Delhi District Court
Sh. Ashok Khanna vs M/S. United Metal Store on 28 January, 2013
IN THE COURT OF SHRI SANJEEV KUMAR SINGH :
ADMINISTRATIVE CIVIL JUDGE CUM ADDITIONAL RENT
CONTROLLER (CENTRAL) : DELHI
E64/2011
Unique ID No. : 02401C0514282011
In the matter of:
Sh. Ashok Khanna
S/o Late Sh. Madan Mohan Khanna,
R/o F437/B, Ground Floor,
New Rajinder Nagar,
New Delhi110 060.
....Petitioner
Versus
M/s. United Metal Store,
Through its Sole Proprietor
Sh. Apar Inder Singh,
S/o Capt. Sunder Singh,
4708/VII, Gali Razia Begum,
Hauz Qazi, Delhi110 006.
Also at :
4058, Ajmeri Gage,
Delhi110 006.
.....Respondent
O R D E R:
Vide this order, I shall dispose of an application for leave to defend filed on behalf of the respondent under Section 25B (4) of The Delhi Rent Control Act, 1958 (hereinafter referred to as DRC Act, 1958) seeking leave to E64/11 Page 1/18 contest the present eviction petition.
2. The present eviction petition has been filed by the petitioner Sh. Ashok Khanna against the respondent M/s. United Metal Store through its Sole Proprietor Sh. Apar Inder Singh under Section 14 (1) (e) of the DRC Act, 1958.
3. The version of the petitioner is that he is owner/landlord of property bearing No. 4708/VII measuring 50 square yards situated at Gali Razia Begum, Hauz Qazi, Delhi comprising of ground floor, first floor, second floor, third floor and tin shed on the fourth floor. The shop in question i.e. one room on the ground floor of aforesaid property as shown in red colour in the siteplan attached with the petition was letout to the respondent in the year 1982 vide an Agreement @ Rs. 150/ per month exclusive of electricity charges and the present rate of rent of the shop is Rs. 200/ per month besides electricity charges. The shop in question is lying locked since long.
4. It is further the version of the petitioner that the shop in question is required bonafidely by the petitioner for his own use as well as for the use of his family members dependent upon him. The petitioner had earlier been engaged in the production of films but was unsuccessful in the said trade and suffered heavy losses and since then, he is without any job. The son of the petitioner is doing business dealing in printing press in Noida (U.P.) and he wants to expand his business by opening a trading office in Delhi. The petitioner now intends to commence his own business dealing in trading of printing and other allied jobs in tenanted shop with support of his son. The E64/11 Page 2/18 petitioner has no other place to do his own independent business except the tenanted premises as he is without any source of income and he desires to settle himself in the business so as to earn his livelihood.
5. It is further the version of the petitioner that there were two shops on the ground floor including the shop in question. The other shop was sold by the petitioner in the year 20002001 to expand his film business but all his efforts to survive his business did not yield any result. The portion on the first floor over the tenanted premises was sold by the petitioner in the year 19971998 and the remaining portion on the first floor is under the occupation of tenants at nominal rent. The part portion of the second floor had been sold by the petitioner in the year 20092010 to overcome the financial crises while the remaining portion on the second floor is under the occupation of the tenants at nominal rent. The entire third floor is in occupation of different tenants at nominal rent. The petitioner had suffered a heart attack and also undergoing treatment of hypertension and has been advised not to climb the stairs. It is further prayed that an eviction order may be passed in favour of the petitioner and against the respondent in respect of the tenanted premises.
6. Summons in the prescribed form under Schedule III of DRC Act, 1958 were served upon the respondent and an application for leave to defend along with affidavit has been filed by the respondent within the stipulated time.
7. The version of the respondent is that his tenancy is for an unlimited period by virtue of Agreement dated 20.02.1980 without any date of vacation E64/11 Page 3/18 i.e. perpetual tenancy granted in his favour which can not be terminated for any purposes during his lifetime. The petitioner has always a malafide intention to evict him in one way of the other. In the year 2005, he had filed an application under Section 19 of Slum Area (Improvement and Clearance) Act to institute a suit for his eviction from the demised premises which was dismissed in default as he came to know that he would not succeed.
8. It is further the contention of the respondent that the petitioner has been selling the portions of the premises every now and then to earn more money from the sale proceeds. In one tone, he asserts that he is suffering from ailments i.e. hypertension, heart attach etc. and on the other hand, he wants to expand his business. The stand of the petitioner that he is without source of income and he desires to settle in the business is totally contradictory because he is earning a lot of rental income from other tenants in the building. The petitioner had earned a lot of money by selling a portion of second floor of the demised premises in the year 20092010. He has a habit of selling the portion every now and then and earning a lot of money. He had no bonafide requirement as such to start a business either for himself or for his son in the tenanted premises and his son is not dependent upon him in any manner.
9. It is further the version of the respondent that besides the tenanted premises as well as other portion in the building, the petitioner also owns a property bearing No. 10021/2, Multani Dhanda, Paharganj, New Delhi may be consisting of 10 rooms, some of which are still lying vacant and he intends to sell the same for a huge profit. As per information received from the MCD, the E64/11 Page 4/18 petitioner is not yet the owner of the suit property, only mutation has been carried out in his name which does not give him the right of ownership. The basic requirement under Section 14 (1) (e) of DRC Act is that the petitioner should be owner of the property in question. If he is not owner, he can only let out and collect the rent and can not ask for eviction on the grounds of bonafide requirement.
10. It is further submitted on behalf of the respondent that as per record of the MCD where the petitioner has submitted Sale Deeds of the portion which he sold on 28.06.1996 and on 22.07.1997, he is only attorney of Sh. Kapil Kumar and in the Sale Deed dated 28.06.1996, he has shown the area of the whole property measuring 55 square yards and in the Sale Deed dated 22.07.1997, he has shown the area as 52 square yards . In the present petition, he has the area as 50 square yards. Thus, there is a material contradiction in the siteplan filed by him. The said executor of attorney Mr. Vinod Kumar has also approached the respondent for the rent of the suit property and there is a confusion whether Mr. Ashok Kumar (petitioner) is the owner or the said executor of attorney Mr. Vinod Kumar is the owner of the suit property. As per aforesaid Sale Deed, the address of the petitioner is 434B whereas on the address form of the petition, it is 437B. The petitioner has much more accommodation available with him for his bonafide use whereas the respondent is having only the suit property for his livelihood and for his family. The demand of the petitioner for the eviction of the respondent from the suit property is fanciful and just for monetary gain and not for any personal or bonafide requirement. The abovesaid issues are triable issues for which E64/11 Page 5/18 evidence is required to be adduced by both the parties. It is prayed that the respondent may be granted leave to contest the present eviction petition.
11. In reply (counter affidavit) to the application for leave to defend filed by the petitioner, the allegations leveled by the respondent have been denied. It is denied that the respondent was inducted as a tenant for an unlimited period. The area of the tenanted premises is about 50 square yards approximately on the ground floor has been clearly shown in the siteplan. It is further submitted that the petitioner has categorically stated in the petition about the sale of part of upper floor to third person. The petitioner is suffering from hypertension, heart disease etc. which strengthens his case as the premises on the ground floor are required by him to run his business as climbing to the upper floor at this old age is neither feasible nor medically advised. His son who is dependent upon him shall be able to operate his business from Delhi as at present, he also does not have any place to run his business of printing and for the reasons he is running his business from Noida. On account of his financial losses suffered by him earlier, he does not have source of income and thus, he will be able to earn his livelihood in case the premises in question are vacated by the respondent so that the business can be started from there by him. It is further submitted that the respondent has falsely alleged that he is earning a lot of rental income from other tenants in the building. His total monthly rental income from the building where the tenanted premises are situated is not more than Rs. 1,000/ per month. The portion let out on the first floor to one Sh. Naresh Chander fetches an annual rent of Rs. 2,000/ only. The another portion on the second floor let out to Utility Marketing Agency fetches an annual rent E64/11 Page 6/18 of Rs. 2,000/. The premises let out to one Sh. Sanjeev Kumar and Durgesh Kumar fetches an annual rent of Rs. 2,000/. Another portion in occupation of one Sh. Arun Bagga on second floor is at annual rent of Rs. 2,000/. The portion on the third floor let out to one Smt. Sonia Kirti is at an annual rent of Rs. 4,000/. The another portion on the same floor let out to one Sh. Surinder Kumar Ravi Kumar fetches an annual rent of Rs. 2,000/.
12. It is further submitted that the petitioner does not own any other property apart from the building in which tenanted premises exists. The respondent has wrongly alleged that he also owns another property bearing No. 10021/2, Multani Dhanda, Paharganj, New Delhi consisting of ten rooms and some of which are lying vacant and intended to be sold for huge profit. The said property was sold to Sh. Vinod Khanna, his younger brother on 21.02.1989 and since then, he has no right, interest or lien or any kind of connection with the said property.
13. It is further the version of the petitioner that he is owner of the property. Undisputedly, the premises had been let out by him to the respondent who is owner of the same and under the law, the respondent has no right to challenge the ownership.
14. It is further submitted that the property in question was in joint name of Sh. Kapil Kumar and the petitioner. The portion of the property was sold by the petitioner after executing the sale documents for self and as attorney of Sh. Kapil Kumar. It is submitted that the respondent has failed to reveal E64/11 Page 7/18 anything regarding attorney Mr. Vinod Kumar and in what way, he has interest in the property in question. It is submitted that the petitioner is resident of H. No. 434B, New Rajinder Nagar and the address mentioned in the petition as 437B is a mere typographical error. It is further submitted that the respondent has failed to raise any triable issue.
15. No rejoinder has been filed by the respondent despite opportunity was granted.
16. I have heard the ld. counsel for the parties and perused the record carefully.
17. The counsel for the petitioner has relied upon 155 (2008) DLT 383 Delhi High Court titled as Rajender Kumar Sharma & Ors. Vs. Leelawati & Ors.; (2000) 1 SCC 679 titled as Ragavendra Kumar Vs. Firm Prem Machinery & Co.; 174 (2010) DLT 328 Delhi High Court titled as Viran Wali Vs. Kuldeep Rai Kochhar; 172 (2010) DLT 611 Delhi High Court titled as Surinder Singh Vs. Jasbir Singh; 184 (2011) DLT 362 Delhi High Court titled as Royal Nepal Airlines Corporation Vs. Shristhi Properties Pvt. Ltd; 2005 (2) RCR 436 (SC) titled as M/s. Sait Nagjee Purushotham & Co. Ltd. Vs. Vimalabai Prabhulal & Ors. and 191 (2012) DLT 765 Delhi High Court titled as Surinder Gera Vs. Col. Rajesh Ratan Seth.
18. The ld. counsel for the respondent relied upon 74 (1998) DLT 247 E64/11 Page 8/18 titled as Mohd. Shamim Ahmed @ Mohd. Shamim Vs. Smt. Naseeban; (1999) 6SCC 222 titled as Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta; 85 (2000) DLT 24 titled as V.K. Arora Vs. K.B. Madan; 95 (2002) DLT 399 titled as Lt. Col. S.S. Puri Vs. S.P. Malhotra and AIR 2008 SC 3148.
19. While deciding the question whether leave to defend should be granted or refused, the Court is to address itself on following issues :
(a) That the petitioner is owner of the suit premises;
(b) Purpose of letting;
(c) That the premises is required bonafide by the petitioner; and
(d) That the petitioner has no other alternative suitable accommodation in Delhi.
20. In Precision Metal & Engg. Works Vs. Prema Deva, Niranjan Deva Tayal, AIR 1982 SC 1518, it has been held that "while deciding the application for leave to contest, the controller has to confine himself to the affidavit filed by the tenant under Sub Section (4) and the reply if any. On perusing the affidavit filed by the tenant and the reply if any filed by the landlord, the controller has to pose to himself the only question, "Does the affidavit disclose, not prove, facts as would disentitle the landlord from obtaining an order for the recovery of possession on the ground specified in clause of the proviso to Section 14 (1)?". The controller is not to record a finding on disputed questions of facts or his preference of one set of affidavits against the other set of affidavits."
The gist of the various decisions is that if any triable issue is raised E64/11 Page 9/18 in the application which can not be decided unless the parties lead evidence, leave to contest should be granted. In all other cases, the leave has to be refused.
21. In (2002) 7 SCC 614 titled as Rita Lal Vs. Raj Kumar Singh, Hon'ble Supreme Court has observed as under : "If the Court is satisfied that though in the pleadings an issue is raised but that is not a triable issue then the Court is justified in refusing the leave to defend. A defence, which is practically moonshine, sham or illusory can not be held to be raising a triable issue. Else the whole purpose behind enacting a provision for granting leave to defend, and not permitting a contest unless leave was granted, would stand defeated."
22. The ld. counsel for the respondent argued that the shop in question was let out to the respondent by virtue of an Agreement dated 20.02.1980 for an unlimited period without any date of vacation. It is a perpetual lease granted in favour of the respondent. He further argued that no doubt, where no date of termination of tenancy is given, it is presumed month by month tenancy. But in this case, tenancy has never been terminated by the landlord at any point of time nor at any point of time, there has been a notice of eviction served upon the respondent by the petitioner. Since the tenancy is not terminated nor it has been averred or pleaded by the petitioner in his petition, thus it is a triable issue. I reject the aforesaid submission of the ld. counsel for the respondent that as per law, there is no requirement of giving notice to tenant for filing a petition for eviction under Section 14 (1) (e) of DRC Act, 1958.
E64/11 Page 10/18
23. The respondent has contended that the petitioner is not yet the owner of the suit property, only mutation has been carried out in his name which does not give him right of ownership. In Shanti Sharma Vs. Ved Prabha AJR 1987 SC 2028, it has been held by Hon'ble Supreme Court that for the purpose of Section 14 (1) (e) of DRC Act, "Ownership is not to be understood as absolute ownership but only as a title better than the tenant".
In Rajender Kumar Sharma & Ors. Vs. Leelawati & Ors. 155 (2008) DLT 383, it has been held by Hon'ble High Court of Delhi that "landlord is not supposed to prove absolute ownership as required under Transfer of Property Act. He is required to show only that he is more than tenant."
In 157 (2009) DLT 450, Delhi High Court titled as Ramesh Chand Vs. Uganti Devi, it has been observed by Hon'ble High Court of Delhi vide para No. 7 that "It is settled proposition of law that in order to consider the concept of ownership under Delhi Rent Control Act, the Court has to see the title and right of the landlord qua the tenant. The only thing to be seen by the court is that the landlord had been receiving rent for his own benefit and not for and on behalf of someone else. If the landlord was receiving rent for himself and not on behalf of someone else, he is to be considered as the owner, howsoever, imperfect his title over the premises may be. The imperfectness of the title of the premises can not stand in the way of an eviction petition under Section 14 (1) (e) of the DRC Act, neither the tenant can be allowed to raise the plea of imperfect title or title not vesting in the landlord and that too when the tenant E64/11 Page 11/18 has been paying rent to the landlord. Section 116 of the Evidence Act creates a estoppels against such a tenant. A tenant can challenge the title of landlord only after vacating the premises and not when he is occupying the premises. In fact, such a tenant who denies the title of the landlord, qua the tenanted premises, to whom he is paying rent, acts dishonestly."
24. In the present petition, the respondent has admitted the relationship of landlord and tenant between the petitioner and himself. The copy of Agreement dated 20.02.1980 has been filed which suggests that the petitioner is owner/landlord qua the tenanted premises. It is not the case of the respondent that the petitioner was receiving rent on behalf of someone else. Therefore, keeping in view the aforesaid authorities, the aspect of ownership is decided in favour of the petitioner.
25. The purpose of letting has become redundant in view of the judgment titled as Satyawati Sharma Vs. Union of India, 148 (2008) DLT 705 SC in which, it has been held by Hon'ble Supreme Court that the premises let out either for residential or for commercial purposes can be got vacated by the landlord for bonafide requirements. In the present petition, admittedly the premises was let out for nonresidential purpose and the landlord requires it bonafidely for starting his own business.
26. Let us consider the aspect of availability and nonavailability of other alternative accommodation with the petitioner in Delhi. The version of the petitioner is that he has no other place to do his own independent business E64/11 Page 12/18 except the tenanted premises whereas, the version of the respondent is that besides the other portion in the same building where tenanted premises exists, the petitioner also owns a property bearing No. 10021/2, Multani Dhanda, Paharganj, New Delhi may be consisting of 10 rooms, some of which are lying vacant and the petitioner intends to sell the same for a huge profit. In reply to the application for leave to defend, the petitioner has submitted the aforesaid property was sold to Sh. Vijay Khanna (his younger brother) on 21.02.1989 and since then, he has no right in the said property. The petitioner has filed copy of Agreement for Sale dated 21.02.1989, receipt in the sum of Rs. 1,25,000/ executed between the petitioner and Sh. Vinod Khanna, copies of electricity bills in the name of Sh. Vinod Khanna in respect of property No. 10021/2, Multani Dhanda, Paharganj, New Delhi. The respondent has not filed rejoinder to the reply of the petitioner and therefore, the respondent is deemed to have admitted the facts disclosed by the petitioner in his reply to application for leave to defend. Moreover, keeping in view the documents filed on behalf of the petitioner in respect of property No. 10021/2, Multani Dhanda, Paharganj, New Delhi, it is crystal clear that aforesaid property does not belong to the petitioner. The respondent has also contended that the petitioner is having accommodation in the same building. The petitioner has averred in his petition that the portion on the first floor over the tenanted premises had been sold by him in the year 19971998 and the remaining portion on the first floor is under the occupation of tenants. The part front portion on the second floor had been sold by the petitioner in the year 20092010 with a view to overcome the financial crises while the remaining portion on the second floor is under the occupation of tenants. The entire third floor is under the occupation of different E64/11 Page 13/18 tenants. In reply to the application for leave to defend, the petitioner has also disclosed the names of tenants. The respondent has not filed rejoinder and therefore, he is deemed to have admitted the facts disclosed by the petitioner in his reply to the application for leave to defend. Even if it is assumed that the petitioner is having accommodation on other floors except the ground floor in the same building where tenanted premises exists, the tenant or court can not dictate the landlord/owner to start his business from other floors except the ground floor. In M/s. John Impex (Pvt.) Ltd. Vs. Dr. Surinder Singh & Ors. 2007 (1) RCR 509, it has been held by Hon'ble High Court of Delhi that "The landlord is best judge of his requirement and tenant can not dictate the terms to which the landlord should live."
Keeping in view the stand of the petitioner that on account of old age, it is it is not feasible from him to climb stairs and old age of the petitioner has not been denied by the respondent, I am of the considered opinion that petitioner has been able to establish that he does not have any other suitable alternate accommodation in Delhi.
27. Let us consider the bonafide requirement of the petitioner. As per petitioner, he requires bonafidely the tenanted premises for his own use as well as for the use and occupation of his family members dependent upon him. The petitioner had earlier been engaged in production of films but was unsuccessful in the said trade and suffered heavy losses and since then he is without any job. The son of the petitioner is doing business dealing in printing press in Noida (U.P) and he wants to expand his business by operating a trading office in Delhi. The petitioner now intends to commence his own business dealing in E64/11 Page 14/18 trading of printing and other allied jobs.
28. In Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta VI (1999) SLT 163 = (1999) 6 SCC 222 wherein, it was observed by Hon'ble Supreme Court of India that : "12. A perusal of Section 14 of the Act shows that the law has imposed restrictions on the recovery of possession, of any premises by landlord from a tenant notwithstanding any law or contract to the contrary. However, an order for recovery of possession is permissible on one or more of the specified ground. One such ground is the premises let for residential purposes being required bonafide by the landlord for occupation as residence for himself or for any member of his family dependent on him. What is a bonafide requirement is not defined in the Act. The words 'need' and 'require' both denote a certain degree of want with a thrust within demanding fulfilment. 'Need' or 'requirement' qualified by word 'bonafide' or 'genuine' preceding as an adjectiveis an expression often used in Rent Control Laws. 'Bonafide or genuine need' of the landlord or that the landlord 'genuinely requires' or "requires bonafide" an accommodation for occupation by or use for himself is an accepted ground for eviction and such expression is often employed by Rent Control legislation draftsman. The two expressions are interchangeable in practice and carry the same meaning."
13. Chambers 20th Century Dictionary defines bonafide to E64/11 Page 15/18 mean "in good faith: genuine". The word 'genuine' means 'natural; not spurious; real" pure: sincere'. In Law Dictionary, Mozley and Whitley defines bonafide to mean 'good faith, without fraud or deceit'. Thus the term bonafide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by 'requires' is much more higher than in mere desire. The phrase 'required bonafide' is suggestive of legislative intent that a mere desire which is outcome of whim or fancy is not taken note of by the Rent Control Legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant."
29. Ld. counsel for the petitioner argued that in one tone, the petitioner claims himself to be a heart patient and in another tone, he wants to start a new business and both are contrary to each other.
30. The respondent has not denied the fact that at present, the petitioner is not doing any business. The contention of the respondent that the ailment of the petitioner and his intention to start a new business is contrary to each other is not having much force because a person who is heart patient does not become disqualified from starting a new business. Many persons who are suffering from ailments like heart problems, hypertension are doing their business E64/11 Page 16/18 successfully. A person who is suffering from ailments can not be sitting idle. He has freedom to start his business afresh and as such, the requirement of the petitioner of tenanted premises to start his own business with the support of his son can not be described mere wish or desire. Rather the requirement of the petitioner is bonafide and genuine. (Reliance placed upon 173 (2010) DLT 379, Delhi High Court). In 173 (2010) DLT 379, Delhi High Court, it has been observed by Hon'ble Delhi High Court vide para no. 25 that "If a landlord wants to start his own business in the premises owned by him, then by no stretch of imagination it can be said that the requirement of the landlord for premises in question is neither bonafide nor genuine." The contention of the respondent that the petitioner has a habit of selling the portion every now and he had earned a lot of money by selling a portion on the second floor of the demised premises in the year 20092010 is also not having much force because every one is free to dispose of his own property as per his requirement. The contention of the respondent that the petitioner is earning lot of rental income from other tenants in the building is not tenable because a person who is earning rental income from tenants is not debarred from starting his new business as everyone has right to excel in his life.
31. In the light of the above discussion, this Court is of the view that the respondent has failed to put forth any triable issue which requires investigation or requires recording of evidence. In other words, primafacie there is nothing on record which would disentitle the petitioner of the right of immediate possession of the tenanted premises.
E64/11 Page 17/18
32. With these observations, the application of the respondent under Section 25B (4) of DRC Act, 1958 is hereby dismissed. Consequently, eviction order is passed in favour of the petitioner and against the respondent qua the tenanted premises i.e. one room/shop on the Ground Floor forming part of property bearing No. 4708/VII measuring 50 square yards situated at Gali Razia Begum, Hauz Qazi, Delhi110 006 as shown in red colour in the siteplan attached with the petition.
This order shall not be executable before expiry of six months from the date of this order. Parties to bear their own costs.
File be consigned to Record Room.
Announced in the open court (SANJEEV KUMAR SINGH )
on 28.01.2013 Administrative Civil JudgeCum
Additional Rent Controller (Central)
Delhi
E64/11 Page 18/18
E64/2011
28.01.2013
Pr: None.
Vide separate order, the application of the respondent under Section 25B (4) of DRC Act, 1958 is dismissed. Consequently, eviction order is passed in favour of the petitioner and against the respondent qua the tenanted premises i.e. one room/shop on the Ground Floor of property bearing No. 4708/VII measuring 50 square yards situated at Gali Razia Begum, Hauz Qazi, Delhi as shown in red colour in the siteplan attached with the petition.
This order shall not be executable before expiry of six months from the date of this order. Parties to bear their own costs.
File be consigned to Record Room.
(Sanjeev Kumar Singh) ACJ/ARC (Central)/Delhi 28.01.2013 E64/11 Page 19/18