Delhi High Court
Vinod Kumar & Anr vs Ajay Kumar Singhal on 20 May, 2016
Author: Indermeet Kaur
Bench: Indermeet Kaur
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 17.05.2016
Judgment delivered on : 20.05.2016
+ RC.REV. 374/2015 & C.M. No.13098/2015
VINOD KUMAR & ANR
..... Petitioners
Through Mr. Dinesh Kumar Gupta and Mr.
Vidit Gupta, Advs.
versus
AJAY KUMAR SINGHAL
..... Respondent
Through Mr. A.K. Singla, Sr. Adv. with Ms.
Meenakshi Singh, Adv.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J.
1 The petitioner is aggrieved by the judgment dated 27.05.2015 wherein in the eviction petition filed by the landlord (Ajay Kumar Singhal) seeking a decree of eviction (qua the suit property i.e. a shop on the ground floor forming part of property bearing No. P 4756/4758, Ward No. 3, Laxmi Bazar, Cloth Market, Delhi) (hereinafter referred to as the „said shop‟) was decreed in favour of the landlord. The petitioner before this Court is the tenant. It was after a trial that the learned Additional Rent Controller (ARC) returned a finding that the landlord is entitled to a decree. R.C. Rev. No. 374/2015 Page 1 of 21 2 Record shows that the aforenoted eviction petition had been filed by the landlord qua the aforenoted shop under Section 14 (1)(e) read with Section 25-B of the Delhi Rent Control Act (hereinafter referred to as the „said Act‟). The said shop had been tenanted as a single tenancy; rate of rent was Rs.99/- per month. The landlord claimed himself to be the owner of the suit property. Further contention being that initially the said shop had been tenanted out to the sole proprietorship firm of M/s Sain Dass Dev Raj. Sain Dass had expired on 13.12.1990 and after his death, his two sons Vinod Kumar and Dev Raj had inherited the tenancy rights from their father and accordingly, they have been impleaded in the said petition. The landlord‟s contention was that this property is required bonafide by him for running a business by his wife (Vandana Singhal). He has no other reasonably suitable accommodation for the said purpose. It was further stated that w.e.f. 01.08.2010, his wife was carrying on business under the name and style of M/s Sidhant Textiles (as a sole proprietor) from a tenanted shop at 650, Gali Ghanteshwar, Katra Neel, Chandni Chowk, Delhi which she had taken at a monthly rent of Rs.6,000/- per month. The landlord of the said shop was Radha Textiles.
3 Leave to defend had been granted in favour of the tenant. Written R.C. Rev. No. 374/2015 Page 2 of 21 statement was filed. The plea raised in the written statement was that the landlord is in fact neither the owner and nor the landlord of the said premises; there is a mis-joinder of parties as Vinod Kumar and Dev Raj are not the tenants of the said shop; the tenancy was under the name of M/s Sain Dass Dev Raj which is the partnership firm distinct and separate in entity from Vinod Kumar and Dev Raj. Another objection which was taken in the written statement was that the documents on record qua the tenancy of Sidhant Textiles from Radha Testiles were all sham and created documents; this was only to build up a bonafide need which was actually not bonafide. Additional submission was that there is alternate accommodation with the landlord in the form of the first floor of the suit property which is lying vacant. In the written statement, it was also pleaded that an earlier eviction petition E-300/2008 titled Ajay Kumar Singhal Vs. Dev Raj had been filed by the landlord under Section 14 (1)(e) of the said Act which was subsequently withdrawn on 22.03.2011 which was after the date of the filing of the present eviction petition which was on 18.03.2011. The present petition has tried to overcome the lacuna in the first petition and at the cost of repetition, the bonafide need sought to be set up by the landlord has been created by fabricating documents to show that the wife of the landlord was R.C. Rev. No. 374/2015 Page 3 of 21 carrying on the textile business from a tenanted shop. She was in fact not carrying on any business.
4 Before the ARC, two witnesses were examined on behalf of the landlord. Per contra, one witness was examined by the tenant. On behalf of the landlord, the statement of Ajay Kumar Singhal and his wife Vandana Singhal was recorded. On behalf of the tenant, the sole witness was Vinod Kumar. All the witnesses were duly cross-examined.
5 On behalf of the tenant, it has vehemently been argued that there is no relationship of landlord-tenant between the parties and this aspect has not been considered by the Trial Judge in the correct perspective. Submission being that the tenant was in fact M/s Sain Dass Dev Raj and not Vinod Kumar or Dev Raj. Vinod Kumar and Dev Raj in their individual capacity had never accepted Ajay Kumar Singhal as their landlord. To substantiate this submission, attention has been drawn to various documents including the earlier eviction petition which had been filed by the landlord wherein the name of Sain Dass Dev Raj had been shown as a tenant. Attention has also been drawn to the cross-examination of PW-1 and PW-2 wherein in part of his cross-examination, PW-1 had admitted that M/s Sain Dass Dev Raj had deposited rent under Section 27 of the said Act. The second submission of R.C. Rev. No. 374/2015 Page 4 of 21 the learned counsel for the tenant is that the bonafide need of the landlord is in fact not bonafide; it has been projected and created and is based on false and fabricated documents; Sidhant Textiles is not a tenant of Radha Textiles; the wife of the petitioner is in fact not carrying on any business. The eviction has been sought from the tenant only as a commercial venture i.e. for seeking enhanced rent. It has lastly been submitted that the essential requirement of the landlord having no other alternate suitable accommodation has also not been established. The first floor of the same property is available with the landlord. Submission is that the submission of the landlord that this property is tenanted out is negatived by the electricity bill (Ex.PW-1/R-14) of the aforenoted first floor which clearly shows that there is nil consumption of electricity establishing the argument of the tenant that there is no person living in that first floor. Attention has also been drawn to the cross- examination of PW-1 wherein he had admitted that the first floor of the property is lying closed for several years; submission being reiterated that this property is vacant and can well fulfill the need of the wife of the landlord. An argument had also been propelled to the effect that the landlord (Ajay Kumar Singhal) being the adopted son of his parents has no right or interest in this property. However, learned counsel for the tenant, at a later R.C. Rev. No. 374/2015 Page 5 of 21 point in the course of arguments submitted that he is not pressing this argument.
6 Per contra, learned senior counsel for the landlord submits that the impugned judgment calls for no interference. This Court is sitting in its revisional jurisdiction and unless and until, there is a patent illegality, there is little scope of interference. Learned ARC has martialled the evidence in the correct perspective and on no count, does the impugned judgment call for any interference. The relationship of the landlord-tenant has been proved. The twin requirements of a petition under Section 14 (1)(e) of the said Act which is the need of the Vandana Sahgal (wife of the landlord) has been established; she is presently carrying on the business from a tenanted accommodation; the fact that there is no alternate accommodation is also clear from the fact that the aforenoted first floor of the said property is under the tenancy of Anil Kumar, proprietor of M/s Shyam Sunder Anil Kumar. To support this argument, he has also placed reliance upon Ex.PW-1/8 which is a document signed by the proprietor of M/s Shyam Sunder Anil Kumar tendering rent to the landlord for the aforenoted property. 7 Arguments have been heard. Record has been perused.
8 The present eviction petition had been filed on 18.03.2011. Vinod R.C. Rev. No. 374/2015 Page 6 of 21 Kumar and Dev Raj have been impleaded as tenants. The bonafide need has been noted supra. It is the need of the wife of the landlord for running a business. It is stated that there are two tenants on the ground floor. One shop is with the present tenant and the other shop is with Kishan Lal Bansal. The first floor is under the tenancy of M/s Shyam Sunder Anil Kumar. The second and third floors of the property are with Kishan Lal Bansal which is a residential accommodation. While projecting this bonafide need, the landlord has also stated that the wife of the petitioner is a well educated lady and belongs to a family of businessman. She is running the business of cloth merchant from 650, Gali Ghanteshwar, Katra Neel, Chandni Chowk, Delhi. This business has already started earning revenue and the petitioner and his wife are eager to expand the business and accordingly the said shop is required by them. The petitioner has also claimed to be the owner of the suit property having derived title from his parents. In this petition, it has also been stated that the initial tenant was M/s Sain Dass Dev Raj but after the death of Sain Dass on 13.12.1990, his two sons had inherited the tenancy and accordingly, they had been impleaded.
9 The written statement and the objection taken in the written statement have already been noted supra.
R.C. Rev. No. 374/2015 Page 7 of 21 10 PW-1 was the landlord who had come into the witness box and had proved various documents i.e. Ex.PW-1/1 to Ex.PW-1/24. Rent receipts (Ex.PW-1/10) brought on record show that the tenant was M/s Sain Dass Dev Raj. He was paying Rs.74/- as monthly rent and the total annual rent w.e.f. 01.04.200 to 31.03.2001 was Rs.888/-. Ex.PW-1/R-10, Ex.PW-1/R-11, Ex.PW-1/R-12 & Ex.PW-1/R-13 were the cheques signed by Vinod Kumar from the account of M/s Sain Dass Dev Raj. These cheques are from the period from 22.03.2005 to 01.05.2007. Sain Dass had expired by that time. These documents reflect that Vinod Kumar was issuing cheques qua the aforenoted tenancy. A D.R. petition had also been filed by the tenant in September, 2009 under Section 27 of the said Act which sought a permission of the Court to deposit rent. This petition had also been signed by Vinod Kumar. The affidavit of Vinod Kumar clearly stated that Vinod Kumar s/o late Sain Dass being a partner in the aforenoted firm was depositing rent for the said shop. These documents cumulatively thus clearly evidence that the relationship of landlord-tenant between Ajay Kumar Singhal and Vinod Kumar stood established. Vinod Kumar had himself deposited rent before the Rent Controller for the aforenoted property and claimed himself to be a partner of the said firm. The internal changes inter-se the partners and after R.C. Rev. No. 374/2015 Page 8 of 21 their conversion from a proprietorship firm (after the death of Sain Dass) into a partnership firm may not have been brought to the notice of the landlord and also may not be relevant as the jural relationship of landlord and tenant continued which at the cost of repetition was clearly evidenced from the afore noted said documents. It was Vinod Kumar himself who was signing all the cheques on behalf of the firm and he had also in September, 2009 chosen to deposit rent before the ARC. The rule of estoppel contained in Section 116 of the Evidence Act clearly now estops him from stating that he was not a tenant of Ajay Kumar Singhal; relationship of landlord-tenant was clearly evidenced.
11 This Court also notes that while dealing with an eviction petition under Section 14 (1)(e) of the said Act, ownership in the strict sense is not required to be proved by the owner/landlord. That apart, the learned counsel for the tenant had given up his argument qua the status of landlord as an owner. In view of the aforenoted position, the objection raised by the tenant that he does not share a relationship of landlord-tenant is negatived. This objection is over-ruled.
12 The next argument of the learned counsel for the tenant that the landlord has failed to establish that he has no other alternate suitable R.C. Rev. No. 374/2015 Page 9 of 21 accommodation is also negatived by this Court and this Court draws this conclusion from the oral testimony of the witnesses as also the documents which have been proved on record. Although the contention of the tenant was that the first floor of the suit property is available as an alternate accommodation to the landlord, he had categorically denied it stating that the first floor of the property had been tenanted out to M/s Shyam Sunder Anil Kumar of whom Anil Kumar is the proprietor. In this regard, PW1 had proved two documents i.e. Ex.PW-1/8 and Ex.PW-1/9. PW-1/8 is a letter written by Anil Kumar in his capacity as the proprietor of the said firm tendering rent to Ajay Kumar Singhal. This is for the period from 01.04.2009 to 30.09.2010. Ex.PW-1/9 is a hand-written document which was also a tender of rent for a subsequent period i.e. w.e.f. April, 2012 to March, 2013. PW-1 has not been cross-examined on these documents. There is no reason whatsoever to disbelieve these documents having been written on the letterhead of M/s Shyam Sunder Anil Kumar disclosing the address of first floor of property (bearing No. P 4756/4758, Ward No. 3, Laxmi Bazar, Cloth Market, Delhi. The electricity bill (Ex.PW-1/R-14) had showed nil consumption of electricity qua the first floor but that by itself does not establish that the first floor has not been tenanted out; PW-1 has in fact R.C. Rev. No. 374/2015 Page 10 of 21 admitted that the property is lying closed and that was probably the reason as to why the electricity bill had reflected a nil consumption; that does not take away the fact that the tenancy is still alive.
13 Thus the submission of the learned counsel for the tenant that there is an alternate accommodate in the form of first floor to the landlord was rightly disbelieved by the ARC. The Trial Court has marshalled the evidence on this count in the correct perspective. This submission calls for no interference. 14 The last submission of the learned counsel for the tenant has now to be answered which is qua the need of the landlord and whether it is a deliberately created and a projected need and is in fact not bonafide/genuine. In this context, this Court notes that an earlier eviction petition had been filed by the landlord in the year 2008. This was also against two persons namely Dev Raj and Vinod Kumar who were arrayed as the two tenants. The need was projected in para 18(a) which was the need of the wife of the landlord to carry on the business from the aforenoted shop. This petition was withdrawn on 22.03.2011 on the submission made by the landlord that he had already filed an eviction petition which was pending. That eviction petition is the present petition out of which the impugned judgment has arisen. That eviction petition had been filed on 18.03.2011. The distinction in R.C. Rev. No. 374/2015 Page 11 of 21 the earlier eviction petition and the present eviction petition is to the effect that in the earlier eviction petition (which has been filed in the year 2008), it was not the submission of the landlord that his wife was already carrying on business from a tenanted accommodation. In the present eviction petition, the contention of the landlord is that his wife who has grown up children is free to carry on business and has taken a tenanted shop on 01.08.2010 from Radha Textiles and is carrying on business under the name and style of "Sidhant Textiles" and she propose to expand it and accordingly the present eviction petition had been filed. The vehement submission of the learned counsel for the tenant on this score is that the earlier eviction petition had been withdrawn as it suffered from insufficient pleadings on the point of need and only to project this need, the documents showing that the wife of the landlord is carrying on business from a tenanted accommodation have been set up; these documents are forged and fabricated. Submission being that this aspect has not been considered by the Trial Judge in the correct perspective.
15 The oral and documentary evidence qua this aspect has been perused. On this count, PW-1 had deposed that his wife is doing her cloth business from the aforenoted shop at Katra Neel. Radha Textiles is the owner of the R.C. Rev. No. 374/2015 Page 12 of 21 said shop and this shop had been taken on rent w.e.f. 01.08.2010 at a monthly rent of Rs.6,000/- per month. A rent note had also been placed on record. This rent note filed on record is dated 22.09.2010 and has been signed by Vandana Sahgal (wife of the petitioner) and witnessed by two persons namely Hem Chand Gupta and Ankit Aggarwal. It has not been signed by the purported landlord. i.e. any person on behalf of Radha Textiles. The name of the partner of Radha Textiles Rajinder Goyal has been mentioned in this rent note but admittedly this document has not been signed by him. In his cross-examination, PW-1 has admitted this fact. He has admitted that this rent note does not bear the signatures of the landlord and only the signatures of his wife and two witnesses appear on this document. It has also come in the evidence of PW-1 that the aforenoted two witnesses are friends of PW-1. This document is thus of no value. Thus the submission of the landlord that he had taken the aforenoted property on rent from Radha Textiles for the purpose of business of his wife does not stand established. That apart, PW-1 in his cross-examination has admitted that Ex.PW-1/17 to Ex.PW-22 (invoices filed by the landlord to substantiate his submission that he was carrying on business from the aforenoted property) do not bear the address of the premises from where his wife was running the alleged R.C. Rev. No. 374/2015 Page 13 of 21 business. PW-1 admitted that Sidhant Textiles (business house of the wife of the petitioner) was not maintaining any landline telephone and thus there was no record to show that there was a landline installed on the aforenoted premises in the name of Sidhant Textiles. On this count, PW-1 also admitted that there was no electricity connection either in the name of Sidhant Textiles. He admitted that his wife had not taken any electricity connection in her name and she was borrowing electricity from Radha Textiles which electricity connection was in the name of Radha Textiles. PW-1 admitted that the rent paid by his wife do not include the electricity charges; His wife paying a sum of Rs.5,000/- as a lump sum to Radha Textiles on account of electricity charges. No such document has been brought on record. PW-1 had further admitted that his wife was filing her income tax returns since the last 10 years as she has a substantial income from bank interest. The income tax returns of the wife of the petitioner were not placed on record. PW-1 in fact admitted that „Sidhant Textiles‟ is the proprietorship of his wife and is earning income and has been assessed for the said purpose but at the cost of repetition no such ITR of the wife was placed on record. He admitted that Radha Textiles is owned by three persons but he had not seen the ownership documents of the aforenoted property. Partners of Radha Textiles are all R.C. Rev. No. 374/2015 Page 14 of 21 family members. He admitted that Radha Textiles also mentions the same address as their business house i.e. 650, Gali Ghanteshwar, Katra Neel, Chandni Chowk, Delhi although he stated that the portion in possession of Radha Textiles and Sidhant Textiles is different and are in distinct portions but he further admitted that the entrance to this floor has a common staircase/entrance. He denied the suggestion that there is no cabin separately given to Sidhant Textiles in the aforenoted property. He further admitted that his wife did not have any experience of doing business of ladies garments but she only had knowledge about the same. He denied the suggestion that his documents were fabricated.
16 In her examination-in-chief, PW-2 had proved certain documents i.e. Ex.PW-1/14 to Ex.PW-1/24. These documents were bills and goods receipts received from various business houses to substantiate her submission that good/clothes were being supplied to Sidhant Textiles in the normal course of its business. A perusal of these documents would show that „Meenu Creation‟ had supplied certain material to Sidhant Textiles in April, 2011. Relevant would it be to note that these documents do not bear the address of „Sidhant Textiles‟ even through these goods had been dispatched through a consignment of a Green Roadways. In fact in almost all of these documents R.C. Rev. No. 374/2015 Page 15 of 21 (i.e. Ex.PW-1/17, Ex.PW-1/18, Ex.PW-1/19 and Ex.PW-1/20), Sidhant Textiles finds mention with a conspicuous absence of its location/address. The bank statement in the name of Sidhant Textiles also shows that this bank account has been opened with Inderprastha Apollo Hospital (Faridabad) whereas the business house of Sidhant Textiles is at Chandi Chowk. It is difficult to believe how transaction for a business house having its business at Chandni Chowk is to be conducted from a bank account which is situated miles away; it is also not the case of any person that there is no Bank available in the vicinity of Chandni Chowk. A further perusal of this bank statement (Ex.PW-1/21) shows that the most of the transactions are cash deposits. Ex.PW-1/22 and Ex.PW-1/23 are profit and loss account for the period ending from 31.03.2011 of „Sidhant Textiles‟. These documents are not certified by a Chartered Accountant. They are computer generated plain paper documents showing the sale figures and stock of „Sidhant Textiles‟. Ex.PW-1/22 shows that the profit and loss account for the period ending from 31.03.2011 and shows a balance of Rs.1,50,867/-. This figure also does not match with the bank statement which starts from 01.04.2011 and which is a brought forward figure of Rs.24,423/-.
17 In her cross-examination PW-2 has also admitted that she is assessed R.C. Rev. No. 374/2015 Page 16 of 21 to income tax since the last 8-10 years and her income has been shown in her respective ITRs which include the income received by her from bank deposits as also the money received by her on festivals by her parents. She denied the suggestion that she has no experience of running this business. 18 Testimony of RW-1 is also relevant. He had all along stated that the documents relating to „Sidhant Textiles‟ and „Radha Textiles‟ have been fabricated by the landlord only to build up a case that his wife is carrying on business from a tenanted shop when admittedly she has no experience in this business; she is in fact not doing any business. The relationship of landlord- tenant sought to be created of Radha Textiles and Sidhant Textiles is fabricated. In his cross-examination, RW-1 stated that he had visited the showroom of Radha Textiles wherein he saw that there was only one hall on the first floor.
19 The evidence thus collated on this point, (both oral and documentary), shows that there is one hall on the first floor of property bearing No. 650, Gali Ghanteshwar, Katra Neel, Chandni Chowk, Delhi. Radha Textiles is admittedly the owner of the said property. This is one hall property. It does not have any bifurcation or cabin. It has a common entrance/staircase. The purported rent note executed between „Radha Textiles‟ and „Sidhant R.C. Rev. No. 374/2015 Page 17 of 21 Textiles‟ has not been signed by the landlord. This document is no document for the purposes of a rent note. Even assuming that there was an oral tenancy (although belied by the fact that a written rent note has been relied upon and which has been disbelieved), the other documents discussed supra which includes the invoices filed by the landlord show that the conspicuous absence of the address of „Sidhant Textiles‟ which is missing in all these documents. The figure mentioned in the bank statement also does not co-relate with the profit and loss accounts of Sidhant Textiles which, at the cost of repetition, are not certified by a Chartered Accountant. There is thus no explanation as to why best evidence on this score has been withheld by the landlord as admittedly since the wife of the petitioner (Vandana Singhal) was assessed to income tax (since the last 8-10 years) and her submission being that she was earning handsome amount from this business of Sidhant Textiles, why ITRs were not placed on record to substantiate this submission; an adverse inference for withholding this evidence must necessarily be drawn against the landlord in terms of Section 114 (g) of the Evidence Act. 20 There is also no landline or electricity connection with „Sidhant Textiles‟; if it is a business house, it is difficult to believe that such a business house can operate without a telephone line; the electricity R.C. Rev. No. 374/2015 Page 18 of 21 connection is admittedly in the name of „Radha Textiles‟. Admittedly, there is no independent connection of Sidhant Textiles. There is also no document to show that money was paid qua the electricity charges purported to have been consumed by „Sidhant Textiles‟.
21 This Court again notes that an earlier eviction petition had also projected a need for the business house of the wife of the landlord. This petition had been filed in the year 2008 but had been withdrawn on 22.03.2011. In between, the present eviction petition had been filed on 18.03.2011. The submission of the tenant that by this time, the landlord had become wiser and had created documents to show that the need of the wife to set up her independent business was urgent in view of the fact that she had now taken an accommodation on rent and she carrying on a profitable business from this rented accommodation; she wished to continue with this business and in fact wanted to expand it is an argument worthy of merit. The fact that Sidhant Textiles was carrying on the business from August, 2010 is a submission made by the landlord and if this business house was earning income, at the cost of repetition, why no such document was placed on record creates a suspicion in the mind of the Court that the argument propelled by the learned counsel for the tenant that this need has been now R.C. Rev. No. 374/2015 Page 19 of 21 created only to build up a ground under Section 14 (1)(e) of the said Act cannot be overlooked.
22 In fact the documents placed on record all appear to be suspicious. If a rent note had been created inter-se the parties, why the landlord who is the owner of Radha Textiles did not sign it creates a doubt on the authenticity of this transaction. It has also come on record that the first floor from where Radha Textiles is carrying on his business has one hall. There is a common entrance and staircase. The location being at Katra Neel, Chandi Chowk (substantiated by the site plan Ex.PW-1/1) and it being a well known fact that accessibility in such a congested portion of old Delhi is extremely narrow. Two business houses being run at one common hall with no document to support this stand throws doubt on the version of the landlord that Sidhant Textiles was being run from 650, Gali Ghanteshwar, Katra Neel, Chandni Chowk, Delhi.
23 The Trial Court had not considered this evidence in the correct perspective. The evidence which has been brought on record was neither marshalled and nor examined in the light of the submissions and counter submissions of the parties which were a part of the Trial Court record. The findings of the Trial Court on this aspect were perverse. They are liable to be R.C. Rev. No. 374/2015 Page 20 of 21 set aside.
24 Thus this Court draws a conclusion that the need of the landlord for eviction of the suit premises is not a bonafide need. The first requirement of Section 14 (1)(e) of the said Act does not stand established although on other counts (as noted supra), the landlord has been able to succeed but since the essential requirement of Section 14 (1)(e) are the two twin requirements i.e. the bonafide need of the landlord has to be established coupled with the fact that he has no other reasonably suitable accommodation and since this has not been established, this Court is of the view that the impugned judgment is liable to be set aside.
25 Accordingly, the eviction decree passed in favour of the landlord is set aside. Eviction petition of the landlord stands dismissed. 26 Petition is allowed in the aforesaid terms.
INDERMEET KAUR, J MAY 20, 2016 A R.C. Rev. No. 374/2015 Page 21 of 21