Delhi District Court
Dr. Gurbinder Singh Sadana vs Sh. Avtar Krishna Ahuja on 7 September, 2011
IN THE COURT OF SH BALWANT RAI BANSAL
ADDITIONAL RENT CONTROLLER (SOUTH),
SAKET COURTS, NEW DELHI
EVICTION PETITION NO. E49/09
Dr. Gurbinder Singh Sadana
Presently R/o 827, Yuba Lane,
Claimont, California, USA
...... Petitioner
Versus
Sh. Avtar Krishna Ahuja
Partner, Ahuja Finance Corporation
S573, Greater KailashII,
New Delhi
Also at:
Plot No. 330, BlockS,
Panch Shila Cooperative House,
Building Society Ltd.
(Panchsheel Park), New Delhi
...... Respondent.
Eviction Petition u/s 14 (1) (d), (e) & (h) of Delhi Rent Control Act 1958
Date of Institution of the case : 21.12.2005
Date of Judgment reserved : 26.07.2011
Date of Judgment pronounced : 07.09.2011
Eviction Petition No. E49/09 Page 1 of 35
JUDGMENT:
1. Vide this judgment I shall dispose of an eviction petition filed by the petitioner u/s 14 (1) (d), (e) and (h) of Delhi Rent Control Act, 1958 against the respondent.
2. Brief facts, as stated in the petition are that the petitioner is the owner of the suit premises bearing Plot No. 330, Block S, Panchsheel Park, New Delhi consisting of ground floor (1 dining living, 1 bedroom, 1 kitchen, 1 store, 2 toilets, garage, Varandah), first floor (entrance lobby, 3 bedrooms, 3 toilets, 2 dressing rooms, 1 store, 1 servant room, covered verendah) and second floor (1 toilet, 1 servant room and open urinal) by virtue of a perpetual sublease dated 15.07.1970 and same was let out to the respondent vide lease deed dated 02.03.1972 for residential purposes at a monthly rent of Rs. 1300/ excluding water and electricity charges. It is stated that neither the tenant nor any member of his family have been residing in the demised premises for more than a year prior to filing of the present petition and the entire tenanted premises are lying vacant. Some unauthorized occupant is in possession of servant quarter who does not permit the petitioner to inspect the premises. It is further stated that the respondent along with his family members have purchased/acquired a premises at S573, Greater KailashII, New Delhi and have permanently shifted to the said premises. It is further stated that the petitioner is a non Eviction Petition No. E49/09 Page 2 of 35 resident Indian presently staying in USA and besides the tenanted premises he has no other immovable properties in Delhi. The mother of the petitioner Smt. Daler Kaur Sadana, who is suffering from heart related ailments is presently living in Guwahati along with cousins of the petitioner. It is stated that there is no medical facility in Guwahati for heart related ailments and the mother of the petitioner has been frequently visiting Delhi for medical purposes and is forced to stay in rented accommodation as the petitioner and his family have no other residential property in Delhi except the tenanted property. Hence, the present petition. It has been prayed that eviction order may be passed in favour of the petitioner and against the respondent in respect of the suit premises.
3. The respondent has contested the petition by filing the written statement contending that there is no landlordtenant relationship between the petitioner and the respondent. It is stated that the premises in question were let out by the petitioner to M/s Ahuja Finance Corporation through the respondent being its partner vide lease deed dated 02.03.1972 and the respondent had signed the said lease deed on behalf of the said M/s Ahuja Finance Corporation/tenant. Though, the petitioner did not sign the said lease agreement and one Sh. Sujan Singh signed the lease deed dated 02.03.1972 by putting the signature of the petitioner and representing Eviction Petition No. E49/09 Page 3 of 35 himself as coowner of the property in question. It has been denied that the suit premises was let out for residential purposes. It is stated that suit premises was let out for composite purposes and is being used for composite purposes i.e. residential cum commercial by the firm M/s Ahuja Finance Corporation since the inception of the tenancy. The portion of the property in dispute is being used as the guest house of the said firm as well as also for residence of the respondent being partner of the said firm.
4. It is also contended that the petitioner has no bonafide need of the suit premises and neither the petitioner nor the mother of the petitioner has intention to settle at Delhi. It is stated that the petitioner is settled in America and has purchased his own house and is running his own clinic/Nursing Home. The wife of the petitioner is also involved in running the clinic/Nursing Home run by the petitioner and all the children of the petitioner are American Citizen and settled there and were brought up in that atmosphere and none of the family members of the petitioner has any intention to come back to Delhi after disposing of their entire assets or to adjust with the atmosphere. It is also contended that the petitioner has wrongly mentioned that his mother wants to settle at Delhi. It is stated that mother of the petitioner has been residing in Guwahati where the petitioner's family are having a big house, having flourishing business and Eviction Petition No. E49/09 Page 4 of 35 wide social circle and in any case, the mother of the petitioner does not like to shift and settle at Delhi after passing her entire life in Guwahati. She has no intention to come to Delhi in her old age specially when the petitioner himself is settled in USA and has become citizen of America. It is also stated that the petitioner has not placed on record any medical record relating to the ailments of his mother. It is further stated that the petitioner has got sufficient reasonable and suitable accommodation at Delhi at his disposal in his joint family property bearing No. S323, Panchsheel Park, New Delhi.
5. It has been denied that neither the respondent nor any members of his family have been residing in the demised premises for more than one year prior to filing of the present petition or that property in dispute are lying vacant and are in shabby condition. It is stated that the property in dispute were let out to M/s Ahuja Finance Corporation vide lease deed dated 02.03.1972 and since then the property in dispute is under the occupation of the said firm and the respondent being the partner of the said firm has been residing in the property in dispute. It is further stated that the property No. 573, Greater KailashII, New Delhi was an HUF property and fell in the share of Sh. Gaurav Ahuja and Akshit Ahuja. It has been denied that the respondent has permanently shifted to the said premises and continue to Eviction Petition No. E49/09 Page 5 of 35 reside there. On merits, other contents of the petition are stated to be wrong and denied. The respondent has prayed for dismissal of the petition.
6. The petitioner has filed the replication in which averments made in the petition have been reiterated and reaffirmed and those made in the written statement have been controverted.
7. Thereafter, in order to prove his case, the petitioner has examined himself as PW1 and filed his evidence by way of affidavit which is Ex. PW1/A in which he has reiterated the averments made in the petition. He has also placed on record photocopy of the perpetual sub lease dated 15.07.1970 executed by the Panchshila Cooperative House Building Society in his favour in respect of property in question as Ex. PW1/1, site plan as Ex. PW1/2, photocopy of lease deed dated 02.03.1972 as Ex. PW1/3 and the medical records of his mother for the period from 1998 to 2007 as Ex. PW1/4 (Colly). The petitioner has also placed on record postal receipt and acknowledgment by which notice u/s 14 (1) (a) of DRC Act was sent by the petitioner to the respondent through courier at S573, Greater KailashII, New Delhi which are Ex. PW1/5 and Ex. PW1/6. The notice sent to the premises in question was returned with remark "Premises Locked" and the postal receipt thereof is Ex. PW1/7 and returned envelope is Ex. PW1/8 and other returned envelopes are Ex. PW1/9 and Ex. PW1/10. Eviction Petition No. E49/09 Page 6 of 35
8. The petitioner has also examined Sh. Ram Babu, LDC, Building Department, HQ, MCD, Town Hall as PW2 who has brought the record of building plan of the property in question as well as perpetual sub lease in the name of Dr. Gurvinder Singh Sadana.
9. Another witness examined by the petitioner as PW3 is Sh. Nirmal Marwah, Assistant Finance Officer, BSES, Hauz Khas Division, New Delhi who has deposed that there were 4 electric connection for the House No. S330, Panchsheel Park, New Delhi, two of the four connections bearing K. No. 2551 L 5430081 and 2551 L5430079 have been disconnected on 01.09.2002 and the other two connections bearing K.No. 2551 OG190131 and 2551 OG190132 are in existence but are showing low consumption. He has placed on record the computer generated bills and statements in respect of all the four connections and meter book sheet of all the four connections and same are Ex. PW3/1 to Ex. PW3/1C, Ex. PW3/2 to Ex. PW3/2C, Ex. PW3/3 to Ex. PW3/3G and Ex. PW3/4 to Ex. PW3/4H.
10. PW4 is Sh. Ishwar Chand Sharma, UDC, Assessment and Collection Department, R.K. Puram, New Delhi who has brought the Assessment file. He has deposed that there is no survey report. He has further deposed that he doses not know whether a separate file is prepared for survey report and this information is available only with Zonal Inspector. Eviction Petition No. E49/09 Page 7 of 35
11. On the other hand, the respondent has examined himself as RW1 and filed his evidence by way of affidavit which is Ex. RW1/A in which he has deposed as per the averments made in the written statement and has placed on record rent receipts as Ex. RW1/2 (Colly) and documents marked as Mark A, B and C.
12. I have heard the Ld. Counsel for the parties and I have also gone through the written submissions filed by both the parties and perused the record carefully.
13. First of all, I will deal with the objection raised by the respondent in the written statement that there exist no relationship of landlord and tenant between the parties.
14. The respondent in the written statement has disputed the relationship of landlord and tenant and has contended that premises in question were let out to M/s Ahuja Finance Corporation through the respondent being its partner vide lease deed dated 02.03.1972. The petitioner has filed the present petition against the respondent who is partner of M/s Ahuja Finance Corporation stating that premises were let out to the respondent, partner of M/s Ahuja Finance Corporation for residential purposes. However, the respondent has alleged that tenancy was created in favour of M/s Ahuja Finance Corporation through the respondent being its Eviction Petition No. E49/09 Page 8 of 35 partner and as such there is no relationship of landlord and tenant between the petitioner and respondent. But, in the written statement itself, the respondent has categorically stated that the premises in question were taken on rent by M/s Ahuja Finance Corporation through the respondent being its partner and same are being used as guest house of the said firm and also for residence of the respondent being partner.
15. It is also apparent from the lease deed dated 02.03.1972 Ex. PW1/3 that the same has been signed by the respondent in the capacity of partner of M/s Ahuja Finance Corporation. It is also undisputed fact that the respondent has been residing and occupying the premises in question since the inception of the tenancy till date. The respondent has categorically admitted in his crossexamination that the premises No. S330, Panchsheel Park, New Delhi is in his occupation and possession since 02.03.1972. He further categorically stated that he has not filed any partnership deed of M/s Ahuja Finance Corporation. He further stated that he has not given any written communication to the petitioner giving details/ names of partners of the alleged partnership firm M/s Ahuja Finance Corporation. He further stated that M/s Ahuja Finance Corporation is partnership firm and it was registered but he cannot say whether as on today it is registered. He further stated that he cannot say when he filed the WS, the said firm was registered Eviction Petition No. E49/09 Page 9 of 35 or not. He further stated that there were 5 partners in the year 1972 and the aforesaid partnership was not dissolved, however some of the partners died and the firm was reconstituted, but he does not remember when the aforesaid firm was reconstituted on the death of the partners. He further stated that out of five partners, three have expired.
16. In view of aforesaid statement of the respondent, it is clear that though the respondent has claimed that tenancy was created in the name of partnership firm M/s Ahuja Finance Corporation, but he has not been able to prove the status of M/s Ahuja Finance Corporation as on date. He has neither filed any partnership deed of M/s Ahuja Finance Corporation nor has given any written communication to the petitioner giving details/ names of other partners of the said partnership firm M/s Ahuja Finance Corporation. Though, he stated that there were 5 partners in the year 1972 and out of five partners, three have expired but the aforesaid partnership was not dissolved, however the firm was reconstituted, but he does not remember when the aforesaid firm was reconstituted on the death of some of the partners. It has also come from the testimony of the respondent that he has been occupying the premises in question since inception of tenancy till date claiming that he is partner of M/s Ahuja Finance Corporation. It is also a fact that no other person/ partner except the respondent has come forward to Eviction Petition No. E49/09 Page 10 of 35 claim the tenancy in the premises in question being partner of M/s Ahuja Finance Corporation. The respondent has not examined any other partner of the said partnership firm M/s Ahuja Finance Corporation to prove that M/s Ahuja Finance Corporation is a partnership firm in whose favour tenancy was created and he has been occupying and possessing the premises in question being partner of M/s Ahuja Finance Corporation. As such, the respondent has not been able to prove that he is occupying the premises in question being partner of alleged partnership firm M/s Ahuja Finance Corporation.
17. Though the lease deed dated 02.03.1972 Ex. PW1/3 was executed in favour of M/s Ahuja Finance Corporation and same was signed by the respondent being its partner, but it seems that the same was only a paper transaction. Otherwise, for all intents and purposes, the respondent has always been a tenant in the premises in question who has been occupying the premises in question since inception of tenancy till date.
18. It is also to be noted here that the petitioner has demanded the rentals vide notice dated 16.12.2005 which is Ex. RW1/P2 and in response to the aforesaid notice, the respondent has tendered the rentals through a bank draft which is also admitted by the respondent in his cross examination. The respondent has categorically admitted in his cross Eviction Petition No. E49/09 Page 11 of 35 examination that the bank draft towards the rent was issued by him in response to communication dated 16.12.2005, Annexure R1 in his written statement and same is exhibited as Ex. RW1/P2.
19. A perusal of notice Ex. RW1/P2 shows that same has been addressed to Sh. Avtar Krishan Ahuja, respondent herein of Ahuja Finance Corporation at the suit premises address by which rentals were demanded from the respondent. In response to the said notice/communication dated 16.12.2005 Ex. RW1/P2, the respondent also tendered the rent which is not in dispute. Had the respondent not been a tenant in the suit premises, he would not have paid the rentals pursuant to the communication Ex. RW1/P2. Hence, the plea of the respondent that there exist no relationship of landlord and tenant between the petitioner and the respondent is again falsified.
20. Even otherwise, if the plea of the respondent that M/s Ahuja Finance Corporation which is a partnership firm of which he is a partner is the tenant in the suit premises is considered, still it does not make any difference. It has been held by the Hon'ble Supreme Court in Dulichand Lakshminarayan Vs. The Commissioner of Income Tax, Nagpur, 154 Supreme Court Reports 1956 that, "The general concept of partnership according to both systems of law, English as well as Indian, is that a firm is Eviction Petition No. E49/09 Page 12 of 35 not an entity or "person" in law but is merely an association of individuals and a firm name is only a collective name of those individuals who constitute the firm. In other words a firm name is merely an expression, only a compendious mode of designating the person who have agreed to carry on business in partnership."
21. As such, a partnership firm has no separate legal entity in the eyes of law and it is only a compendious name for the persons constituting a firm. Therefore, the present petition filed against the respondent who is claiming to be partner of M/s Ahuja Finance Corporation is maintainable against him without impleading the said firm as a party, more particularly in view of the categorical admission of the respondent in the written statement that premises in question were taken on rent by M/s Ahuja Finance Corporation and he has been residing in the premises in question being partner of the said firm since the inception of tenancy. Therefore, it cannot be said that since lease deed Ex. PW1/3 has been executed in favour of M/s Ahuja Finance Corporation, there exist no relationship of landlord and tenant between the petitioner and the respondent and it is held that for all intents and purposes, the respondent has been tenant in the suit premises.
22. Now, I shall take up the ground u/s 14 (1) (e) of DRC Act. In order to succeed in such a petition, petitioner has to prove, (i) ownership over the Eviction Petition No. E49/09 Page 13 of 35 suit premises; (ii) alternative accommodation and (iii) bonafide requirement.
23. In order to prove his case, the petitioner has examined himself and stated in his evidence that he is owner of property in question by virtue of a perpetual sublease dated 15.07.1970 Ex. PW1/1. He further deposed that he is a doctor by profession and went to United States of America (USA) in the year 1977. His family consists of his wife, two daughters, one son and mother who are dependent upon him for residence and living. His two sisters reside in Delhi and cousins in Guwahati and they visit Delhi quite often to meet other relatives. He has further deposed that his mother is about 82 years and chronic patient of arthritis and angina and has been under regular medical treatment for the last 9 years. He has further deposed that his mother has no accommodation in Delhi and she is compelled to reside with her daughter in Delhi and cousins at Guwahati. He further deposed that he along with his family wants to return to India and settle down permanently as his mother is not ready to join him at USA and further his children are of marriageable age and he wants to perform their marriage in India, but he does not have any other place of residence except the premises in question. He further deposed that he and his family frequently visit India and in the last 3 years he has visited 4 times, whereas his wife has visited 5 times.
Eviction Petition No. E49/09 Page 14 of 35
24. The aforesaid testimony of petitioner has gone unrebutted and uncontroverted as the petitioner has not been crossexamined at all by the respondent.
25. On the other hand, the respondent has stated in his evidence that petitioner has been residing and settled in America having flourishing practice there. He has further stated that the petitioner has purchased his own house in California, USA and has been running his own clinic/ multi speciality Nursing Home from separate premises and his wife is also involved in the running of said clinic. He further deposed that as per his information, all the children of the petitioner are American Citizens and are settled there and they were brought up in that atmosphere and in any case none of the family members of the petitioner including the petitioner has any intention to come back to Delhi after disposing of their entire assets to adjust with the atmosphere. He has further stated that as per his information, the petitioner has become citizen of America.
26. But, in the crossexamination, the respondent has categorically stated that he has not filed any document to show that the petitioner has any nursing home in America or has got any residential accommodation in America. As such the contention of the respondent that the petitioner has purchased his own house in California, USA is not substantiated. So far the Eviction Petition No. E49/09 Page 15 of 35 contention of the respondent that all the children of the petitioner are American Citizens and they were brought up in that atmosphere and they have no intention to come back to Delhi and to adjust with the atmosphere, is concerned, the respondent again categorically stated in his cross examination that he has stated this fact that the sons of the petitioner will not occupy the suit premises on the basis of his interaction with them and observing that their style of living is different. He further stated that he had interaction 5/6 years ago. He further stated that he did not meet with the petitioner or his wife last year when they visited India and he also did not meet with the children of the petitioner last year.
27. As such, it is highly surprising that the respondent is presuming that petitioner's children will not come to India as they were brought up in the atmosphere of America and does not have any intention to live in India on the basis of surmises and conjectures despite the fact he had interaction with the sons of the petitioner 5/6 years ago and even he did not meet the petitioner and his family when they visited India recently. As such, the said contention of the respondent that petitioner along with his family members is settled in USA and the children of the petitioner were brought up in that atmosphere and they have no intention to come back to Delhi and to adjust with the atmosphere is merely an imagination devoid of any merit and Eviction Petition No. E49/09 Page 16 of 35 substance.
28. Moreover, it is a settled law that the landlord is the best judge of his own requirement and a tenant cannot dictate the landlord how he should live and use the premises. Furthermore, petitioner being the landlord of the premises in question is entitled to live comfortably in his own premises. It has been held in R.C. Gupta Vs. Brahma Nand 1992 (1) RCR 66 that owner is entitled to make himself comfortable in his house. He is best judge of his residential requirement. Owner can very well plan how he and his family want to lead comfortable life in his own house. It is not the function of Rent Controller to suggest to landlord how he should make use of space available with him. It has been further held in Ruparel and Company (Delhi) Vs. S. Avtar Singh Puri 159 (2009) Delhi Law Times 109 that it is settled law that court cannot dictate to a landlord as to how he should live and to what use he should put each and every portion to and landlord is entitled to assess the need and requirement of himself and his other family members. Neither the court nor the tenant can dictate to him the mode and manner in which he should live or to prescribe for him a residential standard of their own.
29. Further, if a person wants to shift to Delhi in his own property from some other place, he is not required to take the property in Delhi on Eviction Petition No. E49/09 Page 17 of 35 rent first and thereafter to file the eviction petition and similar analogy can be drawn in the present case as well. It has been held in Dipika Arora Vs. S.N. Sehgal & Ors. 1995 RLR 219 that "A landlady living outside Delhi intending to sue Delhi tenant need not shift to Delhi and take a house on rent and be a guest and then show her accommodation to be insufficient. She need not give reasons for shifting to Delhi as decision may take a decade and original reason disappear."
30. The respondent has also stated in his evidence that the mother of the petitioner has been residing at Guwahati along with her other family members and she is having joint family property there and she never intended to come to Delhi. But, in the crossexamination, the respondent has categorically stated that he cannot say that the mother of the petitioner visits Delhi after every 2/3 months for getting the treatment in AIIMS. Therefore, when the respondent is unable to say as to whether the mother of the petitioner visits Delhi after every 2/3 months for getting treatment, then contention of the respondent that mother of the petitioner has no intention to come to Delhi is not tenable.
31. On the other hand, case of the petitioner is categorical that his mother is about 82 years and chronic patient of arthritis and angina and has been under regular medical treatment for the last 9 years. He has further Eviction Petition No. E49/09 Page 18 of 35 stated that his mother is totally dependent on him economically as well as for residence as she has no accommodation in Delhi and she is compelled to reside with her daughter in Delhi and with cousins at Guwahati. The petitioner has also placed on record the medical reports of his mother for the period 1998 to 2007 as Ex. PW1/4 to show that his mother frequently visits Delhi for medical reasons and is getting treatment from Sir Ganga Ram Hospital, Max Hospital etc.
32. In the written statement, the respondent has denied for want of knowledge that the mother of the petitioner is suffering from heart related ailments. It is a settled law that denial for want of knowledge is no denial, rather it is an admission. Reliance may be placed upon Jahuri Sah & Ors. Vs. Dwarka Prasad Jhunjhunwala & Ors. AIR 1967 Supreme Court 109. Even the respondent could not deny in his crossexamination that mother of the petitioner visits Delhi after every 2/3 months for getting the treatment in AIIMS. In the written submissions, the Ld. Counsel for the respondent has submitted that the petitioner has not proved the medical reports of his mother Ex. PW1/4 as per Evidence Act as he has not examined any Doctor who prepared the aforesaid medical reports. But, in my considered opinion, there is no merit in this contention of the Ld. Counsel for the respondent as the respondent has not disputed the fact of ailment of the mother of the Eviction Petition No. E49/09 Page 19 of 35 petitioner either in the pleadings or in the evidence as already discussed herein above.
33. On the other hand, the testimony of petitioner that he along with his family wants to return to India and settle down permanently as his mother is not ready to join him at USA and further his children are of marriageable age and he wants to perform their marriage in India has gone unrebutted and uncontroverted. Similarly, the petitioner has also stated in his evidence that he and his family frequently visit India and in the last 3 years he has visited 4 times, whereas his wife has visited 5 times. The respondent has also admitted this fact that the petitioner and his family frequently visit India in his crossexamination when he stated that he did not meet with the petitioner or his wife last year when they visited India and he also did not meet with the children of the petitioner last year.
34. In the written submission, the Ld. Counsel for the respondent has submitted that in the replication the petitioner has made a case by averring that he wants to return to India and settle down permanently and further that his children have attained marriageable age and he wants to perform their marriage in India, which he has not pleaded in the petition and as such evidence to this effect is beyond the pleadings. But, I do not find any merit in this contention of the Ld. Counsel for the respondent. The petitioner has Eviction Petition No. E49/09 Page 20 of 35 categorically stated in the petition itself that he is a nonresident Indian presently staying in USA and besides the tenanted premises he has no other immovable properties in Delhi. It is also averred that the mother of the petitioner Smt. Daler Kaur Sadana, who is suffering from heart related ailments is presently living in Guwahati along with cousins of the petitioner and there is no medical facility in Guwahati for heart related ailments and therefore, the mother of the petitioner has been frequently visiting Delhi for medical purposes. The petitioner has further averred that he visits Delhi once or twice a year, while his wife and son visit more often and as their residential property is occupied by the respondent, the petitioner and his family during their visit to India have to either depend on their relatives or stay in hotel facing a lot of hardship and inconvenience.
35. In the replication, the petitioner has averred that he along with his family wants to come to India and settle down permanently as his children have attained marriageable age and he wants to perform their marriage in India. It has been held by the Hon'ble Punjab & Haryana Court in M/s Kay Iron Works (P) Ltd. Vs. Shri Molar Mal 1998 Haryana Rent Reporter 525 that, "It is not requirement of law that all the details should be given in the ejectment petition and that if the details are given in replication that is more than sufficient as replication is the part and parcel of pleadings." Therefore, Eviction Petition No. E49/09 Page 21 of 35 the evidence of the petitioner that his children attained the marriageable age and he wants to perform their marriage in India cannot be said to be beyond pleadings.
36. Ld. Counsel for the respondent has also submitted in the written submission that the petitioner is an American citizen and, therefore, he has no intention to come to India permanently. The Ld. Counsel for the petitioner has not disputed this fact that the petitioner is a US citizen and has clarified that petitioner is registered as Overseas Citizen India u/s 7A of Citizenship Act, 1955. However, in my considered opinion, even if the petitioner has obtained US citizenship, it does not debar him from returning to India for settling down in a property owned by him. In a case titled as Sarwan Dass Bange Vs. Ram Prakash 167 (2010) DLT 80 it was observed by the Hon'ble HighCourt of Delhi that, "Petitioner/ landlord was residing abroad to earn his livelihood and after retiring and especially when he is now not shown to have any engagement there has a right to live in his house in Delhi." It has been further held by the Hon'ble Delhi High Court in Saroj Khemka Vs. Indu Sharma & Anr. 79 (1999) DLT 120 that, "No Court can compel a person to stay in a house of a relative or a hotel and because the said person is staying abroad, he/ she has no right to stay in his/her own premises. That will be totally negating the provisions of Section 14 (1) (e) of Eviction Petition No. E49/09 Page 22 of 35 the Act. If a person is residing abroad, he/she owns a flat or a house in Delhi, he/she wants to spend a few weeks or a few months then he/ she must be allowed to stay in his/ her own house." It has been further held in S.P. Kapoor Vs. Kamal Mahavir Prasad Muraka & Ors. 97 (2002) DLT 997 that, "If a landlord/owner is permanently settled outside Delhi, but his visits to Delhi are frequent, his need even for temporary stay in his own premises has to be viewed as bona fide need. No landlord/ owner, in spite of having his own property in Delhi, can be compelled to live here and there and face inconvenience."
37. The petitioner has categorically stated in his evidence that he and his family frequently visit India and he along with his family wants to return to India and settle down permanently. He has further stated that his children are of marriageable age and he wants to perform their marriage in India and further his mother who is suffering from heart related ailments is presently living in Guwahati along with cousins of the petitioner and she has been frequently visiting Delhi for medical purposes and is forced to stay in rented accommodation as the petitioner and his family have no other residential property in Delhi except the tenanted property. This testimony of the petitioner has not only gone unrebutted and uncontroverted, but the respondent has also admitted in his crossexamination that petitioner and Eviction Petition No. E49/09 Page 23 of 35 his family members frequently visit Delhi and further there is no denial of the fact that mother of the petitioner who presently is residing at Guwahati visits Delhi for her treatment. Therefore, if the petitioner intends to shift and stay permanently in Delhi and wants to perform marriage of his children in Delhi, there is nothing unusual and unnatural in it and it cannot be said that the petitioner has any malafide intention..
38. Though the respondent has taken a plea in the written statement that the petitioner has got sufficient reasonable and suitable accommodation at Delhi at his disposal in his joint family property bearing No. S323, Panchsheel Park, New Delhi. But, in the crossexamination, the respondent has categorically stated that he has not filed any documents to show that premises No. S323, Panchsheel Park, New Delhi is owned by the petitioner. He further stated that he cannot say today as to who owns the property No. S323, Panchsheel Park, New Delhi. He further stated that at the time of filing of the WS, he stated that the petitioner possess the accommodation at S323, Panchsheel Park, New Delhi on the basis of the conduct of the petitioner. He further categorically admitted that he has not filed any document on record to show that either petitioner or any member of his family or his mother owns any property in Delhi.
39. In view of aforesaid statement of the respondent, the plea of the Eviction Petition No. E49/09 Page 24 of 35 respondent that petitioner has got sufficient reasonable and suitable accommodation at Delhi at his disposal in his joint family property bearing No. S323, Panchsheel Park, New Delhi is vague plea and same is not tenable. On the other hand, the petitioner has stated in his evidence that he or his family member do not own any residential suitable alternative accommodation in Delhi except the suit premises and this testimony of the petitioner has gone unrebutted and uncontroverted.
40. In view of above, the respondent has miserably failed to prove that the petitioner or his family members is having any other alternative residential accommodation in Delhi. On the other hand, the petitioner has successfully proved his case that he requires the suit premises bonafide for the purpose of residence for himself and his family members dependent upon him and neither he nor any of his family member have any other alternative residential accommodation except the suit premises. Hence, petition u/s 14 (1) (e) of DRC Act is allowed.
41. Ground U/s 14(1)(d) of DRC Act S.14 (1) (d) reads as under:
That the premises were let for use as a residence ;
Neither the tenant nor any member of his family has been residing for a period of 6 months immediately before the date of the filing of the Eviction Petition No. E49/09 Page 25 of 35 application for the recovery of possession thereof.
42. The case of the petitioner under this ground is that the suit premises were let out to the respondent for residential purposes, but neither the respondent nor any member of his family have been residing in the suit premises for more than a year prior to filing of the present petition and the premises are lying vacant and are in shabby condition. On the other hand, the respondent has taken a plea in the written statement that the premises in question were let out for to M/s Ahuja Finance Corporation for residential cum commercial purposes and same are being used as guest house of the said firm as well as for residence of the respondent being its partner.
43. As I have already held herein above that the respondent is a tenant in the suit premises, let us now consider as to whether the suit premises was let out to the respondent for residential purposes as contended by the petitioner or same was let out for composite purposes i.e. for residential cum commercial purposes as contended by the respondent.
44. In this regard, the petitioner has stated in his evidence that the premises in question were let out to Ahuja Finance Corporation, a partnership concern represented by Sh. Avtar Krishan Ahuja for the residence of Sh. Avtar Krishan Ahuja vide lease deed dated 02.03.1972. The said testimony of the petitioner has gone unrebutted and uncontroverted as Eviction Petition No. E49/09 Page 26 of 35 the petitioner has not been crossexamined at all. Hence, the onus was upon the respondent to prove that suit premises was let out for composite purposes i.e. residential cum commercial purposes and any commercial activities are being carried out by the respondent in the suit premises. But, the respondent has failed to lead any evidence to this effect.
45. Rather, in the written statement the respondent has admitted that premises in question are being used as residence of respondent being partner of the firm M/s Ahuja Finance Corporation, though he also stated that premises in question are also being used as guest house of the said firm. But, it is not the case of the respondent that firm M/s Ahuja Finance Corporation is doing any business of running the guest house. It has been categorically admitted by the respondent in his crossexamination that he does not maintain any register where the names of the guests are entered when they come and stay. He further stated that he does not charge any amount for their stay at the premises. He further stated in reply to a question that three to four guests on an average come and stay in the suit premises in a year. A question was put to him that has he got the suit premises registered as a guest house with any authority and he replied that it is not a guest house, sometimes partners come and stay and sometimes business associates come and stay and there is no question of registering the same as guest Eviction Petition No. E49/09 Page 27 of 35 house. The respondent has also stated in his crossexamination that his bedroom in the suit premises mostly remains with him and is not given for the use of the guest normally. He further stated that his bedroom on the first floor and there are two other bedrooms besides his bedroom on the first floor.
46. In view of aforesaid statement of the respondent, it cannot be said that the suit premises is being used by the said partnership firm M/s Ahuja Finance Corporation or by the respondent for running the guest house or that any commercial activities are being carried out in the suit premises. Moreover, the petitioner has placed on record the electricity bills of the suit premises showing domestic connection. Hence, it cannot be said that the suit premises was let out for composite purposes and it is held that purpose of letting of the suit premises was residential.
47. Now, onus to prove that respondent or his family member has not been residing in the suit premises for the last 6 months prior to filing of the present petition was upon the petitioner.
48. In order to prove his case, the petitioner has examined Sh. Nirmal Marwah, Assistant Finance Officer, BSES, Hauz Khas Division, New Delhi as PW3 who has deposed that there were 4 electric connection for the House No. S330, Panchsheel Park, New Delhi, two of the four connections Eviction Petition No. E49/09 Page 28 of 35 bearing K. No. 2551 L 5430081 and 2551 L5430079 have been disconnected on 01.09.2002 and the other two connections bearing K.No. 2551 OG190131 and 2551 OG190132 are in existence but are showing low consumption. He has placed on record the computer generated bills and statements in respect of all the four connections and meter book sheet of all the four connections and same are Ex. PW3/1 to Ex. PW3/1C, Ex. PW3/2 to Ex. PW3/2C, Ex. PW3/3 to Ex. PW3/3G and Ex. PW3/4 to Ex. PW3/4H.
49. From the aforesaid testimony of PW3, it has come on record that there were 4 electric connection in the suit premises and two of them were removed later on. This fact has also been admitted by the respondent in his crossexamination when he stated that when he took possession of the suit premises in the year 1971, there were four electric meters which were installed by DESU and the electricity department has replaced the four electric meters by installing two electronic meters. PW3 Sh. Nirmal Marwah has also placed on record the statement of the electricity connection as Ex. PW3/4B showing zero consumption of electricity meter during the period January, 2002 to September, 2002. This has also been admitted by the respondent in his crossexamination. Now, the question arises as to whether on the basis of zero consumption vide electricity meter bearing bearing K. No. 2551 L 5430081 and 2551 L5430079 during the Eviction Petition No. E49/09 Page 29 of 35 period January, 2002 to September, 2002, the case of the petitioner u/s 14 (1) (d) of DRC Act is proved. The answer lies in negative. The petitioner is required to prove that the respondent or any of his family member is not occupying the suit premises for the last 6 months preceding to filing of the present petition.
50. Perusal of aforesaid Ex. PW3/4B shows that zero consumption was recorded during the period January, 2002 to September, 2002. But, the relevant period was six months prior to filing of the present petition. The present petition has been filed on 21.12.2005 and, therefore, the petitioner was required to prove that prior to six months from 21.12.2005, the respondent or his family members were not residing in the suit premises. Therefore, recording of zero consumption vide electricity meter bearing K. No. 2551 L 5430081 and 2551 L5430079 for the period January, 2002 to September, 2002 does not prove the case of the petitioner that neither the respondent nor any of his family members is residing in the suit premises for more than a year prior to filing of the present petition.
51. On the other hand RW1 has categorically stated in his cross examination that he lives alone and his wife sometimes stays with him and sometimes with his sons. He further stated that there are two air conditioners installed in the suit premises which were installed by him. He Eviction Petition No. E49/09 Page 30 of 35 further stated that one of these air conditioners is on the first floor while the second is on the second floor. He further stated that sometimes these are in use. He further stated that there are two water geysers out of which one is working. He further stated that whenever one of the water geysers goes out of order, they get it repaired. He further stated that there is one TV functional in the premises. He stated that there is geyser in the kitchen. Not a single suggestion has been put by the Ld. Counsel for the petitioner to the respondent that he or his family members has not been residing in the suit premises for the last six months preceding to the filing of the petition. Though the Ld. Counsel for the petitioner argued that summons issued to the respondent at suit premises address were received back with the report of 'premises locked' and the notice sent at S573, Greater KailashII address of the respondent was served. However, merely because the summons were received back at the suit premises address with the report of premises locked and notice of the petition was served on the respondent at alternative address itself do not prove the case of the petitioner that the respondent has deserted the suit premises. In view of the evidence available on record, in my considered opinion, the petitioner has not been able to lead cogent and clinching evidence to prove that the respondent or his family members has not been occupying the suit premises six months prior to the Eviction Petition No. E49/09 Page 31 of 35 filing of the present petition. Hence, petition under this ground is dismissed.
52. Ground U/s 14(1)(h) of DRC Act S. 14 (1) (h) reads as under:
That the tenant has whether before or after the commencement of this Act acquired vacant possession of, or being allotted, a residence.
53. Under this ground, the case of the petitioner is that the respondent along with his family members have purchased/acquired a premises at S573, Greater KailashII, New Delhi and have permanently shifted to the said premises. On the other hand, the respondent has taken a plea that the property No. 573, Greater KailashII, New Delhi was an HUF property and fell in the share of Sh. Gaurav Ahuja and Akshit Ahuja.
54. In order to prove his case the petitioner has examined himself as PW1 and stated in his evidence that on inquiries from neighbourhood, the petitioner learnt that the respondent and his family have shifted to their premises bearing No. S573, Greater Kailash PartII, New Delhi. The said testimony of the petitioner has gone unrebutted and uncontroverted. However, the respondent in his evidence has stated that he did not acquire the property No. 573, Greater KailashII, New Delhi and he never shifted to the said property. The respondent has further stated that the said property Eviction Petition No. E49/09 Page 32 of 35 No. 573, Greater KailashII, New Delhi was an HUF property and it fell in the share of Sh. Shalin Ahuja, Gautam Ahuja and Akshi Ahuja and the petitioner has falsely alleged in the petition that he has permanently shifted to the said premises and continue to reside there.
55. In the crossexamination of the respondent, a question was put to him that when did he purchase the plot bearing Municipal No. 573, Greater kailashII, New Delhi to which he replied that it was purchased by the HUF sometime between 1971 or 1973. He further stated that there are four members in the HUF and they are Shalin Ahuja, Gautam Ahuja, Akshi Ahuja and himself. He further stated that he is karta of the said HUF. As such, the respondent has taken a plea that the aforesaid property bearing No. 573, Greater KailashII, New Delhi was purchased by HUF and he is karta of the said HUF. But, this testimony of the respondent goes haywire when he stated in his crossexamination that when the plot was purchased sometimes in the year 1971 to 1973, the members of the HUF referred by him were not the members of HUF. Voluntarily, he stated that some were not born at that time. Again, a question was put to the respondent that who were the members of the HUF when the plot bearing Municipal No. 573, Greater KailashII, New Delhi was acquired during the year 1971 to 1973 to which he replied that at that time he was alone. He further admitted while Eviction Petition No. E49/09 Page 33 of 35 replying to another question put to him that when the aforesaid plot was acquired, there was no HUF. Voluntarily, he stated that he was unmarried. He further categorically admitted that the plot was acquired in his name initially and the said plot was acquired only once. He also stated that construction was started in the year 2000 since previously it was covered under ceiling laws. He further stated that the aforesaid construction was completed by the beginning of the year 2005 and the tenancy in respect of the premises in question was started from 02.03.1972. He admitted that Ex. RW1/P1 is the certified copy of the conveyance deed dated 26.12.1975 executed in his favour in respect of the property bearing No. 573, GKII, New Delhi.
56. In view of aforesaid categorical admissions of the respondent in his crossexamination, the contention of the respondent that the property No. 573, Greater KailashII, New Delhi was purchased by HUF is falsified and it is established that the said property was purchased by the respondent in his own name. As such, the case of the petitioner that the respondent has acquired the alternative residential accommodation at 573, Greater Kailash II, New Delhi is proved and hence petition u/s 14 (1) (h) is allowed.
57. In view of aforesaid discussions, the present petition u/s 14 (1) (d) of DRC Act is dismissed. However, petition u/s 14 (1) (e) and (h) of DRC Eviction Petition No. E49/09 Page 34 of 35 Act is allowed. Accordingly, an eviction order is passed u/s 14 (1) (e) and
(h) of DRC Act in favour of the petitioner and against the respondent in respect of the suit premises i.e. entire premises No. 330, Block S, Panchsheel Park, New Delhi consisting of ground floor (1 dining living, 1 bedroom, 1 kitchen, 1 store, 2 toilets, garage, Varandah), first floor (entrance lobby, 3 bedrooms, 3 toilets, 2 dressing rooms, 1 store, 1 servant room, covered verendah) and second floor (1 toilet, 1 servant room and open urinal) as per site plan Ex. PW1/2.
58. However, the eviction order passed u/s 14 (1) (e) of DRC Act shall not be executable before expiry of 6 months from today in view of provisions contained in Section 14 (7) of DRC Act. No order as to costs.
File be consigned to Record Room.
Announced in the open court (Balwant Rai Bansal)
on 7th September, 2011 ARC (South), New Delhi
Eviction Petition No. E49/09 Page 35 of 35
E49/09
07.09.2011
Present: Counsel for the petitioner.
Vide my judgment dictated and announced in the open Court, the present petition u/s 14 (1) (d) of DRC Act is dismissed. However, petition u/s 14 (1) (e) and (h) of DRC Act is allowed. Accordingly, an eviction order is passed u/s 14 (1) (e) and (h) of DRC Act in favour of the petitioner and against the respondents in respect of the suit premises However, the eviction order passed u/s 14 (1) (e) of DRC Act shall not be executable before expiry of 6 months from today in view of provisions contained in Section 14 (7) of DRC Act. No order as to costs.
File be consigned to Record Room.
(B.R. Bansal) CCJ/ARC/ACJ (South)/07.09.2011 Eviction Petition No. E49/09 Page 36 of 35