Delhi District Court
Jagdish Prasad vs . Yogesh Chand on 29 April, 2010
Jagdish Prasad vs. Yogesh chand
IN THE COURT OF SH. TARUN KR. SAHRAWAT,
ADDL. RENT CONTROLLER, NORTH DISTT. DELHI.
E No. 31/2009
Unique Case ID No: 02401C0754652008
SH. JAGDISH PRASAD
S/O LATE SH. RAM SWAROOP
R/O 219, KATRA PERAN,
TILAK BAZAR, KHARI BAWLI,
DELHI. ...Petitioner.
Versus
SH. YOGESH CHAND SHARMA
S/O SH. MAHADEV PRASAD SHARMA
R/O 219/220, GROUND FLOOR,
KATRA PERAN, TILAK BAZAR,
KHARI BAWLI, DELHI. ...Respondent.
Date of institution of the petition : 20/05/2008
Date on which order was reserved : 20/04/2010
Date of Decision : 29/04/2010
O R D E R
29/04/2010 This is an eviction petition U/Sec. 14 (1)(e) of the Delhi Rent Control Act, 1958 (herein after referred to as DRC Act).
By this order, I shall dispose of an application made U/s E no. 31/2009 Page 1/17 Jagdish Prasad vs. Yogesh chand 25B of the D.R.C. Act for seeking leave to contest the present eviction petition.
(1). Briefly stated the facts as narrated in the petition that petitioner is the owner/landlord of the property bearing no. 219, Katra Peran, Tilak Bazar, Khari Bawli, Delhi and respondent is the tenant in respect of one room (Office) situated on the ground floor of the said property as specifically shown in red colour in the annexed Site Plan (Herein after called "the premises"). The premises are let for non residential purposes to respondent @ Rs. 77/ p.m. exclusive of electricity charges. It is further stated that petitioner is having three sons and out of them, two sons are married having their school going kids and one son has attained marriageable age. Petitioner is also having one daughter who is married and she often visits the house of petitioner. Petitioner has one brother aged about 45 years, who also resides with him.
(2). At present, only three rooms at the second floor are in occupation of the petitioner and he is not able to accommodate his above mentioned family members in the portion in his occupation. Petitioner has shown his bonafide requirement for the premises on the ground that he and his wife require one room for themselves, one room for his brother, three rooms for his sons and one room for E no. 31/2009 Page 2/17 Jagdish Prasad vs. Yogesh chand poojaghar and one store, one study and one guest room. It is further stated that petitioner is having no other accommodation except the present one. With these submissions, the petitioner prayed for grant of an eviction order U/Sec. 14(1)(e) of D.R.C. Act against the respondent in respect of the tenanted premises. (3). In the application for seeking leave to defend, it is stated that there are some triable issues in this case, which , if proved, would disentitle the petitioner from obtaining an order of eviction in respect of the tenanted premises against the respondent. Thus, the respondent prayed for grant of leave to contest the present eviction petition.
(4). I have heard the arguments and perused the other material placed on record.
(5). Before I advert to the respective contentions of Ld. Counsel appearing for either parties, let us discuss the essential ingredients of Sec. 14(1)(e) of D.R.C. Act on which the petitioner may be entitled to an order of eviction, as under:
1. That petitioner is the landlord and owner of the said premises, E no. 31/2009 Page 3/17 Jagdish Prasad vs. Yogesh chand
2. The premises in question were let for residential purposes,
3. The premises are required bonafide by the petitioner for use and occupation for himself or for any member of his family dependent upon him or for any person for whose benefit the premises are held; and
4. That the petitioner has no other reasonably suitable accommodation;
(1). That petitioner is the landlord and owner of the said premises: (6). It is an admitted fact that there exists a relationship of landlord and tenant between petitioner and the respondent. However, respondent submitted that petitioner is not the exclusive owner of the suit property. Now, having admitted the petitioner to be the landlord, the respondent is estopped from denying the title of the petitioner to the property in question as per Section 116 of Evidence Act. Reference in this context may be made to the judgments in Amar Kaur v. Naresh Kumar 97 (2002) DLT 772 and Rital Lal v. Raj Kumar Singh (2002) VIII AD (SC) 43. Also in a recent ruling of Ramesh Chand v. Uganti Devi 157(2009) DLT 450, our own Hon'ble High Court has specifically held that:
"It is settled preposition of law that in order to consider the concept of ownership under Delhi Rent E no. 31/2009 Page 4/17 Jagdish Prasad vs. Yogesh chand 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 to owner, howsoever imperfect his title over the premises may be. The imperfectness of the title of the premises cannot stand in the way of an eviction petition under Section 14(1)(e) of the D.R.C. 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. Section 116 of the Evidence Act creates estoppel against such 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 premises, to whom he is paying rent, acts dishonestly. I, therefore, find that there was no infirmity in the order of learned ARC in this respect."
(7). Moreover, the respondents have failed to disclose the name of the person who according to them is the owner of the suit premises, it therefore, cannot be said that that any triable issue qua the ownership of property has been raised. Here, I am fortified with the case law of Meenakshi v. Ramesh Khanna & Anr. 60(1995) DLT 524, in which it was held as under: "Mere denial of ownership is no denial at all. It has to be something more. For this, first and foremost thing which has always been considered as a good guide is does the tenant say who else is the owner of the premises if not the petitioner ? In the present case, the tenant does not say E no. 31/2009 Page 5/17 Jagdish Prasad vs. Yogesh chand anything except denying petitioner's ownership. The tenant is completely silent on this aspect. Merely by saying that the petitioner is not the owner, the tenant is trying to ensure that the case drags on for years for trial. If leave is granted on the basis of such vague plea, it will encourage the tenants to deny ownership of the petitioners in every case. The tenants are well aware that once leave to contest is granted, the cases go on for trial for years. Their purpose is achieved. Keeping this in mind, the Controllers should rather have positive approach in such matters so as to discourage such vague and frivolous pleas which are most of the time false to the knowledge of persons raising them."
(8). In the light of abovecited case authorities, I observe that the plea of the respondent with regard to the ownership of the premises in question is untenable, hence rejected. (9). Further, admittedly, Smt. Raj Kumari died leaving behind two sons viz. Sh. Jagdish prashad, the petitioner herein and Sh. Roshan Lal and two daughters. Further, as per the petitioner, Smt. Raj Kumari, mother of the petitioner executed a Will in favour of the petitioner and therefore, he is entitled to file this eviction petition. Though, the petitioner has not placed on record the said Will, but even otherwise admittedly, he is the coowner of the aforesaid property. As per settled law, even a coowner of the suit property is entitled to maintain an eviction petition against the tenant. In the case of K.C. Agarwal v. Hardip Singh 2005(1)AD (Delhi) 587; it was held that E no. 31/2009 Page 6/17 Jagdish Prasad vs. Yogesh chand "coowner is owner and deemed to be landlord for the purpose of D.R.C. Act."
(10). Therefore, the above plea of the respondent is not tenable, hence rejected. In the above circumstances, I observe that petitioner is the landlord and owner of the premises in dispute under the provisions of D.R.C. Act.
2. The premises in question were let for residential purposes : (11). This issue in controversy has been set at rest by the Hon'ble Apex Court in the leading case of Satyawati Sharma v. Union of India and Another 2008(5) SCC 287; wherein it was held that the premises let out either for residential or commercial purposes can be got vacated by the Landlord for bonafide requirements.
3. The premises are required bonafide by the petitioner for use and occupation for himself or for any member of his family dependent upon him or for any person for whose benefit the premises are held: (12). It is not disputed that petitioner's family comprises of himself, his wife, his brother, three sons, out of them two are married and one is of marriageable age, one married daughters and also his E no. 31/2009 Page 7/17 Jagdish Prasad vs. Yogesh chand threefour grand sons and grand daughters. Petitioner has shown his bonafide requirement for the premises on the ground that he and his wife require one room for themselves, one room for his brother, three rooms for his sons and one room for poojaghar and one store room, one study room and one guest room. It means that petitioner has claimed his bonafide requirement for atleast seven living rooms in the property.
(13). As per the petitioner, he is having only three rooms in his occupation. However, as per the respondent, petitioner is in the occupation of five rooms, store, bath, kitchen situated on the first and second floor of the aforesaid property. Respondent stated that petitioner has, in his occupation, a room measuring 9'.9"X8'.11" with attached store measuring 5'.1"X8'.7" on first floor of the property besides four rooms, bath and kitchen situated on the second floor of the property. Even if we assume the submission of respondent as true and correct, in that case also, the aforesaid rooms measuring 9'.9"X8'.11" cannot be considered as a living room because as per the MCD bylaws, a living room must be an area of minimum 100 sq. yds. On this, I take support by a case law of Brij Mohan v. Sripal Jain 1993 RLR 190, wherein it was held that "Tenant cannot claim that a room of a size of less than 100 sq. feet is a living room. For a room of 200 E no. 31/2009 Page 8/17 Jagdish Prasad vs. Yogesh chand sq. feet, he cannot contend that it is equal to two rooms." (14). In the aforementioned circumstances, plea of the respondent is not tenable in the eyes of law, hence, rejected. (15). Further, even if the contention of learned counsel for respondent is assumed correct then also, in my considered view, five rooms remaining occupied by the petitioner, in my considered view, that also cannot meet the bonafide requirement of the petitioner and his family members. On this, I am supported by various law authorities delivered by the Hon'ble higher courts. In the case of Pravin Sarin v. Manbir Singh & Others, 20 (1981) DLT 61, our own Hon'ble High Court was of the view that:
"Minimum requirement Separate bed rooms for self and wife, sons and daughter as also for guests e.g. married daughter Landlord being of status, e.g. Advocate, his need for drawing and dining rooms also valid."
Similarly, in the case of K.C. Chopra v. Satyapal Chadha 1971 RLR (Rent) 578; it was held that: "The landlord wanted separate room for dining and sitting need cannot be termed as whimsical or fanciful."
E no. 31/2009 Page 9/17
Jagdish Prasad vs. Yogesh chand (16). The petitioner has also shown his requirement for a guest room for his married daughter and her in laws. I find the need of a guest room as bonafide need as in the case of Tilak Raj Vs. Krishan Lal 1982. RLR (Note) 33; it was held that: "The married daughters keep on visiting their father's home and are entitled to some accommodation (Guest room) and hence landlord was entitled to say that he wanted some accommodation for their use also."
(17). I am also convinced with the requirement of a Pooja Room as shown by the petitioner. In a case of Mahendra Trivedi v. Jai Prakash Verma 157 (2009) DLT 690; it has been held by our own Hon'ble High Court that: "It is settled law that each member of the family requires atleast a comfortable place where he/she can sleep.. There are around 09 members in the family existing and the landlord has no separate Pooja Ghar with him. It is settled law that neither the Court nor the tenant can dictate to the landlord the mode and manner in which he should live or to prescribe for him the residential standard on their own. The landlord must be left to assess his requirement in the background of his position, circumstances and status in the life and social and other responsibilities and other relevant factors. In judging his special needs and convenience, certainly E no. 31/2009 Page 10/17 Jagdish Prasad vs. Yogesh chand the landlord would have a choice."
(18). Keeping in mind the composition of the family of petitioner and his aforesaid bonafide requirements, I find that the accommodation available with the petitioner is insufficient to meet the growing requirements of his family and therefore, he has bonafide need for acquiring the tenanted premises for occupation as a residence for himself and for the members of his family.
4. That the petitioner has no other reasonably suitable accommodation: (19). Though the respondent has not alleged any other reasonably suitable accommodation available with the petitioner however, it is submitted that the petitioner is employed with Lady Harding Medical College and he has been alloted a Qtr. no. 21, T.T. Palace, Opposite Kalawati Saran Hospital, Bungla Sahib Road, New Delhi; by his employer. On this, petitioner stated that he is going to retire in the month of October 2009 and after his retirement, he would have to live in the said quarter. Though, the respondent denied that petitioner is going to retire in October 2009, but he has not placed on record any material to substantiate his denial of the said averment. Thus, it cannot be taken into serious consideration. Moreover, admittedly, it is a government accommodation in that case, it cannot E no. 31/2009 Page 11/17 Jagdish Prasad vs. Yogesh chand be taken as alternative accommodation available with the petitioner. Even otherwise, petitioner has already retired in the month of October, 2009 therefore, this accommodation will not be available to the petitioner in future. In view of the circumstances, plea of the respondent is not tenable in the eyes of law hence, dismissed. (20). It is further contended on behalf of respondent that he is doing a business from the premises under the name and style of 'Om Chem (India)' since beginning, but the petitioner requires the room in dispute bonafide for his residence and for his business. I find no force in this plea as the petitioner is already living in the aforesaid property therefore, he has every right to use the said premises as a the room for his residential purposes. Here, I am fortified with a case of Mahabir Prasad and another v. Vedwati Pathak and others 135 (2006) DLT 453, reference of abovecited case of Shiv Sarup Gupta (supra) was made in this context by our Hon'ble High Court as under "It is trite to say that the landlord is the best Judge of how he would wish to live with comfort in his own house unless it is an attempt to create an artificial paucity of accommodation. The law does not command or compel a landlord to squeeze his requirement tightly into lesser premises protecting the tenants occupation and observations to this effect have been made in Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, 80 (1999) DLT 731 (SC)= VI (1999) SLT 163, by the Apex Court. It would be useful to quote what the Supreme Court has observed on E no. 31/2009 Page 12/17 Jagdish Prasad vs. Yogesh chand a genuine and bona fide requirement, which is the pre requisite for a landlord to succeed in an eviction petition under Section 14(1)(e) of the said Act:
th "13. Chambers 20 Century Dictionary defines 'bona fide' to mean 'in good faith 'genuine'. The word 'genuine' means 'natural : not spurious : real: pure:
sincere'. In Law Dictionary, Mozley and Whitley define 'bona fide' to mean 'good faith, without fraud or deceit'. Thus the term 'bona fide' 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 bona fide' is suggestive of legislative intent that a mere desire which is outcome of whims 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. Looked at from this angle, any setting of the facts and circumstances protruding the need of the landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the Court. The Judge of facts should place himself in the armchair of the landlord and then ask the question to himself whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bonafide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the Court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be E no. 31/2009 Page 13/17 Jagdish Prasad vs. Yogesh chand enough to persuade the Court certainly to deny its judicial assistance to the landlord. Once the Court is satisfied of the bona fides of the need of the landlord for premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the Court. The Court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the Court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bona fide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or too conservative or pedantic must be guarded against."
(21). In the light of abovecited case law authorities. It is apparent that above plea of respondents has no merits in the eyes of law, hence, rejected.
(22). Further, it is alleged that the eviction petition has been filed with malafide intention to sell the property or to let the same on higher rent. This plea is not worthy of serious consideration as it is a hypothesis created by the respondent which cannot be relied upon.
Moreover, he has not placed on record any material to substantiate this averment. It is settled law that bald allegation without any material on record to substantiate the same could not be looked into as the E no. 31/2009 Page 14/17 Jagdish Prasad vs. Yogesh chand same is not enough for grant of leave to defend. I take support by the case law of Rajinder Kumar Sharma & Ors. v. Leelawati & Ors. 155 (2008) DLT 383, wherein our own Hon'ble High Court held that "Leave to defend not to be granted to tenant on the basis of false affidavit and false averments and assertions only those averments in affidavit are to be considered by Rent Controller which have some substance in it and are supported by some material." (23). In view of the above cited case law authority above contention of learned counsel for respondent is not worthy of serious consideration, hence rejected.
(24). It is further alleged that petitioner had let out one room situated on first floor of the property to Smt. Kamla Jain in 1995 and he also let out two big rooms adjacent to staircase on the first floor to Sripal Jain and Satish Kr. Malik in the year 1988 and 1991. It is argued on behalf of respondent that if the petitioner was in need of more accommodation, he would not have let out the portion on the first floor of the property as stated above, thus, his requirement is malafide. Again, I find no force in the plea of respondent as aforesaid rooms were let by the petitioner in the year 1988, 1991 and 1995 respectively whereas the present eviction petition was filed on 20/05/2008 i.e. after elapse of long span of atleast ten years. E no. 31/2009 Page 15/17
Jagdish Prasad vs. Yogesh chand Subsequent event can take place at any point of time and here, the petitioner's requirement/need has developed due to expansion of his family. Therefore, this plea of the respondent also is not tenable hence, rejected.
(25). It is further alleged that petitioner is not a law abiding citizen and in the month of July 2007, he forcibly and illegally took possession of a room/office on the first floor which is let out to Smt. Kamla Jain. This allegation has no relevance in these eviction proceedings hence, rejected.
(26). In the light of above discussion, I observe that the respondent has failed to raise any triable issue in his application for leave to contest the present eviction petition, which would disentitle the petitioner from obtaining the eviction order in his favour. Thus, the present application U/s 25B for seeking leave to defend, is dismissed. Hence, an eviction order is passed U/s 14 (1) (e) of the D.R.C. Act in favour of the petitioner and against the respondent in respect of one room (Office) situated on the ground floor of the property bearing no. 219, Katra Peran, Tilak E no. 31/2009 Page 16/17 Jagdish Prasad vs. Yogesh chand Bazar, Khari Bawli, Delhi as specifically shown in red colour in the annexed Site Plan. However, this order shall not be executable before the expiry of six months from the date of this order as provided U/sec. 14 (7) of D.R.C. Act. File be consigned to Record Room.
Announced in open court on 29 April, 2010.
th Tarun Kr. Sahrawat A.R.C.(North)/Delhi (1+2 separate copies are attached) E no. 31/2009 Page 17/17 Jagdish Prasad vs. Yogesh chand E No. 31/2009 JAGDISH PRASAD VS. YOGESH CHAND SHARMA 29/04/2010 Present: None for petitioner.
Respondent in person.
Vide my separate order of even date, the present application U/s 25B for seeking leave to defend, is dismissed. Hence, an eviction order is passed U/s 14 (1) (e) of the D.R.C. Act in favour of the petitioner and against the respondent in respect of one room (Office) situated on the ground floor of the property bearing no. 219, Katra Peran, Tilak Bazar, Khari Bawli, Delhi as specifically shown in red colour in the annexed Site Plan. However, this order shall not be executable before the expiry of six months from the date of this order as provided U/sec. 14 (7) of D.R.C. Act. File be consigned to Record Room.
Tarun Kr. Sahrawat A.R.C. (N)/ Delhi.
E no. 31/2009 Page 18/17