Delhi District Court
Rohtash Kumar vs Kailash on 17 May, 2024
IN THE COURT OF ACJ-cum-CCJ-cum-ARC, SOUTH
DISTRICT COURTS COMPLEX, SAKET, DELHI
- Presided by: PARAS DALAL, D.J.S.
RC ARC No. 12/2022
CNR No. DLST03-000783-2022
Sh. Rohtash Kumar
S/o Late Sh. Daulat Ram
R/o F-38, (Portion) Khanpur Ext.
M.B. Road, New Delhi-110062
........Petitioner
Versus
Sh. Kailash
S/o Late Mohinder Pal Gupta
R/o Shop No.38/16, Main M.B. Road,
Khanpur Extn., New Delhi-110062
.........Respondent
PETITION FOR EVICTION OF TENANT UNDER SECTION 14(1)(e) READWITH SECTION 25-B OF DELHI RENT CONTROL ACT, 1958
1. Date of Institution of Petition : 09.05.2022
2. Date of Order reserved : 04.05.2024
3. Date of Order : 17.05.2024 ORDER ON LEAVE TO DEFEND
1. Vide this order, the undersigned shall dispose of the leave to defend filed by the respondents against the petitioners U/s 14 (1) (e) of the Delhi Rent Control Act, 1958 read with Section 25-B of DRC Act (hereinafter referred to as 'Act'), in respect of premises i.e. part of property i.e. shop no. 38/16, M.B. Road, Khanpur Extn. New Delhi-110062, as shown in red colour in RC ARC 12 of 2022 Pages 1 of 13 Rohtash Kumar v. Kailash the site plan annexed alongwith the petition (hereinafter referred to as tenanted premises).
2. The averment qua the entire property is that Khasra no.555/2, khatoni no.
70/128, village Khanpur, New Delhi was purchased by Sh. Khem Chand S/o Seva Ram and Rattan Singh S/o Khem Chand on 05.05.1960 vide registered sale deed. Of this property, shop no.38/16 was leased to Sh. Mahinder Pal for monthly rent of Rs.372/- per month. The entire property Khasra no.555/2, Khatoni no. 70/128 was partitioned on 17.05.1997 between legal heirs of Khem Chand and Rattan Singh. Khem Chand had five sons namely Rattan Singh, Om Prakash, Daulat Ram, Khazan Singh and Phool Chand. Khem Chand died on 26.11.1987 and his son Phool Chand died on 28.01.1983. Thus on the date of partition i.e. 17.05.1997, Phool Chand's heir namely widow Sharbati Devi and two sons Surinder Kumar and Vijay Kumar as well as two daughters Ms. Shashi and Ms. Bindu were party to the family settlement. As per the settlement, property khasra no. 555/2, khatoni no. 70/128 had sixteen shops from 38/1 to 38/16 and residential quarter attached to these shops and a piece of land measuring 2 bighas and 5 biswas in khasra no. 555/2 and 557/1.
3. The family partition stated that Khem Chand had executed Will as per which shop no. 38/1, 38/2 and 38/9 with attached residential quarter and one fifth share in the land would go to Om Prakash. Khazan Singh got shop no. 38/3 to 38/5 with attached quarters and one fifth share of land. Daulat Ram got shop no. 38/6 to 38/8 with attached quarters and one fifth share of land. Phool Chand got shop no. 38/10 to 38/12 with attached quarters and one fifth share of the land. Rattan Singh got shop no.38/13 to 38/16 and one fifth share of the land. The tenanted property in question is this 38/16 RC ARC 12 of 2022 Pages 2 of 13 Rohtash Kumar v. Kailash which fell in the share of Rattan Singh. The legal heirs being in joint possession and different from the ones bequeathed by Sh. Khem Chand, therefore legal heirs settled that they would continue to remain in possession of same properties as before the Will and thus it was settled that Rattan Singh would get shop no. 38/3 to 38/5. Om Prakash would get shop no. 38/1, 38/2, 38/9 and 38/10. Daulat Ram would get shop no. 38/14 to 38/16. Khazan Singh would get shop no. 38/6 to 38/6. So finally, petitioner's father (Sh. Daulat Ram) got shop no.38/14 to 38/16 with attached residential quarter and one fifth of land. Sh. Daulat Ram has three sons Sh. Subhash, Sh. Rohtash, Sh. Azad Kumar as well as four daughters Ms. Mukesh Tanwar, Ms. Saroj Tanwar, Ms. Meena Kumari and Ms. Neelam. Sh. Rohtash is the petitioner and his claim is that his brothers Subhash and Azad Kumar are in possession of other two shops i.e. 38/14 and 38/15 and his share is of 38/16 and residential quarter adjacent to said property. The property has been adequately described in two maps attached with the petition.
4. The petitioners claim is of his bonafide requirement of the said shop to use the space for parking his car which is better suited being connected with the main road and back wall would open into his portion of the residential quarter.
5. The summons of the petition were served upon the respondent, he filed application for leave to defend on 01.07.2022. The respondent however sought amendment and he filed second leave to defend on 02.07.2022 which was allowed vide Order dated 04.03.2023. Respondent stated that tenancy was originally created infavour of Sh. Mahender Pal who expired on 2004 and he was survived by seven children who succeeded to the RC ARC 12 of 2022 Pages 3 of 13 Rohtash Kumar v. Kailash tenancy, however they were not made respondents and hence the petition shall fail. The respondent further stated petition is bad for non-joinder of necessary parties. The respondent alleged that he is earning his livelihood from the said shop and petitioner as well as his siblings are having suitable accommodation and ways from their egress and ingress. The respondent claimed his father Mahender Pal paid pagdi qua the tenanted property. The respondent also alleged that petitioner is having his own plot and same can be used for parking.
6. To the aforesaid leave to defend, petitioner filed counter affidavit. The petitioner stated that in the said counter that the respondent himself did not state the details of other LRs of original respondent and presently only the respondent is in occupation of the tenanted premises and he is doing his business. The petitioner stated that since the tenanted premises came in his possession, there is no need to add other joint owners as petitioner and even otherwise petition is maintainable by any one of the joint owners of the tenanted premises. The petitioner reiterated his bonafide requirement and even relied on photographs to show the existing passage to access his property which is from the lane connected to the main road, however he explained through site plan and photographs that the parking in the tenanted property/ shop would have access to his residential property directly from the main M.B. Road.
7. I have heard the submissions of the Ld. Counsel for the parties and perused the record carefully.
RC ARC 12 of 2022 Pages 4 of 13 Rohtash Kumar v. Kailash
8. 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 owner/ landlord of the suit premises;
(ii) the suit premises are required bonafide by the landlord for himself or any of his family members dependent upon him; and
(iii) the landlord or such other family members has no other reasonable suitable accommodation.
9. Thus the foremost condition which the landlord has to prove is his bonafide requirement. Further he has to prove that there is no other alternate accommodation available. Thus there are twin requirements which are to be satisfied conjunctively in order to attract the provisions of the Section 14(1)(e) of the Act i.e the bonafide requirement coupled with the reasonably suitable accommodation, which means that both are to be satisfied together and collectively. While deciding the question of grant of leave, the court has to consider whether the tenant has raised any triable point / issue, the decision of which may disentitle the landlord from recovering possession of the premises.
10. In Precision Steel and Engineering Works v. Prem Deva Niranjan Deva Tayal, AIR 1982 SC 1518 the Hon'ble Supreme Court having discussed the relevant provisions of Act 59 of 1958 held as follows:-
"The Controller has to confine himself to the affidavit filed by the tenant under sub-sec. (4) and the reply if any. On perusing the affidavit filed by the tenant and the reply if any filed by landlord the Controller has to pose to himself the only question, `Does the affidavit disclose, not prove, facts as would disentitle the landlord from obtaining an order for RC ARC 12 of 2022 Pages 5 of 13 Rohtash Kumar v. Kailash the recovery of possession on the ground specified in cl. (e) of the proviso to Section 14 (1)?' The Controller is not to record a finding on disputed questions of facts or his preference of one set of affidavits against the other set of affidavits. That is not the jurisdiction conferred on the Controller by sub-sec. (5) because the Controller while examining the question whether there is a proper case for granting leave to contest the application has to confine himself to the affidavit filed by the tenant disclosing such facts as would prima facie and not on contest disentitle the landlord from obtaining an order for recovery of possession. At the stage when affidavit is filed under sub-sec.(4) by the tenant and the same is being examined for the purpose of sub-sec.(5) the Controller has to confine himself only to the averments in the affidavit and the reply if any and that become manifestly clear from the language of sub-sec. (5) that the Controller shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from recovering possession etc. The jurisdiction to grant leave to contest or refuse the same is to be exercised on the basis of the affidavit filed by the tenant. That alone at that stage is the relevant document and one must confine to the averments in the affidavit. If the averments in the affidavit disclose such facts which, if ultimately proved to the satisfaction of the Court, would disentitle the landlord from recovering possession, that by itself makes it obligatory upon the Controller to grant leave. It is immaterial that facts alleged and disclosed are controverted by the landlord because the stage of proof is yet to come. It is distinctly possible that a tenant may fail to make good the defence raised by him. Plausibility of the defence raised and proof of the same are materially different from each other and one cannot bring in the concept of proof at the stage when plausibility has to be shown."
RC ARC 12 of 2022 Pages 6 of 13 Rohtash Kumar v. Kailash
11. In Sarwan Dass Bange v. Ram Prakash, 2010 IV AD (Delhi) 252, it has been observed by the Hon'ble Delhi High Court as follows:
"...However, merely because the tenant so disputes and controverts the pleas of the landlord does not imply that the provisions of summary procedure introduced in the Act with respect to ground of eviction on the ground of requirement is to be set at naught. The Controller is required to sift/comb through the application for leave to defend and the affidavit filed therewith and to see whether the tenant has given any facts/particulars which require to be established by evidence and which if established would disentitle the landlord from an order of eviction. The test is not of the tenant having controverted/denied the claim of the landlord and thus disputed questions of fact arising; the test is to examine the pleas of facts and then to determine the impact thereof."
12. Thus while deciding the question of leave, the controller is not required to conduct a full fledged trial but only to see from the affidavit of the tenant, as to whether any triable point / issue the decision of which may disentitle the landlord from recovering the possession of the premises is disclosed. The Controller is not required to seek the proof of the defence of the tenant but only to see whether any triable issue is raised by the tenant or not.
As regard landlord and tenant relationship
13. As regards the question of petitioner being the owner / landlord and the relationship of landlord and tenant between the parties is concerned, it is stated by the respondent that property was leased to Mahender Pal and he admits to be son of Mahender Pal. The landlord tenant relationship is not denied. The two defence taken by the respondent are the his father paid pagdi at the time of creating of tenancy and his other brothers and sisters RC ARC 12 of 2022 Pages 7 of 13 Rohtash Kumar v. Kailash are not made respondents even though the tenancy devolved upon all the children of Mahender Pal.
14. This Court finds no merits in the averment that pagdi was paid. There is no proof of payment and same seems to be taken merely for raising triable issues at this end. The DRC Act was passed in 1958 and there is specific provision that any payment towards pagdi is illegal. The respondent cannot be believed at this stage after many decades that pagdi was paid. Even otherwise nothing has been shown except the bald allegations to show that any amount other than rent was paid.
15. As regards adding other children of respondents, again this Court finds no grounds. There has been no whisper by the respondent as to who all are the other children of Mahender Pal. There has been no application for impleadment or objection from any other childredn of Mahender Pal. It is true that Section 2(l) of DRC Act states that tenancy devolve upon sons and daughters of the original tenant upon his death. However the said devolution is limited in case of death to the heir financially dependent upon the original tenant and even used to dwell in the tenanted premises. In the present case, the tenanted premises is commercial property being a shop and respondent has not even alleged that he was financially dependent upon his father Mahender Pal. The respondent has not even stated the details of other children of Mahender Pal or if they were also occupying the tenanted premises or were financially dependent on Mahender Pal. Since it is not alleged by the respondent that his brother and sisters, even if there are any, are neither occupying the tenanted permises nor are financially dependant Sh. Mahender Pal, the tenancy on death of Sh. Mahender Pal would not devolve upon the other legal heirs. The respondent has admitted to be RC ARC 12 of 2022 Pages 8 of 13 Rohtash Kumar v. Kailash running his shop from the said tenanted premises and for the purposes of the DRC Act, he is only the tenant in the premises.
16. In an eviction petition, the landlord has to show a better title than tenant/ respondent. The landlord is not required to prove his title to the tenant at his mere askance. Section 116 Evidence Act was specifically enacted to put an estoppel on tenants from denying the title of the landlord during the tenancy. The present case is the perfect example where Section 116 Evidence Act needs to be invoked.
17. Section 2(e) of the Act clearly states that it is immaterial if the landlord is actually receiving the rent, if the landlord was entitled to receive the same, he is landlord for the purposes of the Act. Thus it is immaterial if respondent paid rent or not. As long as petitioner prove to be the legal heir of original landlord Sh. Daulat Ram, petitioner has inherited the property and is owner as well as landlord as against the respondent.
18. As regards the relationship, thus, the respondent having not denied petitioner being legal heir and original landlord tenant relationship between Daulat Ram and Mahender Pal being admitted, there is no triable issue qua landlord tenant relationship wherein respondent being original tenant is still tenant of petitioner.
As regards bonafide requirement of the landlord and suitable alternate accommodation RC ARC 12 of 2022 Pages 9 of 13 Rohtash Kumar v. Kailash
19. Now coming to the other aspect as to whether the premises is bonafide required by the petitioner and as to whether he has any other suitable alternate accommodation. These are twin requirements which are to be satisfied conjunctively in order to attract the provisions of Section 14(1) (e) of the Act i.e the bonafide requirement coupled with the reasonably suitable accommodation, are to be satisfied together and collectively.
20. The petition is filed by petitioner and bonafide requirement of petitioner himself has been pleaded. Petitioner seeks space for parking his car and to have direct access to his house from the main road. The petitioner states that his property would have direct access from the shop to the main road and the other access is through bylane from the main road, however no car can be parked there and the access is through bylane and not main road.
21. The respondent rejected the landlord-tenant relationship with petitioner.
Respondent has only contested the bonafide requirement on the ground that petitioner and his siblings are in possession of other properties as stated by the petitioner and hence the requirement is neither bonafide nor without alternate accommodation.
22. The petitioners have averred that three shops fell into the share of his father i.e. 38/14 to 38/16. All three shops have adjacent residential quarters and his father Daulat Ram has three sons. Therefore, the other two shops i.e. 38/14 and 38/15 having adjacent residential quarter are in possession of his brothers and the third shop i.e. the tenanted premises fell into his share. Therefore, there is no alternate accommodation available and not atleast with the same suitability as the present shop which would give petitioner a RC ARC 12 of 2022 Pages 10 of 13 Rohtash Kumar v. Kailash car parking with direct access from his residential house to main M.B. Road.
23. The respondent has not disputed any of the factum/ status of the other properties with the petitioner. The respondent wishes to rely on the statement of the petitioner that there were a total of 16 shops in the family of the petitioner, however wishes to contest that these have not been partitioned. The respondent has merely averred that requirement is not bonafide and alternate suitable accommodation is available. However, respondent has been unable to prove as to which other property is available which would give petitioner car parking and direct access from his residential house to main M.B. Road.
24. The petitioner has already averred and showed through photographs that tenanted premises is a corner shop at the main M.B. Road and same is suitable for car parking directly from main road and since back wall opens to his residential house, there would be direct access. The two site plans clearly show the exact status of the property and also the photographs show why the requirement has been sought, as the other access is neither direct to the main road, nor the same open towards any road. The house of the petitioner is accessible through passage left by his two brothers in the entire property.
25. In Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta, 1999 (6) SCC 222 it has been observed that:
"The judge of facts should place himself in the arm chair of the landlord and then ask the question to himself - whether RC ARC 12 of 2022 Pages 11 of 13 Rohtash Kumar v. Kailash in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in positive, the need is bonafide. The failure on the part of landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the court drawing an inference that the reality was to the contrary and the landlord is merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the court certainly to deny its judicial assistance to the landlord"
26. In Smt. Kamla Soni V Rup Lal Mehra, 1969, RLR 1017 it has been held that:
"a mere assertion that the landlord requires the premises occupied by the tenant for his personal occupation is not decisive. It is for the court to determine the truth of the claim, and also to determine whether the claim is bonafide. In determining whether the claim is bonafide, the Court is entitled and indeed bound to consider whether it is reasonable. A claim founded on abnormal predilections of the landlord may not be regarded as bonafide"
27. In Deena Nath V. Pooran Lal, V (2001) SLT 195 (2001) 5 SCC 705, it has been held that:
"the statutory mandate is that there must be first a requirement by the landlord which means that it is not a mere whim or fanciful desire by him; further such requirement must be bonafide which is intended to avoid a mere whim or desire. The bonafide requirement must be in present and must be manifested in actual need which would evidence the court that it is not a mere fanciful or whimsical desire."
RC ARC 12 of 2022 Pages 12 of 13 Rohtash Kumar v. Kailash
28. On weighing the pleading and arguments and considering the law developed qua the Act, in the present case the leave to defend application is therefore rejected. It is directed that the respondent be evicted, and the petitioner be put in possession of premises shop no.38/16, Khanpur Ext., Main M.B. Road, New Delhi, as shown in red colour in the site plan filed along with the petition.
29. It is clarified that in view of Section 14(7) of the DRC Act, this order shall not be enforceable for a period of six months from today.
30. After completion of necessary formalities, this file be consigned to the record room.
Digitally
signed by
PARAS
PARAS DALAL
DALAL Date:
2024.05.17
14:15:32
+0530
Announced in the open court (PARAS DALAL)
on 17.05.2023 ACJ/CCJ/ARC/South
Saket Courts/Delhi
RC ARC 12 of 2022 Pages 13 of 13 Rohtash Kumar v. Kailash