Delhi District Court
Mohd. Nasiruddin vs E274/2013 Page 1/22 on 2 June, 2014
IN THE COURT OF SHRI SANDEEP GARG : ADMINISTRATIVE
CIVIL JUDGE CUM ADDITIONAL RENT CONTROLLER
(CENTRAL) : DELHI
E274/2013
Unique ID No : 02401C0048082013
In the matter of:
1. Mohd. Nasiruddin, S/o Qayamuddin,
2. Matin, S/o Mohd. Nasiruddin,
3. Tanvir, S/o Mohd. Nasiruddin,
4. Atiq, S/o Mohd. Nasiruddin,
5. Tajuddin, S/o Mohd. Nasiruddin,
6. Nasim, S/o Late Sirajuddin,
7. Riyazuddin, S/o Late Sirajuddin,
8. Gulfam, S/o Late Sirajuddin,
9. Asif, S/o Late Sirajuddin,
10. Kashif, S/o Late Sirajuddin,
11. Tanzil, S/o Late Hasinuddin,
12. Smt. Samreen, D/o Late Hasinuddin,
13. Mirajuddin @ Majo, S/o Late Hasinuddin,
14. Rehan @ Sonu, S/o Late Hasinuddin,
All R/o 7461, Gali Choti Masjid,
Quresh Nagar, Sadar Bazar, Delhi110006
15. Firoz Khan, S/o Late Zahiruddin,
16. Shahdab, S/o Late Zahiruddin,
17. Smt. Afroz, Widow of Late Zahiruddin,
18. Ms. Nishan, D/o Late Zahiruddin,
All R/o 6285, Bara Hindu Rao, Delhi110006
....Petitioners
Versus
E274/2013 Page 1/22
Smt. Parveen Bano,
W/o Abdul Hafiz,
Shop No. Part Property No. 6285,
Bara Hindu Rao, Delhi110006
.....Respondent
O R D E R:
1. Vide this order, 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 contest the present eviction petition is disposed of.
2. The present eviction petition has been filed by the petitioners namely Sh. Mohd. Nasiruddin, Matin, Tanvir, Atiq, Tajuddin, Nasim, Riyazuddin, Gulfam, Asif, Kashif, Tanzil, Smt. Samreen, Mirajuddin @ Majo, Rehan @ Sonu, Firoz Khan, Shahdab, Smt. Afroz and Ms. Nishan against the respondent namely Smt. Parveen Bano under Section 14 (1) (e) read with Section 25B of the DRC Act, 1958.
3. The version of the petitioners is that the father of the petitioners E274/2013 Page 2/22 no.1 & 15 and grandfather of the petitioners no.2 to 13 and 14, 16, 17 & 18, namely Qayamuddin was the owner of tenanted premises i.e. shop/part property bearing no. 6285, Bara Hindu Rao, Delhi110006, area measuring approximately 15 X 10 sq. yd., as shown in red colour in the site plan, by virtue of registered sale deed dated 23.09.1963, registered before the Sub Registrar, Delhi, vide Book No. 1, Volume No. 12/1, who had died leaving behind the petitioners as his legal heirs. After the death of Sh. Qayamuddin, the petitioners become the absolute owners/landlords of the entire properties of Late Sh. Qayamuddin, including the tenanted premises which is in occupation and possession of the respondent. The tenanted premises was giving on rent @ Rs. 500/ per month excluding electricity and water charges by Late Sh. Qayamuddin to late fatherinlaw of respondent viz. Abdul Hakeem, who had died leaving behind the husband of the respondent as his legal heirs. The husband of the respondent also died leaving behind the respondent as his legal heir.
4. It is further averred that after the death of husband of the respondent, the respondent being his legal heir, became the statutory tenant E274/2013 Page 3/22 of the tenanted premises under the landlordship/ownership of the petitioners. After the death of her husband, the respondent is in possession and occupation of the tenanted premises and she is illegally running a Dhaba, after obtaining the license from the M.C.D., by preparing forged and fabricated NOC of the owners/landlords and filed the same before the office of M.C.D.
5. The respondent has neither paid nor tendered the rent from the last five years @ Rs. 500/ per month excluding water, electricity and house tax charges to the petitioners. The petitioner no.7 is in possession of property no. 3567, Bara Hindu Rao, Delhi110006, under the landlordship of DDA/Slum & JJ and he is running a meat shop from the said premises. Petitioner no.5 is running a meat shop at property no. 3566, Bara Hindu Rao, Delhi110006, under the landlordship of DDA/Slum & JJ. Petitioner no.15 is running a shop at Pratap Bagh, Delhi. Petitioner no.11 is running a shop at Pratap Bagh, Delhi, under the landlordship of the Masjid, Pratap Bagh, Delhi. Petitioner no.6 is also running his shop at Malka Ganj, Delhi and remaining petitioners are unemployed. There is lack of accommodation E274/2013 Page 4/22 available to the petitioners. The tenanted shop is required for bonafide need of the petitioners for commercial purposes i.e. for running their business. The petitioners have no other alternative and suitable accommodation to run their business as well as their family members dependent upon them, except the tenanted premises. The tenanted premises is near the residence of the petitioners, which is very much suitable to the petitioners.
6. The property no. 7461, Gali Choti Masjid, Quresh Nagar, Sadar Bazar, Delhi110006 is purely residential and there is no shop therein. Remaining properties of the petitioners bearing no. 6286 are in possession of a number of tenants. Due to lack of accommodation, the family status of the petitioners is getting lowered. If the tenanted premises is vacated, the source of income of the petitioners shall increase and the family status of the petitioners will get enhanced. It is prayed that an eviction order may be passed in respect of the tenanted premises as shown in red colour in the site plan.
7. Summons in the prescribed form under Schedule III of DRC Act, E274/2013 Page 5/22 1958 were served upon the respondent. Thereafter, an application for leave to defend along with affidavit was filed by the respondent within the stipulated period.
8. It is the version of the respondent that the present petition is not maintainable as the petitioners had not impleaded all the legal heirs of the deceased Abdul Hafiz, who was admittedly the contractual tenant. The respondent is not doing any business at the tenanted shop and she has been suffering from ailments of diabetes and cardiac problem for 23 years. The son of respondent viz. Mohd. Rashid is doing business at the tenanted premises. The petition is bad on account of misjoinder and nonjoinder of necessary parties. The alleged petitioners are members of different families. Admittedly, there were four sons of Late Sh. Qayamuddin, out of which two had expired and remaining two are petitioner no.1 and petitioner no.15, who have been residing in different properties, being absolute owner of the same.
9. Under Mohammedan Law, the aforementioned four sons of Late Sh. Qayamuddin (two of them deceased) inherited the right in the property E274/2013 Page 6/22 left by deceased Sh. Qayamuddin. The petitioners have failed to give details of their families and specify which family members are dependent members. Admittedly, the petitioners are having different families. They have not furnished copies of ration card, showing their family members who are dependent upon them.
10. The petitioners have also not filed the site plans of their respective properties, shops and residential property. They have not disclosed the accommodation available with them in those properties. Admittedly, the property bearing no. 6286 is owned by the petitioners and they have not filed any site plan. The site plan of the property in dispute is also incomplete. They have not filed any site plan of the property bearing no. 7461, Gali Choti Masjid, Quresh Nagar, Sadar Bazar, Delhi110006. The shop bearing no. 3567, Bara Hindu Rao, Delhi110006 and the property bearing no. 3566, Bara Hindu Rao, Delhi110006 are the exclusive properties of the petitioners no. 5 & 7 respectively and they are not tenants, as claimed by them. The shop no. 3567 is a big shop, having spacious accommodation, wherein all the sons of Late Sh. Sirajuddin i.e. petitioners E274/2013 Page 7/22 no. 7, 8, 9 & 10 have been working and carrying on huge business of meat. Therefore, they are gainfully employed. The shop no. 3566, Bara Hindu Rao, Delhi is with petitioner no.5, who is the son of petitioner no.1 and all the sons of petitioner no.1 i.e. petitioners no.2 to 5 are gainfully employed and carrying on flourishing business of meat. They are financially prosperous. Admittedly, both the sons of petitioner no.15 are running a meat shop at Pratap Bagh, wherein they have flourishing business. All the sons of Late Sh. Hasinuddin i.e. petitioners no.11, 12 & 14 are gainfully working and carrying on business of meat at the shop situated at Pratap Bagh.
11. The petitioners are in no need of the tenanted premises. Earlier, the petitioners wanted to sell the tenanted premises to the legal heirs of Sh. Abdul Hafiz for a sum of Rs. 15,00,000/. The respondent and her son agreed to purchase it for a sum of Rs. 10,00,000/ only. Therefore, the deal could not be finalized in the month of January, 2011. The petitioners no.1 & 15 were annoyed and they filed the present petition. The petitioners want to sell the property and they are in no need of the tenanted premises for their personal requirements. The petitioners are not owners of the tenanted E274/2013 Page 8/22 premises. The respective documents filed by the petitioners do not reflect their ownership. It is prayed that since the respondent has been able to raise triable issues, the application for leave to contest may be allowed.
12. The petitioners had filed reply alongwith counter affidavit to the application for leave to defend, filed by the respondent and have denied the allegations leveled by the respondent. They denied the averments made by the respondent in her application for leave to defend and reaffirmed their stance, as averred in the petition.
13. Respondent had filed rejoinder and allegations leveled by the petitioners were controverted and rebutted. The averments made in application for leave to defend have been reiterated and reaffirmed.
14. The court has heard the Ld. Counsels for the parties and perused the record carefully.
15. Ld. Counsel for petitioners has relied upon judgment rendered by E274/2013 Page 9/22 Hon'ble High Court of Delhi in the case of Bhagwat Prasad Sharma Vs. Pinky Aggarwal & Anr., 2009 (107) DRJ 517, wherein it has been held that landlord is master of his choice and the tenant cannot dictate terms to the landlord. So long as the property has not been partitioned amongst co owners, each one of them is owner of the entire property. Eviction petition on the ground of bonafide requirement can be filed by any one of the co owners of the property.
16. On the other hand, Ld. Counsel for respondent has placed reliance upon the judgments delivered by the Hon'ble Supreme Court of India in the cases of Inderjeet Kaur Vs. Nirpal Singh, (2001) 1 SCC 706; Santosh Devi Soni Vs. Chand Kiran, (2001) 1 SCC 255 and judgment delivered by the Hon'ble High Court of Delhi in the case of Mohd. Jafar & Ors. Vs. Nasra Begum, 191 (2012) DLT 401.
17. While deciding the question as to whether leave to defend should be granted or refused, the Court is required to examine the case on the following aspects : E274/2013 Page 10/22
(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.
18. 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 in the E274/2013 Page 11/22 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.
19. In Rita Lal Vs. Raj Kumar Singh (2002) 7 SCC 614, Hon'ble Supreme Court has observed as under : "If the Court is satisfied that though in the pleadings an issue is raised but that is not a triable issue then the Court is justified in refusing the leave to defend. A defence, which is practically moonshine, sham or illusory can not be held to be raising a triable issue. Else the whole purpose behind enacting a provision for granting leave to defend, and not permitting a contest unless leave was granted, would stand defeated." Ownership
20. The respondent has contended that the petitioners are not owner of the tenanted premises. The documents filed by them do not reflect that the petitioners are owner of the tenanted premises. All the LRs of Late Sh. Abdul Hafiz have not been impleaded in the petition and therefore, the petition is bad on account of nonjoinder of necessary parties. The E274/2013 Page 12/22 petitioners are members of different families and therefore, the petition is bad on account of misjoinder of parties.
On the other hand, it is contended by the petitioners that they have already placed on record copy of registered sale deed dated 23.09.1963 vide which Sh. Qayamuddin, father of petitioners no.1 & 15, grandfather of petitioners no.2 to 13 and 14 to 16, became owner of the tenanted premises. Moreover, the respondent has failed to disclose as to who is owner/landlord and to whom she was paying rent. It is well settled proposition of law reiterated by the Hon'ble Supreme of India in the case of Kanji Manji Vs. Trustees of the Port of Bombay, AIR 1963 SC 468 and by the Hon'ble High Court of Delhi in the case of Mohd. Aslam & Ors. Vs. Sajid Parvez & Ors. that in case of a joint tenancy, notice to one of the joint tenants was sufficient to terminate the tenancy. Suit filed against one of the joint tenant is permissible and other LRs were not a necessary party. The eviction order will be valid and executable against all the joint tenants irrespective of the fact that they were made party in the eviction petition or not. Further, as regards misjoinder petitioners, reliance is placed upon judgment delivered by Hon'ble High Court of Delhi in the case of Bhagwat Prasad Sharma Vs. E274/2013 Page 13/22 Pinky Aggarwal & Anr., 2009 (107) DRJ 517 wherein it has been held that in case of undivided property, each coowner is owner of the entire property and eviction petition can be filed in respect of bonafide need of anyone of the coowners.
21. The court is of the considered opinion that the petitioners have filed copy of their title documents i.e. registered sale deed dated 23.09.1963 in favour of Sh. Qayamuddin, who is father of petitioners no.1 & 15, grandfather of petitioners no.2 to 13 and 14 to 16. Moreover, i n Rajender Kumar Sharma & Others Vs. Leelawati & Others 155 (2008) DLT 383, it has been held by Hon'ble High Court of Delhi that landlord is not supposed to prove absolute ownership as required under Transfer of Property Act. He is required to show only that he is more than tenant. If the tenant denies ownership of landlord, he is obliged to disclose as to who was owner/landlord and to whom rent was being paid by him. The respondent has miserably failed to disclose if the petitioners are not owner/landlord, who else is owner/landlord of the tenanted premises. She has also failed to disclosed as to whom rent was being paid by her. Therefore, the court holds that the petitioners are owners of the E274/2013 Page 14/22 tenanted premises and they are landlords in respect of the tenanted premises, qua the respondent. The petition is not bad on account of nonjoinder of necessary parties in view of the law laid down by Hon'ble Supreme Court of India in the case of Kanji Manji Vs. Trustees of the Port of Bombay, AIR 1963 SC 468 (Supra) and by the Hon'ble High Court of Delhi in the case of Mohd. Aslam & Ors. Vs. Sajid Parvez & Ors. The petition is also not bad on account of misjoinder of petitioners in view of the law laid down by Hon'ble High Court of Delhi in the case of Bhagwat Prasad Sharma Vs. Pinky Aggarwal & Anr., 2009 (107) DRJ 517 (Supra).
Purpose of Letting
22. Purpose of letting has become redundant as in Satyawati Sharma Vs. Union of India 148 (2008) DLT 705 Supreme Court, it has been held that the premises let out either for residential or for commercial purposes can be got vacated by the landlord for bonafide requirements. Availability or NonAvailability of alternative suitable accommodation E274/2013 Page 15/22 in Delhi
23. It is contended on behalf of the petitioners that petitioners no.5 & 7 are running meat shops at properties bearing no. 3566 & 3567, Bara Hindu Rao, Delhi, respectively, which are owned by DDA/Slum & JJ. Petitioners no.11 & 15 are also running shops at Pratap Bagh, Delhi. The shop of petitioner no.11 is under the landlordship of Masjid Pratap Bagh, Delhi. Petitioner no.6 is also running a shop at Malka Ganj, Delhi. All the other petitioners do not have any accommodation in Delhi. Further, property no. 7461, Gali Choti Masjid, Quresh Nagar, Sadar Bazar, Delhi is purely residential and there is no shop in the said premises. The remaining property of the petitioners bearing no. 6286 is in possession of a number of tenants.
24. On the other hand, it is contended on behalf of the respondent that no site plan of property bearing no. 7461, Gali Choti Masjid, Quresh Nagar, Sadar Bazar, Delhi has been filed by the petitioners. Shops bearing no. 3566 & 3567, Bara Hindu Rao, Delhi are exclusive properties of petitioners no.7 & 5, respectively and they are not tenant, as averred. Shop No. 3567, Bara Hindu Rao, Delhi is a big shop having spacious accommodation wherein E274/2013 Page 16/22 petitioners no.7, 8, 9 & 10 are carrying on business of meat and are gainfully employed. Petitioners no.2 to 5, who are sons of petitioner no.1, are all gainfully employed and are carrying on business of meat. Similarly, petitioners no.11, 12 & 14 are also gainfully employed and carrying on business of meat at the shop situated at Pratap Bagh, Delhi. Therefore, the petitioners are having alternative suitable accommodation in Delhi and their need is for additional accommodation. The respondent is entitled to grant of leave to defend the petition.
25. The court is of the considered opinion that shops no. 3566 & 3567, Bara Hindu Rao, Delhi are owned by DDA/Slum & JJ, which is evident from copies of HSS Credit Vouchers filed by them in respect of both these properties. There was no need for petitioners to file site plan of property bearing no. 7461, Gali Choti Masjid, Quresh Nagar, Sadar Bazar, Delhi as it is not the tenanted premises. The respondent has not denied that the said property is purely residential and there is no shop therein. It is well settled law that the landlord is free to decide as to in what manner he has to use his property and the tenant cannot dictate terms in this regard. The E274/2013 Page 17/22 respondent herself has averred that petitioners no.7, 8, 9 & 10 are carrying on business of meat and are gainfully employed in shop no. 3567, Bara Hindu Rao, Delhi, which is big in size. Similarly, it has been contended by the respondent that petitioners no.11, 12 & 14 are also gainfully employed and carrying on business of meat at the shop situated at Pratap Bagh, Delhi. It cannot be expected that petitioners no.7, 8, 9 & 10 should continue to work in shop no. 3568, Bara Hindu Rao, Delhi and petitioners no.11, 12 & 14 should continue to work in shop situated at Pratap Bagh, Delhi. They have a right to carry on their businesses from separate shops. Thus, the court holds that the petitioners have been successful in prima facie establishing that they are not having any other reasonably suitable accommodation for their commercial use and the respondent has not been able to raise any triable issue on this aspect.
Bonafide requirement
26. It is contended on behalf of the petitioners that except the aforementioned petitioners who are carrying on their business, the remaining petitioners do not have any commercial accommodation available with them. E274/2013 Page 18/22 They are unemployed and unable to carry on any independent business. This has adversely effected their income which has in turn adversely effected their family status. The need of the petitioners in respect of the tenanted shop in question is genuine and bonafide.
27. On the other hand, it is contended on behalf of the respondent that the petitioners wanted to sell the tenanted shop to LRs of Late Sh. Abdul Hafiz for a consideration of Rs. 15,00,000/. The respondent and her son had agreed to purchase the tenanted shop for a sum of Rs. 10,00,000/. The deal could not be finalized in January, 2011. The petitioners got annoyed and filed the present petition. The petitioners want to sell the tenanted shop as they are already having flourishing business at different places.
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 E274/2013 Page 19/22 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 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 E274/2013 Page 20/22 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. The court is of the considered opinion that it is immaterial that earlier negotiations for sale and purchase of the tenanted premises between petitioners and the respondent had failed. The respondent is having a remedy and right of reentry U/s 19 of the Delhi Rent Control Act if the petitioners sell the property after getting the same evicted from her. Therefore, there is no merit in the contentions raised on behalf of the respondent and the court holds that the need of the petitioners is prima facie bonafide.
30. In view of the above discussion, the Court is of the view that the respondent has failed to set up any triable issue which requires inquiry or E274/2013 Page 21/22 trial. In other words, primafacie there is nothing on record which would disentitle the petitioners of the right of immediate possession in respect of the tenanted premises.
31. Accordingly, the application under Section 25B (4) of Delhi Rent Control Act, 1958, filed by the respondent is dismissed. The petition is allowed and eviction order is passed in favour of the petitioners and against the respondent in respect of tenanted premises i.e. shop/part property bearing no. 6285, Bara Hindu Rao, Delhi110006, area measuring approximately 15 X 10 sq. yd., as shown in red colour in the site plan attached alongwith the petition. This order shall not be executable before expiry of six months from today. Parties to bear their own costs.
File be consigned to Record Room.
Announced in the open court (SANDEEP GARG)
on 02.06.2014 Administrative Civil Judgecum
Additional Rent Controller (Central)
Delhi
E274/2013 Page 22/22
E274/2013
02.06.2014
Pr: None.
Vide separate order of even date, application of the respondent for leave to defend is dismissed. The petition is allowed and eviction order is passed in favour of the petitioners and against the respondent in respect of tenanted premises i.e. shop/part property bearing no. 6285, Bara Hindu Rao, Delhi110006, area measuring approximately 15 X 10 sq. yd., as shown in red colour in the site plan attached alongwith the petition. This order shall not be executable before expiry of six months from today. Parties to bear their own costs.
File be consigned to Record Room.
(Sandeep Garg) ACJ/ARC (Central) Delhi/02.06.2014 E274/2013 Page 23/22