Delhi District Court
Correspondence At vs M/S Batliboi Ltd on 27 April, 2023
IN THE COURT OF SENIOR CIVIL JUDGE-CUM-RENT
CONTROLLER, SOUTH-EAST DISTRICT, SAKET COURTS,
NEW DELHI
Presided By : Ms. Deepti Devesh, DJS
RC ARC. No:5026/15
SH. KIRAN SHARMA
S/O MR. K.R. SHARMA
R/O LEVEL 8, BLOCK C, PJ 8 23,
JALAN BARAT, SECTION 8, 46050,
PETALLING JAYA, SELANGOR, MALAYSIA
HAVING PERMANENT ADDRESS AT:
N-197-A, GREATER KAILASH-I, NEW DELHI.
CORRESPONDENCE AT:
CH. NO. 511, SAKET COURT, NEW DELHI-17
...Petitioner
Versus
M/S BATLIBOI LTD.
THROUGH ITS MANAGING DIRECTOR/AUTHORIZED
PERSON
R/O H. NO. 197-A, BLOCK-N, GREATER KAILASH-I,
NEW DELHI
ALSO AT:
BHARAT HOUSE, 5TH FLOOR, 104,
BOMBAY SAMACHAR MARG,
FORT, MUMBAI-400004.
E-MAIL: [email protected]
website: www.batliboi.com ...Respondent
Judgment on petition for eviction of tenant Under Section 14 (1)
(e) read with section 25-B of the Delhi Rent Control Act, 1958
RC ARC 5026/15 KIRAN SHARMA VS. M/S BATLIBOI LTD. Page 1 of 30
DATE OF INSTITUTION : 07.04.2015
DATE OF CONCLUSION OF ARGUMENTS : 23.03.2023
DATE OF DECISION :27.04.2023
JUDGMENT
Petitioner's case:
1. Brief facts of the petitioner's case are that petitioner is claiming to be the owner/landlord of the demised premises i.e. property bearing shop no. N-197-A, Greater Kailash-1, New Delhi (hereinafter referred to as "demised premises") . The said demised premises was owned by the deceased mother of petitioner, Smt. Sumitra Devi, who had rented out one portion of the demised premises to the respondent. It is further claimed that mother of petitioner expired in the year 1991 and thereafter, the petitioner alongwith his brother and sister became owner of the demised premises. The petitioner has claimed that he has been duly authorized by way of general power of attorneys executed by the remaining co-owners to pursue the present petition on their behalf also. It is also stated that after death of mother of petitioner, the respondent illegally trespassed into the remaining portion of the demised premises also and came into possession of the entire demised premises. It is further claimed that the respondent stopped paying rent for the demised premises after 1997. It is claimed that on successive default in payment of rent, the petitioner filed a petition under Section 14 (1)(e) DRC Act in the year 1997 itself, but the petitioner and other legal heirs were residents of Malaysia, and hence, the said petition under Section 14 (1)(e) DRC Act could not be pursued diligently and the same was dismissed in default in the year 2000. Thereafter, the petitioner issued legal notice dated 06.06.2012 to RC ARC 5026/15 KIRAN SHARMA VS. M/S BATLIBOI LTD. Page 2 of 30 the respondent terminating the tenancy and seeking vacation of the demised premises. The respondent sent reply dated 12.07.2012, refusing to vacate the demised premises. Thereafter a civil suit for ejectment of the respondent from the demised premises was also filed.
It is stated that vide order dated 02.02.2015, the said civil suit was dismissed being barred by Section 50 of DRC Act. It is claimed by the petitioner that the demised premises is the only property owned by and available to the petitioner and his family members in Delhi/India. It is claimed that the petitioner and his daughter requires the demised premises for bonafide residential purpose as they want to settle in Delhi. It is further claimed that the petitioner requires the demised premises for his brother and sister and their family members also, who often visit India and have no other space for stay, apart from demised premises. Hence, the petitioner has filed the present petition for eviction of respondent from the demised premises for bonafide requirement.
Respondent's case:
2. In the written statement filed on behalf of respondent, it is stated that the petition filed by the petitioner is misconceived.
Respondent has claimed that the present petition is barred by doctrine of res judicata as the previous petition under Section 14 (1)(e) DRC Act was dismissed in default. It is further claimed that the petitioner does not have any bonafide requirement qua the demised premises as the petitioner and his family members are not even Indian citizens and are permanent residents of Malaysia. It is further claimed that the RC ARC 5026/15 KIRAN SHARMA VS. M/S BATLIBOI LTD. Page 3 of 30 petitioner and his family members are not regular visitors to Delhi as copies of passport, hotel bills etc. filed by the petitioner shows that they do not visit Delhi on a regular basis. It is further claimed that the respondent has never recognized the petitioner or alleged co-owners as landlords for the demised premises. It is claimed that the respondent continued to deposit rent till 1997 as the respondent became aware of the death of the mother of the petitioner in the year 1997 itself. It is stated that the respondent had entered into a lease agreement with the mother of the petitioner for the demised premises and after her death, the respondent has now become owner by way of adverse possession of the demised premises. It is further claimed that the petitioner wants to take possession of the demised premises only for the purpose of increasing rent as stated in legal notice dated 06.06.2012 sent by the petitioner to the respondent. It is also claimed that petitioner is owner of alternative accommodation at 42, Birbal Road, Jungpura Ext. New Delhi-110014 and thus, there is no requirement of the petitioner for the demised premises. On this basis, the respondent has prayed for dismissal of this petition.
Petitioner's Evidence:
3. In order to prove his case, petitioner examined himself as PW-1. In his examination-in-chief, he has mostly reiterated the averments made in the petition and relied upon the following documents:RC ARC 5026/15 KIRAN SHARMA VS. M/S BATLIBOI LTD. Page 4 of 30
1. Copy of no objection certificate and attorney in favour of Ex.PW1/1 petitioner (objected to GPA of Sh. Ajit Sharma as being (Colly).
unsigned, incomplete and mode of proof. 4 pages
2. Certified copy of sale deed dated 20.1.1961 (not objected to) Ex.PW1/2
3. Copy of lease deed dated 02.01.1976 (not objected to) Ex.PW1/3
4. Site plan of the property (not objected to) Ex.PW1/4
5. Copy of death certificate of late Smt. Sumitra Devi Ex.PW1/5 (objected as different document is on record, language (OSR) being Malaysian and mode of proff).
6. Copy of birth certificate of Mr. Kiran Sharma Ex.PW1/6 (not objected to) (OSR)
7. Copy of birth certificate of Dr. Ajit Sharma (not Ex.PW1/7 objected to) (OSR)
8. Copy of birth certificate of Ms. Usha Devi (not Ex.PW1/8 objected to) (OSR)
9. Copy of order dated 14.09.2000 passed by Ld. ARC Ex.PW1/9 in E-143/97 titled as Kiran Sharma Vs. Batliboi Ltd. (not objected to)
10. Copy of electricity bill filed by respondent in respect of Ex.PW1/D1 suit property (not objected to)
11. Copy of letter written by respondent No. 1 to the SHO Ex.PW1/ D2 (not objected to)
12. Copy of reply received in RTI dated 30.10.2012 Ex.PW1/10 alongwith house tax receipt (objected to as being RC ARC 5026/15 KIRAN SHARMA VS. M/S BATLIBOI LTD. Page 5 of 30 photocopy, copy of questions not annexed and property tax receipt is not being part of RTI)
13. Copy of order dated 02.02.2015 passed by Sh. Rakesh Ex.PW1/11 Pandit, Ld. ADJ-03, South-East, Saket (not objected to)
14. Copy of documents of Ms. Sarita Sharma regarding her Ex.PW1/12 LLB Degree and enrollment certificate (not objected to)
15. Copy of documents showing various visits of petitioner Ex.PW1/13 in India and hotel receipts (objected to as original are not available and mode of proof)
16. Copy of petitioner's OCI status (objected to as original Ex.PW1/14 are not available and mode of proof)
17. Copy of legal notice dated 06.06.2012 for the termination Ex.PW1/15 of deed dated 02.11.1976 (not objected to)
18. Reply dated 12.07.2012 to legal notice of petitioner Ex.PW1/16 (not objected to) RC ARC 5026/15 KIRAN SHARMA VS. M/S BATLIBOI LTD. Page 6 of 30
4. Thereafter, he was cross examined and discharged on 30.05.2022.
5. The petitioner also examined his daughter Sarita Sharma as PW-2. She has supported the averments of the petitioner in her evidentiary affidavit Ex.PW2/A and also claimed that there is bonafide requirement for the demised premises for starting her consultancy business in Delhi as a qualified lawyer. She was cross examined and discharged on 31.05.2022.
6. The petitioner also summoned record of Civil Suit bearing no. 247/14 tittled as "Kiran Sharma vs. M/s Batliboi Ltd.", Ex.PW1/11(OSR), record of statement of account for the bank account jointly in the name of mother of petitioner and brother of petitioner Ajit Sharma Ex.PW4/1(colly), record of hotel bills and hotel stay document from 14.03.2015 to 17.03.2015 and 28.05.2022 to 01.06.2022 Ex.PW5/1, Ex.PW5/2 (colly), Ex.PW5/3 and PW5/4 (colly) and record of the demised premises qua payment of property tax from the year 2015-16 to 2021-22 Mark PW6/1 (colly). All the above said witnesses producing summoned documents were cross examined and discharged on 20.07.2022 and PE was also closed.
Respondent's Evidence:
7. In order to prove its defence, respondent examined its Chief Legal Officer as RW-1. In his examination-in chief, he mostly RC ARC 5026/15 KIRAN SHARMA VS. M/S BATLIBOI LTD. Page 7 of 30 reiterated the averments made in his written statement. He relied upon the following documents:
Sr no. Particulars Ex.
1 Copy of earlier eviction petition no. Ex. RW1/1
E 143/1997
2. Copies of application for seeking Ex. RW1/2 (colly)
leave to defend rejoinder and written
submission filed by respondent in
eviction petition no. E 143/1997.
3. Copy of order dated 14.09.2000 (Already exhibited
passed in eviction petition no. as EX PW1/9)
E 143/1997. ( Already exhibited as
EX PW1/9)
4. Copies of written statements filed by Ex. RW1/4 (colly) respondent and replication filed by the petitioner in CS No. 247/2014.
5. Plaint of CS no.247/14 filed by the Ex. RW1/5 petitioner
8. Thereafter, he was cross examined and discharged on 23.12.2022 and respondent's evidence was also closed and the matter was fixed for final arguments.
Appreciation of Evidence & Finding:-
RC ARC 5026/15 KIRAN SHARMA VS. M/S BATLIBOI LTD. Page 8 of 309. Oral arguments have been advanced at length on behalf of both the parties. Written note was also filed on behalf of the respondent. Petitioner has relied upon the judgments in Kanwal Kishore vs. O.P. Diwedi, 1977 (RLR) 455, Raj Rani vs. Pushpa Devi & Anr., 116 (2005) DLT 150, Badev Singh Bajwa vs. Monish Saini (2005) 12 SCC 778, Sudesh Kumari Soni & Anr. vs. Prabha Khann & Anr., 153 (2008) DLT 652, Smt. Prativa Devi vs. T.V. Krishnan 1987(12) DR 258, T.D. Dhingra vs. Pritam Rai Khanna 48 (1992) DLT 208, M/s S.D. Hosiery Mills vs. Sanjeev Garg, 1990 (2) RCR 25, S.P. Kapoor vs. Kamal Mahavir Prasad Murarka & Ors., 97 (2002) DLT 997, Meenakshi vs. Ramesh Khanna & Anr., 60 (1995) DLT 524, Subhash Jain vs. Rajiv Sehgal, RC Rev. no. 292/2013, CM Nos. 12119/2013 & 18918/2013, Ravi Parkash Garg. Vs. Jaswant Singh Jaiswal, RC Rev. no.
44/2012 & CM No. 1879/2012, Satish Kumar Khurana vs. H.S. Bajaj, 234 (2016) Delhi Law Times 140, Tilak Raj Kapoor vs. Neelam Jain 2018 IX AD (Delhi) 693, Raghunath G. Panhale vs. Chaganlal Sundarji & CO., (1999) 8 SCC, Jain Clinic Pvt. Ltd. (DR) vs. Sudesh Kumar Jassal 2013(2) Rajdhani Law Reporter 651, Abdul Rashid vs. Nawab Ali, 292(2022) Delhi Law Times 669 and Abid-ul-Islam vs. Inder Sain Dua, Civil Appeal no. 9444 of 2016.
10. The respondent has relied upon judgments in Precision Steel & Engineering Works and Anr. vs. Prem Deva Niranjan Deva Tayal, Civil Appeal no. 209/1981, decided on 07.10.1982, RC ARC 5026/15 KIRAN SHARMA VS. M/S BATLIBOI LTD. Page 9 of 30 Bhaura Devi (Deceased) Through Lrs. vs. Mahender Kumar, Civil Revision Petition Nos. 32 & 33 of 2007, decided on 30.11.2007, Om Prakash vs. Gurdev Singh, RC Rev. 275/2014 & CM 13437/2014, decided on 20.05.2015, S.P. Chengalvaraya Naidu (Dead) by Lrs. vs. Jagannath (Dead) by Lrs. And Others, Civil appeal no. 994/1972, decided on 27.10.1993, K.D. Sharma vs. Steel Authority of India Ltd. & Ors., Civil Appeal no. 4270/2008, decided on 09.07.2008, Deena Nath vs. Pooran Lal, (2001) 5 SCC 705 decided on 11.07.2001, M.M. Quasim vs. Manoharlal Sharma & Ors., (1981) 3 SCC 36 decided on 07.04.1981, Kempaiah vs. Lingaiah (2001) 8 SCC 718, Mattu Lal vs. Radhe Lal (1974) 2 SCC 365, Freddy Fernandes vs. P.L. Mehra SAO No. 155 of 1971 and Vinay Eknath Lad vs. Chiu Mao Chen 2019 SCC Online SC 1668.
11. I have heard the counsels for both the parties and perused the record.
12. Before proceeding to decide the present petition on its own merits, the objections of the respondent recorded during evidence of the petitioner witnesses shall be decided. During evidence dated 30.05.2022 of PW-1, the counsel for respondent has objected to evidentiary affidavit Ex.PW1/A, being beyond pleadings. He also objected to documents Ex.PW1/1, Ex.PW1/5 (OSR), Ex.PW1/10 (colly), Ex.PW1/13 (colly) and Ex.PW1/14. The objection Ex. PW1/A is beyond pleadings has not been elaborated by the respondent anywhere, even no such suggestion has been put to the witness during RC ARC 5026/15 KIRAN SHARMA VS. M/S BATLIBOI LTD. Page 10 of 30 cross examination of PW-1 that he has pleaded facts in his affidavit beyond his pleadings. There is no specific objections as to which paragraphs of affidavit Ex.PW1/A are beyond pleadings. Merely objecting for the sake of objection, without further elaboration cannot be accepted and thus objection to Ex.PW1/A is dismissed. As far as objections relating Ex.PW1/1 is concerned, then the said objections of the respondents pertains to the admissibility of document Ex.PW1/1 and it is stated that the documents is incomplete, unsigned and also only a photocopy. Perusal of Ex.PW1/1 shows that the same is power of attorney by Ajit Sharma in favor of the petitioner and is duly signed also. The said document is exhibited as OSR, and therefore, even the original was produced at the time of tendering of affidavit and thus, the objection of respondent is not sustainable. Whether the said document has been duly executed or not or any reliance can be placed on the same are questions pertaining to merits of document which shall be decided at the time of adjudicating the present petition. Ex.PW1/5 has also been objected to on the ground that the language of the said document is Malaysian and only copy of the same is produced. The objection on the said document is merely an objection in theory because the said document pertains to death of mother of petitioner, which fact has not been disputed by the respondent itself. Admission of death of mother of petitioner by the respondent is sufficient proof of the said fact of death, for which Ex.PW1/5 has been produced by the petitioner. Ex.PW1/10 has been objected to on the ground that only reply of RTI has been filed and not the questions sent in RTI and property tax receipts are also relied upon, which is not part of the RTI RC ARC 5026/15 KIRAN SHARMA VS. M/S BATLIBOI LTD. Page 11 of 30 reply. It is the petitioner who has to decide which documents to produce in evidence and his wisdom in choosing to rely only upon the RTI reply and not the questions sent in RTI, cannot be questioned by the respondent in the form of objections. Furthermore, the said document Ex.PW1/10 (colly) is marked for two different documents i.e. RTI reply dated 30.10.2012 and property tax receipts. Thus, the petitioner has nowhere claimed that property tax receipt is a part of RTI reply, but both the documents have been clubbed together as perhaps the RTI reply pertains to property tax of the demised premises. Hence, objections toEx.PW1/10 is also not sustainable. Respondent has objected to Ex.PW1/13 and Ex.PW1/14 on the ground that originals have not been produced. The original of Ex.PW1/13 was summoned by the petitioner subsequently, which was produced as part of documents Ex.PW5/1 to Ex.PW5/4. Hence, objection as to non- production of original documents is not sustainable qua Ex.PW1/13. Ex.PW1/14 was not produced in the original and no such original record was also summoned by the witness and therefore, the said document Ex.PW1/14 has not been made admissible by producing the original by the petitioner. Hence, Ex.PW1/14 cannot be relied upon.
13. Subsequently, the respondent has also objected to Ex.PW4/1 (colly), Ex.PW5/1 to Ex.PW5/4 and Mark PW6/1 and the said documents were not produced by the petitioner along with his petition. Ex.PW4/1 (colly) is statement of account for joint bank account of deceased mother of petitioner and his brother Ajit Sharma. Ex.PW5/1 to Ex.PW5/4 are hotel bills and other relevant documents taken by the concerned hotel for stay of the petitioner. Mark PW6/1 RC ARC 5026/15 KIRAN SHARMA VS. M/S BATLIBOI LTD. Page 12 of 30 (colly) is property tax record of the demised premises for 2015-16 to 2021-22. Ex.PW5/1 to Ex.PW5/4 have duly been mentioned in the petition and the documents that were available with the petitioner were also filed along with petition i.e. Ex.PW1/13 (colly). Thus, it cannot be said Ex.PW5/1 to Ex.PW5/4 are new documents which could not have been produced at the time of evidence itself. Ex.PW4/1 is bank account statement, which bank account has been stated and disclosed by the petitioner in the reply to the application seeking leave to defend and in the rejoinder to the written statement of respondent as it was the bank account in which the respondent was depositing rent till 1997. Payment of rent till 1997 by the respondent is not disputed and therefore, the fact regarding receipt of rent in the said bank account, as stated in the rejoinder, has only been made to explain/deny and dispute the claim of the respondent that no legal heir of the deceased mother of the petitioner has been recognized as landlord. Thus, the document Ex. PW4/1 cannot be said to be a document in respect of any new fact not pleaded in the pleadings of the petitioner earlier and as the said document is a statement of bank account, the petitioner may not have been in possession of the said document, not being the bank account holder of the said account. Thus, objection to Ex. PW4/1 is not sustainable. Mark PW6/1 colly has been objected to on similar ground that the said document was not filed along with the petition. However, the document pertaining to property tax payments has already been filed by the petitioner along with petition i.e. Ex. PW1/10 colly. The petitioner has merely sought to supplement Ex. PW1/10 colly by summoning the property tax documents from the concerned statutory RC ARC 5026/15 KIRAN SHARMA VS. M/S BATLIBOI LTD. Page 13 of 30 authority Mark PW6/1. Furthermore, Mark PW6/1 pertains to the period 2015-2016 to 2021-2022, which is after the date of filing of the present petition in the year 2015. Thus, Mark PW6/1 obviously was not in existence at the time of institution of the present suit and is in support of documents already filed with the petition Ex. PW1/10 colly and hence, objection of respondent is not sustainable.
14. Counsel for the petitioner had also objected to documents produced in evidence by the respondent Ex. RW1/1, Ex. RW1/2 colly, Ex. RW1/4 colly and Ex. RW1/5 on the ground that the said documents are pleadings of parties in earlier cases, but certified copies of the same have not been produced. Mere non production of certified copies is not sufficient to declare the above said documents as inadmissible because all the above said documents are pleadings of the parties in previous cases, wherein the parties in the present case are the same. Thus when the petitioner is also a party in the previous cases, then the petitioner had to show that the photocopies being filed by the respondent are actually incorrect documents and certified copies would show that there are discrepancies in the photocopies of pleadings relied upon by the respondent and the actual judicial record. In absence of any such specific plea of photocopies not being photocopies of the original pleadings, objection of mere non filing of certified copies is not sustainable.
15. It is now settled position of law that in a case for eviction of tenant under Section 14 (1) (e) DRC Act, there are a few essential RC ARC 5026/15 KIRAN SHARMA VS. M/S BATLIBOI LTD. Page 14 of 30 ingredients required to be established by the petitioner landlord. The said requirements have been clearly spelled out by the Hon'ble Delhi High Court in Dalip Kumar Bakshi vs. Vivek Khurana, 2014 SCC Online, DEL 6437 that :
"in a bonafide necessity eviction petition which is filed under Section 14(1)(e) of the DRC Act, three aspects are required to be seen by the Court. Firstly, there exists a relationship of landlord and tenant between the parties and landlord is the owner of the premises; Second is that the landlord needs the premises for the bonafide use for himself and /or his family members. Thirdly, the landlord must not have an alternative suitable accommodation".
Landlord is owner of the demised premises.
16. Ownership of the demised premises has been challenged by the respondent, despite admitting that initially, respondent came into possession of demised premises as tenant of mother of petitioner. Payment of rent for the demised premises is admitted by the respondent till the year 1997. It is not disputed by the respondent that the petitioner is not the son of Sumitra Devi or a legal heir of Sumitra Devi. The respondent has not disclosed who is the landlord of the demised premises after coming to know about death of Sumitra Devi in 1997. It is also admitted fact by the respondent that previously a petition under Section 14 (1)(e) DRC Act was instituted by the petitioner in 1997 and a civil suit for recovery of possession was instituted by the petitioner in 2014. It is also not in dispute that the respondent is a company and juristic entity.
RC ARC 5026/15 KIRAN SHARMA VS. M/S BATLIBOI LTD. Page 15 of 3017. In this factual backdrop of various admissions of the respondent, the respondent has claimed ownership over the demised premises by way of adverse possession. How a juristic entity can claim ownership by way of adverse possession is not explained by the respondent. The first ingredient required to establish ownership by way of adverse possession, is actual physical possession of any property. The respondent, being a juristic entity only, is incapable of being in actual physical possession of the demised premises. Furthermore, adverse possession can be established only when the possession has been open and hostile to the actual owner. In the instant case, when previous suits/petitions have been filed by the petitioner to reclaim possession of the demised premises, how can it be claimed by the respondent that the respondent has been in possession, openly hostile to the petitioner. The petitioner has been pursuing his remedies since 1997, available under law to recover possession from the respondent. Such proactive approach of the petitioner completely belies the claim of adverse possession of the respondent.
18. Furthermore, claim of adverse possession can be used as a sword as well as a shield. If the respondent truly believes itself to be the owner of the demised premise, then why no title suit for declaration of ownership in favor of the respondent, by way of adverse possession has been preferred till date by the respondent. In this regard, reliance is placed upon the judgment of Hon'ble Supreme court in Ravinder Kaur Grewal V. Manjit Kaur in Civil Appeal No.7764 of 2014 decided on 07.08.2019.
RC ARC 5026/15 KIRAN SHARMA VS. M/S BATLIBOI LTD. Page 16 of 3019. The claim of adverse possession is also not tenable on account of categorical and clear admission of the respondent that initial possession was in the capacity of a tenant only. Once possession has been admitted to be in the capacity of a tenant, then without execution of any proper sale documents as per applicable laws, ownership cannot be claimed merely on the strength of long possession. Possession as a tenant is permissive possession only and can never be said to be hostile to the ownership of the actual owner. This is also strengthened by the fact that there is no dispute qua the petitioner being one of the legal heirs of his deceased mother Sumitra Devi. Respondent has disputed ownership claim of the petitioner on the ground that there is no Will in favor of the petitioner by Sumitra Devi for the demised premises. As the demised premises is located in India, its devolution shall also be in accordance with the laws of succession applicable in India. In India, succession is in accordance with personal laws and succession for Hindus is governed by Hindu Succession Act. The respondent has not showed by any material that Hindu Succession Act would not be applicable on the deceased mother Sumitra Devi or the petitioner. Respondent has also not produced any material during the entire trial to show why the laws of succession as applicable in India, be not applied to the demised premises. As it is not disputed that petitioner is son of Sumitra Devi, then even without any Will in his favour, he is entitled to inherit share in the demised premises as per applicable laws of succession. Having so held, it is necessary to deal with objection of the respondent qua the general power of attorney issued by the other RC ARC 5026/15 KIRAN SHARMA VS. M/S BATLIBOI LTD. Page 17 of 30 legal heirs in favor of the petitioner, at this stage itself. The petitioner has claimed to be authorized by the other legal heirs to deal with demised premises and to take all necessary steps in respect of the demised premises, by way of general power of attorneys executed in his favour by the other legal heirs. Even if it is presumed that no such general power of attorney was ever executed by the other legal heirs in favour of the petitioner, then also the maintainability of the present petition cannot be challenged. It is now well settled that an eviction petition under Section 14(1)(e) DRC Act is maintainable even by one of the legal heirs/co-owners of the demised premises and consent/authority of other legal heirs/co-owners is not necessary. Reliance is placed upon Kanta Goel vs. D.P. Pathak, 1979 (1) RCR (Rent) 485; (1977) 2 Supreme Court cases 814, Pal Singh vs. Sunder Singh 1989 (2) RCR (Rent) 331; (1989) 1 Supreme Court cases 444; Seshasyana Rao & Ors Vs. Manuri Venkatesa Rao & Ors AIR 1954 Madras 531, Sri Ram Pasricha V. Jagannath & Ors (1976) 4 SCC 184. Infact, in M/s Indian Umbrella Manufacturing Co. & Ors. vs. Bhagabandei Agarwalla (Dead) by LRs Smt. Savitri Agarwalla & Ors., AIR 2004 1321, the Hon'ble Supreme Court went a step ahead and opined that even if no prior no objection is obtained from the remaining co-sharers then also the petition is maintainable.
20. In view of the above, it is clear that being son of Sumitra Devi, the petitioner has inherited co-ownership in the demised premises and is entitled to pursue the present petition under Section 14(1)(e) DRC Act.
RC ARC 5026/15 KIRAN SHARMA VS. M/S BATLIBOI LTD. Page 18 of 3021. Even from the cross examination of RW-1, it is clearly coming on record that the respondent was never in hostile possession of the demised premises, after death of mother of petitioner. In his cross examination dated 14.12.2022, RW-1 has admitted one electricity bill for demised premises Ex.PW1/D1, which is in the name of respondent. He further stated that he was not aware if any permission/NOC was taken prior to obtaining electricity connection as evidenced by Ex.PW1/D1. Thereafter, he goes on to state that in general course the general manager of respondent would have asked for such permission/NOC from the landlord. He has deposed:
"I do not know if the respondent company had taken permission/NOC from land lady or her legal heirs prior to taking electricity connection at the demised premises as per energization date of 19.06.2015 in Ex.PW1/D1. In usual course the general manager of the respondent company would have asked for permission/NOC from the landlord".
22. In view of this testimony of RW-1, it is clear that some permission/NOC must have been sought from the landlord in the year 2015 by the respondent. If respondent is owner by way of adverse possession, then there would have been no requirement of seeking any permission/NOC. Furthermore, despite claiming that in usual course such permission/NOC would have been taken, the respondent has RC ARC 5026/15 KIRAN SHARMA VS. M/S BATLIBOI LTD. Page 19 of 30 failed to disclose the name of the landlord from whom such permission/NOC was sought.
23. It is admitted case of the respondent that there is no ownership document in favour of the respondent for the demised premises. On the other hand, the petitioner has produced the ownership record in favour of his deceased mother, lease agreement between deceased mother and the respondent, admission of the fact that petitioner is son of the deceased mother who was the previous owner of the demised premises, are sufficient to establish a better title in favour of the petitioner than the respondent. It is well settled that in a petition under Section 14(1)(e) DRC Act, the ownership of demised premises is not to be examined as in a title suit. Landlord merely has to show a better title to the demised premises to seek eviction of the respondent. Reliance is placed upon Dr. Jain Clinic Pvt. Ltd. Vs. Sudesh Kumar Dass in RC Rev. No. 136/12, decided on 22.08.2013 (Delhi HC), Shanti Sharma Vs. Smt. Ved Prabha [AIR 1987 SC 2028], Ramesh Chand Vs. Uganti Devi reported as 157 (2009) DLT 450, Sheela and ors Vs. Firm Prahlad Rai Prem Parkash, (2002) 3 SCC 375 and Sushil Kanta Chakarvarty Vs. Rajeshwar Kumar, 79 (1999) DLT 210.
Landlord Tenant Relationship:
24. As already noted above, the respondent has admitted being a tenant in the demised premises and has also admitted making RC ARC 5026/15 KIRAN SHARMA VS. M/S BATLIBOI LTD. Page 20 of 30 payment of rent till 1997 in its written statement. Petitioner has filed lease agreement Ex. PW1/3, which has not been disputed by the respondent. In fact, the respondent has admitted being a tenant only in one portion of the demised premises as another portion was retained by the deceased mother of the petitioner for her own use. Same is admitted by the respondent witness in his cross examination. He has further admitted in his cross examination that the portion of the demised premises retained by the deceased mother of the petitioner is also now in possession of the respondent. Thus, the respondent is presently in possession of the entire demised premises. In view of the fact that admission qua landlord tenant relationship between the deceased mother of petitioner and respondent, it is now not open to the respondent to deny the landlord tenant relationship between the respondent and the petitioner presently. Furthermore, it is also admitted by the respondent that the rent was paid till 1997, much after death of mother of petitioner in 1991. The petitioner has duly proved the bank account statement, in which rent was stated to have been deposited by the respondent till 1997. The said document also establishes that the said bank account was a joint bank account in the name of brother of petitioner Ajit Sharma and deceased mother of petitioner. Although, it is denied by the respondent that the respondent was aware of the said bank account being a joint bank account, but same is irrelevant as it is not only deposit of rent in a joint bank account that establishes landlord tenant relationship but also the fact that legal heirs of the deceased mother Sumitra Devi has not been disputed by the respondent anywhere. As already noted above, the RC ARC 5026/15 KIRAN SHARMA VS. M/S BATLIBOI LTD. Page 21 of 30 applicable laws of succession will apply to the demised premises also and thus, the sons and daughter of the deceased mother Sumitra Devi have inherited the demised premises and also attained the status of landlord qua the respondent.
Bonafide Requirement and availability of alternative accommodation :
25. One of the contentions raised by the respondent is that the petitioner has an alternative accommodation available in the form of one property at 42, Birbal Road, Jangpura Extension, New Delhi. It has been claimed by the respondent that petitioner has been using the said property and therefore, has an alternate accommodation available for their use in Delhi. The same is disputed and denied by the petitioner who has claimed that except for demised premises, the petitioner and his family members do not have any other property in Delhi. The petitioner has explained that the said property no. 42 was owned by some other person known to the petitioner and he has consented to allow the petitioner to use the said property as a correspondence address only. In cross-examination of PW1 also, this fact has been duly explained by PW1. He has deposed "... . and one of my friends was living at 42, Birbal road and therefore, with his permission I had used the said address for my correspondence in India. (VOL. I authorized my advocate to search from property records to establish that I am not owner of 42, Birbal road at any point of RC ARC 5026/15 KIRAN SHARMA VS. M/S BATLIBOI LTD. Page 22 of 30 time). My advocate never found any document in my name as owner of 42, Birbal Road, New Delhi".
26. On the other hand, in cross-examination of respondent witness, it has clearly come on record that the respondent never even bothered to find out about ownership of said property no. 42. RW1 has deposed " I do not know in whose name the property bearing no. 42, Birbal Road, Jangpura Extension, New Delhi-14 is registered. My knowledge regarding this property has been derived from the pleadings filed by the petitioner but I cannot specify in which pleading has this property been mentioned by the petitioner. I cannot produce any document to show property bearing no. 42, Birbal Road, Janpura Extension, New Delhi-14 belongs to the petitioner or their family members.....The respondent company did not carry out any documents search for the said property before any authority. I cannot say if any other alternative property in Delhi is available to the petitioner..... I have not made any online search regarding ownership of property bearing no. 40 & 42, Birbal Road, Jangpura Extension, New Delhi".
27. In light of above testimonies of PW1 and RW1, it is clearly established on record that petitioner has nothing to do with property no. 42.
28. The respondent has made a bald averment with respect to ownership of property no. 42. No document has been produced to RC ARC 5026/15 KIRAN SHARMA VS. M/S BATLIBOI LTD. Page 23 of 30 substantiate the claim that an alternative accommodation is available to the petitioner. It is now well settled that respondent cannot resist his eviction only on allegations made in the pleadings, but only if some cogent material is also produced by the respondent to show that he has material to non suit the landlord. In this regard, reliance is placed upon the judgment of Baldev Singh Bajwa v. Monish Saini (2005) 12 SCC 778. Reliance is also placed upon the judgments of Hon'ble Delhi High Court in Ram Swaroop v. Viney Kumar Mahajan dated 24 th July, 2017 in RC Rev. No. 112/2016 and Lalta Prasad Gupta v. Sita Ram dated 2nd August, 2017 in RC Rev. No. 352/2017. When the tenant does not produce any document at all before the Court on the basis whereof there is any chance of the tenant proving what he has stated about availability of an alternative accommodation, the only inference is that the facts disclosed are not capable of being proved and/or not capable of dis-entitling the landlord from obtaining an order of eviction under Section 14 (1) (e) of the Rent Act.
29. The respondent has also claimed that there is no bonafide requirement of the petitioner or his family members for the demised premises. It has been claimed that the bonafide requirement of the petitioner is projected to be the requirement for daughter of the petitioner to start her business as a qualified lawyer in India. It has been argued that the daughter of petitioner may be qualified as a lawyer to practice in Malaysia but whether her educational qualification is recognized for practicing as an advocate in India or RC ARC 5026/15 KIRAN SHARMA VS. M/S BATLIBOI LTD. Page 24 of 30 not, has not been stated anywhere in the petition. It has been claimed that lawyers having foreign degrees are permitted to practice only for limited purpose and therefore the alleged bonafide requirement is not a true statement made by the petitioner.
30. In the present petition, the bonafide requirement stated by the petitioner is not in respect of his daughter's requirement for a place to start her business in India. As the petition was instituted in the year 2015, it is possible that daughter of petitioner became qualified during pendency of the present petition and her requirement for the demised premises also arose during pendency of this petition, but the bonafide requirement, which is to be adjudicated upon is not the bonafide requirement of daughter of petitioner, rather the bonafide requirement as disclosed in the petition filed in the year 2015. In the present petition, the bonafide requirement disclosed by the petitioner is the requirement for a residential accommodation for the petitioner and his daughter in Delhi/India as they want to settle in Delhi. Further, the bonafide requirement claimed is on behalf of the brother and sister of the petitioner and their family members who require a place to stay when they visit India. It is on these grounds of bonafide requirement, that the present petition is to be tested.
31. The respondent has claimed that the petitioner and his family members are all citizens of Malaysia and therefore do not have any bonafide requirement of the demised premises. Citizenship of another country does not bar any person from becoming owner RC ARC 5026/15 KIRAN SHARMA VS. M/S BATLIBOI LTD. Page 25 of 30 of any property in India or enjoying lawful possession of any property in India. Hence, the citizenship of the petitioner and his family members is an irrelevant consideration to adjudge the bonafide requirement for demised premises. It has been categorically stated in the petition itself that the petitioner and his daughter want to settle in Delhi. It is claimed "that the petitioner has no other residential accommodation in India/Delhi except the suit property. The petitioner and his daughter namely Ms. Savita want to settle in Delhi and thus the petitioner requires the suit premises for his and his family members bonafide residential use".
32. This particular proposition of the petitioner that he and his daughter want to settle in Delhi, has not been challenged by the respondent anywhere during trial. The respondent has not produced any material to show that the claim of the petitioner that he intends to shift along with his daughter to Delhi is not a genuine claim. Even in cross-examination of petitioner and his daughter i.e. PW1 & PW2, the respondent has not been able to establish that they do not intend to shift to Delhi and reside at the demised premises. As already noted above, availability of alternative accommodation has not been established by the respondent. Thus, the desire of the petitioner and his daughter to shift to Delhi is practically possible only if demised premises is vacated by the respondent. Furthermore, it is also the claim of respondent that legal notice dated 06.06.2012 issued by the petitioner clearly establishes his intention to evict the respondent for the purpose of increasing rent for the demised premises. This has also RC ARC 5026/15 KIRAN SHARMA VS. M/S BATLIBOI LTD. Page 26 of 30 been put to the petitioner in his cross-examination and he has duly explained the demand for increased rate of rent in legal notice dated 06.06.2012. he has categorically stated that as shifting from Malaysia to Delhi would have approximately taken time of one year, therefore, the respondent was given the choice to renew tenancy at an increased rate of rent. He has deposed " Fresh tenancy at Rs. 1 lac was offered to the respondent only because it was not practical for me and my family to immediately shift from Malaysia to the suit property and keeping in mind the time required for shifting i.e. approximately one year, fresh tenancy for that period was offered to the respondent. I cannot say now if approximately period of one year would still be required as on date to shift from Malaysia to the suit property. VOL. In case I get possession, I will make full efforts to shift at the earliest".
33. The above testimony is clear and categorical about the bonafide requirement of the petitioner for the demised premises. Additionally, the respondent has the protection under Section 19 of DRC Act. In case, the petitioner does not utilize the demised premises for the purpose of his and his daughter's residence, then the respondent can seek restoration of possession. In this regard, reliance is placed upon the judgment of Hon'ble Supreme Court of India in Baldev Singh Bajwa v. Monish Saini (2005) 12 SCC 778.
34. It has been also claimed by the respondent that the petitioner or his family members are not regular visitors to Delhi as RC ARC 5026/15 KIRAN SHARMA VS. M/S BATLIBOI LTD. Page 27 of 30 claimed in the petition and therefore, the bonafide requirement for the demised premises is an artificial requirement. The respondent has claimed that copies of hotel bills and passport of the petitioner clearly shows that the petitioner is an infrequent visitor to Delhi and such irregular visits does not merit evicting the respondent from the demised premises, who is a protected tenant.
35. As already noted above, the main bonafide requirement disclosed by the petitioner is for his and his daughter's residence in the demised premises as they intend to shift to Delhi. Hence prior to their actual shifting to Delhi, the regularity of their visits to Delhi does not negate their bonafide requirement for a residential accommodation in Delhi. Furthermore, it cannot be said that the petitioner or his family members would have anticipated their bonafide requirement for the demised premises, that arose in the year 2015, prior to 2015 and thus would have saved evidence of their regular visits like hotel bills etc. to be used in petition of this nature. Furthermore, it is admitted by the respondent that one portion of the demised premises was retained for use of deceased mother of the petitioner. In cross examination of PW-1 he has categorically stated that he used to stay in that portion of the demised premises during his visits to Delhi from 1976 to 1991. Only thereafter, did the need arise for hotel accommodations as the respondent trespassed into that portion of the demised premises also. Hence, even if it is assumed to be correct that the petitioner and his family members are mere irregular visitors to Delhi, it does not negate the bonafide requirement RC ARC 5026/15 KIRAN SHARMA VS. M/S BATLIBOI LTD. Page 28 of 30 for the demised premises for the petitioner and his family to shift their residential base from Malaysia to Delhi.
36. Moreover, the tenant is not entitled to weigh the bonafide requirement of petitioner against his own need for the demised premises. It is upon the discretion of the petitioner to use all his properties in a manner as deemed fit by him. Thus, the respondent cannot question the propriety of the petitioner in intending to shift his residential base from Malaysia to Delhi, despite being Malaysian citizens. In view of the above, the respondent has failed to establish that the bonafide requirement stated in the present petition is not a genuine bonafide requirement.
37. It is pertinent to mention here that no doubt the respondent is in possession of the demised premises for a long period of time, and an eviction order will cause inconvenience to the respondent However, it has been categorically held in the Judgment of Hon'ble Supreme Court of India in Mohd. Ayub Vs. Mukesh Chand, 2012(2) SCC, 155 that any order of eviction is likely to cause hardship to the tenant who is being asked to move out of the premises, but depriving any person from occupying his own premises, is likely to result in more hardship. Thus, the respondent might be worthy of sympathy, but that does not raise any triable issue in his favour.
38. In view of the above discussion, the present petition for eviction of respondent from the demised premises under Section 14(1)(e) DRC Act, is hereby allowed. However, the respondent RC ARC 5026/15 KIRAN SHARMA VS. M/S BATLIBOI LTD. Page 29 of 30 shall be entitled to statutory time period of six months from date of present order to hand over vacant and peaceful possession of the demised premises to the petitioner.
39. File be consigned to record room, after due compliance.
DEEPTI Digitally signed by
DEEPTI DEVESH
Typed directly on court computer DEVESH
Date: 2023.04.28
14:40:26 +0530
and Announced in the Open Court (Deepti Devesh)
on 27.04.2023 Senior Civil Judge-cum-Rent Controller
South-East, Saket Courts, New Delhi
RC ARC 5026/15 KIRAN SHARMA VS. M/S BATLIBOI LTD. Page 30 of 30