353).
13. It is to be noted that in the present matter, the site plan filed by the petitioner is in consonance with the site plan filed in the earlier suit wherein the compromise decree was passed whereby suit property was partitioned and that compromise deed was duly registered. These two site plans shows that there are total seven shops and three godowns on the ground floor which are in the share of the petitioner. Per contra, the site plan E77745/16 Page 8/12 filed by the respondent no.2 shows that there are eight shops and three godowns. The three godowns are with the same respondent against whom three petitions i.e. petitions bearing no. E77743/16, E77744/16 and the present petition have been filed. Apparently, the respondent no.2 has filed incorrect site plan in order to mislead the Court by increasing a shop which has been claimed as shop marked as MarkB while as per site plan of the petitioner which is in consonance with the site plan of the earlier suit wherein the property was partitioned, there were only seven shops. Thus, the contention of the respondent no.2 that there is one shop, MarkB available with the petitioner on the ground floor, apart from shop, MarkA is not tenable, rather appears to be a frivolous contention.
14. The contention of the respondent no.2 that the petitioner has also acquired a property at Ganpati Apartments, Civil Lines, Delhi is not tenable as the petitioner has specifically denied the same in his reply to application for leave to defend. Further, even if for arguments sake it is presumed that the said property is acquired by the petitioner, still the said property is residential one as per own contention of respondent no.2, hence the said property cannot fulfill the commercial requirement of the petitioner and cannot be considered as an alternative suitable accommodation for the petitioner.
15. The contention of the respondent no.2 that the property no. 40, West Dr. Mukherjee Nagar, Delhi is a big property measuring about 160 sq. yds., out of which the ground floor is owned by two sons of the petitioner, while the first floor is owned by the petitioner, is not tenable as the petitioner has filed on record the sale deed of the said property wherein it has been specifically mentioned that he is owner of first floor only. The petitioner has E77745/16 Page 9/12 specifically mentioned in his petition that the first floor of the said property has already been rented out. Further, there is no question arise from doing independent business by the sons of the petitioner from the ground floor and a portion of the first floor of the said property as the petitioner is owner of only first floor.
16. Therefore, the Court holds that the petitioner do not have any reasonably suitable alternative accommodation in Delhi for his own use as well as for use of his son for commercial purpose.
Bonafide Requirement
17. It is to be noted that if the petitioner want to expand his son and his sons wish to carry on business separately from their father, they have right to do so. The need of the petitioner appears to be bonafide. The requirement of landlord is to be presumed bonafide as held in following cases :
(i) In Sarwan Dass Bange Vs. Ram Prakash, 167 (2010) DLT 80 = 2010 IV AD (Delhi) 252, observations made by Hon'ble Supreme Court in Baldev Singh Bajwa Vs. Monish Saini, VIII (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 E77745/16 Page 10/12 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 inbuilt 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 the tenant, unless his need is bonafide 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 inbuilt protection in the Act for the tenants implies that whenever the landlord would approach the Court his requirements shall be presumed to be genuine and bonafide. 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."
(ii) Hon'ble Supreme Court in Dattatraya Laxman Kamble Vs. Abdul Rasul Moulali Kotkunde, (1999) 4 SCC 1 held that the phrase "reasonably and bona fide required by the landlord" is not to be tested on par with "dire need" of a landlord because the latter is a much greater need. Similarly, in Raghunath G. Panhale Vs. Chaganlal Sundarji & Co., (1999) 8 SCC 1 it was held that the word "reasonable" connotes that the E77745/16 Page 11/12 requirement or the need is not fanciful or unreasonable but need not also be a "compelling" or "absolute" or "dire necessity". A reasonable and bonafide requirement was held to be something in between a mere desire or wish on the one hand and a compelling or dire or absolute necessity on the other hand.
18. Moreover, if the petitioner does not use the property for the purposes claimed in the petition, the respondents have a statutory remedy available U/s 19 of the DRC Act to seek reentry.
19. In view of the aforesaid discussion, this Court is of the considered opinion that the petitioner has proved all the necessary ingredients of Section 14 (1) (e) of Delhi Rent Control Act, 1958.
20. Accordingly, an eviction order is passed U/s 14 (1) (e) of DRC Act in favour of the petitioner and against the respondents in respect of one godown on Ground Floor of property no. 1156, situated at Bara Bazar, Kashmere Gate, Delhi110006, as shown in red colour in the site plan annexed alongwith the petition. However, this order shall not be executable before the expiry of six months from the date of this order as provided U/s 14 (7) of DRC Act. Parties to bear their own costs.
File be consigned to Record Room.
Digitally signed GAJENDER by GAJENDER
SINGH SINGH NAGAR
Date: 2018.12.11
NAGAR 16:48:57 +0530
Announced in the open court (GAJENDER SINGH NAGAR)
on 11.12.2018 Administrative Civil Judge cum
Additional Rent Controller (Central)
Delhi/11.12.2018
(This judgment contains 12 pages in total)
E77745/16 Page 12/12
E77745/16
11.12.2018
Present : None.
Vide separate order, the present eviction petition of the petitioner is allowed. Accordingly, eviction order is passed in favour of the petitioner and against the respondents in respect of one godown on Ground Floor of property no. 1156, situated at Bara Bazar, Kashmere Gate, Delhi110006, as shown in red colour in the site plan annexed alongwith the petition.
However, this order shall not be executable before the expiry of six months from the date of this order as provided U/s 14 (7) of DRC Act. Parties to bear their own costs.
File be consigned to Record Room.
(Gajender Singh Nagar) ACJcumARC (Central) Delhi/11.12.2018 E77745/16 Page 13/12