Delhi District Court
Smt. Kamla Devi vs M/S. Shiv Dayal Sri Chand on 18 February, 2012
THE COURT OF SH. LALIT KUMAR, CCJ-CUM-ARC, CENTRAL,
DELHI.
E-118/2011
1. Smt. Kamla Devi
wd/o. Sh.Satish Kumar
r/o. 75/5572, Regharpura,
Karol Bagh,New Delhi.
Through her son/attorney
Sh. Ajay Kumar
2. Sh.Ajay Kumar
s/o. Late Sh.Satish Kumar
r/o. 75/5572, Regharpura,
Karol Bagh,New Delhi.
...... Petitioners
Versus
M/s. Shiv Dayal Sri Chand
Through its partner Sh. Sri Chand
28/3939-40, Regharpura, Karol Bagh,
New Delhi.
Also at:-
54/4456, Regharpura,
Karol Bagh,New Delhi.
.......Respondent
ORDER
18.02.2012
1. Vide this order, I shall dispose of the application on behalf of respondent for grant of leave to defend and contest the eviction petition, under section 25-B of Delhi Rent Control Act.
E-118/11 1/232. Brief facts which are relevant for the disposal of present application are that the lease hold plot no.28/3936-40, Rehgarpura, Karol Bagh, New Delhi was given on lease by the DDA to Sh.Lekh Ram who built up super structure thereon with his own funds and as such the plot underneath the super structure is on lease hold basis and super structure was owned by Sh. Lekh Ram. After death of Sh.Lekh Ram, this property had devolved upon his son Sh.Satish Kumar who died in the year 1986 and after his death the property has devolved upon the petitioner no.1 as his widow and petitioner no.2 as his son. The daughters of Late Sh.Satish Kumar are married and have orally relinquished their rights in favour of the petitioners in the said property and in any case, the petitioners being co-owners of the property are entitled to institute this eviction petition.
It is further averred that one room in the above said property, being used as shop by the respondent, was let out to the respondent and is bearing no.28/3939-40, Rehgarpura, Karol Bagh, New Delhi. The respondent was running an Atta Chakki shop from the suit premises, however, the suit shop has since been sublet, assigned or otherwise parted with possession to a third person who is selling pulses, edible oils etc. from the said shop. The monthly rent is Rs.154/- per month excluding all other charges.
It is further averred that petitioner no.1 is aged around 61 years and is keeping good health. Till now the petitioner no.1 is dependent upon rental income. The petitioner no.2 is aged around 35 years and is a post graduate and is also pursuing his MBA Course.
It is further averred that there are four shops on the ground floor of the property in question which are in the tenancy of respondent, Sh.Sudhir Mangal, Sh.Haseemuddin and Sh.Rama Jayam and they are making rent @ Rs.154/-, Rs.120/-, Rs.10,000- and Rs.400/- respectively. With this rental income it is absolutely difficult for the petitioners to support themselves. The E-118/11 2/23 petitioner no.2 has not been able to secure any permanent and good job till date. The petitioner no.2 is unmarried and his marriage could not take place as he has not yet settled in life. The opening of business will also help the petitioner no.2 to get a suitable match for marriage and as such it has been decided by the petitioners that the business of provisional store be opened from the suit shop. The shop of the respondent is bigger than the shop in possession of other tenants. This shop has doors on two sides, one opening on Padam Singh Road and the other on Vishnu Mandir Marg. This is most suitable for the business to be opened by the petitioners. The petitioners would get financial support only by opening a business as the existing source of rental income is hardly enough to meet both ends meal.
It is further averred that petitioners do not have any other shop or commercial premises to earn their livelihood.
3. In the leave to defend application supported by affidavit, the respondent has raised the following objections:-
(i) the present petition is not maintainable as having being filed against a dead person namely Sh.Sri Chand. It is submitted that said partner Sri Chand has already expired.
(ii) the present petition is bad for non-joinder of the necessary parties. It is submitted that respondent is admittedly a partnership firm and all its partners are necessary parties to the present petition.
(iii) the present petitioners are not the owners of the suit premises.
It is submitted that petitioners along with two other legal heirs namely Ms. Karuna and Ms. Kiran, d/o. Late Sh.Satish Kumar are the only the landlords qua the respondent and its other partners. It is contended that daughters of Late Sh.Satish Kumar have never relinquished their right in favour of petitioner.
E-118/11 3/23It is further submitted that admittedly the lease of the property is in the name of Late Sh.Lekh Ram and after his death the property has devolved upon his legal heirs who are 6 in numbers, who are the owners of the suit property and they have not been impleaded as party nor their NOCs have taken.
(iv) Late Sh.Lekh Ram and his aforesaid legal heirs have 22 properties in their name in Delhi. Out of said 22 properties, three properties are at 28, Ragherpura, Karol Bagh, New Delhi. Each building consists of four stories and all are in possession of the legal heirs of Late Sh.Lekh Ram.
It is further contended that other properties are situated on 58, Ragherpura, Karol Bagh, New Delhi. These are also in power and possession of present petitioners along with other legal heirs of Late Sh.Lekh Ram.
It is further contended that besides one property is situated at 8, Ragherpura, Karol Bagh, New Delhi consist of 50 sq. yds and this is also in possession and powers of the present petitioners along with other legal heirs of Late Sh. Lekh Ram.
It is further contended that besides one property is at 53, Arya Samaj Road, Karol Bagh, New Delhi. The ground floor of this property has been let out to one Jyoti Lal & Sons and the back side a Doctor has been let out for running his clinic. These tenants are the tenants of the present petitioners along with other legal heirs of Late Sh.Lekh Ram. This property is better suited to the petitioners.
It is further contended that besides above, one property is situated at Padam Singh Road, Karol Bagh, New Delhi. The same is a four story building and earlier it was let out to Federal Bank and now the said premises are lying vacant and this premises is also more suitable to the petitioners.
E-118/11 4/23(v) the petitioners also want to let out the suit premises again on a higher rent after receiving huge illegal pagri/security after getting it vacated by the present applicant and other co-tenants of the property.
It is also contended that petitioner no.2 has disclosed in the influence of liquor to two other tenants namely Rama Jairam, proprietor of SR Tailors and Sudhir Mangal that he shall get the entire premises vacated by the tenants and shall re-let them on new rent and pagri and the affidavits of these two tenants to this effect have been placed on record.
(vi) the petitioners had also filed one petition against the present respondent u/s.14(1) (a) (j) (k) and (c) of DRC Act. The same was dismissed by the Court of Sh.Balwant Rai Bansal, the then ARC vide its judgments dated 01.06.2009. The petitioners have preferred an appeal which is still pending before the Ld. Appellate Court. In said appeal, the petitioner no.2 herein had submitted before the Court that he can settle the matter on increase of rate of rent to Rs.20000/- per month. During proceedings of said appeal, the petitioner had admitted that he does not want the suit premises for his requirement and he wants to let it out on a higher rate.
It is further contended that petitioners have also filed one suit against their another tenant Smt. Pawan Chetal. In said case also, the petitioners had obtained a huge illegal pagri and once they vacated the premises the said pagari was never returned to them and they have filed claim for recovery of the same in the said case.
(vii) the petitioners have further concealed that the adjacent shop being 3937, Gali no.28, Ragherpura, Karol Bagh which was earlier let to Sh. Phool Chand who was the tenant till the year 2000 and thereafter, it was let E-118/11 5/23 out to Punjab Sweet Shop on receipt of huge illegal pagri. Thereafter, the said shop vacated by them and it was let out Smt.Pawan Chetal vide lease dated 04.06.2006 and expiry of said lease, the premises was got vacated by them and again let out to Sh.Hashimuddin Kabari on a monthly rent of more than Rs.10,000/- and after taking illegal pagri from him in the month of February-March, 2010. Hence, these facts shows that petitioners are never in the requirement of the suit premises.
(viii) in the suit premises, there are five floors as mentioned by the petitioners in the site plan. The entire first floor is with a Doctor abd second floor is with Income Tax Lawyer Sh.Sunil Kapoor. The first and second floor are having only one tenant and having bigger area as compared to the suit premises and more suitable to the present petitioners for running their business.
It is further contended that upper floor i.e. third and fourth floors are lying vacant and in the possession of the present petitioners. These two floors are having bigger area as compared to the suit premises and if the requirement of the petitioners is bonafide he could have started any business from these upper floors.
(ix) the petitioner no.2 is working with one Advocate at Tis Hazari Courts, Delhi for last many years and never want to open up his business from the suit premises.
It is further contended that the petitioner no.2 is already a man of 35 years, not married having no liabilities of life and having bad character, never wants to open up his own business.
In view of above grounds, it is submitted that respondent has good defence in its favour and the same cannot be decided and determine in E-118/11 6/23 absence of evidence and therefore, it is prayed that respondent may kindly be granted leave to contest the case.
4. In the counter affidavit, the petitioner has denied all the contentions raised by the respondent and reiterated the averments made in the petition.
It is also submitted that petitioner is not bad for non-joinder of the parties. The tenancy was created in the name of partnership firm and as per order 30 rule 1 CPC, the partnership firm can be sued in its own name and as per order 30 rule 3 CPC where a partnership firm is sued, the summons can be served upon anyone or more of the partners. In such a suit all partners are not the necessary parties. It is further submitted that constitution of partnership is not known to the petitioners and in any case partners are not individually liable to be impleaded as respondent in this petition.
It is further submitted that in so far as name of Sh.Sri Chand is concerned, petitioner has filed a fresh memo of parties and thus this plea of respondent stands met with and in any case, no prejudice would be caused to the respondent since the service of the respondent has been accepted by its partners who have filed the application for leave to defend in the name of respondent.
It is further submitted that after the death of Sh.Lekhram his properties were divided amongst his sons and the suit property fell to the share of Sh.Satish Kumar and was mutated in his favour.
It is denied that Sh.Lekhram has left behind 22 properties or that the petitioners have any right, title or interest in those properties as alleged.
It is further denied that three properties at 28, Rehgarpura, Karol Bagh, New Delhi. It is submitted that Late Sh.Lekhram left two properties at E-118/11 7/23 28, Rehgarpura, Karol Bagh, New Delhi out which one is the suit property which was given to Late Sh.Satish Kumar and other is 28/3922-23 Rehgarpura, Karol Bagh, New Delhi which fell to the share of Sh.Vishnu Kumar @ Sh.Bishan Kumar and petitioners have no concern in the property of Sh.Bishan Kumar.
It is denied that petitioners have any concern with property no. 58, Rehgarpura, Karol Bagh, New Delhi. It is submitted that property bearing 58/4360-61, 4346-47 was given to Sh.Narender Singh as his share and after his death, the same has been mutated in the name of his son Sh.Sunil Kumar and petitioners have no concern in the property of Sh.Sunil Kumar.
It is submitted that there is no property left behind by Sh.Lekh Ram in 8, Rehgarpura, Karol Bagh, New Delhi.
It is denied that petitioners have any concern with property no. 53, Arya Samaj Road, Karol Bagh, New Delhi. It is submitted that this property is owned by Sh.Kanhaiya Lal, Sh.Laxmi Narayan, Sh.Bishan Swaroop and Sh. Suresh Kumar. This property has been fully let out and is in possession of old tenants.
It is denied that petitioners have any concern with property at Padam Singh Road, Karol Bagh, New Delhi. It is submitted that this property is owned by Sh.Suresh Kumar and after his death by his legal heirs.
It is denied that negotiations to increase the rent took place in the said appeal. However, it is admitted that talks of settlement did take place on the aspect of getting the suit premises vacated from the respondent on account of the suit property required by the petitioners for their personal requirements.
It is denied that petitioners have obtained huge pagri from Mrs. Pawan Chetal or that any suit has been filed by her for recovery of the pagri amount. It is submitted that the suit has been filed against Mrs. Pawan E-118/11 8/23 Chetal for recovery of rent for the period of the premises were pre-maturely vacated.
It is denied that shop no.3937 was let out to Punjab Sweets shop on a huge pagri or that the amount of pagri was against received from Mrs. Pawan Chetal and Hashamuddin or that the said shop was let out to Hashamuddin in February, 2010. It is submitted that Mrs. Pawan Chetal vacated the said shop in the year 2007 and was then let out to Hashimuddin.
It is denied that petitioners want to re-let the suit premises or that it was so disclosed by the petitioners under the influence of liquor to Sh. Rama Jairam and Sudhir Mangal. It is submitted that no such incident took place nor any prudent petitioner would ever make such statement and the affidavits of these two persons are procured since litigations are pending against them.
It is denied that there are five floors in property no.28/3936-40. It is submitted that first floor is with the Doctor on a monthly rent of Rs.2300/- since 1986-87 and the second floor is with an Income Tax Lawyer on a monthly rent of Rs.2,860/- since 1986-87. It is denied that said first and second floor are suitable to the petitioners. It is submitted that respondent cannot dictate terms to the petitioners. It is submitted that construction of this property is comprised of ground floor, first floor, second floor and partly built third floor and a store on the roof. There are four tenants on the ground floor, the third floor is not habitable because of its condition and there is no electricity available there. It is also submitted that suit premises are situated on the mixed land and therefore only the ground floor can be used for commercial purposes.
It is denied that petitioner no.2 is working with one Advocate or that is a bad character or that he was sentenced for the offence u/s.376 IPC or he does not want to start his own business. It is submitted that this false E-118/11 9/23 case was got instituted by the tenants including the respondent and the petitioner no.2 was discharged vide judgment dated 09.02.2005 by Ms. Indermeet Kaur, the then Ld. ASJ, Delhi.
5. Respondent also filed rejoinder wherein they denied the submissions made in the reply by the petitioners.
6. I have already heard the arguments. Both parties also filed the written arguments.
7. I have perused the entire material available on record carefully and my findings with respect to the objections raised by the respondents are as follows:-
8. It is contended by the respondent that present petition is not maintainable as having being filed against a dead person namely Sh.Sri Chand. It is further contended that the present petition is bad for non-joinder of the necessary parties as all the partners of petitioner firm have not been impleaded.
In the counter affidavit, it is submitted by the petitioner that constitution of partnership is not known to the petitioners and in any case partners are not individually liable to be impleaded as respondent in this petition. It is further submitted that the tenancy was created in the name of partnership firm and as per order 30 rule 1 CPC, the partnership firm can be sued in its own name and as per order 30 rule 3 CPC where a partnership firm is sued, the summons can be served upon anyone or more of the partners and in such a suit all partners are not the necessary parties.
I have seen the file. It has come on record that respondent is a E-118/11 10/23 partnership firm and said partnership is inducted as tenant qua the tenanted premises and as such a partnership firm is liable to be sued in its own name. Besides, the partnership firm is merely a compendious name for the partners constituting it and it is only by virtue of the provision of order XXX CPC, that a firm can sue and be sued in its own name without the partners being impleaded es nomine, therefore in cases under the Act, the partners should be impleaded eo nomine. In view thereof, petitioner is not under obligation to implead other partners of respondent firm as respondents. Besides this, it is submitted by the petitioners in counter affidavit that constitution of partnership is not known to them. Since, the constitution of partnership firm is not known to the petitioner, therefore, it cannot be said they deliberately not impleaded all the partner of respondent firm. Therefore, I am of the considered opinion that present petition is not bad for non-joinder of all of the partners of respondent firm and hence, the contention raised by the respondent in this regard is dismissed.
It has also been contended that present petition is not maintainable as having being filed against a dead person namely Sh.Sri Chand. In counter affidavit, the petitioner has submitted that petitioner has filed a fresh memo of parties and thus this plea of respondent stands met with and in any case, no prejudice would be caused to the respondent since the service of the respondent has been accepted by its partners who have filed the application for leave to defend in the name of respondent. I fully agree with the submission made by petitioners in this regard and as such above mentioned contention raised by the petitioner is not tenable.
9 It is next contended that the present petitioners are not the owners of the suit premises.
I have seen the file. It has come on record that the lease hold E-118/11 11/23 plot no.28/3936-40, Rehgarpura, Karol Bagh, New Delhi was given on lease by the DDA to Sh.Lekh Ram who is father-in-law of petitioner no.1 and grandfather of petitioner no.2. In the petition and in the counter affidavit, it is averred by the petitioners that after death of Sh.Lekh Ram, the said property fell into the share of Sh.Satish Kumar, husband of petitioner no.1/father of petitioner no.2 and after his death, the suit property devolved upon the petitioners including his daughters. It is also averred that all the daughters of late Sh.Satish Kumar have orally relinquished their share in the suit property in favour of their brother i.e. petitioner no.2 and hence, petitioners become the joint owners of the suit property. On the otherhand, respondent has merely raised the contention that petitioners are not the owners of the suit premises while stating so the respondent has failed to disclose as to who is the actual owner or to whom they tendered the rent. It has also come on record that respondent firm had filed a suit for mandatory and permanent injunction against the petitioners & ors. The copy of order dated 21.09.2002 passed in said suit is filed on record. Upon perusal of said order, it is clear that respondent herein admitted themselves to be tenant in the suit property under the defendants no.1 to 4 including petitioners no.1 and 2 herein. Hence, respondent is estopped under section 116 of Indian Evidence Act to challenge the title of the petitioners and said ground only for the sake of defence without having any substance.
Moreover, it is well established proposition of law that it was not the concern of the tenant as to how the landlord acquired the property or whether the sale deed in his favour was valid one or not. In case titled as Ramesh Chand vs. Uganti Devi cited as 157(2009) Delhi Law Times 450 it has been held by the Hon'ble Delhi High Court in para no.7 that "It is settled preposition 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 E-118/11 12/23 qua the tenant. The only thing to be seen by the court is that the landlord had been receiving the 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 cannot stand int he 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 has been paying rent to the landlord."
In view of above, the contention of the respondent that the present petitioners are not the owners of the suit premises, is not tenable and dismissed as such.
10. It is also contended that admittedly the lease of the property is in the name of Late Sh.Lekh Ram and after his death the property has devolved upon his legal heirs who are 6 in numbers, who are the owners of the suit property and they have not been impleaded as party nor their NOCs have taken.
In counter affidavit, it is submitted by the petitioners that after the death of Sh.Lekhram his properties were divided amongst his sons and the suit property fell to the share of Sh.Satish Kumar and was mutated in his favour. In support to their submissions, petitioners have placed on record jamabandi for the year 1975-76 in their name and also the house tax assessment for the year 1988-99. These documents clearly supports the above mentioned averment raised by the petitioners while there is noting place on record by the respondent to show that other sons of Late Sh.Lekhram are also co-owner of the property in question. If it had been so then why the respondent had not filed the said suit for mandatory and E-118/11 13/23 permanent injunction by impleading the other sons of deceased Sh.Lekhram who as per respondent are also the co-owners of the suit property along with petitioners.
Even if it is assumed that said other sons of Sh.Lekhram are also the co-owners of the suit property then this will also not affect the case of the petitioners as it is well established proposition of law that eviction petition filed by one of the co-owner is maintainable. I am supported by judgment in case titled as Mohd. Aslam & Ors. vs. Mohd. Ajmal & Ors., 159(2009) Delhi Law Times wherein it has been held that a co-owner can maintain an action for eviction unless the other co-owners object. In the present case it has not been shown by the respondent that there was any objection raised by the other co-owners with respect to filing of present eviction petition.
In view thereof, the above mentioned objection raised by the respondent is dismissed.
11. It is also contended that petitioners along with two other legal heirs namely Ms. Karuna and Ms. Kiran, d/o. Late Sh.Satish Kumar are the only the landlords qua the respondent and its other partners. It is contended that daughters of Late Sh.Satish Kumar have never relinquished their right in favour of petitioner as no written relinquishment deed has been filed on record.
I am not satisfied with this contention of respondent because this contention will not affect the present case of the petitioners as it has been already observed by this Court that eviction petition filed by one of the co- owner is maintainable. Therefore, this contention is also dismissed.
12. It is next contended that Late Sh.Lekh Ram and his aforesaid legal heirs have 22 properties in their name in Delhi. In counter affidavit, E-118/11 14/23 petitioners have denied the same.
I am not satisfied with the contention of the respondent as while the making the said allegation, the respondent has failed to disclose the full particulars or addresses of said all 22 properties. The respondent has also failed to place on record any document to show that petitioners are owners or in possession of said properties. Hence, this is mere a bald allegation without any proof. In case titled as "Mukesh Kumar vs. Rishi Prakash", 2009 VIII AD (Delhi) 445, it was observed in para no.15 of said judgment by the Hon'ble Delhi High Court that ".....A bald plea, without anything more, particularly when the nature of the plea in defence is such that, if true, it would leave a trial of evidence to establish its existence, and which would be easily available for everyone to see and pick up, cannot be accepted as prima facie disclosing a triable issue." Therefore, this objection of the respondent is also dismissed.
13. It is also contended that out of said 22 properties, three properties are at 28, Ragherpura, Karol Bagh, New Delhi and each building consists of four stories and all are in possession of the legal heirs of Late Sh.Lekh Ram.
In counter affidavit, petitioners submitted that late Sh.Lekhram left two properties at 28, Rehgarpura, Karol Bagh, New Delhi out of which one is the suit property which was given to Late Sh.Satish Kumar and other is 28/3922-23 Rehgarpura, Karol Bagh, New Delhi which fell to the share of Sh.Vishnu Kumar @ Sh.Bishan Kumar and petitioners have no concern in the property of Sh.Bishan Kumar.
I have seen the entire file carefully. The respondent has not disclosed the numbers of alleged three properties left by Late Sh.Lekhram at 28, Ragherpura, Karol Bagh, New Delhi and even, respondent has not filed E-118/11 15/23 any document on record to show that petitioners are in possession of alleged three properties except the property in question. Therefore, the submissions made by the petitioners with the respect to properties at 28, Ragherpura, Karol Bagh, New Delhi are assumed to be correct and the contention raised by the respondent is dismissed. Even otherwise, it is held in Sait Nagjee Purushotham & Co. Ltd. Vs. Vimalabai Prabhulal and others, (2005) 8 Supreme Court Cases 252 that "It is not the tenant who can dictate the terms to the landlord and advise him what he should do and what he should not. It is always the privilege of the landlord to choose the nature of the business and the place of business."
14. The respondent next contended that other properties are situated on 58, Ragherpura, Karol Bagh, New Delhi and these are also in power and possession of present petitioners along with other legal heirs of Late Sh.Lekh Ram.
In counter affidavit, it is submitted by the petitioners that property bearing 58/4360-61, 4346-47 was given to Sh.Narender Singh as his share and after his death, the same has been mutated in the name of his son Sh.Sunil Kumar and petitioners have no concern in the property of Sh.Sunil Kumar.
I have seen the entire file carefully. The respondent has not filed any document on record to show that petitioners are in possession of alleged properties on 58, Ragherpura, Karol Bagh, New Delhi. Therefore, the submissions made by the petitioners with the respect to properties at 58, Ragherpura, Karol Bagh, New Delhi are assumed to be correct and the contention raised by the respondent is dismissed. Even otherwise, it is well established proposition of law that respondent cannot dictate terms to the petitioners as the petitioners are better place to understand as to which E-118/11 16/23 property is required by them for their requirements.
15. It is further contended that besides one property is situated at 8, Ragherpura, Karol Bagh, New Delhi consist of 50 sq. yds and this is also in possession and powers of the present petitioners along with other legal heirs of Late Sh. Lekh Ram.
In counter affidavit, it is submitted by the petitioners that there is no property left behind by Sh.Lekh Ram in 8, Rehgarpura, Karol Bagh, New Delhi.
I am not satisfied with the contention of the respondent as while the making the said allegation, the respondent has failed to disclose the particulars or addresses of said properties in 8, Rehgarpura, Karol Bagh, New Delhi. The respondent has also failed to place on record any document to show that petitioners are owners or in possession of said properties. Hence, this is mere a bald allegation without any proof. This objection is also dismissed.
16. It is further contended that besides one property is at 53, Arya Samaj road, Karol Bagh, New Delhi. It has been assailed that the ground floor of this property has been let out to one Jyoti Lal & Sons and the back side a Doctor has been let out for running his clinic and these tenants are the tenants of the present petitioners along with other legal heirs of Late Sh.Lekh Ram and this property is better suited to the petitioners.
In the counter affidavit, it is denied that petitioners have any concern with property no.53, Arya Samaj Road, Karol Bagh, New Delhi. It is submitted that this property is owned by Sh.Kanhaiya Lal, Sh.Laxmi Narayan, Sh.Bishan Swaroop and Sh. Suresh Kumar and this property has been fully let out and is in possession of old tenants.
E-118/11 17/23I am not satisfied with this contention of the respondent as respondent himself admitted that ground floor of said property has been let out to two tenants and therefore, the same cannot be said to be lying vacant and available to the petitioners or petitioners are co-owners of said property alongwith other LR's of deceased Lekh Ram. Besides, nothing has been placed on record by the respondent which suggest that these two tenants tendering the rent to the the petitioners also along with other LR's of deceased Lekh Ram. Therefore, it seems that respondent has raised a bald allegation in this regard and the same is dismissed. Even otherwise, respondent cannot dictate the terms to the landlord as to from which place he should start his business.
17. It is further contended that besides above, one property is situated at Padam Singh Road, Karol Bagh, New Delhi. It has been assailed that the same is a four story building and earlier it was let out to Federal Bank and now the said premises are lying vacant and this premises is also more suitable to the petitioners.
In counter affidavit, it is denied that petitioners have any concern with property at Padam Singh Road, Karol Bagh, New Delhi. It is submitted that this property is owned by Sh.Suresh Kumar and after his death by his legal heirs.
I am not satisfied with this contention of the respondent as nothing has been placed on record by the respondent which suggest that these two tenants tendering the rent to the the petitioners also along with other LR's of deceased Lekh Ram or petitioners are co-owners of said property along with other LR's of deceased Lekh Ram . Therefore, it seems that respondent has raised a bald allegation in this regard and the same is dismissed. Even otherwise, respondent cannot dictate the terms to the E-118/11 18/23 landlord as to from which place he should start his business.
18. It is next contended that the petitioners also want to let out the suit premises again on a higher rent after receiving huge illegal pagri/security after getting it vacated by the present applicant and other co-tenants of the property. It is also contended that petitioner no.2 has disclosed in the influence of liquor to two other tenants namely Rama Jairam, proprietor of SR Tailors and Sudhir Mangal that he shall get the entire premises vacated by the tenants and shall re-let them on new rent and pagri and the affidavits of these two tenants to this effect have been placed on record. It is also contended that petitioners had also filed one petition against the present respondent u/s.14(1) (a) (j) (k) and (c) of DRC Act and the same was dismissed by the Court of Sh.Balwant Rai Bansal, the then ARC vide its judgments dated 01.06.2009 and the petitioners have preferred an appeal which is still pending before the Ld. Appellate Court. In said appeal, the petitioner no.2 herein had submitted before the Court that he can settle the matter on increase of rate of rent to Rs.20000/- per month and during proceedings of said appeal, the petitioner had admitted that he does not want the suit premises for his requirement and he wants to let it out on a higher rate. It is further contended that petitioners have also filed one suit against their another tenant Smt. Pawan Chetal. It has been further assailed that in said case also, the petitioners had obtained a huge illegal pagri and once they vacated the premises the said pagari was never returned to them and they have filed claim for recovery of the same in the said case.
The petitioners have denied both the contention in the counter affidavit.
I am not satisfied with this contention of the respondent as even if the petition is allowed and after vacating the premises, the petitioners re-lets E-118/11 19/23 the same to other person on higher rate of rent or sold out the same to third party, instead of using it for their bonafide requirement, the respondent will always have the remedy under section 19 of the Act. Hence, the above mentioned objections raised by respondents are dismissed.
19. It is next contended that the petitioners have further concealed that the adjacent shop being 3937, Gali no.28, Ragherpura, Karol Bagh which was earlier let to Sh. Phool Chand who was the tenant till the year 2000 and thereafter, it was let out to Punjab Sweet Shop on receipt of huge illegal pagri. It has been further assailed that thereafter, the said shop vacated by them and it was let out Smt.Pawan Chetal vide lease dated 04.06.2006 and expiry of said lease, the premises was got vacated by them and again let out to Sh.Hashimuddin Kabari on a monthly rent of more than Rs.10,000/- and after taking illegal pagri from him in the month of February-March, 2010 and these facts shows that petitioners are never in the requirement of the suit premises.
In counter affidavit, it is denied that shop no.3937 was let out to Punjab Sweets shop on a huge pagri or that the amount of pagri was against received from Mrs. Pawan Chetal and Hashamuddin or that the said shop was let out to Hashamuddin in February, 2010. It is submitted that Mrs. Pawan Chetal vacated the said shop in the year 2007 and was then let out to Hashimuddin.
I have seen the file and feel that respondent has not placed on record any document which shows that Hashamuddin has been inducted as tenant by petitioners in the year February, 2010 after accepting huge pagri from him. Therefore, this contention is also dismissed.
20. It is next contended that in the suit premises, there are five floors as mentioned by the petitioners in the site plan. The entire first floor is E-118/11 20/23 with a Doctor ad second floor is with Income Tax Lawyer Sh.Sunil Kapoor and he first and second floor are having only one tenant and having bigger area as compared to the suit premises and more suitable to the present petitioners for running their business. It is further contended that upper floor i.e. third and fourth floors are lying vacant and in the possession of the present petitioners.
In the counter affidavit, it is denied that there are five floors in property no.28/3936-40. It is submitted that first floor is with the Doctor on a monthly rent of Rs.2300/- since 1986-87 and the second floor is with an Income Tax Lawyer on a monthly rent of Rs.2,860/- since 1986-87. It is denied that said first and second floor are suitable to the petitioners. It is submitted that respondent cannot dictate terms to the petitioners. It is submitted that construction of this property is comprised of ground floor, first floor, second floor and partly built third floor and a store on the roof. It is further submitted that there are four tenants on the ground floor, the third floor is not habitable because of its condition and there is no electricity available there.
I have seen the file. The requirement of the petitioners is of the tenanted premises in question which is on the ground floor. Therefore, the space available on upper floors cannot be taken into consideration. Even otherwise, it well known fact that shops/business situated on the ground floors will fetch more customers than the shops/ businesses which are situated on the upper floors. Besides, admittedly, the ground floor, first floor and second floor are already in occupation and possession of two tenants and therefore, space at ground floor, first floor and ground floor cannot be said to be available to the petitioners. As per petitioner, the space available at upper floors i.e. over second floor is not suitable to them. Therefore, this Court cannot compel a landlord to shift to that premises which is not suitable to him. Even otherwise, there is nothing place on record by the respondent which E-118/11 21/23 suggest that upper floors are commercial in nature.
In view of above, the contentions of respondent are dismissed.
21. It also contended that the petitioner no.2 is working with one Advocate at Tis Hazari Courts, Delhi for last many years and never want to open up his business from the suit premises. It is further contended that the petitioner no.2 is already a man of 35 years, not married having no liabilities of life and having bad character, never wants to open up his own business.
The petitioners have denied the same. I feel that the contentions i.e. petitioner no.2 is having no liabilities of life or having bad character are not relevant to decide the present petitioner and therefore, same are dismissed. The respondent has not placed on record any document which shows that petitioner no.2 is an Advocate. Moreover, in my opinion, the requirement of petitioners for running a provisional store from the tenanted premises cannot said to be fanciful.
22. In Nem Chand Daga v. Inder Mohan Singh Rana, 94 (2001) DLT 683 it was held that before leave to defend is granted, the respondent must show that some triable issues which disentitled the applicant from getting the order of eviction against the respondent and at the same time entitled the respondent to leave to defend existed. The onus is prima facie on the respondent and if he fails, the eviction follows.
23. Considering, the whole facts and circumstances, I am of the view that petitioners have completely satisfied this Court about their bonafide need. The petitioners have further satisfied that they are co-owners of the premises in question and also that besides tenanted premises, they have no other reasonably suitable shop to meet their bonafide requirement. On the E-118/11 22/23 other hand, the respondent has failed to reveal any fact which could raise any triable issue. Therefore, petitioners are entitled for eviction of respondent with regard to the tenanted premises.
24. Accordingly, the application for leave to defend is dismissed and eviction order is hereby passed in favour petitioners and against the respondent with regard to tenanted premises i.e. Shop bearing no. 28/3939-40, Rehgarpura, Karol Bagh, New Delhi as shown in red colour in the site plan exhibited today as Ex.X. It is made clear that this order will not be executable till expiry of six months from today. File be consigned to record room.
Announced in open court LALIT KUMAR
on 18th February, 2012 CCJ-cum-ARC(Central)
THC: DELHI
E-118/11 23/23