Delhi District Court
Mrs. Vandana Walecha vs Mr. Parvinder Singh on 6 June, 2019
IN THE COURT OF SUDHIR KUMAR SIROHI, ACJ/CCJ/ARC SOUTHEAST,
SAKET COURTS, NEW DELHI.
ARC. No. 5189/16
Mrs. Vandana Walecha
W/o Sh. Jagdish Walecha,
r/o H9/13, Malviya Nagar,
New Delhi110017 ......landlord/petitioner
VERSUS
1. Mr. Parvinder Singh
S/o Late Sardar Mohinder Singh Band Master
r/o 17D, Ground Floor, Backside, Pushpa Market,
Lajpat NagarII,
New Delhi110024.
Also at:
House No. 119, 3rd Floor, Sant Nagar
Near East of Kailash,
Delhi110065
Also at:
G11, Lajpat Nagar
New Delhi110024.
2. Mrs. Inderjeet Kaur
d/o Late Sardar Mohinder Singh Band Master
17D, Ground Floor, Backside, Pushpa Market,
Lajpat NagarII, New Delhi110024.
ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 1 of 41
Also at:
C40, Krishna Park,
Gali no. 10, Tilak Nagar,
New Delhi
3. Mr. Sukhbir Singh
s/o Late Sardar Mohinder Singh Band Master
r/o 17D Ground Floor Backside
Pushpa Market, Lajpat NagarII,
New Delhi110024
4. Mr. Ravinder Singh
s/o Late Sardar Mohinder Singh Band Master
r/o 17D Ground Floor Backside
Pushpa Market, Lajpat NagarII,
New Delhi110024
5. Mrs. Amarjeet Kaur
w/o Late Sh. Gurdeep Singh
r/o 17D Ground Floor Backside
Pushpa Market, Lajpat NagarII,
New Delhi110024
Also at:
B60 Krishna Park Extension,
Gali no. 11, Tilak Nagar,
New Delhi.
6. Mr. Kulvinder Singh
S/o Late Sh. Gurdeep Singh
r/o 17D Ground Floor Backside
Pushpa Market, Lajpat NagarII,
New Delhi110024
Also at:
B60 Krishna Park Extension,
Gali no. 11, Tilak Nagar,
New Delhi. ......tenants/Respondents
ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 2 of 41
PETITION UNDER SECTION 14 (1) (e) R/W 25B OF DELHI RENT CONTROL
ACT,1958 FOR EVICTION OF TENANT
Date of institution : 30.05.2016
Date of final arguments : 01.06.2019
Date of judgment : 06.06.2019
JUDGMENT
1. The present petition U/Sec. 14 (1) (e) of Delhi Rent Control Act, 1958 has been filed by the petitioner against the respondent for their eviction from no. 17 D, Ground Floor, Backside, Puspa Market, Central Market, Lajpat NagarIIII, New Delhi (hereinafter called tenanted premises) for bonafide requirement of petitioner and her son.
2. Brief facts of the case as discernible from the petition is that the entire abovesaid property was allotted to Mr. Wadhaya Ram s/o Sh. Ram Lubhaya by the Government of India, vide lease deed and conveyance deed dated 31.12.1969.
3. It is further averred by the petitioner that Mr. Wadhaya Ram expired on 30.05.1988 leaving behind the heirs namely Mrs. Bharawan Wali (wife) died on 04.10.1988, b. Mr. Mukand Lal (son), c. Mr. Joginder Lal (son), d. Ms. Nirman Kaur (daughter) and Mrs. Sumitra Devi (daughter). Mr. Joginder Lal and the daughters of Late Mr. Wadhaya Ram, relinquished all their shares, rights title and interest in the entire abovesaid property in favour of the Mr. Mukand Lal and ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 3 of 41 Mr. Baldev Ram.
4. It is also averred by the petitioner that on the basis of relinquishment deed dated 19.03.1990 in their favour, Mr. Mukand Lal and Mr. Baldev Raj applied to the L&DO for mutation of the property in their favour and L&DO vide letter dated 11.09.1990, mutated the property in favour of Mr. Mukand Lal and Mr. Baldev Raj. A family settlement was entered into between Mr. Baldev Raj and Mr. Mukand Lal, by virtue of which the shop measuring 10x9.6 ft. on the ground floor, back portion, numbered as 17D, out of the entire abovesaid property fell to the share of Mr. Baldev Raj. Mr. Mukand Lal Pursuant to the family settlement also executed a General Power of attorney dated 19.09.1988 in favour of Mr. Baldev Raj. Mr. Baldev Raj sold the tenanted premises to the petitioner vide a duly registered agreement to sell dated 17.12.2007. The tenanted premises had been let out by Mr. Mukand Lal to late Sardar Mohinder Singh Band Master at a monthly rent of Rs. 125/. On the demise, of Late Sardar Mohinder Singh Band Master, the tenanted premises were inherited by his legal heirs namely Mrs. Pritam Kaur (wife) since expired. ii) Mr. Parvinder Singh (son), Mrs. Inderjeet Kaur (daughter), Mr. Sukhbir (son) Mr. Ravinder Singh (son) Mr. Gurdeep Singh (deceased son) and survived by Mrs. Amarjeet Kaur (wife) and Mr. Kulvinder Singh (son).
5. It is further averred by the petitioner that legal heirs of Late Sardar Mohinder Singh Band Master being the respondents herein, subsequent to the family settlement, accepted Mr. Baldev Raj as their landlord and started paying the rent to him. The respondents filed a rent deposit petition before the Rent ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 4 of 41 Controller, Delhi being DR no. 955/2007, where in they admitted that Mr. Baldev Raj as the landlord of the tenanted premises. In the said DR petition no. 955/07 the respondent no. 1, 2 5 and 6 were the petitioners and have stated in the petition that apart from them, the other legal heirs of Late Sardar Mohinder Singh band master are his wife Mrs. Pritam Kaur having expired. It is further averred that the respondent no. 3 Mr. Sukhbir Singh (son) is residing outside India and no details about the respondent no. 4 Mr. Ravinder Singh were given. From the perusal of the DR no. 955/07 it can be presumed that apart from the respondent no. 1, 2 5 and 6, all other legal heirs of late Sardar Mohinder Singh Bank Master including the respondent no. 3 and 4 had waived/relinquished their tenancy rights in favour of the respondent no. 1 2 5 and 6. The respondent no. 1 alone, thereafter filed another DR no. 127 of 2012 and another DR. no. 05 of 2014 was filed by the respondent no. 1 alone. In the DR no. 05/14 Mr. Baldev Raj was admitted to be the landlord. Mr. Baldev Raj appeared in the DR. no. 5/14 and made a statement that he has already sold the tenanted premises to Mr. Jagdish Lal. The Ld. ARC Directed the respondent no. 1 herein, to implead Mr. Jagdish Lal as a party, but neither was Mr. Jagdish Lal was impleaded as a party nor was he served as the respondent no. 1 claimed to be unaware about the address of Mr. Jagdish Lal. It would be pertinent to mention that Mr. Jagdish Walecha (referred to as Mr. Jagdish Lal in DR no. 05/14) is the husband of the petitioner, in whose favour a registered power of attorney has been executed by Mr. Baldev Raj. From a perusal of the DR no. 05/14 and the proceeding sheets. It is evident that it was only the respondent no. 1 who was claiming the tenancy rights and the respondent no. 1 admitted Mr. Baldev Raj to be his landlord. Mr. Baldev Raj stated before the court that the tenanted property has been sold but instead of ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 5 of 41 the petitioner, claimed the husband of the petitioner to be the successor in the interest. Thus, the fact that the petitioner has stepped into the shoes of Mr. Baldev Raj and has succeeded to the property and is its rightful owner, is beyond any doubt. Even in the DR no. 05/14 the fact that he property has been sold by Mr. Baldev Raj and the husband of the petitioner was alleged to be the owner of the property, was not disputed by the respondent no. 1, although, from the DR no. 955/07, it is apparent that only the respondent no. 1,2,5 and 6 have claimed the tenancy right from the subsequent DR no. 127 of 2012 and DR no. 05/2014, It is only the respondent no. 1 who has claimed to have inherited the tenancy rights in the property. It is also averred that the respondent no. 1 alone, is in actually and physically occupying the tenanted premises and is in defacto possession of the tenanted premises, however, as a mater of abundant caution and to avoide any kind of objection from the other legal heirs, the petitioner has impleaded all the surviving legal heirs in the present petition, as disclosed in the rent despite petition filed by the respondent. The knowledge of the filing of the rent deposit petitions and the copies of the same, was obtained by the petitioner only in March 2016 i.e. after sending of the notice dated 12.12.2015. The petitioner had sent a notice dated 12.12.2015 to the respondent no. 1 and called upon the respondent no. 1 to tender the rent w.e.f. 17.12.2007 to the petitioner and also increase the rent by 10% as provided under Section 6A of the Delhi Rent Control Act. w.e.f. 01.01.2016 i.e. Rs. 132.50 per month. Despite service of the notice dated 12.12.2015 neither has any response been sent by the respondent to the said notice nor the rent has been tendered to the petitioner.
6. It is further averred by the petitioner that the petitioner is the proprietor of ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 6 of 41 the concern M/s Jai Mata Di trading and is in the business of sale of ladies footwear under the brand Name KINS which is a brand owned by Mr. Kamal Kumar, the nephew of the petitioner. The petitioner has a licence from Mr. Kamal Kumar to Sell Ladies footwear under the Brand "KINS" and the petitioner is also the owner of the ground floor front portions of the property bearing no. 17, Pushpa Market, Central Market, Lajpat NagarII, New Delhi110024 as well as certain portions on the other floors. The petitioner is running a retail showroom outlet from the front portion on the ground floor as well as the first floor, for selling the said ladies footwear The back portion of the first floor is right above the tenanted premises and approach to the same is from the staircase adjoining to the tenanted premises, as well as from the first floor of the front portion.
7. It is further averred by the petitioner that the details of the various portions of the property owned by the petitioner in the entire abovesaid property are as under:
a) At the basement: A shop at the front side of the property and a Godown at the backside of the property, both as shown in green outer line in the site plan filed by the petitioner.
b) at the ground floor: A shop at the front side of the property and two godowns thereafter, excluding the tenanted shop.
c) At the first floor: A shop at the front side of the property and two shops at the back side of the property.
d) at the first floor: A godown at the front side of the property is a premises taken on the rent by the petitioner shown in yellow outer line and another godown at the back side of the property owned by the ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 7 of 41 petitioner as shown in green outer line in the site plan filed by the petitioner.
e) at the third floor: A godown at the front side of the property is a premises taken on rent by the petitioner shown in yellow outer line and another godown at the back side of the property owned by the petitioner.
f) the top floor (terrace): the complete top floor (terrace) is owned by the petitioner and is being party used for the purpose of godown, as shown in green outer line in the site plan filed by the petitioner.
8. It is further averred by the petitioner that the son of the petitioner namely Mr. Deepak Walecha, has also joined the business of sale of footwear but due to lack of the space has been constrained to take a shop on rent at Kamla Nagar, Delhi110007. The business of the petitioner is growing and as depicted from the tax returns, the turnover and sales of the petitioner is growing day by day.
9. It is further averred by the petitioner that the petitioner wishes to expand her business and requires further retail space. The tenanted premises on the back portion, if made available to the petitioner would result in the petitioner combining the same with the adjoining godown premises on the Ground floor, for further expanding the business and also be a part of the show room on the first floor and thus give an access to the customers of the petitioner, from front portion as well as the back portion. The godown on the ground floor, alone cannot be used as a shop, as it has an opening in a narrow passage and is small in size. By combining and removing the wall in between the ground floor godown ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 8 of 41 and the tenanted premises, a sizable shop with an opening on a wide road will be available to be petitioner. It would be pertinent to mention that the lane in front of the tenanted premises is 20 feet wide and is a commercial lane and having various shops and outlets of various brands and by having an access to the said lane also, the customers of the petitioner shall be able to have an access to the showroom of the petitioner from both ends and the same will result in the business of the petitioner growing manifold.
10. It is further averred by the petitioner that current space available with the petitioner on the ground floor is insufficient for her needs as her business has grown manifold over the years and she wishes to expand further. The business of the petitioner being of retail, the tenanted premises being on the ground floor are required by the petitioner for her bonafide business needs.
11. It is further averred by the petitioner that as already stated, the son of the petitioner has also joined the business but due to paucity of space, has been constrained to take a premise on rent in Kamla Nagar. The petitioner wants her son to run the present outlet jointly with her and upon the tenanted premises being made available to the petitioner, she alongwith her son will be able to utilize the space in expanding the business and therefore, the tenanted premises are required by the petitioner bonafide for her business needs as well as the business needs of her son Mr. Deepak Walecha.
12. It is further averred by the petitioner that apart from the portion mentioned above, being the portions of property bearing no. 17, Pushpa Market, Central ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 9 of 41 market, Lajpat NagarII, new Delhi, the petitioner does not own any other commercial premises in the city of Delhi.
13. Leave to defend was filed on behalf of respondent no. 1, 4 and 5. Respondent no. 6 adopted the affidavit and application of respondent no. 5 who was his mother. No leave to defend was filed on behalf of respondent no. 2 and 3 despite service. Leave to defend was granted to the respondents by Ld. Predecessor vide order dated 05.08.2017. After that written statement was filed on behalf of respondent no. 1, 2, 4 and 5 before Ld. Predecessor.
14. Respondent has filed written statement and has taken defence that the present eviction petition is totally misconceived, baseless and it is without any cause of action. The petitioner is not the owner of the demised premises and it also not the landlord of the answering respondent. There is no bonafide requirement of the petitioner for the demised premises as the petitioner does not require the demised premises for her own purposes of any person dependent upon her, as the petitioner is already having sufficient accommodation available to her for her commercial use and for the use of any person dependent upon the petitioner for commercial accommodation, in the property no. 17, Pushpa Market, Central Market, Lajpat NagarII, New Delhi. It is further averred by the respondent that as per the averments made in the petition the respondent no. 3 Sh. Sukhbir Singh who is shown as a tenant in the property is not resident of Delhi and not even resident of India. The petitioner in para ix) of the enclosure sheets attached in support of grounds of eviction has stated that the petitioner is aware that Mr. Sukhbir Singh is admittedly residing out of India as the same was ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 10 of 41 disclosed to the petitioner in the deposit of rent application no. 955 of 2007 filed by respondent no. 1, 2, 5 and 6. It is also averred by the respondent in the regard rely upon the judgment of the Delhi High Court reported as Rakesh Kohli Vs. Suresh Kumar & Anr. 214 (1) AD (Delhi) 752 which while discussing the law on the point very clearly holds that a inherited tendency is a tenancy amongst the legal heirs of the deceased tenant and is not a joint tenancy. The present petitioner therefore is bad for nonjoinder of necessary parties and is liable to be dismissed on this ground alone.
15. It is further averred by the respondent that stated that the original owner landlord of the property in question was admittedly Sh. Wadhaya Ram who expired on 30.12.1969. The petitioner as per para 18 has disclosed the names of legal heirs of Sh. Wahdaya Ram who as per her inherited the property no. 17, Pushpa Market, Central Market, New Delhi upon his demise. The petitioner however has amongst the legal heirs not disclosed the name of Shl. Baldev Raj as being one of the legal heirs of late Sh. Wadhaya Ram. The petitioner therefore cannot claim that the petitioner having purchased the property under an agreement to sell from Sh. Baldev Raj who was not even as per petitioner a legal heir of the original owner, has acquired the ownership of the property. Baldev Raj admittedly not being a legal heir and as such an owner it has not been explained how he could have sold the shop in question to the petitioner under the alleged agreement to sell dated 17.12.2007. The said agreement does not even mention that the demised premises is rented to the respondents and does not even authorize petitioner to deal with the respondents. The petitioner is therefore neither the owner nor the landlord of the demised premises and is not ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 11 of 41 competent to maintain the present petition.
16. It is further averred by the respondent that the property in question is a leasehold property and the sale of the same under the lease terms is not permissible without the consent of the lessor and any sale which is made without the consent of the lessor is not recognizable in law. Petitioner is not the only owner of the suit property and there are other owners also from whom the petitioner claims to have rented portions of the property on the 1 st and 2nd floor. It would thus be seen that the property has even been even subdivided and sold in different parts on each floor, as the petitioner under her agreement to sell has allegedly purchased only the rear back portion of the property admeasuring 14 sq. yards which is again not permissible under the terms of the lease. The petitioner therefore, on the basis of an agreement to sell cannot claim to be the owner of the property and to be competent to maintain the present eviction petition.
17. It is further averred by the respondent that respondents never accepted the petitioner as the owner of the property and had been depositing the rent of the suit shop in the name of one Mr. Baldev Raj who claimed to be the landlord and it is stated that in statement by Mr. Baldev Raj in deposit of rent proceedings that he had sold the property in question to one Mr. Jagdish Lal by means of a GPA cannot make the petitioner the owner of the property and to be competent to maintain the present eviction petition.
18. It is further averred by the respondent that without Mr. Baldev Raj being ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 12 of 41 shown to be a legal heir of the original owner Mr. Wadhaya Ram. Mr. Baldev Raj on the basis of the settlement deed and the GPA allegedly executed in name of Mr. Baldev Raj and relied upon by the petitioner in support of the eviction petition could not have entered into any agreement to sell with the petitioner whereby the petitioner could be said to be competent to file the present eviction petition. The petitioner in the eviction petition has not properly disclosed the portion of the property no. 17, Pushpa Market, Central Market, New Delhi which are in her possession use and occupation.
19. It is further averred by the respondent that the petitioner claims that she is proprietor of JMD trading dealing in ladies footwear brand 'Kins' and the brand owner is related to the petitioner. The petitioner states that she owns the ground floor front portion of the property where she has a shop and also has 2 Godowns on the ground floor. The petitioner has not disclosed as to how she has acquired the ownership of the ground floor front portion as the agreement to sell filed by her is only as regards the purchase by her allegedly of the rear portion of the ground floor. The petitioner claims that she is having 2 godowns on the ground floor. It is not explained and does not appeal to logic as to why the petitioner is using the most valuable portion of the property being the ground floor for 2 godowns and not as a showroom. The mere fact that the petitioner is using the ground floor as a godown shows clearly that the petitioner does not have any bonafide requirement for the suit shop which is on the back portion of the ground floor adjoining the staircase of the property.
20. It is further averred by the respondent that the petitioner further claims ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 13 of 41 that she is the owner of the basement of the property where again she is having a shop in the front portion and a godown is the back portion. As to why the petitioner is using a portion of the basement which can be used as a shop, a godown is again not understandable and requires examination and assessment of the needs and requirement of the petitioner for the suit shop being bonafides and no other alternative suitable accommodation being available to the petitioner for running her showroom.
21. It is further averred by the respondent that the petitioner similarly claims that she is using the 1st floor front portion as a shop and also has 2 shops in the back portion of the 1 st floor. The petitioner as regards the 2 nd floor claims that she has a rented godown on the front side and in addition another godown on the back side of the 2nd floor. It is again not explained as to why the petitioner is having godown on the 2nd floor and also as to why the petitioner requires 2 godowns on the ground floor when she already has a godowns in the basement and 2 godowns of the 2nd floor of the same property.
22. It is further averred by the respondent that the petitioner as regards the 3 rd floor claims that she has a godown on rent in the front portion and her own godown in the back portion of the 3 rd floor. The petitioner also claims that she is using the terrace floor of the property as a godown. It would thus be seen that the petitioner is using more than half the property which is available to her for her use and occupation as a godowns and not as a showroom. The petitioner as per her own admissions has a godown in the basement, 2 godowns on the ground floor, 2 godown on the 2nd floor and entire 3rd floor as a godown. The petitioner in ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 14 of 41 addition has a shop in the basement is shop on the ground floor 2 shops on the 1st floor back portion and thus in the property has 5 shops and 7 godowns. The petitioner has not explained as to why the area of the property being used as godowns cannot be used by the petitioner as reasonably suitable alternate accommodation available to her for running her showroom. The petitioner has thus created an artificial false scarcity of accommodation to evict the respondents.
23. It is further averred by the respondent that the requirement of the petitioner for expansion of business and accommodating her son who already has a business premises in another are is also a requirement for additional accommodating and cannot be treated even primafacie as a bonafide requirement. It is stated that the petitioner herself admits that her son is having a rented showroom in Kamla Nagar and the petitioner wishes to accommodate her son in the suit property. It is stated that had the need and requirement of the petitioner for additional accommodation been genuine the petitioner would have taken accommodation on rent for the business of her son in central market Lajpat NagarII new Delhi and not at a location which was more than 25 km away from the suit property. This clearly indicates that the requirement of the petitioner in the present case for accommodating her son is not a genuine and a bonafide requirement in the facts of the case.
24. It is further averred by the respondent that the respondents have hereinafter disclosed number of other commercial properties owned by the petitioner. It is stated that the family of the petitioner including her husband Mr. ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 15 of 41 Jagdish Lal and her husbands brother, wife and children as well as the son of the petitioner all have a joint family business which is spread all over Delhi at various locations. The above facts thus clearly disclose that the present petition filed by the petitioner is totally misconceived and is liable to be dismissed.
25. After filing of written statement by the respondents, replication was filed by the petitioner in which averments of WS was denied by the petitioner, thereafter matter was fixed for evidence.
26. Evidence Petitioner in order to prove her case examined her husband namely Mr. Jagdiesh Walecha as PW1 and relied upon the following documents.
(a) Power of attorney in favour of PW1 executed by petitioner dated 06.08.2018 Ex.PW1/1
(b) lease deed and conveyance deed dated 31.12.1969 Ex.PW1/2,
(c) copy of relinquishment deed dated 19.03.1990 Ex.PW1/3
(d) the mutation letter dated 11.09.1990 of L&DO Ex.PW1/4
(e) GPA dated 19.02.1998 executed by Mr. Mukand Lal in favour of Mr. Baldev Raj Ex.PW1/5
(f) family settlement between Mr. Mukund Raj and Mr. Baldev Raj dated 04.02.1998 Ex.PW1/6
(g) the agreement to sell dated 17.12.2007 Ex.PW1/7 executed between Mr. Baldev Raj and petitioner.
(h) house tax receipt and the challan of the same acknowledging the payment of house tax for the tenanted premises by the petitioner Ex.PW1/8 (colly) ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 16 of 41
(i) site plan of ground floor Ex.PW1/9
(j) certified copy of the rent deposit application being DR no. 955/07 alongwith entire pleadings and ordersheets Ex.PW1/10
(k) certified copy of the DR no. 127/12 alongwith its pleadings and ordersheets are Ex.PW1/11 (colly)
(l) certified copy of the DR no. 05/14 alongwith entire pleadings and ordersheets Ex.PW1/12 (colly)
(m) power of attorney dated 17.12.2007 executed in my favour Ex.PW1/13 executed by Mr. Baldev Raj in favour of PW1.
(n) office copy of the notice dated 12.12.2015 alongwith postal receipts and proof of service are Ex.PW1/14 (colly)
(o) royalty agreement dated 11.12.20156executed between the petitioner and Mr. Kamal Kumar Ex.PW1/15
(p) title document of the shop situated at front side of the ground floor is Ex.PW1/16
(q) title document of the godown situated at back side of the ground floor is Ex.PW1/17
(r) site plan of basement Ex.PW1/18
(s) site plan of first floor is Ex.PW1/19
(t) site plan of second floor is Ex.PW1/20 (u) site plan of third floor is Ex.PW1/21
(v) site plan of top floor Ex.PW1/22 (w) lease deed dated 16.08.2014 of the Kamla Nagar shop in favour of our son Ex.PW1/23 ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 17 of 41
(x) tax documents and other documents pertaining to the petitioner's business are Ex.PW1/24 (colly) (y) lease agreement dated 11.12.2015 executed by Mrs. Madhu Walecha in favour of the petitioner and income tax returns are Ex.PW1/25 (colly) (z) sale deed dated 04.02.2011 in my favour pertaining to the property no J 81, Rajouri Garden, New Delhi Ex.PW1/26
27. Petitioner has also examined Mr. Deepak Walecha (her son) as PW2 who has filed his evidence by way of affidavit Ex.PW2/A and relied upon the documents i.e.
(a) certified copy of the lease deed dated 23.08.2014 between Mr. Surjeet Singh and M/s Sai Trading (proprietor PW2) with respect to property no. 7K, Kohlapur Road, Kamla Nagar, Delhi110007 Ex.PW2/1
(b) copy of the fitting and fixtures agreement dated 16.08.2014 Mark PW2/A
(c) Copy of lease deed of the property no J74 shop no. 2, Main Market Rajouri Garden, Delhi27 (executed between Mr. Pradeep Kumar Bedi and M/s KINS Studio Shoes and Accessories Pvt. Ltd.
through Director Mr. Harit Walecha Mark PW2/B
(d) the lease deed of the property no. 11/7A(12) main market, Tilak Nagar, Delhi18 executed between Mr. Prithvi Raj Aneja and M/s KINS Studio Shoes and Accessories Pvt. Ltd. through Director Mr. Kamal Kumar Mark PW2/C
(e) the lease deed of the property no D/41B, Central Market, Lajpat ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 18 of 41 Nagar Delhi24 (executed between Ms. Vaneeta Keshwani, Sunil Keshwani, Siddhant Keshwani and M/s KINS Studio Shoes and Accessories Pvt. Ltd. through its Director Mr. Kamal Walecha Mark PW2/D
(f) lease deed of the property no. J81, Main Market, Rakpiro Gardem Delhi27 (executed between Surender Kumar and K.Love Shoe and Assessories Pvt. Ltd. through its Director Mr. Harit Walecha) Mark PW2/E
(g) the lease deed of the property bearing shop no. 95, Main market Sarojini Nagar, Delhi27 (executed between Mr. Lal Chand and K.Love Shoes and Accessories Pvt. Ltd. Through its Director Mr. Harit Walecha) Mark PW2/F
(h) lease deed of the property at GIP palace Noida (executed between Mr. Purshottam Keshwani and Ms. K. Love Studio Shoes and Accessories Pvt. Ltd) Mark PW2/G
28. Plaintiff has examined Mr. Kamal Kumar as PW3 who has filed his evidence by way of affidavit Ex.PW3/A and relied upon the document i.e. copy of royalty agreement dated 11.12.2015 already Ex.PW1/15
29. Plaintiff has examined Mr. Baldev Raj as PW4 who has filed his evidence by way of affidavit Ex.PW4/A
30. Respondent no. 1 in his defence examined himself as RW1 who filed affidavit Ex.RW1/A and relied upon the following documents:
ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 19 of 41
(i) Copies of the photographs showing the board of Sardar Mohinder Singh band are Mark A to Mark D
(ii) the receipts issued in the name of Sardar Mohinder Singh Band for the business of Mohinder Singh & Sons are Ex.PW1/1 (colly)
(iii) visiting card of Sardar Mohinder Singh Band is Ex.RW1/2
(iv) the electricity bill of shop no. 17D, Pushpa Market Lajpat NagarII Ex.RW1/3
(v) copies of receipts Ex.RW1/4 (colly).
31. Arguments heard at large on behalf of the petitioner and the respondents and judgments filed by the parties considered in the facts of the case.
Discussion
32. In order to prove a case under Section 14 (1) (e) DRC act the petitioner has to establish following ingredients:
(a). Ownership in respect of tenanted premises;
(b). Relationship of landlord and tenant between the parties;
(c). Petitioner bonafidely requires the tenanted premises;
(d). Petitioner does not have any other alternative accommodation with her.
33. In addition to above mentioned grounds, the respondents have also alleged one additional ground that respondent no. 3 Mr. Sukhbir Singh (brother of respondent no. 1) has not been served in this matter. Ld. Counsel for the respondent submitted that after demise of original tenant Band Master late Mr. Mohinder Singh as per Section 19 (b) of Hindu Succession Act, the legal heirs have common unity of possession but diversity of title and each LR have undivided separate title in the tenanted premises and the respondent no. 1 ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 20 of 41 appeared in evidence on behalf of all contesting respondents and not on behalf of respondent no. 3. Ld. Counsel for the respondent also relied upon the judgment of Rakesh Jain Vs. Suresh Kohli and Ors. 2014 (1) AD Delhi 752.
34. Vide order dated 22.08.2016 all the respondents were directed to be served through affixation. Respondent no. 3 Mr. Sukhbir Singh was served by way of affixation on 20.09.2016, report of process server at the time of judgment is Marked AA. Photographs of affixation at the tenanted shop has also been filed and they are Marked AB (Colly) at the time of judgment.
35. In para 17 of affidavit of respondent no. 1 filed alongwith leave to defend application it has been mentioned that "presently the suit property is run by deponent for and on behalf of all the respondents". During evidence also the respondent no. 1 in cross examination has deposed that "the second son of Late Sardar Mohinder Singh is Mr. Sukhbir Singh. He stays in USA and had left India in the year 2000. I cannot say in which city in Sukhbir Singh was Kamaljeet Kaur who expired in the year 2013. Sukhbir Singh has three children being two sons and one daughter. I do not remember their names. Till the year 2000 Mr. Sukhbir Singh used to stay with me in my house, along with his family. Mr. Sukhbir Singh has visited India only once since the year 2000 i.e. around 23 years back. Mr. Sukhbir Singh Visited the tenanted premises during his visit to India 23 years back and spend around half an hour with me. The conversation between me and Sukhbir Singh was confined to his enquiring about the well being of his brothers and sisters. No monetary transaction was entered into between Sukhbir Singh and me. Neither did I ask nor did Sukhbir offer his residential details in USA. I do ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 21 of 41 not have any phone number of Mr. Sukhbir Singh. It is Sukhbir Singh only, who calls me up on telephone occasionally. Sukhbir Singh made a telephonic call to me around 56 months back.............The evidence by way of affidavit Ex.RW1/A has been filed by me for self as well as on behalf of Ravinder Singh, Sukhbir Singh, Amarjeet Kaur and Kulvinder Singh. I informed my brother Sukhbir Singh about the present eviction proceedings and he instructed me orally to file the present evidence by way of affidavit on his behalf also. I have no written or documentary authority from the above persons, for filing the present evidence of affidavit on their behalf. Sukhbir Singh visited India Prior to filing of the present eviction petition. I informed Sukhbir Singh on telephone, immediately upon filing of the present eviction petition and he instructed me to contest the case on his behalf also. I keep Sukhbir Singh informed of the proceedings in the present case regularly over telephone" From this deposition of respondent no. 1 it is clear that the respondent no. 3 is aware of the case proceedings but the address of the respondent no. 3 is not provided by the respondent no. 1. it is also admitted position that the respondent no. 3 is living in USA whose details has not been disclosed by the respondent no. 1 and if the respondent no. 3 is claiming his tenancy rights qua the tenanted shop, therefore, the service to the respondent no. 3 by way of affixation on tenanted shop is valid service and respondent no. 3 is duly served in the present matter. The judgment relied upon by the respondents i.e. Rakesh Jain Vs. Suresh Kohli and Ors. 2014 (1) AD Delhi 752 is on the different facts, as in the said judgment one of the tenant was not made party but in the present case all the LRs of Late Band Master Mr. Mohinder Singh are made party and duly served hence this defence of the Ld. Counsel for the respondents is without merit.
ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 22 of 41 Ownership and landlord tenant relationship between the parties.
36. The landlord tenant relationship has been denied by the respondents. It is argued on behalf of the respondents that the tenancy of Band Master Late Mr. Mohinder Singh was created by one Mr. Bal Mukund and PW4 Mr. Baldev Raj has specifically stated in his evidence that Mr. Bal Mukund used to receive rent of the premises and Mr. Baldev Raj has never collected any rent and after the demise of Mr. Mukund Lal, Mr. Baldev Raj claiming the rent from respondents but refused to issue the rent receipts in their favour, therefore, the respondents have filed Deposit of Rent petitions before the ARC in the year 2007 stating Mr. Baldev Raj as landlord. It is further argued on behalf of respondent that the respondent are depositing the rent in the name of Mr. Baldev Raj in the name of one Mr. Wadhaya Ram and Sh. Mukund Lal and not in any other capacity. Moreover, petitioner has not shown Baldev Raj as one of the LR of Late Wadhaya Ram in petition.
37. It is also argued on behalf of the respondents that by way of settlement deed dated 04.02.1998 and GPA by Mr. Mukund Lal in favour of Mr. Baldev Raj dated 19.02.1998 Ex.PW1/6 and Ex.PW1/5 respectively, the tenanted premises is not identified and the site plan mentioned in these documents have not brought on record and the shop no. 17D was not part of the abovesaid family settlement and agreement, moreover, the documents Ex.PW1/5 and Ex.PW1/6 have not been proved.
38. Petitioner in the petition has not mentioned Mr. Baldev Raj as one of the ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 23 of 41 LR of Wadhaya Ram but in the replication the petitioner has mentioned Baldev Raj to be the legal heir of Mr. Wadhaya Ram and in the petition also the petitioner has mentioned about family settlement between Mr. Baldev Raj and Mr. Mukund Lal and GPA in favour of Mr. Baldev Raj dated 19.09.1988 Ex.PW1/5 and Ex.PW1/6 respectively in which Mr. Baldev Raj has been mentioned as son of Mr. Wadhaya Ram and these documents were filed alongwith petition, therefore, it can not be said that the petitioner has not disclosed Mr. Baldev Raj as son of Mr. Wadhaya Ram. It is an admitted position that the DR petition no. 955/2007 was filed Ex.PW1/10 (colly), DR no. 127/2012 Ex.PW1/11 (colly), DR petition no. 5/2014 Ex.1/12, DR petition no. 5/2014 Ex.PW1/13 were filed by the respondent no. 1 against Mr. Baldev Raj son of Late Mr. Wadhaya Ram. In the petition no. 955/2007 Ex.PW1/10 (colly) in para 7 of the petition it has been mentioned that "the rent was tendered personally as well as by money order but the same was refused by the landlord. The money order was returned back in October 2007" and in para 3 of the same petition the name of Mr. Baldev Raj has been mentioned as landlord/person or persons claiming to be entitled to. Same is the situation with the remaining DR petitions filed by the respondent no. 1 Ex.PW1/11, Ex.PW1/12. It is specifically mentioned in para 7 of the said DR petition no. 955/2007 that landlord refused rent and then DR petition was filed against Mr. Baldev Raj. In 2007 neither Wadhaya Ram was alive nor Mr. Mukund Lal and rent was ever not tenanted to LRs of Mr. Mukund Lal by the respondents. Therefore, this shows that the rent was tendered to Mr. Baldev Raj as Landlord and the same was refused by Mr. Baldev Ram, therefore, once the rent has been tendered to Mr. Baldev Raj as landlord therefore, in view of the Section 116 of Indian Evidence Act the respondents are ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 24 of 41 estopped from raising the question of ownership of the petitioner and the same was also held in the case of Ramesh Chand Vs Uganti Devi 157 (2009) Delhi Law Times 450. Therefore, the objection of the respondent that Ex.PW1/5 and Ex.PW1/6 filed by the petitioner are not proved becomes redundant as the respondents can not raise question on the title of Mr. Baldev Raj.
39. Mr. Baldev Raj has appeared as petitioner's witness no. 4 and has deposed that he sold the premises to the petitioner vide registered agreement to sell dated 17.12.2017 Ex.PW1/7 and general power of attorney was executed in favour of Mr. Jagdish Walecha husband of petitioner dated 17.12.2017 Ex.PW1/13. PW4 has not denied the execution of the abovesaid documents. In the judgment of A. K. Nair Vs. Mahesh Prasad, 153 (2008) DLT 423, it was held that " the concept of ownership under Delhi Rent Control Act is different from the concept of ownership under Transfer of property act and ownership under DRC Act it is not the absoloute ownership. The properties in Delhi have been changing hands on the basis of various kinds of documents. There was a time in Delhi when sale and purchase of properties was not easily registered and in order to overcome this, the persons living in Delhi devised different modes of transferring the interest and started preparing a set of documents like General Power of Attorney, affidavits, money receipts, 'Will', etc. This court had recognized that these kind of documents by which interest in the property is transferred is sufficient to consider the ownership for the purpose of Delhi Rent Control Act and the landlord is not required to show absolute owner."
40. Accordingly, the registered agreement to sell Ex.PW1/17 as required ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 25 of 41 under Section 17 (1A) Registration Act was executed between the PW4 Mr. Baldev Raj and petitioner, therefore, for the purpose of Delhi Rent Control Act the petitioner has established her ownership with respect to the premises transferred vide Ex.PW1/7 and in view of the judgment of Satya Malhotra and Ors Vs. Mohinder Singh Arora 81 (1999) DLT 627, a tenant can not challenge the title of subsequent purchaser.
41. PW1 in his deposition has deposed that a letter notice dated 12.12.2015 (Ex.PW1/14) alongwith the copy of the agreement to Sell Ex.PW1/7 was sent to the respondent no. 1 and the respondent no. 1 during his cross examination has stated "address mentioned on Ex.PW1/14 i.e. letter dated 12.12.2015 contains my residence and shop address. The acknowledgment card being part of Ex.PW1/14 bears my signature at point A. I did not send any reply to Ex.PW1/14 i.e. notice dated 12.12.2015." This deposition of RW 1 shows that the legal notice Ex.PW1/14 was delivered to RW1 and no reply of the same was sent by RW1 to the petitioner.
42. In the judgment of Hon'ble Apex Court tiled as Dr. Ambika Prasad Vs. Mohd. Alam and Ors. 2015 (3) Supreme Court Cases 45 decided on 08.04.2015, the Section 109 of Transfer of Property Act was discussed and it was held that "109. Rights of lessor's transferee.if the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 26 of 41 shall not, by reason only of such transfer cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him:
Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to lessor, the lessee shall not be liable to pay such rent over again to the transferee.
The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased."
18 From perusal of the aforesaid Section, it is manifest that after the transfer of lessor's right in favour of the transferee, the latter gets all rights and liabilities of the lessor in respect of subsisting tenancy. The Section does not insist that transfer will take effect only when the tenant attorns. It is well settled that a transferee of the landlord's rights steps into the shoes of the landlord with all the rights and liabilities of the transferor landlord in respect of the subsisting tenancy. The Section does not require that the transfer of the right of the landlord can take effect only if the tenant attorns to him. Attornment by the tenant is not necessary to confer validity of the transfer of the landlord's rights. Since attornment by the tenant is not required, a notice under Section 106 in terms of the old terms of lease by the transferor landlord would be proper and so also the suit for ejectment."
ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 27 of 41
43. Therefore, in view of the aforesaid settled preposition of law even the attornment is not necessary from the tenant to the subsequent purchaser and subsequent purchaser steps into the shoes of earlier owner, accordingly, the petitioner stepped into the shoes of Mr. Baldev Raj.
44. The respondents have also taken objection with respect to the identity of the suit property. Ex.PW1/9 i.e. the site plan of the tenanted premises with respect to ground floor of property no. 17, Pushpa Market, Lajpat NagarII, New Delhi in which only one shop of the respondents measuring 9' 6" x 10' with stairs has been shown on the rear portion of the ground floor and in Ex.PW1/7 i.e. the agreement to sell dated 04.02.1998 it has been mentioned "(i) rear portion of the ground floor measuring 14 sq. mtr. (with right to dig/construct basement with separate staircase on the rear side belongs to second party and already in possession of second party) has been mentioned, therefore, this shows that the total rear portion of the property no. 17, Pushpa Market, Lajpat NagarII was sold by the Mr. Baldev Raj to the petitioner vide Ex.PW1/7 and staircase were already in possession of the petitioner before execution of Ex.PW1/7. Moreover, there is no other shop on the rear portion on the ground floor of the property no. 17, Pushpa Market, Lajpat NagarII, New Delhi and the site plan of ground floor Ex.PW1/9 has already been admitted by the respondent no. 1 therefore, the identity of the shop is not in dispute and number 17D is only for the purpose of identification of particular shop as there are many shop in the whole property number 17, Pushpa Market, Lajpat NagarII, New Delhi on various floors and it is also not defence of the respondents that respondents are in possession of more than one shop in the property no. 17, Pushpa Market, Lajpat NagarII, New ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 28 of 41 Delhi, so that there can be dispute with respect to identify by tenanted premises.
45. The respondents have also taken defence that the tenanted premises is a lease hold property therefore the same can not be transferred and petition is not maintainable. In the judgment of Shanti Sharma Vs. Ved Prabha AIR 1987 SC 2028 it was held that "13. Admittedly, of this contention of the learned counsel for the appellant is accepted in Delhi more than 50% of the properties stand on leasehold plots and therefore it would not be possible for any landlord to seek an order or decree for eviction on the ground of bonafide requirement. It appears that it is therefore clear that if the legislature had this narrow meaning of ownership in mind, it would not have used it, as it could not be contended that the Legislature did not keep in view that in most of the modern township in India the properties stand on plots of land leased out either by the Govt. or the Development Authorities and therefore it was not contemplated that for all such properties the landlord or the owner of the property used in common parlance will not be entitled to eviction on the ground of bonafide requirement and it is in this context that we have to examine this contention."
"14. The word 'owner' has not been defined in this act and the word 'owner has also not been defined in the Transfer of property act. The contention of the learned counsel for the appellant appears to be is that ownership means absolute ownership in the land as well as of the structure standing thereupon. Ordinarily, the concept of ownership may be what is contended by the counsel for the appellant but in the modern context where it is more or less admitted that all lands belong to the State, the persons who hold properties will only be lessees or the persons holding the land on some term from the Govt. or the ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 29 of 41 authorities constituted by the state and in this view of the matter it could not be thought of that the legislature when it used the term 'owner' in the provisions of Section 14 (1) (e) it thought of ownership as absolute ownership. It must be presumed that the concept of ownership only will be as it is understood at present. It could not be doubted that the term owner has to be understood in the context of the background of the law and what it contemplated in the scheme of the act. This act has been enacted for protection of the tenants. But at the same time it has provided that the landlord under certain circumstances. But at the same time it has provided that the landlord under certain circumstances will be entitled to eviction and bonafide requirement is one of such grounds on the basis of which landlords have been permitted to have eviction of a tenant. In this context, the phrase 'owner' thereof has to be understood, and it is clear that what is contemplated subsequently needs it for his own use, he should be entitled to an order or decree for eviction, the only things necessary for him to prove is bonafide requirement and that he is the owner thereof. In this context, what appears to be the meaning of the term 'owner' is visavis the tenant i.e. the owner should be something more that the tenant. Admittedly, in these cases where the plot of land is taken on lease the structure is built by the landlord and admittedly he is the owner of the structure. So far as the land is concerned he holds a long lease and in view of the matter as against the tenant it could not be doubted that he will fall within the ambit of the meaning of the term 'owner as is contemplated under this section."
46. In view of the abovesaid judgments the ground raised by the petitioner that the property is lease hold property and can not be transferred does not hold ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 30 of 41 any merit as for the purpose of Section 14 (1) (e) as the petitioner has required the status of owner with respect to the tenanted premises. It is well settled position that the landlord is to be only something more than that of tenant (Milkfood Ltd. Vs. Kiran Khanna 51 (1993) DLT 141). Accordingly, the landlord tenant relationship between petitioner and respondents and ownership of petitioner has also been established.
Bonafide requirement and alternate accommodation
47. Ld. Counsel for the respondents has argued that the petitioner has not stepped into witness box to allege about her bonafide requirement and she is having property all over Delhi in the name of KINS which is her family business and showrooms. Ld. Counsel for the respondents also argued that the petitioner has 8 godowns and 5 shops available with her in the property no. 17 Pushpa Market Lajpat NagarII, Delhi24, petitioner is already running ashowroom by combining ground floor and first floor and petitioner has also not alleged why the godowns of the ground floor are not being used as shop to fulfill bonafide requirement of petitioner and the godowns on the ground floor can be used as alternative accommodation by the petitioner, It is further argued on behalf of the respondent that the business of KINS shoes is spread all over Delhi and there are number of shops doing business under the name of KINS including the shops at Rajouri Garden, Kamla Nagar, Sarojini Nagar, Noida, Faridabad, Haryana and another shop also in Lajpat NagarII under the name of Klove shoes & pvt. Ltd. It is also argued that from the rent agreement Ex.PW1/25 between Ms. Madhu Walecha and the petitioner with respect to area in property no. 17 Pushpa Market Lajpat NagarII, Delhi24, can be seen that the said ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 31 of 41 agreement was executed on 11.12.2015 and the petition has been filed in 2016, therefore, true facts are not been disclosed by the petitioner as the agreement are executed within families of petitioner prior to filing of eviction petition.
48. Admittedly the petitioner has not stepped into the witness box rather the husband of the petitioner, Mr. Jagdish Walecha appeared as PW1 in the judgment of Sangeeta Chauhan Vs. Mrs. Rumali Devi RFA No. 528/2014 decided on 31.05.2016 by Hon'ble High Court of Delhi it was held that "the husband of the respondent/plaintiff is fully in the know of the facts of the case and is competent to depose about the facts in dispute on his own behalf and his evidence can not be rejected even if the power of attorney in his favour is not proved." In the judgment of Sharifuddin Vs. Merun Nisa an Ors. 148 (2008) DLT 154 it was held that by Hon'ble Delhi High court that " 8 The learned Additional Rent Controller also fell in error in rejecting the evidence of the petitioner on the ground that he had fail to appear as a witness and that his son and general attorney has deposed as a witness on behalf of the petitioner in support of the petitioner. It is not necessary that the party himself should appear in the witness box in all cases. The purpose of leading evidence through the witness is to be establish the case of the party. Any person, who is in a position to depose with regard to the facts about which that person deposes, can be considered to be a witness competent to depose. The witness AW1 has deposed as per his personal knowledge being a family member of the petitioner and residing with him, and his evidence could not be rejected merely because the petitioner did not appear as his own witness."
49. PW1 in his evidence has tendered General Power of Attorney dated ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 32 of 41 06.08.2018 in his favour executed by his wife but neither the petitioner nor the witnesses of the abovesaid GPA appeared in the witness box to prove the said GPA but at the same point of time PW1 in his examination in chief has deposed that "I am personally aware about the chain of title and other relevant facts about the property in question". PW1 is husband of petitioner and is personally aware of the facts therefore, in view of the abovesaid judgments of Hon'ble Delhi High Courts, PW1 is competent to depose in this matter and the fact that petitioner did not appear herself as a witness does not dent case of the petitioner. Moreover, during the cross examination PW1 has deposed that he is looking after the affairs of petitioner's business since inception therefore, in view of the aforesaid deposition of PW1 and abovementioned judgments, there is no merit in the objection of respondent that petitioner has not appeared herself as a witness.
50. Further, it has been argued on behalf of the respondent that KINS is the family business of petitioner. It is pertinent to mentioned that the respondent no. 1 himself appeared as a witness in this matter and filed only photographs, receipt of amount paid to trader's welfare association by him, rent receipt and some bill of Sardar Mohinder Singh Band. RW1 did not file any of the document with respect to property allegedly in possession and ownership of petitioner under the name of KINS, KINS studio shoes and accessories pvt. ltd. and K.Love studio shoes and accessories Pvt. Ltd, but at the same point of time PW1 in his evidence has mentioned that the son of PW1 and petitioner Mr. Deepak Walecha took a shop on rent at 7K, Kolhapur Road, vide lease deed Ex.PW1/23 dated 16.8.2014. PW1 also deposed about other properties that property no. D41, Lajpat NagarII, New Delhi is rented property taken on rent by M/s K.Love studio ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 33 of 41 shoes and accessories Pvt. Ltd. and petitioner is neither a director nor a share holder in company K.love studio shoes and accessories pvt. ltd. PW1 has also mentioned that the address of Jai Mata Trading company has not been mentioned by the respondent and shop no. 95, Sarojini Nagar Main Market is neither owned nor possessed by the petitioner, KINS main market Rajori Garden does not belong to petitioner rather PW1 has purchased a portion of property no. J81, Rajori Garden, New Delhi vide sale deed dated 04.02.2011 (Ex.PW1/26) and the same is under tenancy of tenant. PW1 has also deposed that the petitioner is using the name of KINS under a royalty agreement executed on 11.12.2015 between the petitioner and Kamal Kumar (Ex.PW1/15). PW3 Mr. Kamal Kumar appeared in the witness box and proved the above said royalty agreement (Ex.PW1/15) and deposed that he has coined and conceived the trade mark KINS and he is proprietor and absolute owner of the said trade mark/brand and got it registered with trade mark authority. PW1 has filed the tax document of Ms. Vandana Walecha (Ex.PW1/24) in which the amount of Rs. 1,20,000/ has been mentioned as amount paid towards royalty, amount of Rs. 4,95,000/ toward rent in profit and loss account for the year ending on 31.03.2014 and rent of 5,85,000/ for profit and loss account of year ending on 31.03.2015 has been mentioned. It is argued by petitioner that the said rent was paid to Mr. Madhu Walecha as the petitioner has got property on rent from Madhu Walecha on upper floors of property no. 17, Pushpa Market, Lajpat NagarII, Delhi and Ms. Madhu Walecha has shown the rental income from said property let out to the petitioner in her ITR Ex.PW1/25 (colly). Arguments on Ld. Counsel for petitioner has been supported by tax documents of Mrs. Madhu Walecha and petitioner, profit and loss statement of petitioner for year 2014, ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 34 of 41 2015. PW2 Mr. Deepak Walecha (son of the petitioner) has deposed that he was director in M/s K.Love studio shoes and accessories for some time and after that he resigned from the said company. He further deposed that M/s K.Love Studio shoes and accessories Pvt. Ltd. is running its outlet from the following rented premises:
(i) J74, shop no. 2 main Market Rajouri Garden, Delhi110027. The lease deed of the property no. J74, shop no. 2, main market Rajouri Garden, Delhi110027 (executed between Mr. Pradeep Kumar Bedi and M/s KINS Studio shoes and accessories pvt. ltd. through Director Harit Walecha) is Mark PW2/B,
(ii) 11/7A(12) Main Market, Tilak Nagar, Delhi110018. The lease deed of the property no. 11/7A(12) Main Market, Tilak Nagar, Delhi110018 (executed between Mr. Prithvi Raj Aneja and M/s KINS Studio shoes and accessories pvt. ltd. through Director Mr. Kamal Kumar) is Mark PW2/C,
(iii) D/41B, Central Market, Lajpat NagarII, Delhi110024. The lease deed of the property no. D/41B, Central market, Lajpat NagarII, Delhi 110024 (executed between Ms. Vaneeta Keshwani, Mr. Sunil Kshwani, Mr. Siddhant Keshwani and M/s KINS Studio shoes and accessories pvt. ltd. through its Direcotr Mr. Kamal Walecha) is Mark PW2/D,
(iv) J81, Main Market, Rajouri Garden, Delhi27. The lease deed of the property no. J81, Main market, Rajouri Garden, Delhi27 (executed between Mr. Surender Kumar and K. Love Shoes and Accessories pvt ltd. through its Director Mr. Harit Walecha) is Mark PW2/E,
(v) Shop no. 95, Main Market, Sarojini Nagar, Delhi 110027. The lease deed of the property being shop no. 95, main market, Sarojini Nagar, ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 35 of 41 Delhi27 (executed between Mr. Lal Chand and K. Love Shoes and Accessories Pvt. Lotd. through its Director Mr. Harit Walecha) is Mark PW2/F,
(vi) GIP. Palace, Noida. The lease deed of the property at GIP Palace, Noida (executed between Mr. Pushottam Keshwani and Ms. K. Love Studio Shoes and Accessories pvt. Ltd.) is Mark PW2/G.
51. Respondents have not brought any documents on record from Registrar of Company to show that PW2 Mr. Deepak Walecha is still a director in company K.love studio and accessories pvt. Ltd.
52. PW3 Mr. Kamal Kumar has also deposed that following shops are being run under the brand name KINS :
(i) 17, Pushpa Market, Lajpat NagarIIII, New Delhi24 operated by Mrs. Vandana Walecha in her proprietary concern M/s Jai Mata Di Trading
(ii) 7K, Kolhapur Road, Kamla Nagar, Delhi07 operated by Mr. Deepak Walecha in his proprietary concern M/s Sai Trading
(iii) Shop No. 95, Sarojini Nagar Market, New Delhi operated by M/s K. Love Studio Shoes & Accessories Pvt. Ltd.
(iv) Shop at GIP Mall, Noida Operated by M/s K. Love Studio Shoes and Accessories pvt. Ltd.
53. PW3 has deposed in line of PW2 with respect to the abovementioned shops. The objection was taken on behalf of the respondent that the document brought on record by the PW2 during his evidence were filed first time by the witness at time of his deposition. These documents are documents which were not in possession of petitioner as they are with respect to different shops about whom objections were taken by the respondent in written statement that the ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 36 of 41 shops are under the family business of petitioner but the respondents have not filed any of the document to show that the KINS is either the trade mark of petitioner or petitioner is one of the director in K.love studio shoes and accessories pvt. Ltd. or KINS studio shoes and accessories pvt. ltd. or KINS. Therefore, in the absence of any document on behalf of respondents to show that the petitioner is involved in any way with KINS trademark except paying royalty to PW3 and in the absence of any document to show that the petitioner is running any of the abovementioned shop except the shop Jai Mata Traders which the petitioner herself has mentioned in petition, it can not be said that the KINS, KINS studio shoes and accessories pvt. ltd. and K.Love studio shoes and accessories pvt. ltd. are the family business of petitioner. If the relatives of the petitioner are doing business under the name of KINS, KINS studio shoes and accessories pvt ltd. and K.Love studio shoes and accessories pvt. Ltd. then the business can not be termed as family business if there is no involvement of petitioner and her husband in chain of KINS (except the shop in property no. 17 Pushpa Market, Lajpat NagarII, New Delhi), KINS studio shoes and accessories pvt. ltd. and K.Love studio shoes and accessories pvt. Ltd.
54. Ld. Counsel for the respondent relied upon the judgment of Calcutta High Court titled as Smt. Aloybala Ghosh vs. Goutam Sen & Ors. CO no. 1477 of 2017 decided on 17.01.2019 with respect to burden of proof, on the contrary, the petitioner has relied upon Dhanna Lal Vs. Kalawati Bai and Ors. AIR 2002 Supreme Court 2572 wherein it was held that "The requirement of the landlord is presumed to be bonafide unless the contrary is proved, that is to say, the burden of proof is placed on the tenant to rebut the case of the landlord contrary to the ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 37 of 41 ordinary procedure in a civil court where the burden of proof lies on the landlord". In the judgment of Rajender Kumar Sharma and Ors. Vs. Leelawati & Ors. 155 (2008) Delhi DLT 383 it is held that "if the tenant in its leave to defend pleads that landlord was owner of another property with which landlord has nothing to do, mere filing of affidavit is not sufficient. The tenant has to place before the Learned ARC that such document which show that landlord was owner of that premises. If no such document is placed on record by the tenant, the learned ARC is not required to consider the ownership of landlord of such a premises." If at the stage of leave to defend, the tenant is required to file documents of ownership of landlord with the premises which tenant alleges belongs to landlord then after full fledged trial it becomes more incumbent on tenant to produce such documents of ownership of landlord but in the present case the respondents have not filed any documents to show that petitioner is owner of any of above mentioned shops or the shops are run by the petitioner, her husband or by her son except the rented shop in Kamla Nagar by the petitioner's son which petitioner herself disclosed in petition.
55. Therefore, on the basis of preponderance of probabilities as on one side no document has been produced by the respondents to prove their averments while on another hand the petitioner has called PW2 and PW3 as a witness who corroborated the evidence of PW1 with respect to the shops under names of KINS, KINS studio shoes and accessories pvt. ltd. and K.Love studio shoes and accessories Pvt. Ltd. and documents produced by petitioner's witnesses it can be said that the petitioner is not running any of the KINS Shop, K.Love studio shoe and accessories pvt. Ltd. KINS studio shoes and accessories pvt. ltd.
ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 38 of 41 except the shop of KINS at 17 Pushpa Market Lajpat NagarII, New Delhi, moreover, KINS studio shoes and accessories pvt. ltd., K.love studio shoes and accessories pvt. ltd. and KINS are not family business of petitioner. Petitioner is paying the royalty to the PW3 for using the name KINS on her shop at 17, Pushpa Market, Lajpat NagarII, New Delhi. It has also been argued on behalf of respondents that the petitioner can use godowns or shops upper floors for her bonafide requirement. The site plan of basement ExPW1/18, ground floor Ex.PW1/9, first floor Ex.PW1/19, second floor E.xPW1/20, third floor ExPW1/21 have been admitted by the RW1. RW1 during his cross examination also deposed that " the lane in front of my shop is around 12 feet wide. I cannot say whether the same is 20 feet. Again said, it may be 20 feet. The address of the adjoining property shown in Ex.PW1/9 as others property on the west of the property no. 17, may be property no. 18, again said, it is property no. 18. The entire plot out of which the suit property is a part, is property no. 17. The shops behind the suit property have been numbered as 17A, 17B, & 17C. The passage shown in ExPW1/9 is around 6 feet wide. It is incorrect to suggest that the same is not more than 3 feet wide............there is not lift installed in the property no. 17 Pushpa market, Lajpat NagarII. Ld. Counsel for the respondent has argued that the petitioner has two godowns on ground floor i.e. C1 and A1 in the site plan ExPW1/9 and they open in 6ft passage therefore, those godowns can be used by the petitioner for her bonafide requirement. It is argued on behalf of petitioner that the passage is 3 ft. wide and not 6ft. wide. It is admitted position by the RW1 that the road infront of his tenanted shop is 12ft. wide though the petitioner is alleging it to be 20ft. wide so it is twice the size of passage i.e. 6ft. and open in main gali, therefore, the footfall which the shop in a 12ft. main gali ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 39 of 41 will attract will be far more than the footfall which a passage of 6ft or basement will attract, moreover, there is staircase between the godown A1 and existing shop of petitioner therefore, the said godown could not be joined in the petitioner shop which is on main road but the godown C1 is immediately behind the shop of respondents and the petitioner want to join the said shop of respondent with godown C1 so that it can take the shape/showroom. Godown C1 and A1 can not be joined by the petitioner because other's property B1 is lying between these two godowns and the area of shop of respondent 9'6" x 10' with godown C1 measuring 14' x 10' is far more than single godown and can become a big showroom. RW1 during his cross examination has admitted that there is no lift in property no. 17 Pushpa Market, Lajpat NagarII, therefore, upper floors are accessible through stairs only and it is well settled law that premises on ground floor attracts more customers than first floor premises. Petitioner ITR has also been filed EX.PW1/24 in which the petitioner's net profit on 31.03.2014 has been mentioned as 89,29,818.00 and petitioner's net profit on 31.03.2015 has been mentioned as 93,43,053.00 has been mentioned therefore this shows that the business of the petitioner is expanding. It is on record that the son of the petitioner PW1 is running a shop in rented premises in Kamla Nagar. Therefore, one cannot be expected to run his business from tenanted premises if the person can run a business from his own shop and the rent of tenanted premises which the PW2 is paying is very high amounting to Rs. 8,51,000/ and Mr. Deepak can't be compelled to work from tenanted premises. Therefore, the requirement of the petitioner for her son and for herself for expanding business is bonafide requirement and in the judgment of Mr. Bhupender Singh Baba Vs. Asha Devi 214, (2014), DLT745 it was held that "also assuming that more than one ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 40 of 41 property are available for carrying on the business or for opening of the business, a tenant cannot dictate which property will be more suitable in as much as property on the main road is a very valuable area as the tenanted premises is much better option for commencing of a new business.
56. Respondents have failed to prove that petitioner has any property which can be termed as an alternative accommodation so petitioner does not have any other alternative suitable accommodation.
57. In these facts and circumstances of the case noticed herein above, it is clear that the respondents have failed to prove any defence and requirement of petitioner is bonafide.
58. For the foregoing reasons, the petition of the petitioner under Section 14 (1) (e) DRC Act is allowed and eviction order is passed against the respondents for their eviction from the shop no. 17D, Ground Floor (Back Side) Pushpa Market, Central Market, Lajpat NagarIIII, New Delhi110024 (as shown in red colour in the site plan Ex.PW1/9). However, in the light of Section 14 (7) of the DRC Act, the aforesaid eviction order shall not be executable for a period of six months from the date of this order. The parties are left to bear their own costs. File be consigned to the Record Room after due compliance.
Announced in open Court (SUDHIR KUMAR SIROHI)
today on 06.06.2019 ACJ/CCJ/ARC/South East
Saket Courts/Delhi
ARC. No.5189/16 Ms. Vandana Walecha Vs. Mr. Parvinder Singh & Ors. Page no. 41 of 41
Digitally signed by SUDHIR
SUDHIR KUMAR SIROHI
KUMAR SIROHI Date: 2019.06.07 16:41:15
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