Delhi District Court
Hari Shankar Tanwar vs Anwar Hussain on 16 August, 2014
Page no. 1 of 20
IN THE COURT OF SH. SUMEDH KUMAR SETHI
ACJ-cum-ARC-cum-CCJ (WEST) THC, DELHI
UID No. 02401C0538522013
E No.63/2013 U/s 14(1)(e) of DRC Act
Date of institution: 21.10.2013
Date of Order: 16.08.2014
Hari Shankar Tanwar
S/o Late Sh. Har Narayan
R/o WZ-406, Basai Darapur,
New Delhi-110015 ....... Petitioner
Versus
1. Anwar Hussain
S/o Late Sh. Zahid Hussain
R/o WZ-485, Basai Darapur,
New Delhi-110015
2. Adil Hussain
S/o Late Sh. Zahid Hussain
R/o WZ-485, Basai Darapur,
New Delhi-110015
3. Sajid Hussain
S/o Late Sh. Zahid Hussain
R/o WZ-485, Basai Darapur,
New Delhi-110015 ....Respondents
Order deciding Leave to Defend in Eviction petition
U/sec. 14(1)(e) r/w Section 25-B of DRC Act, 1958
1)Vide this order the Court shall dispose of the application U/s 25-B (4 & 5) of DRC
Act of the respondents seeking leave to defend the eviction petition, filed on
13.11.2013.
2)The eviction petition U/sec. 14(1)(e) Section 25-B of the Delhi Rent Control Act,
1958 (hereinafter referred to as DRC Act) was filed by the petitioner against the
respondents on 21.10.2013.
FACTS
3)The averments made in the petition are that:-
E. No. 63/2013 Hari Shankar Vs Anwar Hussain and Others Page no. 2 of 20 3.1 One shop measuring 9ft X 9ft., facing road, situated at the ground floor of the property No. WZ-485/1H, Basai Darapur, New Delhi-110015. (herein after called tenanted premises/shop in question), as shown in red colour in the site plan, was let out by the late father of the petitioner Sh. Har Narain to the father of the respondents about 30 years ago and presently the rate of rent is Rs.1200/- per month exclusive of other charges.
3.2 Initially the shop in question was let out to the respondents' father.
However, after his death, the respondents inherited the tenancy. Presently, only respondent no. 1 is occupying the shop.
3.3 The father of the petitioner died on 18th May 2010 leaving behind 2 sons and 6 daughters, namely Hari Shankar Tanwar (Petitioner), Sant Kumar Tanwar, Satya Wati, Krishna Kumari, Kanta, Premvati, Manju and Shanta as his legal heirs.
3.4 After the death of the father of petitioner, the petitioner being the co- owner of the property started looking after and acting as the landlord of the properties left behind by his deceased father, which are as under:
i.WZ-406, Basai Darapur, New Delhi-110015, measuring about 144 sq. yards.
ii.WZ-409, Basai Darapur, New Delhi-110015, measuring about 50 sq. yards.
iii.WZ-485/1H, Basai Darapur, New Delhi-110015, measuring about 84.5 sq. yards.
3.5 Property no. WZ-406, Basai Darapur, New Delhi-110015 is purely residential property and situated in a 4ft. wide gali, in the back side of the property of the uncle of the petitioner namely Sh. Ved Prakash, consisting of 4 rooms, kitchen and toilet on the ground floor and 4 rooms on the first floor.
The said residential property is in occupation of the petitioner for his/ his family's residence.
3.6 Property WZ-409, Basai Darapur, New Delhi-110015 is also situated in a gali and consisting of 4 small shops in the ground floor and 3 small residential E. No. 63/2013 Hari Shankar Vs Anwar Hussain and Others Page no. 3 of 20 rooms on the first floor. The said shops are in possession of old tenants except one shop, which is in possession of wife of the petitioner namely Smt. Rekha, who is running a small general store (kirayana shop) in the said shop for the last about 8-9 years for the livelihood of her family, as the petitioner is a Govt. employee, working in DTC. The rooms on the first floor are also in possession of old tenants.
3.7 Property no. WZ-485/1H, Basai Darapur, New Delhi is situated on the main road leading to the village Basai Darapur. It consists of 3 small shops on the ground floor on the main road (commercial road), a small shop/ khoka in the back of the shop of the tenant Nek Mohammad and a room in the back side of shops, situated in the 8ft. wide gali and a tin shed on the first floor of the property. The said 3 shops are in the possession of tenant Vijay Kumar, the present respondents and the tenant Nek Mohammad respectively.
3.8 The petitioner is the landlord/ owner of the above mentioned properties and he used to collect the rent from the respondents/ tenants and used to issue rent receipts to them.
3.9 The family of the petitioner is consisting of his wife, married daughter, unmarried son Gaurav aged about 24 years and an unmarried daughter. The son of the petitioner is 12th pass and unemployed. The petitioner has received several marriage proposals of his son but the parents of girls step back due to unemployment of the son of the petitioner.
3.10 The tenanted shop is required by the petitioner for employment of his son. The petitioner wants to get started/ open a business of "hardware and sanitary" for his son. In fact, the petitioner requires atleast two shops, one for shop purpose and one for storing the goods of the business for his son. Since the shop in question is about 9ft. X 9ft. only, hence the petitioner is filing eviction petition against another tenant Nek Mohammad who has occupied the shop adjacent to the shop in question. The son of the petitioner will use the shop in question as his shop and the adjacent one for storing goods.
3.11 The shop in question is situated at the main road leading to Basai Darapur and the said commercial road is fit and suitable for the said business E. No. 63/2013 Hari Shankar Vs Anwar Hussain and Others Page no. 4 of 20 of his son.
3.12 The petitioner does not have any other shop or suitable accommodation available with him for the business of his son, except the said shop.
3.13 The respondent is habitual defaulter in payment of rent and he has not paid the arrears of the rent since 07/04/2013 despite repeated requests and demands.
4)The respondents have filed application for leave to defend along with affidavit wherein they admitted the following facts:
4.1 That the tenanted premises is a shop rented out to the respondents' father by the petitioner's father since the year 1977 and since then the said shop is being used for commercial purpose.1 4.2 That after the death of the petitioner's father on 18/05/2010, the respondents used to pay the rent to the petitioner.2 4.3 That the petitioner is not the exclusive owner of the said shop.3 4.4 That a kirayana shop is being run in property no. WZ-409, Basai Darapur, Delhi since a long time.4 4.5 The size of the shop in question is 9ft X 9ft.5 4.6 The rate of rent for the shop in question is Rs.1400/- per month.6 4.7 That shop adjacent to the shop in question was let out to the tenant Vijay Kumar about 3-4 years ago.7
5)Respondents have raised certain defenses in the application for leave to defend and the same are as under:
5.1 That the petitioner is not the owner of the premises in question as no 1 Para 6 of the application under consideration.
2 Para 6 of the application under consideration.
3 Para 6 of the application under consideration.
4 Para 6 of the application under consideration.
5 Para 13 of the application under consideration.
6 Para 9 and 14 of the application under consideration. Although the petitioner has stated the rent to be Rs.1200/-, he has filed the receipt of rent for Rs.1400/- on record. The respondents have also made reference to the said receipt to show that the rate of rent is in fact Rs.1400/- 7 Para 14 of the application under consideration.
E. No. 63/2013 Hari Shankar Vs Anwar Hussain and Others Page no. 5 of 20 partition has taken place between the legal heirs of Late sh. Har Narain. Even the electricity connection in said property is in the name of the Petitioner's brother namely Sant Kumar.
5.2 That the petition has been filed by the present petitioner alone and not the other legal heirs who have also started demanding rent from the respondents. Hence, the same is not maintainable.
5.3 That the petitioner has numerous other properties and does not require the shop in question.
5.4 That the shop in question is only a small shop and cannot be used for the business sought to be started.
5.5 That the kirayana shop being run in property no. WZ-409, Basai Darapur, Delhi since a long time is being run by the petitioner's son and not by the petitioner's wife. As such the petitioner's son is not unemployed.
5.6 The petitioner has not mentioned in the entire petition that his son is dependent upon him and as such the petition is not maintainable.
5.7 The site plan filed by the petitioner is not correct and the true site plan has been filed by the respondent.
5.8 That the petitioner has not mentioned the correct rate of rent in the petition. It has been stated by the petitioner that the rate of rent is Rs.1200 per month whereas the same is Rs.1400 per month. Reference has also been made by the respondents to the receipt of Rs.1400 filed by the petitioner on record.
5.9 The said shop is the sole source of earning for the respondents.
5.10 That the requirement of the petitioner is not genuine as the petitioner has let out the shop adjacent to the shop in question only 3-4 years ago to tenant Vijay Kumar.
5.11 That the petition has only been filed so that the said shop can be re-let after eviction at a higher rate of rent.
6) The petitioner has filed a reply to the application for Leave to Defend along with counter affidavit and in the counter affidavit the petitioner has denied the defences E. No. 63/2013 Hari Shankar Vs Anwar Hussain and Others Page no. 6 of 20 taken by the respondents. The petitioner further submitted as under:
6.1 That the kirayana shop being run in property no. WZ-409, Basai Darapur, Delhi since a long time is being run by the petitioner's wife and not by the petitioner's son. As such the petitioner's son is unemployed and wholly dependent on him.
6.2 That the adjacent shop was let out to tenant Vijay Kumar long back. At that time, the petitioner's son was studying and as the requirement had not arisen at that time.
7) Rejoinder to the reply to the application was filed by the respondent wherein respondents denied all the contents of the reply and reiterated the defenses taken in application for leave to defend.
8) Arguments were heard on the application under consideration on behalf of both the parties. Material on record has been perused. Submissions considered.
REQUIRMENTS
9) In order to succeed in a petition for eviction filed under section 14(1)(e) of the Delhi Rent Control Act the petitioner must establish that:
i.He is the owner and landlord in respect of the tenanted premises. ii.That he requires the premises bonafide for himself or for any member of his family dependent upon him.
iii.That he has no other reasonably suitable accommodation
10) The scope of the section has been enlarged in view of the judgment of the Hon'ble Supreme Court titled as Satyawati Sharma v. Union of India: AIR 2008 SUPREME COURT 3148 so as to include premises let out for commercial purposes also within the scope and ambit of a petition under section 14(1)(e) of DRC Act. The defences which are taken by respondents are discussed below and the same are as under:-
DEFENCES
11) Petitioner is not the exclusive owner of the tenanted premises & the petition E. No. 63/2013 Hari Shankar Vs Anwar Hussain and Others Page no. 7 of 20 has not been filed by other legal heirs:
11.1 The present litigation is for eviction of an admitted tenant and as such the Court is not required to give a finding as regards absolute ownership of the property. In rent control legislation, the landlord can be said to be owner, if he is entitled in his own legal right, as distinguished from for and on behalf of someone else, to evict the tenant and then to retain, control, hold and use the premises for himself.
11.2 In M.M.Quasim Vs Manohar Lal Sharma: (1981) 3 SCC 36 it was observed by the Apex Court that an "owner-landlord" can seek eviction on the ground of his personal requirement is one who has a right against the whole world to occupy the building in his own right and exclude anyone holding a title lesser than his own.
11.3 It was observed in Shanti Sharma Vs Smt Ved Prabha: AIR 1987 SC 2028 that the term "owner" has to be understood in the context of the background of the law and what is contemplated in the scheme of the Act. The Act has been enacted for protection of the tenants. But, at the same time, it has provided that the landlord under certain circumstances will be entitled to eviction and bona fide requirement is one of such grounds. Ordinarily, the concept of the ownership may be absolute ownership in the land as well as of the structure standing thereon. But in the modern context, where all lands belong to the State, the persons who hold properties will only be lessees or the persons holding the land on some term from the Government or the authorities constituted by the State. The legislature, when it used the term "owner" in s.
14(1)(e), did not think of ownership as absolute ownership. The meaning of the term "owner" is vis-a-vis the tenant i.e. the owner should be something more than the tenant. In cases where the plot of land is taken on lease, the structure is built by the landlord and he is the owner of the structure.
11.4 In the present case the defence raised by the respondents as regards ownership is not tenable even prima facie for the simple reasons that the respondents have admitted that their father was inducted as tenant by the Sh.
E. No. 63/2013 Hari Shankar Vs Anwar Hussain and Others Page no. 8 of 20 Har Narain (late father of petitioner) in the property in 1977.8 After Har Narain's death the respondents (who obviously inherited the tenancy after their father's death) started making payment of rent to the petitioner9, by virtue of which, the respondents admitted the petitioner as landlord and now when eviction petition has been filed by petitioner, they cannot challenge/deny the relationship between the parties. Provisions of Section 116 of the Evidence Act are also attracted; the tenant is stopped from questioning the ownership or title of the landlord. The respondents have not stated that if the petitioner landlord is not the owner of the tenanted premises, then, who is.
11.5 Even if it is the case of the respondents that the petitioner does not have exclusive ownership of the suit premises it amounts to indirectly admitting that the petitioner is the owner of the premises but not exclusive owner of the premises. Thus, the petitioner is having a right against the whole world to occupy the tenanted premises in his own right and exclude anyone holding a title lesser than his own. Consequently, he is entitled to file the present petition. Further, it is not essential that the eviction petition is to be filed by all the co-owners of the property. As a co-owner petitioner can file eviction petition without impleading other co-owners. Reliance is placed on judgments Kanta Udharam Jagasia Vs C.K.S Rao: (1998)1 SCC 403; Surender Kumar Jhamb Vs Om Prakash Shokeen: 2000(2) RCR 540; Mohinder Prasad Jain Vs Manohar Lal Jain: (2006) 2 SCC 724; India Umbrella Manufacturing Co Vs Bhagadandei Aggarwal: (2004) 3 SCC 178; Sri Ram Pasricha Vs Jagannath: (1976)4 SCC 184.
11.6 Thus, this defence raised by the respondent is a vague and sham defence and it does not raise any triable issue.
12) Need not Bonafide as the petitioner has numerous other properties and does not require the shop in question:
12.1 It has been observed in judgment titled as Rajender Kumar Sharma & Ors. Vs. Leela Wati & Ors.: 155 (2008) DLT 383 by Hon'ble Delhi High Court as under:
8 Para 6 of the application under consideration.
9 Para 6 of the application under consideration.
E. No. 63/2013 Hari Shankar Vs Anwar Hussain and Others Page no. 9 of 20 "11)....Thus, the affidavit filed by the tenant was shown to be false by the landlady on the basis of documents placed by it. No Rent Con- troller is supposed to grant leave to the tenant on the basis of a false affidavit and false averments and assertions. Such affidavit should be outrightly rejected by the Rent Controller. Only those averments in the affidavit are to be considered by the Rent Controller which have same substance in it and are supported by some material. Mere as- sertions made by a tenant in respect of landlord's ownership of other buildings and in respect of alternate accommodation are not to be considered sufficient for grant of leave to defend."
12.2 In their application, the respondents have merely stated that the petitioner has not mentioned about the other properties which he is having at different places. There is not a single averment in the application about what all alternative and suitable accommodations are available with the petitioner for the purpose of his alleged requirement.10 On the other hand the petitioner has come out clean and listed out all the properties belonging to him in his petition alongwith their use and suitability qua his requirement to aver that only the shop in question caters to his bonafide requirement.
12.3 Accordingly, this defence raised by the respondent as regards bonafide requirement and as regards alternate accommodation is a sham defence and it does not raise any triable issue
13)Shop in question is only a small shop and cannot be used for the business sought to be started:
13.1 In the judgment titled as Ragavendra Kumar v. Firm Prem Machinary:
AIR 2000 SUPREME COURT 534 the Hon'ble Supreme Court held 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. Moreover, as has been held in a plethora of cases, neither the Court nor the tenant cannot dictate terms to the landlord regarding the suitability of the premises or even the extent of the business proposed to be carried out.
10 Para 8 of the application under consideration.
E. No. 63/2013 Hari Shankar Vs Anwar Hussain and Others Page no. 10 of 20 13.2 In the present case, it is not for the respondents to judge the suitability of the shop in question with respect to the requirement of the petitioner for his son's hardware and sanitary business and it is hereby held that the defence being deliberated upon does not raise any triable issue.
14)Petitioner's son is running a kirayana shop so the petitioner's son is not unemployed & the petitioner has not mentioned in his petition that his son is dependent upon him:
14.1 In a recent judgment it has been observed by our own High Court that it is the moral duty of a father to help establish his son. The relevant portion of the judgment titled Pawan Kumar Vs Sant Lal R.C.Rev 303/2012 decided on 6.8.2012 by Honorable Mr Justice M.L.Mehta is as under:-
"16. Further, submissions of learned counsel for the petitioner that Dr. Ankit was not financially dependent upon his father and so the tenanted premises could not be got vacated for his requirement, is also only noted for rejection. It is trite that the landlord is entitled to help his son, establish his business. In Labhu Lal Vs. Sandhya Gupta 2011(1) RCR,(Rent) 231 (Delhi), it has been held by this Court that the children are very much dependant on the landlord for the purpose of setting up their business and such a requirement is a bonafide one. The right of the landlord for possession of his property for setting up a business for his son has been also recognized by the Apex Court in Ram Babu Aggarwal Vs. Jay Kishan Das 2009(2) RCR
455. The moral duty of a father to help establish his son was also 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 socio-religious milieu and practices prevalent in a particular section of society or a particular region, to which the landlord belongs, it may be 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 the landlord. If the requirement is of actual user of the premises by a person E. No. 63/2013 Hari Shankar Vs Anwar Hussain and Others Page no. 11 of 20 other than the landlord himself the Court shall with circumspection inquire: (i) whether the requirement of such person can be considered to be the requirement of the landlord, and (ii) whether there is a close inter-relation or identify nexus between such person and the landlord so as to satisfy the requirement of the 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."
14.2 In the present case, it has been clearly stated by the petitioner in his petition that the kirayana shop referred to as being run by the petitioner's son is rather being run by the petitioner's wife since long. Moreover, the respondent has filed nothing on record to show that the kirayana shop is being run by the petitioner's son and these appear to be mere bald averments which cannot be relied upon.
14.3 Further, even if it is assumed that the petitioner's son is in fact earning from the kirayana shop then it may be noted that in Joginder Pal Singh Vs. Naval Kishore Behal: AIR 2002 SC 2256 (as referred to in aforesaid judgment) the situation was similar to the present case, as in the said case before the Apex Court the landlord had filed eviction petition for the office of his son who was a chartered accountant who was residing with him. Honorable Mr. Justice R.C. Lahoti observed in the said judgment that such a requirement of the landlord is a genuine requirement. In the said case the Apex Court evicted the tenant from the premises for the said requirement of the landlord.
14.4 Assuming the aforesaid averment of the respondents to be true would make the present case similar to the case of Joginder Singh (supra) as in the present case the tenanted premises is required by the landlord petitioner for hardware and sanitary business of his son who, as per the respondents, is running the kirayana shop which the petitioner has categorically denied. Thus, this defence of the respondents does not raise any triable issue.
14.5 Every parent wants to settle his children in the best possible manner and if the petitioner has found it proper to help his son to start his business of E. No. 63/2013 Hari Shankar Vs Anwar Hussain and Others Page no. 12 of 20 hardware and sanitary at the tenanted premises, then it would not be proper for the Court to interfere in such decision of the petitioner, as the petitioner is the best judge of his own requirements and that of the requirements of his family.
14.6 In the opinion of the Court it is the right of every person to excel in life. If the son of the petitioner and the petitioner is of the opinion that it would be better in life to start a business from the tenanted premises than merely running a kirayana shop (although there is nothing on record to second this submission of the respondents), then it would not be just for this Court to direct the petitioner otherwise and thereby stop the financial growth of the family of the petitioner. The Court cannot ask the son of the petitioner to give up his dreams of excelling in life and to establish his own business from a premises owned by his father. Though the success of the business to be established by the son of the petitioner is not guaranteed, but, at the same time the Court cannot predict the failure of the same and thereby decline the petitioner and his family an opportunity to establish their own business from a premises owned by them. This also draws support from the submission that the petitioner is unable to find a suitable match for his son who is of marriageable age due to lack of his employment. Thus, the requirement of the petitioner is a bona fide requirement and there is no reason for the Court to find any malafide intention behind the same.
14.7 As regards the petitioner merely not averring exactly in the petition that his son is dependent upon him, it is noteworthy that the petitioner in his petition has categorically stated that his son is unemployed and residing with him. In the counter affidavit filed by the petitioner he has clearly stated that his son is wholly dependent upon him. In this regard it has been held by the Honorable High Court of Delhi in Inderjeet Singh vs Harish Chandra Bhutani: in R.C.REV. 98/2010 decided on 06.07.2012 that:
"6. On the perusal of record, it is evident that the Ld. ARC has opined that the son of the petitioner is financially independent on the basis of his credit card statements. In my opinion such an observation was patently erroneous. Holding a credit card is a common practice and E. No. 63/2013 Hari Shankar Vs Anwar Hussain and Others Page no. 13 of 20 not a yard stick to the financial status of a person. In any case, this issue is irrelevant to the current proceedings due to the fact that even if the son of the petitioner is carrying on his business still as a father the petitioner is obliged to make efforts for setting up a business in a suitable place for his son. Such a requirement is quite reasonable and justified and cannot be termed as malafide. It is not the case of the respondent that the petitioner is in possession of any alternate accommodation from where his son could carry his business. If a person is owner of a commercial property, but is forced to pay rent towards a tenanted premises, then his requirement for possession of his property is bonafide and must be recognized. The respondent has failed to show as to how the son of the petitioner is not dependent on him for the requirement of the premises for carrying his business. I find no merit in this plea taken up by the respondent and admitted by the ARC. Such unfounded pleas cannot become a reason for denying the petitioner the right to use his property for setting up a shop for his son. In Labhu Lal Vs. Sandhya Gupta 2011(1) RCR,(Rent) 231 (Delhi), it has been held by this Court that the children are very much dependant on the landlord for the purpose of setting up their business and such a requirement is a bonafide one. The right of the landlord for possession of his property for setting up a business for his son has been also recognized by the Apex Court in Ram Babu Aggarwal Vs. Jay Kishan Das 2009(2) RCR 455.
7. Regarding the bald plea of the respondent that there is discrepancy in the amount of rent payable for the tenanted premises and the payer of the rent, it is sufficient to say that these minor discrepancies are not fatal to the case of the petitioner and not patently germane to the case. It is immaterial that who pays the rent for the tenanted shop being used by the petitioner's son. The fact of bonafide requirement and lack of any other accommodation for business purposes has been amply established by the petitioner. His son is in fact carrying out his business from a tenanted accommodation; he has no other alternate E. No. 63/2013 Hari Shankar Vs Anwar Hussain and Others Page no. 14 of 20 suitable accommodation. In this view of the matter, this submission of the tenant is clearly without force."
14.8 Thus, it is for the respondents to show that the son of the petitioner is not dependent on him and there is nothing pertinent on record to show the same. Thus, merely not writing the word 'dependent' would not be fatal to the case of the petitioner as the same is nothing by a minor discrepancy, especially in view of the fact the petitioner has categorically averred that his son is unemployed and in his counter affidavit he has also stated that his son is wholly dependent upon him.
14.9 Thus, this defence raised by the respondent does not raise any triable issue.
15)Site Plan - Incorrect:
15.1 In application for leave to defend, respondents have taken objection that petitioner has not filed the correct site plan of the tenanted premises and they have filed the correct site plan. However, it has not been stated as to how the site plan of the petitioner is not correct. During the course of arguments it was clarified by the ld. Counsel for the respondent that the discrepancy sought to be pointed out is in the site plan of property no. WZ-409, Basai Darapur, New Delhi where the kirayana shop is being run. It has been submitted on behalf of the respondent that that one Nisar Barber shop is being run on the ground floor of that property but has not been shown in the petitioner's site plan. Further, the location of stair case in that property has not been correctly given.
15.2 The shop in question is located in property no. WZ-485/1H, Basai Darapur, New Delhi-110015. This Court fails to understand what the respondents want to show by bringing out minor discrepancies in the site plans of the property where the shop in question is not even located. There is not a single averment in the application for leave to defend regarding what defence the respondents want to put up by showing such discrepancies. It has not been averred that the Nisar Barber shop is run by the petitioner or his family members. It has been admitted by both the parties that a kirayana shop is being run from the ground floor of WZ-409. The location of the stair case E. No. 63/2013 Hari Shankar Vs Anwar Hussain and Others Page no. 15 of 20 has not raised any issue of any additional space available to the petitioner. The respondents have also not averred to this effect. Thus, the minor discrepancies in the site plans of WZ-409 are not germane to this case.
15.3 As far as property no. WZ-485/1H is concerned; this Court has compared the two site plans of this property where the shop in question is located. Apart from the fact that the shop in question has been shown as 'Anwar Hussain Shop' by the petitioner and as 'Asha Watch' by the respondent, there is no material difference in the two site plans. It is the case of the respondents themselves that their father Late Sh. Zahid Hussain had established M/s Asha Watch Company in the shop in question on 30/04/1980 (as per Registration Certificate of Establishment filed by the respondents). No other discrepancy is apparent. Thus, the plea of the respondents as regards site plan of petitioner is incorrect, vague and baseless.
15.4 Thus, this defence raised by the respondents does not raise any triable issue.
16)That the petitioner has not mentioned the correct rate of rent in the petition:
16.1 In Inderjeet Singh vs Harish Chandra Bhutani (supra) it has been held that:
"7. Regarding the bald plea of the respondent that there is discrepancy in the amount of rent payable for the tenanted premises and the payer of the rent, it is sufficient to say that these minor discrepancies are not fatal to the case of the petitioner and not patently germane to the case. It is immaterial that who pays the rent for the tenanted shop being used by the petitioner's son. The fact of bonafide requirement and lack of any other accommodation for business purposes has been amply established by the petitioner. His son is in fact carrying out his business from a tenanted accommodation; he has no other alternate suitable accommodation. In this view of the matter, this submission of the tenant is clearly without force."
16.2 In the present case, the petitioner has mentioned the rate of rent as Rs. E. No. 63/2013 Hari Shankar Vs Anwar Hussain and Others Page no. 16 of 20 1200 per month. The Respondents have mentioned the same to be Rs.1400/- per month. The petitioner has filed three receipts on record. The receipt dated 07.01.2008 shows rate of rent as Rs.600/-. The receipt dated 16.05.2012 shows rate of rent as Rs.1200/-. The receipt dated 14.01.2013 shows rate of rent as Rs.1400/-. Thus, it is apparent that the rate of rent once was Rs.1200 but gradually increased to Rs.1400/-. In either case, the Delhi Rent Control Act would not cease to be applicable. Thus, in view of the aforesaid authority, these minor discrepancies would not affect the case of the petitioner in any manner. Even if evidence is allowed to be lead on this point then also it would not affect the bonafide of the landlords requirements.
16.3 Therefore, the defence does not raise any triable issue.
17)Sole source of earning for the respondents; the requirement of the petitioner not genuine as he let out the shop adjacent; and the petition has only been filed so that the said shop can be re-let after eviction at a higher rate of rent:
17.1 These three defences are being taken up together as they are all interconnected and seek to raise doubt against the bonafide of the landlord's requirement. In the judgment titled as Sarwan Dass Bange Vs. Ram Prakash: 167 (2010) DLT 80 the Hon'ble High Court of Delhi referring to the judgment of Baldev Singh Bajwa v. Monish Saini: (2005) 12 SCC 778 observed in para 17 as under:
"..It was held that the legislative intent is of expeditious disposal of the application for ejectment of tenant filed on the ground of requirement by the landlord of the premises for his own occupation; a special category of landlords requiring the premises for their own use has been created; if there is any breach by the landlord, the tenant is given a right of restoration of possession; the landlord who evicts a tenant on the ground of own requirement is not only prohibited from letting out the premises or disposing of the same but also required to use the same for his own residence only..."
17.2 Thus, it is clear that the special summary procedure provided for u/s 25B of the DRC Act is an exception to the general intent to the Act. The intention E. No. 63/2013 Hari Shankar Vs Anwar Hussain and Others Page no. 17 of 20 of the legislature is to provide an expeditious remedy to landlords who seek eviction on the ground of bonafide requirement under the stringent conditions imposed in the special procedure. Thus, the mere bald averment of the respondents to the effect that the tenanted premises is their sole source of earning cannot disentitle the petitioner from relief that he is entitled to get after fulfilling the stringent requirements provided for in the special procedure. Thus, this submission of the respondents is found to be untenable.
17.3 As far as letting out of the adjacent shop to tenant Vinay Kumar is concerned, both parties have stated that the same was done atleast 3-4 years back. The petitioner has filed a rent receipt of as far back as January, 2009 in respect of the said adjacent shop. It is settled law that the Court is concerned with the factual position at the time of filing the petition which was filed in October, 2013 i.e. a considerable time after the said shop was let out. Moreover, the petitioner has clearly stated that at the time when the said shop was let out to Vijay Kumar, the son of the respondent was still studying and could not have done business. Thus, this defence taken by the respondents does not raise even an iota of doubt over the petitioner's bonafide requirement.
17.4 The respondents have also taken defence in the application that petitioner after evicting the respondent, wants to re-let the tenanted premises/shop in question on higher rent. Hence, there is no bonafide requirement of the petitioner. On the other hand, in reply to application, this has been denied by the petitioner and he has reiterated the fact that tenanted premises is required for establishing the business of his son.
17.5 It is well settled law that bald allegation without any material on record to substantiate the same could not be looked into as the mere bald allegations are not enough for grant of leave to defend. It is held by the Hon'ble High Court of Delhi in Rajinder Kumar Sharma and Ors. Vs. Leelawati and Ors. (supra) that:
11....."Only those averments in affidavit are to be considered by Rent Controller which have some substance in it and are supported by some E. No. 63/2013 Hari Shankar Vs Anwar Hussain and Others Page no. 18 of 20 material."
17.6 Moreover, It is held by the Hon'ble High Court of Delhi in a case tiled as Hari Shanker Vs. Madan Mohan Gupta: 111 (2004) DLT 534 that:
"Summary procedure in Section 25-B of Delhi Rent Control Act, 1958 cannot be defeated by merely making frivolous and vague allegations which can never be substantiated."
17.7 It is also held by Hon'ble High Court of Delhi in Vinod Kumar Bhalla Vs. Sh. Nanak Singh: 1982 (2) RCR (Rent) 715 that in all applications for leave to defend the common defence raised by almost all the tenants, is that the landlord wanted to enhance the rent or to sell the property after getting it vacated. It was observed by the High Court that such types of allegations are without any foundation and that after an order of eviction is passed under section 14 (1)(e), the tenant is granted six months time to vacate the premises and the landlord is required to occupy the same within two months and the landlord is further dis-entitled for re-letting or alienating the whole or any part of the premises within three years from the date of obtaining possession from the tenant. Thus, the landlord is not in a position either to sell or re-let the tenanted premises for a period of three years and if a landlord does sell or re- let the premises within the said period then the tenant may proceed against the landlord for restoration of the possession under section 19 of the Act.
17.8 A similar observation was made in judgment titled Krishna Chopra & Anr. Vs. Smt. Raksha: 2000 Rajdhani Law Reporter 83.
17.9 Thus, on the basis of the aforesaid legal propositions the contention of the respondents is rejected as the same is a mere assertion without any substance. Moreover the contention of the respondents is not tenable because in such kind of cases protection/remedy available/provided for such tenants under the DRC Act itself as they can file petition for repossession if the premises are re-let or transferred by the landlord after evicting the tenant, but certainly the leave cannot be granted solely on this ground.
17.10 Thus, this defence raised by the respondents is a sham defense and it does not raise any triable issue.
E. No. 63/2013 Hari Shankar Vs Anwar Hussain and Others Page no. 19 of 20 CONCLUSION
18)It is well settled that leave to defend is granted to the tenant in case any triable issue is raised by him, which can be adjudicated by consideration of additional evidence. The mere existence of any triable issue is not sufficient. The nature of the triable issue raised by the tenant must be such that it will disentitle the landlord from obtaining the eviction order.
19)In the judgment titled as Sarwan Dass Bange Vs. Ram Prakash (supra) the Hon'ble High Court of Delhi referring to the judgment of Baldev Singh Bajwa v. Monish Saini (2005) 12 SCC 778 observed in para 17 as under:
"...the landlord who evicts a tenant on the ground of own requirement is not only prohibited from letting out the premises or disposing of the same but also required to use the same for his own residence only. It was held that these restrictions and conditions inculcate in built strong presumption that the need of the landlord is genuine; the conditions and restrictions imposed on the landlord make it virtually improbable for the landlord to approach the Court for ejectment of tenant unless his need is bona fide - no unscrupulous landlord in all probability, under this Section, would approach the Court for ejectment of the tenant considering the onerous conditions imposed on him. It was further held that this inbuilt protection in the Act for the tenants implies that whenever the landlord would approach the Court his requirement shall be presumed to be genuine and bona fide. It was further held that a heavy burden lies on the tenant to prove that the requirement is not genuine.." (emphasis supplied)
20) The whole purpose and import of summary procedure under Section 25B of the Act would otherwise be defeated. The prayer for leave to contest should be granted to the tenant only where a prima facie case has been disclosed by him. In the absence of the tenant having disclosed a prima facie case i.e. such facts which disentitles the landlord from obtaining an order of eviction, the Court cannot mechanically and in routine manner grant leave to defend. In the light of the aforesaid facts, circumstances and legal propositions, all the pleas taken by the respondents have failed to raise any triable issues regarding the ownership of the petitioner or the land E. No. 63/2013 Hari Shankar Vs Anwar Hussain and Others Page no. 20 of 20 lord-tenant relationship; the bonafide requirement of the landlord; or the availability of any alternative suitable accommodation. The contents of the application for leave to defend have failed to rebut the presumption of bonafide qua the requirement of the petitioner. The application for leave to defend filed by the respondents is thus rejected.
21)As a consequence thereof, an eviction order is passed U/s. 14 (1) (e), DRC Act against the respondents regarding the tenanted premises i.e One shop measuring 9ft X 9ft., facing road, situated at the ground floor of the property No. WZ-485/1H, Basai Darapur, New Delhi-110015, as shown in red colour in the site plan
22)However in light of Section 14 (7) DRCA, the aforesaid eviction order shall not be executable for a period of six months from today.
23)The parties are left to bear their own costs.
24)File be consigned to Record Room after due compliance.
Announced in the open Court on 16th day of August, 2014 (SUMEDH KUMAR SETHI) ACJ/ARC/CCJ(West)/16.08.2014 E. No. 63/2013 Hari Shankar Vs Anwar Hussain and Others