Delhi District Court
Smt. Vidya Devi vs Sh. Chander Mohan on 30 November, 2013
IN THE COURT OF SHRI SANJEEV KUMAR SINGH :
ADMINISTRATIVE CIVIL JUDGE CUM ADDITIONAL RENT
CONTROLLER (CENTRAL) : DELHI
E11/2012
Unique ID No : 02401C0058282012
In the matter of:
1. Smt. Vidya Devi,
Widow of Late Narain Dutt
2. Sh. Deepansh Atal,
S/o Late Sh. Narain Dutt
Both R/o 3018/38, Hardhyan Singh Road,
Karol Bagh, New Delhi110005.
....Petitioner
Versus
Sh. Chander Mohan,
S/o Sh. Amarnath,
At: 3018/38, Beaden Pura,
Hardhyan Singh Road, Karol Bagh, New Delhi110005.
R/o 113B, LIG Flat 'DA' Block,
Hari Nagar Ghanta Ghar, New Delhi.
.....Respondent
O R D E R:
Vide this order, I shall decide an application for leave to defend filed on behalf of the respondent under Section 25B (4) of The Delhi Rent Control Act, 1958 (hereinafter referred to as DRC Act, 1958) seeking leave to E11/2012 Page 1/30 contest the present eviction petition.
2. The present eviction petition has been filed by the petitioners Smt. Vidya Devi and Sh. Deepansh Atal against the respondent namely Sh. Chander Mohan under Section 14 (1) (e) read with Section 25B of the DRC Act, 1958.
3. The version of the petitioners is that the respondent is tenant in respect of one shop bearing no.3018/38, Beaden Pura, Hardhyan Singh Road, Karol Bagh, New Delhi110005, measuring 8' X 10', situated on the ground floor as shown in red colour in the siteplan attached with the petition. The premises were let out vide agreement dated 12.01.1975 @ Rs. 120/ per month excluding all other charges. The respondent has tendered the rent @ Rs. 132/ per month by pay order w.e.f. 01.06.2008 to 31.05.2009. The premises are non residential.
4. It is further the version of the petitioners that after the death of Sh. Dunger Singh, his two sons namely Narain Dutt and Sh. Parmanand became the owner of the suit property on the basis of Will dated 09.07.1983 executed by Sh. Dunger Singh in favour of his aforesaid two sons and thereafter, mutation was also effected in the names of aforesaid two sons in the concerned department. Photocopies of WILL dated 09.07.1983, JAMBANDI issued by DDA on 24.04.1984 and mutation issued by MCD have been filed by the petitioners. Sh. Narain Dutt has expired on 02.03.2011 leaving behind his legal heirs i.e. his wife i.e. petitioner no.1, daughtersSmt. Sunita, Smt. Lalita and Ms. Anuradha and son i.e. petitioner no.2 who have succeeded the estate of E11/2012 Page 2/30 Late Narain Dutt and as such they are coowners/colandlords of the tenanted shop. Being the coowners/colandlords, the said Sh. Parmanand has also filed another petition for his and his son's bonafide need in respect of another tenanted shop under the tenancy of Sh. Sri Ram and Sh. Chanderjit.
5. It is further the version of the petitioners that the petitioner no.1 is a senior citizen and the petitioner no.2 is her son who is 25 years old but he is still unemployed. After the demise of Late Narain Dutt, his entire family is struggling for survival as he was the only bread earner of his family. All the burden have been shifted upon the shoulders of petitioners no.1 & 2. The petitioners are facing great hardship as they are not having any source of income. The petitioner no.1 is an old aged widow and she is having responsibility of marrying her daughter i.e. Ms. Anuradha who is at the marriageable age of 30 years and also to stand her son i.e. petitioner no.2 who is also at marriageable age. The petitioners have to think for their entire future and look for source of income so that they may be survived in cut throat competition. They have to think for entire family as Ms. Anuradha is at the marriageable age of 30 years and they have to arrange money for her marriage. At the same time, the petitioner no.1 has to spent so much money in maintenance of her married daughters namely Smt. Sunita and Smt. Lalita on every occasion of festival etc. Hence, it is an emergent need of the petitioners no.1 & 2 to have the tenanted shop vacated so that petitioners no.1 & 2 can start a fresh business. They will jointly start a business of their own choice.
6. It is further the version of the petitioners that the tenanted premises E11/2012 Page 3/30 having been situated on the ground floor (front portion) of the premises in question is most suitable and ideal for carrying out commercial activity/business. The respondent is carrying on a business in the tenanted shop under the name and style Chander Electrics which is located in the commercial hub of Karol Bagh Market which is just opposite to the very famous market i.e. Gaffar Market. Many business are being run around the tenanted shop like mobile, leather, shoe, Band Business, general store, electronic business, handloom business etc. and as such, petitioner no.1 and her son can do any business of their own choice. The petitioners have filed photographs showing the location around the tenanted shop.
7. It is further the version of the petitioners that they do not possess sufficient and alternative accommodation which will cater to their need for commercial space. The requirement of the petitioners is bonafide. The respondent is having alternative accommodation i.e. shops/ property in which he can carry on his business in Delhi. The respondent is carrying on the same business of repair of electric motor and other electric appliances etc. in other two properties situated just opposite to the tenanted property, one property bearing no. 3045, Beaden Pura, Hardhyan Singh Road, Karol Bagh, New Delhi which is built upto third floor having one shop on the ground floor and basement and it is learnt that the said property no. 3045 is in the name of respondent or his family members and in other property bearing no. 3046, Beaden Pura, Hardhyan Singh Road, Karol Bagh, New Delhi having one shop situated on the ground floor from which the respondent is carrying on his business also. The petitioners have filed photographs of the said properties. It E11/2012 Page 4/30 is prayed that an eviction order may be passed in favour of petitioners and against the respondent in respect of tenanted shop bearing no. 3018/38, Beaden Pura, Hardhyan Singh Road, Karol Bagh, New Delhi110005 as shown in red colour in the site plan.
8. Summons in the prescribed form under Schedule III of DRC Act, 1958 were served upon the respondent and thereafter, respondent has filed application for leave to defend along with affidavit within the stipulated period from the date of service of summons.
9. The version of the respondent is that the eviction petition is bad for nonjoinder of Sh. Parmanand and the daughters of Late Narain Dutt as suit property initially belonged to Late Dungar Singh and after his death, same was inherited by his two sons namely Sh. Parmanand and Sh. Narain Dutt. There has been no partition amongst Sh. Parmanand and LR's of Late Narain Dutt and as such, Sh. Parmanand and the three daughters of Late Narain Dutt also necessary and proper parties to the present petition and without their impleadment, present eviction petition cannot proceed. After the death of Dungar Singh, the respondent had been paying rent to Sh. Parmanand and Late Narain Dutt jointly. The respondent had already paid rent upto September 2010 by means of money order dated 03.09.2010 amounting to R.2112/ @ Rs. 132/ per month for period 01.06.2009 to 30.09.2010 which was duly accepted and acknowledged.
10. It is the further version of the respondent that no relationship of E11/2012 Page 5/30 landlord and tenant exists between the petitioners and the respondent as Sh. Parmanand and Late Narain Dutt had executed a ReceiptcumAgreement dated 18.11.2010, as per which they agreed to sell a shop measuring 10' X 30' with a height of 11' out of the property bearing no. 3018/38, Hardhyan Singh Road, Beaden Pura, Karol Bagh, New Delhi, for a total sale consideration of Rs. 8,60,000/ after reconstruction thereof. They jointly received a sum of Rs. 21,000/ as earnest money from the respondent. It was also agreed that the respondent would not pay the rent any longer. Accordingly, the respondent did not send any rent either to Sh. Parmanand or to Sh. Narain Dutt and after his death to the petitioners. In the meantime, Sh. Narain Dutt died on 02.03.2011 and as such matter of reconstruction of the building and execution of transfer documents with respect to the shop was held up. However, the respondent kept on approaching Sh. Parmanand and the petitioners, who always assured him that they would do the needful and requested to wait for one year of death of Sh. Narain Dutt. Suddenly on 15.02.2012 he received the summons of present eviction petition and came to know the malafide intention of Parmanand and that of the petitioners that they do not want to honour the commitment of Sh. Parmanand and Late Narain Dutt regarding sale of shop in his favour. Thereafter, he filed a suit for specific performance with respect to receiptcum agreement dated 18.11.2010 in the court of District Judge (Central), Delhi which has assigned to court of Sh. Pankaj Gupta, Ld. ADJ, Delhi. In view of filing of the suit for specific performance, no relationship of landlord and tenant exists between the parties.
11. It is the further version of the respondent that site plan filed by the E11/2012 Page 6/30 petitioners shows that the huge space of 520 sq. ft. having open front of 12 ft. is lying vacant on the ground floor of the property itself which can very well be used not only by the petitioners but also by Sh. Parmanand and his son. The respondent has filed a photocopy of site plan and the portion lying vacant has been marked in green colour. Property no. 3018/38, Hardhyan Singh Road, Baden Pura, Karol Bagh, New Delhi, is on Hardhyan Singh Road which has been declared as a commercial one and the vacant portion of the property can be used for commercial purposes by the petitioners as well as by Sh. Parmanand and his son. It is further the version of the respondent that his wife Smt. Anita Matta is the owner of property bearing no. 3045, Baden Pura, Hardhyan Singh Road, Karol Bagh, New Delhi and this property is merely 150 sq. yds. The respondent is using the same for godown purposes only. He has already sold the property bearing no. 3046 sometimes in the year 2002.
12. It is the further version of the respondent that even before death of Sh. Narain Dutt his wife Smt. Vidya Devi (petitioner no.1) was a housewife and is not doing any job/business. She is getting a pension of Rs. 3,240/ while the petitioner no.2 is an Estate Agent who is doing business of sale, purchase and renting of properties. He earning more than Rs. 30,000/ per month. It is further prayed that respondent may be allowed to contest the present eviction petition.
13. In reply to the application for leave to defend filed by the petitioners, the allegations leveled by the respondent have been controverted and rebutted and the averments made in the petition have been reiterated and E11/2012 Page 7/30 reaffirmed. It is submitted that present eviction petition is maintainable in the present form and other coowners were agreed to file the present petition and that is why there is no clash of interest between the coowners. All other legal heirs of Late Narain Dutt including Sh. Parmanand and petitioners have filed their written statement in the suit for specific performance filed by the respondent against the petitioners and other coowners and they have supported the version of the petitioners. It is further submitted on behalf of the petitioners that the alleged receipt dated 18.11.2010 is having no concern with respect of the tenanted shop and how respondent jump to a conclusion that after execution of alleged receipt, relationship of landlord and tenant came to an end as the alleged receipt which pertains to a shop which was not in existence at the time of execution of alleged receipt and how and in what manner, the said alleged receipt may be related to the tenanted shop in possession of the respondent and while the tenanted shop is having a measurement of 9' X 10'. It is further submitted by the petitioners that without prejudice to the rights and contentions of the petitioners and without admitting the token receipt as an agreement to sell, an agreement to sell does not, of itself in or charge on such property. No agreement to sell was executed as alleged but only token receipt was executed. It is further submitted that respondent himself approached Sh. Parmanand and his brother Late Narain Dutt on 27.07.2007 for purchasing a shop which was to be constructed in the suit property bearing no. 3018/38, Beaden Pura, Hardhyan Singh Road, Karol Bagh, New Delhi. On 27.07.2007, a sum of Rs. 21,000/ was received by Sh. Parmanand and his brother towards token amount and against which receipt was prepared and written by Sh. Anil Kochchar who was one of the witnesses. The said receipt was prepared and executed on E11/2012 Page 8/30 27.07.2007. However, copy of the said receipt was not given to Sh. Parmanand and his brother and the respondent has assured Sh. Parmanand and his brother that since the said receipt was only a token receipt and actual and detailed agreement to sell was yet to be prepared and executed after the terms and conditions like period of construction, exact location of the shop, material, time of execution of sale deed, default clause or forfeiture clause of bayana amount, clearance of house tax and atleast 20% bayana amount was agreed to be paid by the respondent to Sh. Parmanand and his brother at the time of execution of the agreement to sell. The respondent has submitted before Sh. Parmanand and his brother that the said receipt is merely a token receipt. There is no need to get the photocopy of the same and as and when agreement to sell would be executed after paying atleast 20%, the said token receipt would be torn. Reliance upon the said assurance Sh. Parmanand and his brother has not got the photocopy of the said token receipt. However, on the same day, a dispute arose between the parties regarding construction of the shop in the suit property as the respondent was demanding the construction of the shop early in the time and also refused to pay the bayana amount of the 20% of the total sale consideration. On the same day i.e. 27.07.2007, a stamp paper of Rs. 100/ was also purchased by the respondent himself in the name of Sh. Parmanand but the original was kept by the respondent in his possession upon which the agreement to sell was agreed to be executed only after discussion regarding the terms and conditions with full consent but both the parties could not be agreed to the terms and conditions, hence agreement to sell could not be executed. The petitioners have denied that a huge space of about 520 sq. ft. having open front of 12 feet is lying vacant on the ground floor of the property itself. In this E11/2012 Page 9/30 regard, it is submitted by the petitioners that the remaining portion is not lying vacant and same is occupied by the petitioners and Ms. Anuradha alongwith another coowner Sh. Parmanand and his family members for residential purpose. The tenanted shops is situated in front portion occupying about 70% of front portion and there is an entrance gate, bathroom and toilet adjacent to the said shops and behind the shops there are rooms of the house and there is a narrow street behind the shops i.e. back side of the property while there is a wide busy commercial road in front of the tenanted shops. Petitioners have filed photographs to show the exact location of the shops. It is submitted by the petitioners that the tenanted shop is situated on the front portion of the suit property and that is more suitable for carrying on any kind of business. The petitioners want the present tenanted shop for their business and that is more suitable for them as they are residing behind the shop. Moreover, petitioner no. 1 is an old widow lady and if the shop in question is vacated, she can comfortably carry and control the business as she is residing behind the tenanted shop.
14. Respondent has filed rejoinder and allegations leveled by the petitioners have been controverted and rebutted and the averments made in the application for leave to defend have been reiterated and reaffirmed.
15. Additional affidavit has also been filed on behalf of the respondent to the effect that Sh. Parmanand has shifted his residence at 4/28, Second Floor, W.E.A, Karol Bagh, New Delhi alongwith his family from the property bearing no. 3018/38, Beadon Pura, Karol Bagh, New Delhi and only the family of the E11/2012 Page 10/30 petitioners is residing at first floor of the property no. 3018/38, Beaden Pura, Karol Bagh, New Delhi.
16. In reply to the additional affidavit filed by the petitioners, the allegations leveled by the respondent have been denied on the ground that in the case of specific performance filed by the respondent against Sh. Parmanand, service/notice of the summons have been effected at the address of the suit property. The respondents in another petition no. E12/2012 have sent court notice to Sh. Parmanand for deposit of rent in the Court of Sh. Pritam Singh, Ld. ARC (Central) at the address of suit property and the same was duly received by Sh. Parmanand which alone is suffice to prove that Sh. Parmanand is residing in the suit property. The petitioners have also filed copy of court notice and copy of D.R. Petition.
17. I have heard the Ld. Counsel for the parties and perused the record carefully.
18. Ld. Counsel for the petitioners has relied upon "Sanjay Mehra & Ors. Vs. Sunil Malhotra & Anr.", 170 (2010) Delhi Law Times 797 Delhi High Court, "Tagore Education Society Regd. Vs. Kamla Tandon & Anr.", 161 (2009) Delhi Law Times 232 Delhi High Court, "Radha Devi Vs. Deep Naryan Mandal & Ors.", (2003) 11 SCC 759, "Navneet Lal Vs. Deepak Sawhney", 2010 (2) RCR Delhi High Court, page no. 582, "Satnam Anand & Anr. Vs. Gurbachan Singh", Ex F.A. 7/2011 decided on 17.02.2011 by E11/2012 Page 11/30 Hon'ble High Court of Delhi, "Smt. Munni Devi Vs. Manmohan Verma, (2007) 1 RCR Delhi High Court, "Ramesh Chand Vs. Uganti Devi", 157 (2009) Delhi Law Times 450 Delhi High Court, "Rajender Kumar Sharma & Ors. Vs. Leela Wati & Ors.", 155 (2008) Delhi Law Times 383 Delhi High Court, "S.S. Gokul Krishnan & Ors. Vs. State The Food Inspector, Govt. of N.C.T. of Delhi", 157 (2009) Delhi Law Times 456 Delhi High Court, "Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta", SC 80 (1999) Delhi Law Times 731 (SC), "Sudesh Kumari Soni & Anr. Vs. Parbha Khanna & Anr., 153 (2008) Delhi Law Times 652 Delhi High Court, "Shri Natha Singh Vs. Shri H.V. Nayar", All India Rent Control Journal 1983 (1), page no. 158, "Mohd. Usman Vs. Siraj Ahmed", 154 (2008) Delhi Law Times 342 Delhi High Court, "Viran Wali Vs. Kuldeep Rai Kochhar", 174 (2010) Delhi Law Times 328 Delhi High Court, "Bhagwat Prasad Sharma Vs. Pinky Aggarwal & Anr.", 2009 (107) DRJ 517 Delhi High Court, "Labhu Lal Vs. Sandhya Gupta", 173 (2010) Delhi Law Times 318 Delhi High Court, "Surinder Singh Vs. Jasbir Singh", 172 (2010) Delhi Law Times 611 Delhi High Court, "Kharati Ram Khanna & Sons Vs. Krishna Luthra", 172 (2010) Delhi Law Times 551 Delhi High Court, "Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana", SC, 2011 STPL (WEB) 879 SC and "Sunil Kapoor Vs. Himmat Singh & Ors." CM (M) No. 1215/2007 decided by Hon'ble High Court of Delhi on 26.01.2010.
19. Ld. Counsel for the respondent has relied upon "Shiv Sarup Gupta E11/2012 Page 12/30 Vs. Dr. Mahesh Chand Gupta", AIR 1999 SC 2507, (1983) 1 SCC P.301, "Inderjeet Kaur Vs. Nirpal Singh", (2001) 1 SCC 706, "Sri Ram Pasricha Vs. Jagannath & Ors.", (1976) 4 SCC 184 and AIR 2001 SC 2176, titled as "Manoj Kumar Vs. Bihari Lal (Dead) by LRs".
20. While deciding the question whether leave to defend should be granted or refused, the Court is to address itself on following issues :
(a) That the petitioner is owner of the suit premises;
(b) Purpose of letting;
(c) That the premises is required bonafide by the petitioner; and
(d) That the petitioner has no other alternative suitable accommodation in Delhi.
21. In Precision Metal & Engg. Works Vs. Prema Deva, Niranjan Deva Tayal, AIR 1982 SC 1518, it has been held that "while deciding the application for leave to contest, the controller has to confine himself to the affidavit filed by the tenant under Sub Section (4) and the reply if any. On perusing the affidavit filed by the tenant and the reply if any filed by the 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 the recovery of possession on the ground specified in clause 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."
The gist of the various decisions is that if any triable issue is raised E11/2012 Page 13/30 in the application which can not be decided unless the parties lead evidence, leave to contest should be granted. In all other cases, the leave has to be refused.
22. In (2002) 7 SCC 614 titled as Rita Lal Vs. Raj Kumar Singh, Hon'ble Supreme Court has observed as under : "If the Court is satisfied that though in the pleadings an issue is raised but that is not a triable issue then the Court is justified in refusing the leave to defend. A defence, which is practically moonshine, sham or illusory can not be held to be raising a triable issue. Else the whole purpose behind enacting a provision for granting leave to defend, and not permitting a contest unless leave was granted, would stand defeated."
Ownership
23. The contention of the respondent that the eviction petition is bad for nonjoinder of Sh. Parmanand and daughters of Late Narain Dutt as there has been no partition amongst Sh. Parmanand and LR's of Late Narain Dutt. In AIR 2002 Supreme Court 2572, titled as "Dhanna Lal Vs. Kalawatibai & Ors.", it was observed by Hon'ble Supreme Court of India that "It is well settled by atleast three decisions of this Court, namely, Sri Ram Pasricha v. Jagannath & Ors. (1976) 4 SCC 184, Kanta Goel Vs B.P. Pathan and Ors. (1977) 2 SCC 814 and Pal Singh v Sunder Singh (dead) by LRs. and Ors. (1989) 1 SCC 444 that one of the coowners can alone and in his own right file a suit for ejectment of tenant and it is no defence open to tenant to question the maintainability of the E11/2012 Page 14/30 suit on the ground that other coowners were not joined as parties to the suit. When the property forming subject matter of eviction proceedings is owned by several owners, every coowner owns every part and every bit of the joint property alongwith others and it cannot be said that he is only a part owner or a fractional owner of the property so long as the property has not been partitioned.. He can alone maintain a suit for eviction of tenant without joining the other coowners if such other coowners do not object".
24. In the present petition, the coowner namely Sh. Parmanand has also filed a eviction petition no. 12/2012 in respect of another portion (shop) in the same premises. Therefore, being guided by aforesaid authorities, the aforesaid contention of the respondent that without impleading other coowners, the present eviction petition is not maintainable is not acceptable and is rejected accordingly.
25. The respondent has also contended that no relationship of landlord and tenant exists between the parties as Sh. Parmanand and Late Narain Dutt had executed a receiptcumagreement dated 18.11.2010 and agreed to sell a shop measuring 10' X 30' with a height of 11' out of the property no. 3018/18, Hardhyan Singh Road, Beaden Pura, Karol Bagh, New Delhi, for a total sale consideration of Rs. 8,60,000/ after reconstruction thereof. They jointly received a sum of Rs. 21,000/ as earnest money from the respondent. It was also agreed that the respondent would not pay rent any longer. Accordingly, the respondent did not send rent either to Sh. Parmanand or to Sh. Narain Dutt and after his death to the petitioners. As petitioners and Sh. Parmanand did not E11/2012 Page 15/30 honour the commitment of Sh. Parmanand and Late Narain Dutt regarding sale of shop in his favour, he preferred a suit for specific performance with respect to receiptcumagreement dated 18.11.2010. In view of filing of suit for specific performance, no relationship of landlord and tenant exists between the parties and on this Ld. Counsel for the respondent has relied upon AIR 2001 S.C. 2176 titled as "Manoj Kumar Vs. Bihari Lal (dead) by LR's. Here it will be useful to reproduce paras no.5, 6 & 12 of this judgment which are as follows: "5. The case of the respondent as appears from the averments in the eviction petition is that he is the landlord of the premises in question and the appellant is his tenant. An agreement was entered between the parties on 01.11.1985 for sale of the property by the respondent to the appellant for consideration of Rs. 49,000/ out of which a sum of Rs. 45,000/ was paid by the latter to the former as part payment of consideration and the appellant was put in possession of the property. Subsequently, it transpired that due to some difficulty the sale deed could not be executed. The sum received towards consideration was returned by the respondent to the appellant. Thereafter the applicant continued to occupy the premises as a tenant w.e.f. 01.11.1993. It was the further case of the respondent that he required the premises for occupation by himself and members of his family and, therefore, an order for eviction of the tenant may be passed.
6. On receiving notice, the appellant filed the application under Section 25 (B) of the Act accompanied by an affidavit in which it was stated inter alia that on the face of even admitted facts the case pertains to a dispute E11/2012 Page 16/30 over ownership and not a dispute as regards landlord and tenant. In Paragraph 4 of the petition, it was specifically averred that the petitioner (respondent herein) has not put the respondent in possession as tenant but vide an agreement to sell after receiving full and final payment. It was alleged in Paragraph 5 of the petition that the alleged tenancy is a figment and fiction of the mind of the petitioner which does not exist at all; that nothing whatsoever has been prima facie shown that the ownership was over night turned into tenancy. It was also averred in the petition that the petitioner was trying to take fraudulent advantage of issuing two cheques to the respondent (appellant herein) by saying that it was a refund of the sale consideration. According to the appellant, there was no question of any refund of consideration. It was also alleged that the petition was false and fraudulent and there is no cause of action in favour of the petitioner.
12. Coming to the order passed by the Additional Rent Controller, as noted earlier, he proceeded on the assumption that the appellant had not denied the relationship of landlord and tenant and in fact had admitted all the ingredients for establishing a case under Section 14 (1) (e) of the Act. The impression was totally erroneous, based on a misreading and mis construction of the petition filed by the appellant seeking leave to contest. On perusal of the petition, it is clear to us that what the appellant had pleaded was that there was no relationship of landlord and tenant between the parties inasmuch as he had been put in possession of the premises on the basis of the agreement to sell the property to him and not as a tenant. Unfortunately, the E11/2012 Page 17/30 Additional Rent Controller failed to read the petition and the affidavit correctly which resulted in the misconceived idea about the case of the appellant. This misconception vitiated the entire order.............."
26. Let us discuss whether aforesaid judgment relied upon by Ld. Counsel for the respondent is applicable to the facts of present eviction petition. In the said judgment from para no.5 it is clear that respondent was landlord and appellant was tenant. The appellant (tenant) was put into the possession of property by virtue of an agreement to sell. But in the present petition, the respondent was not put into possession of tenanted premises measuring 10' X 9' by virtue of any agreement to sell. Moreover, the alleged receiptcum agreement receipt dated 18.11.2010 depicts the sale of one shop on ground floor measuring 10' X 30' situated at 3018/38, Hardhyan Singh Road, Karol Bagh, New Delhi with the condition that the shop will be handed over after the new construction. Therefore, it is quite clear that there is no agreement to sell regarding the tenanted premises which is in occupation of the tenant. The respondent has also contended that as per receiptcumagreement, it was agreed that the respondent would not pay rent any longer but receiptcumagreement dated 18.11.2010 does not reflect any agreement to the effect that the respondent would not pay the rent any longer. Therefore, I am of the considered opinion that the judgment Manoj Kuimar Vs. Bihari Lal (Dead) by Lrs. (Supra) is not applicable to the facts of the present eviction petition. Accordingly, the contention of the respondent that in view of filing of suit for specific performance, no relationship of landlord and tenant exists between the parties is rejected.
E11/2012 Page 18/30
27. The respondent has admitted that the suit property initially belonged to Late Dungar Singh and after his death same was inherited by Sh. Parmanand and Sh. Narain Dutt. Admittedly, the petitioners are LRs of Late Narain Dutt. In Rajender Kumar Sharma & Others Vs. Leelawati & Others 155 (2008) DLT 383, it has been held by Hon'ble High Court of Delhi that "landlord is not supposed to prove absolute ownership as required under Transfer of Property Act. He is required to show only that he is more than tenant." Therefore, aspect of ownership goes in favour of the petitioners.
Purpose of Letting
28. Purpose of letting has become redundant as in Satyawati Sharma Vs. Union of India 148 (2008) DLT 705 Supreme Court, it has been held that the premises let out either for residential or for commercial purposes can be got vacated by the landlord for bonafide requirements.
Availability or NonAvailability of alternative suitable accommodation in Delhi
29. The respondent has contended that the petitioners are having huge space of 520 sq. ft. having open front of 12 ft. which is lying vacant on the ground floor of the property which can very well be used by the petitioners as shown in green colour as per site plan filed by the respondent. Property No. 3018/38 is situated on Hardhyan Singh Road which has been declared as E11/2012 Page 19/30 commercial one and the vacant portion of the property can be used for commercial purposes by the petitioners. Only the family of the petitioners is residing at the first floor portion of property no. 3018/38, Beaden Pura, Karol Bagh, New Delhi. The version of the petitioners in this regard is that space of about 520 sq. ft. having open front of 12 ft. is not lying vacant on the ground floor of the property as the same is occupied by the petitioners, Ms. Anuradha alongwith another coowner Sh. Parmanand and his family members for residential purposes. The tenanted shop is situated in front portion occupying about 70% of front portion and there is an entrance gate, bathroom and toilet adjacent to the tenanted shop. Behind the shop there are rooms of the house and there is narrow street behind the shop i.e. back side of the property whereas there is a wide busy commercial road in front of the tenanted shop.
30. Ld. Counsel for the petitioners argued that from the photographs filed by the petitioners it is quite clear that the contention of the respondent that 12 ft. space on the front side adjacent to the tenanted shop is lying vacant, is wrong and the remaining portions of the property is on the back side and even if, it is assumed that there is vacant space behind the property, the same is not suitable for the petitioners for the purposes of carrying on a business.
31. I have perused the photographs filed by the petitioners and from the photographs it is quite clear that there is an entrance gate, bathroom and toilet adjacent to the tenanted shop on the front portion of the suit property and behind the shops there are rooms of the house and there is a narrow street E11/2012 Page 20/30 behind the shops i.e. back side of the property.
32. In 173 (2010) DLT 379, Delhi High Court, it has been observed by Hon'ble Delhi High Court vide para no. 25 that "If a landlord wants to start his own business in the premises owned by him, then by no stretch of imagination it can be said that the requirement of the landlord for premises in question is neither bonafide nor genuine."
33. In "Ragavendra Kumar Vs. Firm Prem Machinery & Company", AIR 2000 SC 534, it was observed by Hon'be Supreme Court that it is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter (reliance placed upon "Prativa Devi Vs. T.V. Krishnan, (1996) 5 SCC 353).
34. In AIR 2003 SC 156, it was observed that it is for the landlord to choose which one would be preferable to him or her and a tenant cannot question such preference.
35. In "Uday Shankar Upadhyay & Ors. Vs. Naveen Maheswari", 2010 (1) RCR 554, it was held by Hon'ble Supreme Court of India that: "It is well known that shops and business are usually (though not invariably) conducted on the ground floor, because the customers can reach there easily. The court cannot dictate to the landlord which floor he should use for his business; that is for the landlord himself to decide." E11/2012 Page 21/30
36. In RC. Rev. 285/2012 & C.M. 11263/2012, titled as "Sh. Gurcharan Lal Kumar Vs. Smt. Satyawati & Ors.", decided by Hon'ble High Court of Delhi on 24.04.2013 wherein vide para no.8 it was observed by Hon'ble High Court of Delhi that: "Admittedly, all these properties fall on the back portion of the disputed plot. The shop in question is on the front side facing the main road, viability and commercial success of a business being carried out from a property facing the main road cannot be equated with a proposed business to be carried out from the back portion. This is also an admitted proposition and neither party has any quarrel on this proposition."
37. Let us consider the aspect of availability or nonavailability reasonably suitable accommodation with the petitioners in the light of aforesaid judgments. Keeping in view the photographs and site plan filed by the petitioners and the respondent, it is quite clear that the tenanted premises is situated on the main road. The 12 ft. front portion as alleged by the respondent is not lying vacant as there is an entrance gate, bathroom and toilet adjacent to the tenanted shop on the front portion of the suit property. Remaining portions which are alleged as vacant are situated on the back side of the property and therefore, not suitable for the purposes of carrying on a business. In view of aforesaid judgments it can be safely said that the suitability for commercial space is to be seen on the basis of convenience of landlord and the tenant cannot dictate that the landlord that the landlord should use the portion for E11/2012 Page 22/30 commercial purposes which is situated on the back side of the tenanted property. The contention of the respondent by way of additional affidavit that Sh. Parmanand has shifted his residence at 4/28, Second Floor, W.E.A, Karol Bagh, New Delhi alongwith his family from the property bearing no. 3018/38, Beadon Pura, Karol Bagh, New Delhi and only the family of the petitioners is residing at first floor of the suit property is immaterial as the need of the petitioners is for commercial space and first floor of the property if for the sake of argument is lying vacant is not suitable for commercial need i.e. for the purposes of starting a business. Accordingly, I am of the considered opinion that petitioners have been able to show that they are not having any other reasonably suitable accommodation for their business purposes and the respondent has not been able to raise any triable issue on this aspect. Bonafide Requirement
38. The stand of the petitioners is that they require the tenanted premises bonafidely to start a business. The petitioner no.2 who is son of the petitioner no.1 is still unemployed. After the demise of Late Narain Dutt, his entire family is struggling for survival as he was only bread earner and now all the burden have been shifted to the shoulders of petitioners no.1 & 2. The petitioner no.1 is an old aged widow and she is having responsibility of marriage of her daughter Ms. Anuradha who is at the marriageable age of 30 years and she has also to settle her son who is also at marriageable age.
39. The stand of the respondent is that before the death of Sh. Narain Dutt, the petitioner no.1 was a housewife and was not doing any job/business. E11/2012 Page 23/30 She is getting a pension of Rs. 3,240/ per month while petitioner no.2 is an Estate Agent and is earning Rs. 30,000/ per month.
40. In Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta VI (1999) SLT 163 = (1999) 6 SCC 222 wherein, it was observed by Hon'ble Supreme Court of India that : "12. A perusal of Section 14 of the Act shows that the law has imposed restrictions on the recovery of possession, of any premises by landlord from a tenant notwithstanding any law or contract to the contrary. However, an order for recovery of possession is permissible on one or more of the specified ground. One such ground is the premises let for residential purposes being required bonafide by the landlord for occupation as residence for himself or for any member of his family dependent on him. What is a bonafide requirement is not defined in the Act. The words 'need' and 'require' both denote a certain degree of want with a thrust within demanding fulfilment. 'Need' or 'requirement' qualified by word 'bonafide' or 'genuine' preceding as an adjectiveis an expression often used in Rent Control Laws. 'Bonafide or genuine need' of the landlord or that the landlord 'genuinely requires' or "requires bonafide" an accommodation for occupation by or use for himself is an accepted ground for eviction and such expression is often employed by Rent Control legislation draftsman. The two expressions are interchangeable in practice and carry the same meaning."
E11/2012 Page 24/30
13. Chambers 20th Century Dictionary defines bonafide to mean "in good faith: genuine". The word 'genuine' means 'natural; not spurious; real" pure: sincere'. In Law Dictionary, Mozley and Whitley defines bonafide to mean 'good faith, without fraud or deceit'. Thus the term bonafide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by 'requires' is much more higher than in mere desire. The phrase 'required bonafide' is suggestive of legislative intent that a mere desire which is outcome of whim or fancy is not taken note of by the Rent Control Legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the court. The Judge of facts should place himself in the arm chair of the landlord and then ask the question to himself whether 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 the positive, the need is bona fide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the E11/2012 Page 25/30 court drawing an inference that the reality was to the contrary and the landlord was 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. Once the court is satisfied of the bona fides of the need of the landlord for premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the court. The court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bona fide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or two conservative or pedantic must be guarded against."
41. In "Labhu Lal Vs. Sandhya Gupta", 2011 (1) RCR (Rent) 231 (Delhi), it has been held by Hon'ble High Court of Delhi that children are very much dependent on the landlord for the purpose of setting up their business and such a requirement is a bonafide one. If the respondent wished to settle her sons and grandsons, and she required accommodation for the same, it could not be said to be malafide on her part.
E11/2012 Page 26/30
42. The right of landlord for possession of his/her property for setting up a business for his son has also been recognized by the Apex Court in "Ram Babu Aggarwal Vs. Jay Kishan Das", 2009 (2) RCR 455.
43. The moral duty of a parent to help, establish his/her son has also been recognized by the Apex Court in "Joginder Pal Singh Vs. Naval Kishore Behal", AIR 2002 SC 2256 in the following words:
"24.... Keeping in view the social or socioreligious milieu and practices prevalent in a particular section of society or a particular region, to which the landlord belongs, it may be a obligation of the landlord to settle a person closely connected with him to make him economically independent so as to support himself and/or the landlord. To discharge such obligation the landlord may require the tenancy premises and such requirement would be the requirement of landlord. If the requirement is of actual user of the premises by a person other than the landlord himself the court shall with circumspection inquire: (i) whether the requirement of such person can be considered to be requirement of the landlord, and (ii) whether there is a close interrelation or identify nexus between such person and the landlord so as to satisfy the requirement of first query. Applying the overlaid tests to the facts of the present case it is clear that the tenancy premises are required for the office of the landlord's son who is a chartered accountant. It is the moral obligation of the landlord to settle his son well in his life and to contribute his best to see him economically independent."
E11/2012 Page 27/30
44. In 2008. Rajdhani Law Reporter. 75 (SC) titled as Yadvendra Arya Vs. Mukesh Gupta, it was held by Hon'ble Supreme Court that "If owner's son is sitting idle and he is able and needs tenanted premises, then it is a bonafide need. When Court is satisfied by objective assessment, it must leave the matter to subjective assessment of owner. Another vacant shop if unsuitable is irrelevant. Landlord is the best judge of his needs. Rent Act does not confer undeserved benefits on tenants. Court must not make short sighted parochial approach. Tenant should not be given undeserved benefits and preferences to avoid unconstitutional invalidity of Rent Act. When Rent Act allows eviction on some ground, Court must not stretch or strain language to deny relief to landlord. Law is heavily loaded in favour of tenants. As landlords are also weak, feeble and humble, Courts should not hesitate to lean in their favour. When landlord seek eviction, he looses rental income and Court must not hasten to imagine it to be a ruse. Protection to tenant stands lifted as landlord really needed premises."
45. Let us see the bonafide requirement of the petitioners, keeping in view the aforesaid authorities. The respondent has not disputed that Late Narain Dutt was only bread earner of his family and his daughter Ms. Anuradha is still unmarried. It is the moral duty of the petitioners to get her married and for this purpose, a considerable amount of money is required. It is also the moral duty of the petitioner no.1 to settle her son i.e. petitioner no.2. The plea of the respondent that before the death of Sh. Narain Dutt, petitioner no.1 was a housewife and was not doing any job/business will not be a ground to doubt the E11/2012 Page 28/30 bonafide requirement of the petitioners because the struggle for survival has started after the death of Sh. Narain Dutt. On the same lines, the contention of the respondent that petitioner no.2 is an Estate Agent and is earning Rs. 30,000/ per month which has been denied by the petitioners, but assuming for the sake of argument that the son of the petitioner no.1 is so employed that itself will be no ground to doubt the bonafide requirement of the petitioners (Reliance placed upon RCR No. 306/2012, titled as "Rattan Studio Vs. Ms. Raju Rani Jain" decided by Hon'ble High Court of Delhi on 06.08.2012, para no.7).
46. Therefore, the wish of the petitioners to a start a business from the tenanted premises for their survival after demise of Sh. Narain Dutt cannot be said to be mere wish or desire. Rather, the requirement of the petitioners is bonafide and genuine.
47. In the light of the above discussion, this Court is of the view that the respondent has failed to put forth any triable issue which requires investigation or requires recording of evidence. In other words, primafacie there is nothing on record which would disentitle the petitioners of the right of immediate possession of the tenanted premises.
48. With these observations, application of the respondent under Section 25B (4) of Delhi Rent Control Act, 1958 is hereby dismissed. Accordingly, eviction order is passed in favour of the petitioners and against the respondent in respect of one shop bearing no.3018/38, Beaden Pura, Hardhyan Singh Road, Karol Bagh, New Delhi110005, measuring 8' X 10', situated on E11/2012 Page 29/30 the ground floor as shown in red colour in the siteplan attached with the petition. This order shall not be executable before expiry of six months from the date of this order. Parties to bear their own costs.
File be consigned to Record Room.
Announced in the open court (SANJEEV KUMAR SINGH )
on 30.11.2013 Administrative Civil JudgeCum
Additional Rent Controller (Central)
Delhi
E11/2012 Page 30/30
E11/2012
30.11.2013
Pr: None.
Vide separate order, application of the respondent for leave to defend is dismissed. Accordingly, eviction order is passed in favour of the petitioners and against the respondent in respect of one shop bearing no. 3018/38, Beaden Pura, Hardhyan Singh Road, Karol Bagh, New Delhi110005, measuring 8' X 10', situated on the ground floor as shown in red colour in the siteplan attached with the petition. This order shall not be executable before expiry of six months from the date of this order. Parties to bear their own costs.
File be consigned to Record Room.
(Sanjeev Kumar Singh) ACJ/ARC (Central)/Delhi 30.11.2013 E11/2012 Page 31/30