Delhi District Court
Sh. Gokal Chand Khanna (Huf) vs M/S Minerva Cinema on 4 July, 2018
IN THE COURT OF SH. GAJENDER SINGH NAGAR,
ADMINISTRATIVE CIVIL JUDGE CUM ADDITIONAL RENT
CONTROLLER (CENTRAL) : DELHI
E11/15/12 (Old), 77614/16 (New)
In the matter of :
Sh. Gokal Chand Khanna (HUF),
Through its Karta Sh. G.C. Khanna,
1, Sri Ram Road, Civil Lines,
Delhi. ......Petitioner
Versus
M/s Minerva Cinema,
Through its partner
Sh. S. Bengani,
residing at part of House No. 7,
comprising of now commonly
known as House No. 7B,
Sri Ram Road, Civil Lines,
Delhi. ......Respondent
Date of Institution : 22.11.2012 Date of order when reserved : 30.05.2018 Date of order when announced : 04.07.2018 (Court was closed for summer vacation from 11.06.2018 till 01.07.2018) J U D G M E N T:
1. Vide this judgment, I shall dispose of the present eviction petition filed by the petitioner against the respondent/ tenant U/s 14 (1) (e) of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'Act'), in respect of part of House No. 7, commonly known as House No. 7B (East Flat), Sri Ram Road, Civil Lines, Delhi comprising of one drawing roomcumdining room, one bedroom with attached bathroom, one pantry, one kitchen, a E77614/16 Page 1/28 staircase and a stairwell, one verandah, one garage and open parking space and a front lawn; boundary wall on the ground floor, two bedrooms with attached bathrooms (one with a dressing area), a store and a servant room with attached toilets, one terrace and a verandah/ balcony on the first floor and barsati, open toilet and two terraces on the second floor, as shown in red colour in the site plan annexed alongwith the petition.
2. The averments as mentioned in the petition are reproduced in brief here as under :
(a) That the case of the petitioner is that Sh. Gokal C. Khanna is the owner and residence of the property located at Ground Floor, South Flat, 1, Sri Ram Road, Civil Lines, Delhi110054 in his individual capacity and the accommodation available at 1, Sri Ram Road, Delhi with Sh. Gokal C. Khanna comprises of three bedrooms besides drawing/ dining room and other attachments. A narrow road separates 1, Sri Ram Road and 7, Sri Ram Road. The property no. 7 comprising of now commonly known as House No. 7B, Sri Ram Road, Civil Lines, Delhi was gifted to Sh. G.C. Khanna vide gift deed dated 31.03.1955 which property was subsequently brought into as the property of Hindu Undivided Family (HUF) commonly known as Sh. Gokal Chand Khanna, (HUF) of which Sh. G.C. Khanna is the Karta who is holding the entire property no. 7, Sri Ram Road, Civil Lines, Delhi.
The petitioner accordingly leased out the tenanted premises to the respondent vide lease deed dated 22.02.1971. The property bearing no. 7, Sri Ram Road, Civil Lines consists of three parts measuring approximately 2100 sq. yds. The first part (North or back part) measuring 1100 sq. yds. was built in 1911. It is in a completely run down and dilapidated state. The second part (West Flat) measuring 500 sq. yds. and commonly known as 7A E77614/16 Page 2/28 (West Flat) comprises of one drawingcumdining room, one bedroom with attached bathroom, one pantry, one kitchen and a puja room, a staircase and a stairwell, one verandah, one garage and open parking space and a front lawn on the ground floor, two bedrooms with attached bathrooms (one with a dressing area), a store and a servant room with attached toilets, one terrace and a verandah/ balcony on the first floor and a barsati, open toilet and two terraces on the second floor/ roof. This part was tenanted for over forty years and its possession was recently acquired. This part is in a poor state and now not in a condition to live in befitting the social status of the petitioner and the coparceners, hence they are doing minor repair in the property for using the same for stay of Smt. Madhuri Khanna (Mehra). The third part (East Flat) measuring 500 sq. yds., the suit property also known as 7B is nearly identical to the second part and comprises of one drawing room cumdining room, one bedroom with attached bathroom, one pantry, one kitchen, a staircase and a stairwell, one verandah, one garage and open parking space and a front lawn on the ground floor, two bedrooms with attached bathrooms (one with a dressing area), a store and a servant room with attached toilets, one terrace and a verandah/ balcony on the first floor and a barsati, open toilet and two terraces on the second floor.
(b) That the petitioner has the following coparcerner (joint family)
members :
(i) Sh. Arjun Khanna (57 years) S/o Sh. Gokal C. Khanna
(ii) Mrs. Kiran Khanna (Kapur) 55 years D/o Sh. Gokal C. Khanna
(iii) Mrs. Madhuri Khanna (Mehra) 49 years D/o Sh. Gojal C. Khanna
(iv) Ms. Puja Khanna (Ahluwalia) (28) D/o Sh. Arun Khanna
(v) Ms. Aradhana Khanna (26) D/o Sh. Arun Khanna
(vi) Mr. Adhish Khanna (24) S/o Sh. Arun Khanna
E77614/16 Page 3/28
(vii) Mr. Samir Kapur (28) S/o Mrs. Kiran Khanna (Kapur)
(viii) Ms. Natasha Kapur (25) D/o Mrs. Kiran Khanna (Kapur)
(ix) Mr. Sahil Mehra (23) S/o Mrs. Madhuri Khanna (Mehra)
(x) Mr. Armaan Mehra (15) S/o Mrs. Madhuri Khanna (Mehra).
(c) That the Karta of the petitioner needs the tenanted premise
commonly known as 7B (East Flat), Sri Ram Road, Civil Lines, Delhi for the need of its coparceners as mentioned above who are a part of joint family property. The Karta of the petitioner lives at 1, Sri Ram Road, Civil Lines, Delhi. He uses this property for himself and his wife. He is elderly and over eighty years old at the time of filing of the case. He has two servants who permanently stay with them to look after his and his wife's need on a round theclock basis. The Karta also needs a puja room for him and his wife. Further, the petitioner needs for Sh. Arun Khanna and his family including Ms. Aradhana Khanna (daughter aged 26 years) and Mr. Adhish Khanna (son aged 24 years) being coparceners and grandchildren of Sh. Gokal C. Khanna, one independent flat since the coparcener Sh. Arun Khanna needs to live comfortably and independently and also invite and entertain his guests, friends and business associates. He feels very cramped while living at 1, Sri Ram Road flat at the sufferance of his parents. Living in the same premises is a disturbance to his elderly parents. This results in misunderstandings between the members of the family. Living independently in close proximity has the twin benefits of independence and yet being close enough to his elderly parents.
(d) That the petitioner also require three bedrooms, one for the daughter Mrs. Kiran Khanna who is not only entitled to a bedroom as the coparcener, but also requires accommodation as she regularly visits her E77614/16 Page 4/28 father Sh. Gokal C. Khanna. Further, the petitioner requires two bedrooms for Mr. Samir Kapur S/o Mrs. Kiran Khanna (Kapur) and Ms. Natasha Kapur D/o Mrs. Kiran Khanna (Kapur) being coparceners. The petitioner also requires three bedrooms, out of which one for the daughter Mrs. Madhuri Khanna (Mehra) who are not only entitled to a bedroom as a coparcener, but also requires accommodation as she frequently visits her father Sh. Gokal C. Khanna. The petitioner requires two bedrooms for Mr. Sahil Mehra and Mr. Arman Mehra, both sons of Mrs. Madhuri Khanna (Mehra) being coparceners who also visits their grandfather Sh. Gokal C. Khanna alongwith their mother.
(e) That the second part 7A (West Flat), Sri Ram Road, Civil Lines, Delhi was tenanted for over four decades. Possession of this part was taken in September, 2012 after 40 years. This flat is in a poor state and not in a condition to live in befitting the social status of the petitioner and the coparceners. The demised premises 7B (East Flat), Sri Ram Road, Delhi is the suit premises in the tenancy of the respondent. Further, the petitioner and other members of the joint family wish to reconstruct the entire property bearing no. 7, Sri Ram Road, Civil Lines, Delhi and comprising 7 (North of back), 7A (West Flat) and 7B (East Flat) so that the bonafide current needs and requirements of the coparceners are met. The coparceners have no other residential accommodation available in Delhi in their names, therefore, the need of the coparceners are bonafide for the residential purposes. The petitioner cannot carry out any reconstruction without the plan being first sanctioned by MCD. As per the MCD Zonal Plan, the entire no. 7, Sri Ram Road, Civil Lines, Delhi (comprising all three parts) is one single property. The petitioner and coparceners are required to submit one consolidated plan for sanction.
E77614/16 Page 5/283. Summons were served upon the respondent and the application for leave to defend filed by the respondent was allowed vide order dated 27.04.2015.
4. Written statement was filed on behalf of the respondent. The claim of the petitioner has been challenged by the respondent on the following grounds :
(a) That there is no landlordtenant relationship between petitioner and respondent. The cheques towards the payment of rent had always been issued in the name of Sh. Gokal Chand Khanna and not in the name of Gokal Chand Khanna (HUF) and the same were/ are accepted by any demur till date.
(b) That the petitioner/ its Karta/ its constituent have sufficient accommodation available at their disposal. The petitioner has at its disposal the property no. 1, Sri Ram Road, Delhi constructed over an area of about 500 sq. yds. wherein the petitioner/ Sh. Gokal Chand Khanna is having about 56 rooms, drawing rooms, bathrooms and other area in the said property. The petitioner/ its Karta/ its constituent have other properties bearing no. 7, Sri Ram Road, Civil Lines, Delhi; property no. 7A, Sri Ram Road, Civil Lines, Delhi and property no. 7B, Sri Ram Road, Civil Lines, Delhi. All the three properties are independent properties which were independently built at their respective time. Further, that very recently the petitioner got the possession of property bearing no. 7A from the tenant namely M/s ECE Ltd. The property bearing no. 7A is a double storey property constructed over an area of 500 sq. yds. which comprises of five E77614/16 Page 6/28 bedrooms with attached W/C, one drawingcumdinning room, kitchen, verandah and other area on the ground floor and seven bedrooms with attached W/C, kitchen store and other areas on the first floor. It is stated that property no. 7, Sri Ram Road which has been described by petitioner as North/ Back portion is constructed over area admeasuring 1100 sq. yds. and left abandoned by the petitioner with a view to create/ plead deficiency of accommodation. The petitioner has not filed the correct site plan of the properties which are available to it.
(c) That daughters of Sh. Gokal Chand Khanna are married and living with their respective husband and children in their matrimonial house. Both the daughters of Sh. Gokal Chand Khanna namely Smt. Kiran Khanna and Smt. Madhuri Khanna are residing in Gurgaon in their matrimonial home alongwith their respective husbands and children. Both the daughters have sufficient accommodation at their disposal for the purpose of their residence and residence of their family and they do not require the tenanted premises for their residence. Further, the grandson and granddaughter of Sh. Gokal Chand Khanna are working and residing at Mumbai and visits Delhi seldom. Sh. Gokal Chand Khanna alongwith his son Sh. Arun Khanna are residing in the property baering no. 1, Sri Ram Road, Civil Lines, Delhi very comfortably and does not require any additional accommodation.
(d) That Sh. Gokal Chand Khanna and his wife are hale and hearty persons. There is no servant who is permanently residing. Sh. Adhish Khanna and Ms. Aradhana Khanna, grandchildren of Sh. Gokal Chand Khanna are employed and permanently residing at Mumbai. Mr. Samir Kapur son of Mrs. Kiran Khanna (Kapur) is working and residing in Houston and not in India. Both the children of Mrs. Kiran Khanna (Kapur) E77614/16 Page 7/28 namely Mr. Samir Kapur and Ms. Natasha Kapur are not at all dependent upon the petitioner or any other persons for any purpose including for their residence. Further, Mr. Sahil Mehra son of Mrs. Madhuri Khanna (Mehra) is settled and residing in Manila, Phillipines and Mr. Armaan Mehra son of Mrs. Madhuri Khanna (Mehra) is residing with his parents in Gurgaon.
5. Replication to the written statement was filed by the petitioner. The petitioner has denied the allegations of the respondent and has reiterated the same facts as averred in the petition. It is also stated by the petitioner that one of the coparcener namely Smt. Kiran Khanna has been residing in Gurgaon, is suffering from asthma and addisons disease, she was on steroids, due to which she developed steroid induced myopathy i.e. a painful muscle disorder. Since response to allopathic treatment being poor she opted for alternate form of treatment at Arya Vaidya Shala, Kottakkal, Karkardooma, Delhi. An important feature of the treatment is regular medicated oil massages given by qualified therapist. She was advised massage once in two or three days. She has to travel 40 kms up and down (total 80 kms) every time she comes for massage from her house at Gurgaon. Thus the very purpose of filing the present petition is the bonafide requirement of Smt. Kiran Khanna as she cannot satisfactorily carry on her treatment while living in Gurgaon. It is further stated that husband of Smt. Kiran Khanna namely Smt. Deepak Kapoor has also been diagnosed with Parkinson's disease in the year 2012. It is contended that thus the property in Gurgaon is not reasonably suitable for Kiran Khanna. It is also contended that another coparcener namely Smt. Madhuri Khanna had shifted to property No.7A with her family due to family circumstances, it is stated that earlier she was staying at 13 Alipur Road, Civil Lines, Delhi on rent. However she was got vacated in the year 2010, thereafter shifted to Gurgaon. It is stated that her E77614/16 Page 8/28 son Arman Mehra had to come to school at DPS Mathura Road from Gurgaon which was extremely inconvenient in these circumstances Smt. Madhuri Khanna shifted to 7A, Sri Ram Road. Thus the property in Gurgon is not reasonably suitable accommodation for her.
6. In order to prove its case, the petitioner has examined Sh. Gokal Chand Khanna (Karta) as PW1. He reiterated the contents of petition and also exhibited on record gift deed dated 31.03.1995 executed by Sh. Pratap Chand Khanna in favour of Sh. Gokal Chand Khanna as Ex. PW1/1; lease deed dated 22.02.1971 as Ex. PW1/2; copies of income tax returns of the year 1973 and 2010 to 2015 as Ex. PW1/3 (Colly); his passbook as Ex. PW 1/4; site plan as Ex. PW1/5; photographs of third part (North or back part) measuring 1100 sq. yds. as Ex. PW1/6 (Colly) and judgment dated 25.02.2012 as Ex. PW1/7. In his crossexamination, it is stated by him that the area shown as abundant of 1100 sq. yards was got constructed in the year 1911. It is stated that property No.7A and 7B were got constructed in the year 1970. It is stated by him that he has not filed any site plan with the MCD or Municipal Authority seeking sanction to reconstruct the property No.7 or any of its portion. It is stated by him that he has not filed any document to prove that his daughter Smt. Madhuri Mehra had shifted to property No. 7A, Sri Ram Road. He denied if Madhuri Mehra is residing in Gurugram. It is accepted by him that his grand son Samir Kapoor reside at Houston at USA. It is stated by him that his daughter Smt. Kiran Kapoor last hospitalized in August 2015 and prior to that she was hospitalized in August 2012. It is stated by him that contents of para 9 of his affidavit qua illness of Kiran Khanna and her treatment at Arya Vaidshala, Kottakkal, Karkardooma were not mentioned directly in his petition. It is accepted by him that he had earlier filed an eviction petition against ECE for the bonafide requirement of E77614/16 Page 9/28 his son qua portion No.7A in property No.7 Sri Ram Road. It is also accepted by him that his son did not shift to the said portion. It is voluntarily stated by him that requirement of his daughter was more important to the requirement of his son. He denied the suggestion that property bearing No.7A is lying vacant after being vacated.
7. PW2 Mrs. Kiran Khanna (Kapur) deposed that she needs to shift in Delhi for her treatment and she does not have any property in Delhi in her name or in the name of her husband, Mr. Deepak Kapur. She requires entire Flat No. 7B, Sri Ram Road, Civil Lines, Delhi. She is suffering from Chronic Asthma and also suffer from life threatening condition known as Addison's disease and due to this she was hospitalized in Medanta Hospital between 27.02.2012 and 02.03.2012, discharge summary of which is Mark A. She was advised to try alternate forms of treatment such as Kerala Ayurveda Treatment at Karkardooma and she was admitted in an Ayurvedic Hospital, Arya Vaidya Sala, Kottakal at Karkardooma in August, 2012 from 17.08.2012 to 30.08.2012, discharge summary of which is Ex. PW2/2. She was advised to take medicated oil massages regularly every two to three days at the Ayurveda Hospital. She find it difficult to travel to the Ayurvedic Hospital in Karkardooma a return trip of over 80 km from Gurgaon and therefore have to make do with massages given by untrained/ unqualified maids at home due to this she was again hospitalized w.e.f. 06.04.2015 to 26.04.2015, discharge summary of which is Ex. PW2/3. The very purpose of filing the present petition on the basis of her bonafide requirement as she is undergoing Ayurvedic Treatment in Karkardooma, Delhi and she cannot satisfactorily carry on this living in Gurgaon. Her husband was also diagnosed with Parkinson's disease in the year 2012. Medical records of her and her husband alongwith consultancy reports dated E77614/16 Page 10/28 02.02.2015 and 01.08.2016 of Mayo Clinic are Ex. PW2/4 and Ex. PW2/5 (both documents were earlier marked as MarkB). In her crossexamination, she denied if there are five big Auverdic Hospitals in Gurgaon. She has shown her ignorance to the fact that there is a big Aurvedic Centre by the name Shri Shri Aurvedic Panch Karma Centre in Gurugram. She denied the suggestion that documents Ex. PW2/4 and PW2/5 are forged and fabricated.
8. Mrs. Madhuri Khanna (Mehra) deposed that she does not have any property in Delhi in her or her husband's names. She was earlier residing in Gurgaon, but moved into 7A, Sri Ram Road, Civil Lines, Delhi 110054 in 2012 since her need became predominant due to the fact that her son was studying in ClassIX at DPS, Mathura Road, New Delhi and it was extremely inconvenient to travel to and from school daily and her husband had to travel from Gurgaon to Delhi due to his business work. The Aadhaar Card of her as well as her husband, her sons namely Mr. Armaan Mehra and Mr. Sahil Mehra are Ex. PW3/1 to Ex. PW3/4, respectively. In her cross examination, she denied the suggestion that house No.13 Alipur Road, Delhi was owned by her. It is stated that she shifted to 7 A Sri Ram Road in December 2012. It is stated by her that she submitted her phone bill for change of address on her Adhar card as previously her Adhar card was bearing address of 13 Alipur Road. It is stated by her that she has not placed on record copy of her previous Adhar Card. She could not tell what documentary address proof she submitted to telephone authority to show that she is residing at 7A Sri Ram Road. She denied the suggestion that she got prepared her Adhar Card in collusion with her father.
9. Sh. Sanjay Kumar Sharma is a summoned witness who has been examined as PW4 and has stated that the court file titled as G.C. Khanna E77614/16 Page 11/28 (HUF) Vs. Electric Construction & Equipment Ltd. bearing eviction petition no. 689/83 (old) 08/11 (new), decided on 25.02.2012 is not consigned to Record Room as per Goshwara Register by the previous Ahlmad Sh. Ghanshyam.
10. Sh. Ghanshyam is a summoned witness who has also been examined as PW4 and has brought the summoned record i.e. case file bearing eviction petition no. 08/11 titled as G.C. Khanna (HUF) Vs. Electric Construction & Equipment Ltd. He has seen the certified copy of the judgment dated 25.02.2012 which is already exhibited as Ex. PW1/7. The same is being compared from the case file and found to be correct certified copy. This witness did not return for his crossexamination. Hence his evidence could not be completed.
11. No other witness was examined and the petitioner's evidence was closed at his request.
12. In support of its case, the respondent has examined Sh. Amrao Singh Bengani (one of the partner of respondent). RW1 reiterated the contents stated in written statement. By way of his additional affidavit, he has proved copies of cheques dated 09.01.2017, 09.12.2016, 09.11.2016 and 09.10.2016 as MarkA to MarkD and a letter dated 14.07.2014 written by Sh. Gokal Chand Khanna requested him to add the name of HUF which was not accepted as Ex. RW1/1. In his crossexamination, it is admitted by him that the rent agreement Ex. PW1/2 was executed between Sh. Gokul Chand Khanna, Karta/ Manager of HUF M/s Gokul Chand Khanna and M/s Minerva Cinema. It is accepted by him that no other rent agreement was executed between the parties other than Ex. PW1/2. It is stated by him that E77614/16 Page 12/28 he can file the bank statement of the account from which he was issuing the cheques towards the rent of the tenanted premises, it is voluntarily stated by him that he has been issuing cheques in the name of Sh. Gokul Chand Khanna, but it used to shown in the pass book as Gokul Chand Khanna(HUF), it is stated by him that he had raised this issue with the manager of the bank. It is stated that he had raised the issue for the first time about one year back. It is stated by him that he is not aware about the internal structure of the portion of 1100 sq. yards. It is stated that he has not seen the west flat from inside. This witness has shown his ignorance to the fact that petitioner has been paying the house tax of property No.7 as one property to the MCD. It is stated by him that he had seen property No.1, Sri Ram Road about 25 years back. Bank statement of the respondent was exhibited on record as Ex. RW1/P1(collectively). In his further cross examination, two cheques issued by him were exhibited as Ex. RW1/X1 and RW1/X2. It is stated by him that he came to know that the cheques issued by him are shown in his pass book as cleared in the name of Gokul Chand Khanna HUF.
13. RW2 Sh. Muskan Upadhyay is a summoned witness and has brought the cheques bearing no. 000002 and 000004 dated 09.11.2016 and 09.01.2017, respectively which was earlier marked as MarkC is now Ex. RW2/1 and MarkA as Ex. RW2/2. The bank has verified the details of remaining two cheques no. 000001 and 000003 dated 09.10.2016 and 09.12.2016, respectively, but the same are not traceable. He has also brought the cheques bearing no. 952094 dated 07.10.2016 and 000008 dated 07.01.2017 which were issued and deposited in the month of October and January, 2017, which are now Ex. RW2/3 and RW2/4, respectively. The account no. 69003 is opened in the name of Gokal Chand Khanna, HUF. In E77614/16 Page 13/28 his crossexamination, it is admitted by him that as per the bank policy the cheques which was issued in the personal name of any person can be presented and encashed in his HUF account also. It is also admitted by him that the cheque issued in the name of Gokal Chand Khanna and therefore, can be encashed in the account no. 69003 which was opened in the name of Gokal Chand Khanna, HUF.
14. No other witness was examined and respondent's evidence was closed.
15. The undersigned has heard the arguments and perused the record carefully.
16. The essential ingredients which a landlord/ petitioner is required to prove for the purpose of getting an eviction order for bona fide needs are
(i) the petitioner is the owner/ landlord of the suit premises (ii) the suit premises are required bona fide by the landlord for himself or any of his family members dependent upon him (iii) the landlord or such other family members has no other reasonable suitable accommodation.
Ownership as well as existence of landlordtenant relationship :
17. The contention of the respondent that there is no landlordtenant relationship between petitioner and respondent has no merits as respondent itself admitted the landlordtenant relationship between petitioner and itself in its application for leave to defend, however in its written statement it is stated that there is no such relationship. The respondent itself taking two E77614/16 Page 14/28 contradictory stands which creates doubt on the veracity of the respondent. Furthermore, on perusal of the lease deed dated 22.02.1971, Ex. PW2/1 it is evident that the same was executed by Sh. Gokal Chand Khanna as Karta of Gokal Chand Khanna (HUF) with the respondent and not in his personal capacity. Moreover, the petitioner has also placed on record gift deed dated 31.03.1995 executed by Sh. Pratap Chand Khanna in favour of Sh. Gokal Chand Khanna which is Ex. PW1/1 showing his ownership qua property in question to controvert the stand of respondent as taken by it in its application for leave to defend that petitioner is not the owner of the property in question. The lease deed as well as gift deed have not been challenged by the respondent and it is not the case of the respondent that the said documents are forged, or no such document to prove its stand, or controvert the stand of petitioner has been filed by respondent. Even no suggestion in this regard has been given by counsel for respondent during cross examination of petitioner. In the absence of the same and from perusal of documents abovementioned, it is presumed that there is landlordtenant relationship between petitioner and respondent and the cheques issued by respondent were issued to petitioner in his capacity of Karta of HUF and not in his personal capacity. The fact that the lease deed was prepared on behalf of M/s Gokal Chand Khanna (HUF) way back in the year 1971 clearly shows that Sh. Gokal Chand Khanna had thrown the house no. 7, Sri Ram Road in the stock of M/s Gokal Chand Khanna (HUF). This fact clearly suggest that way back since 1971 when there was no dispute between present parties, Sh. Gokal Chand Khanna was treating the house no. 7, Sri Ram Road as property of M/s Gokal Chand Khanna (HUF). Therefore, this Court holds that M/s Gokal Chand Khanna (HUF) is the landlord as well as owner in respect of the tenanted premises. It is also to be noted that Section 116 of the Evidence Act creates a estoppels against a tenant of an E77614/16 Page 15/28 immovable property during the continuance of the tenancy. A tenant can challenge the title of landlord only after vacating the premises and not when he is occupying the premises. In fact, such a tenant who denies the title of the landlord, qua the tenanted premises, to whom he is paying rent, acts dishonestly.
Nonavailability of reasonably suitable alternative accommodation in Delhi AND Bonafide Requirement
18. The main contentions of the respondent are that :
(a) Even earlier petitioner filed an eviction petition against another tenant qua flat no. 7A (West Side). That petition was filed for the bonafide need of the son of Sh. Gokal Chand Khanna namely Sh. Arun Kumar. Though, possession of that property has been received by the petitioner, however it is admitted in the petition itself that that property is not occupied by petitioner, or any member of his family. It is further contended that in the replication filed by the petitioner against the written statement, he contended for the first time that Smt. Madhuri Khanna (Mehra) has shifted to property no.7A. It is argued that this fact shows that petitioner's need is not bonafide as he is taking shifting stands in order to evict the present respondent.
(b) It is argued that main stress of the petitioner in his petition was that he requires the property in question for all the coparceners of the Gokal Chand Khanna (HUF). It was also contended in the petition that property E77614/16 Page 16/28 no. 7 which is in three part i.e. 7, 7A and 7B will be reconstructed by them to put the same in use of the coparceners of the petitioner. It is contended that admittedly, the alleged dilapidated portion of 1100 sq. yds. was built in the year, 1911 while the portion 7A and 7B were built in 1970. Thus, the three parts were built at different point of time, hence even now petitioner can build the portion of 1100 sq. yds. as well as the portion of 500 sq. yds. i.e. 7A to fulfill his needs. It is argued that the petitioner has not shown, if he has moved any application for grant of sanction for reconstructing the plot no. 7, or if there is any need that the entire plot no. 7 can be built as a whole and not in parts. It is further argued that if the need of the petitioner is to reconstruct/ rebuilt the property than he should have filed the petition U/s 14 (1) (g) of DRC Act and not U/s 14 (1) (e) of DRC Act.
(c) It is contended that Smt. Madhuri Khanna (Mehra) and Smt. Kiran Khanna (Kapur) are married for last 35 years and are well settled in their matrimonial homes in Gurgaon and they are in no need of the premises in question. It is further contended that the temporary need of Smt. Madhuri Khanna (Mehra) and Smt. Kiran Khanna (Kapur) for visiting their parents was converted into their permanent need in the replication which shows malafide on the part of the petitioner.
(d) It is contended that admittedly Smt. Kiran Khanna (Kapur) remain in hospital till March, 2012. Though the present petition was filed in November, 2012, however there is no mention of her ailment in the petition, it was for the first time in the replication filed in the year, 2016 that ground of her ailment and treatment from Arya Vaidya Sala, Kottakkal, Karkardooma, Delhi was taken. Infact an amended petition was filed on 23.04.2014 even in that this ground was not taken. Nontaking of this E77614/16 Page 17/28 ground at the very first stage while this fact was in knowledge of the petitioner shows that the ground is not truthful and is a cooked up story.
(e) It is further argued that Sh. Gokal Chand Khanna is also the owner of House No. 1, Sri Ram Road, Civil Lines, however he has not filed any site plan of that property to show the extent of accommodation available in that property. Similarly, the site plan of flat no. 7A has also not been shown to ascertain the extent of accommodation available in that premises. It is contended that Smt. Madhuri Khanna (Mehra) and her family is not residing in flat no. 7A and the Aadhaar Cards shown by them of that address are manufactured for using in the present case. It is argued that the petitioner has not proved what he has pleaded in the petition.
(f) It is argued that number of alleged coparceners are living outside Delhi i.e. a couple of them are living in Bombay and one or two are living in foreign countries.
19. Per contra, it is argued on behalf of the petitioner that :
(a) the eviction petition filed qua flat no. 7A (West Side) took 40 years in disposal and by the time of its disposal the need of Smt. Madhuri Khanna (Mehra) became more emergent, than the need of Sh. Arun Khanna as Smt. Madhuri Khanna who was earlier residing at 13, Alipur Road on rent was evicted from that property. Her son was studying in D.P.S. Mathura Road and he has to come from Gurgaon to attend his school which was very cumbersome. In such situation, the need of Smt. Madhuri Khanna (Mehra) was given preference by the family members. It is further argued that at thed time of arguments on application for leave to defend it was explain to E77614/16 Page 18/28 the Court that Smt. Madhuri Khanna (Mehra) is shifted in property no. 7A. It is further argued that as per the permission of the Court, replication was filed in the matter wherein this fact was clearly explained. Ld. Counsel for petitioner relied on a case titled as M.L. Gupta Vs. Kirpal Singh, 2002 (98) DLT 683, wherein it was held that replication is a part of pleadings, it supplement plaint. In case certain altogether new facts have been pleaded in replication, respondent had every right to pray for and be granted by Court an amendment of written statement to rebut those pleadings, or file additional written statement to meet new case pleaded in replication. In case respondent never sought leave of the Court to amend written statement, or filed additional written statement in rebuttal to new pleadings in replication it would be deemed that he has waived his right. It is contended that by proving the facts contained in replication, the petitioner has not gone outside the purview of the pleadings.
(b) It is contended by counsel for the petitioner that as per the norms of Municipal Corporation, application for sanctioning of site plan can be moved only when entire property has been demolished till ground; it is further argued that property no. 7 is a single unit and no sanction plan can be approved qua part of that property. It is further argued that the premises in question is required in present condition by the coparceners of the HUF, however they wish to reconstruct the entire property so that they may comfortably living in that property.
(c) It is contended that need of Smt. Madhuri Khanna (Mehra) and Smt. Kiran Khanna (Kapur) and their family members are subsisting. It is argued that ground of illness of Smt. Kiran Khanna (Kapur) was mentioned E77614/16 Page 19/28 in the replication which is a part of pleading. It is further argued that medical documents of Smt. Kiran Khanna (Kapur) are on record which shows that the ground of her ailment are truthful.
(d) It is argued that Sh. Gokal Chand Khanna in his evidence has categorically mentioned that the House No. 1, Sri Ram Road is having three bedrooms which are required by him and his wife alongwith servants for their comfortable stay. It is further argued that flat no. 7A is in occupation of Smt. Madhuri Khanna (Mehra) and her family, portion of 1100 sq. yds. is not in a habitable condition, hence the coparceners of the petitioner are in the bonafide need of the portion in the occupation of the present respondent.
(e) It is argued that flat in question i.e. 7B comprises one drawing cumdining room, three bedroom with attached bathrooms, one pantry, one kitchen, a store and a servant room, barsati and a toilet. Similarly, flat no. 7A is also comprising one drawingcumdining room, three bedroom with attached bathrooms, one puja room, one pantry, one kitchen, a store and a servant room, barsati and a toilet. It is also explained that family of Sh. Arun Khanna requires three bedroom with attached toilets, one drawing cumdining room, kitchen, pantry, one servant room. Similarly, the family of Smt. Kiran Khanna (Kapur) is also requiring three bedrooms i.e. one for herself and one for her each children namely Ms. Natasha Kapur and Sh. Sameer Kapur. Similarly, the family of Smt. Madhuri Khanna (Mehra) is also requiring three bedrooms i.e. one for herself and one for her each sons.
20. The requirement of landlord is to be presumed bonafide as held in following cases : E77614/16 Page 20/28
(i) In Sarwan Dass Bange Vs. Ram Prakash, 167 (2010) DLT 80 = 2010 IV AD (Delhi) 252, observations made by Hon'ble Supreme Court in Baldev Singh Bajwa Vs. Monish Saini, VIII (2005) 12 SCC 778, have been quoted as under : "it was held that the legislative intent is of expeditious disposal of the application for ejectment of tenant filed on the ground of requirement by the landlord of the premises for his own occupation; a special category of landlords requiring the premises for their own use has been created; if there is any breach by the landlord, the tenant is given a right of restoration of possession; the landlord who evicts a tenant on the ground of own requirement is not only prohibited from letting out the premises or disposing of the same but also required to use the same for his own residence only. It was held that these restrictions and conditions inculcate inbuilt strong presumption that the need of the landlord is genuine; the conditions and restrictions imposed on the landlord make it virtually improbable for the landlord to approach the Court for ejectment of the tenant, unless his need is bonafide no unscrupulous landlord in all probability, under this section, would approach the Court for ejectment of the tenant considering the onerous conditions imposed on him. It was further held that this inbuilt protection in the Act for the tenants implies that whenever the landlord would approach the Court his requirements shall be presumed to be genuine and bonafide. It was further held that a heavy burden lies on the tenant to prove that the requirement is not genuine. The tenant is required to give all the necessary facts and particulars supported by documentary evidence if available to prove his plea in the affidavit itself so that the Controller will be in a position to adjudicate and decide the question of genuine or bona fide requirement of the landlord; a mere assertion on the part of the tenant would E77614/16 Page 21/28 not be sufficient to rebut the strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine."
(ii) Hon'ble Supreme Court in Dattatraya Laxman Kamble Vs. Abdul Rasul Moulali Kotkunde, (1999) 4 SCC 1 held that the phrase "reasonably and bona fide required by the landlord" is not to be tested on par with "dire need" of a landlord because the latter is a much greater need. Similarly, in Raghunath G. Panhale Vs. Chaganlal Sundarji & Co., (1999) 8 SCC 1 it was held that the word "reasonable" connotes that the requirement or the need is not fanciful or unreasonable but need not also be a "compelling" or "absolute" or "dire necessity". A reasonable and bonafide requirement was held to be something in between a mere desire or wish on the one hand and a compelling or dire or absolute necessity on the other hand.
21. In the present case, petitioner has categorically stated in the petition itself that they were undertaking minor repairs in flat no. 7A (West Side) possession of which has been taken by him after 40 years, so that temporary accommodation is made available to Smt. Madhuri Khanna (Mehra) as an interim measure. Thus, from the inception of the present petition it was stated that the West Flat 7A is being given to Smt. Madhuri Khanna (Mehra), admittedly the flat no. 7A was got vacated due to the bonafide need of Sh. Arun Khanna, however Karta of petitioner i.e. PW1 explained in his crossexamination that it took 40 years in completion of legal proceedings for getting the possession of flat no. 7A and due to such a delay need of Smt. Madhuri Khanna (Mehra) became more emergent as after 2010 she has to be shifted from Gurgaon and her son used to commute to E77614/16 Page 22/28 D.P.S. Mathura Road for schooling. These facts show that need of the coparceners of the petitioner are genuine and they are cooperating with each other, if need of one is more emergent than the other, hence no foul play can be read in these circumstances.
22. In his petition the petitioner has mentioned the rooms available in flat no. 7A as well as the rooms available in suit premises i.e. 7B which are in total consisting two drawingcumdining room, six bedrooms, two pantry, two kitchen, two store rooms, two servant rooms, two barsati and one puja room. It has also been explained that house no. 1, Sri Ram Road is just sufficient enough only for the Karta Gokal Chand Khanna and his wife who are keeping two servants to look after them. It has been explained that other coparceners of the petitioner require 89 bedrooms alongwith other area to satisfy their need. This need of the coparceners of the petitioner cannot be held malafide. It is also to be noted that a tenant cannot dictate the landlord how to squeeze himself within the premises available with the landlord. If the landlord wishes to live with comfort in a house of his own, the law does not command or compel him to squeeze himself tightly into lesser premises. Reliance being placed upon judgment titled as Sudesh Kumar Soni & Anr. Vs. Smt Prabha Khanna & Anr., 2008 IX AD (Delhi) 657 and Amir Chand Arora Vs. Suraj Parkash Bhasin 1981 (2) RCR 513.
23. Need for separate bed rooms for self and wife, sons and daughter as also for guests e.g. married "daughter was held to be bonafide in following cases i.e. Pravin Sarin Vs. Manbir Singh & Others, 20 (1981) DLT 61 and Krishan Kumar Gupta Vs. Swadesh Bhushan Gupta, 152 (2008) DLT 556. Similarly, need for a separate room for married daughter E77614/16 Page 23/28 and for guests/ relatives was held to be justified in Prabhu Vs. K. Sharma, 1997 RLR 242 SC.
24. Apart from mentioning the need of coparceners in the property in its present condition the petitioner has also expressed their wish to reconstruct the property in order to utilize the dilapidated portion of 1100 sq. yds. for their benefit. The dilapidated condition of 1100 sq. yds. is proved from the photographs of the same filed on record, the same fact is also mentioned in the previous eviction petition filed by the petitioner against other tenant qua flat no. 7A. The contention of petitioner that entire plot no. 7 can be constructed as a unit also found support from the Master Plan of Delhi, 2021 notified in gazatte notification dated 07.02.2007, wherein at page no. 26 in the main heading 4.4.3 'control for building/ buildings within residential premises' in the subheading 'terms and conditions' at para no. (iv) it has been written that subdivision of plots is not permitted. However, if there are more than one buildings in one residential plot, the sum of the built up area and ground coverage of all such buildings, shall not exceed the built up area and ground coverage permissible in that plot. Thus, as per the Master Plan of Delhi a single plot has to be constructed as a unit only. No matter if in the past the property was constructed in piecemeal, however at present as per the rules and regulations duly notified the property can be constructed only as a unit. Thus, this wish of the coparceners to construct the entire property as a unit is in consonance with the law.
25. It is to be noted that petitioner has categorically mentioned about medical condition of Smt. Kiran Khanna (Kapur) in the petition itself in para no. 10 wherein it was mentioned that Smt. Kiran Khanna (Kapur) is a E77614/16 Page 24/28 asthmatic patient and suffers from addison's disease and fibromyalgia. It has been categorically held in M.L. Gupta Vs. Kirpal Singh, 2002 (98) DLT 683 that replication is a part of pleadings, it supplement plaint. Thus, the facts stated in the replication that Smt. Kiran Khanna (Kapur) has to be travel to Arya Vaidya Sala, Kottakkal, Karkardooma for her treatment has been duly proved as per law being part of the pleadings as the said fact is mentioned in the replication. The need of Smt. Kiran Khanna (Kapur), one of the coparcener appears to be bonafide, it is to be noted that it is not for the tenant, or this Court to direct her to get treatment from an Ayurvedic Hospital in Gurgaon instead of Arya Vaidya Sala, Kottakkal, Karkardooma as she has complete freedom to choose from where she wish to get treatment.
26. The premises in question belongs to M/s Gokal Chand Khanna (HUF). Smt. Kiran Khanna (Kapur) and Smt. Madhuri Khanna (Mehra) are admittedly coparceners of M/s Gokal Chand Khanna (HUF), hence they can claim the property in their own rights, they cannot be equated to just the married daughters of the Karta, rather they are themselves having rights in the property. No evidence has been led on record to show, if Smt. Kiran Khanna (Kapur) and Smt. Madhuri Khanna (Mehra), or any other coparcener of M/s Gokal Chand Khanna (HUF) except Sh. Gokal Chand Khanna is having ownership of any other immovable property, except 7, Sri Ram Road, Civil Lines, Delhi.
27. Smt. Madhuri Khanna (Mehra) has duly proved on record her Aadhaar Card as well as Aadhaar Cards of her family members to show that they are residing in the House No. 7, Sri Ram Road. On the other hand, the E77614/16 Page 25/28 respondent could not bring any evidence whatsoever, except his bald statement that Smt. Madhuri Khanna (Mehra) and her family members are not residing in House No. 7, Sri Ram Road. In these circumstances, the contention of the petitioner became more probable that Smt. Madhuri Khanna (Mehra) with her family is residing in flat no. 7A (West Side), Sri Ram Road.
28. It is accepted by PW1 that one of the coparcener namely Sh. Sameer Kapoor resides at Houston in USA. He denied the suggestion that his grandson Sh. Adhish Khanna and Ms. Aradhana Khanna are residing in Bombay. He also denied the suggestion if Sh. Sahil Khanna is living in Manila Philipins. It is contended on behalf of the petitioner that even if Sh. Adhish Khanna has to visit Bombay, he is a permanent resident of 1, Sri Ram Road, Civil Lines, Delhi. It is further to be noted that even if one of the coparcener is not residing in India, still the need of all the coparceners is much more than the existing accommodation available including the tenanted premises. Hence, it is held that need of the coparceners is still subsisting.
29. It is contended on behalf of the respondent that site plan of House No. 1, Sri Ram Road, Civil Lines, Delhi has not been filed on record, hence the accommodation available with the petitioner has not been duly explained. It is to be noted that House No. 1, Sri Ram Road, Civil Lines, Delhi is the personal property of Sh. Gokal Chand Khanna, while it has already been observed by this Court that House No. 7 is the property of M/s Gokal Chand Khanna (HUF) wherein all the coparceners have their right in their own capacity being coparceners of the HUF. Thus, technically the personal property of the Karta is not the property of the HUF. Even E77614/16 Page 26/28 otherwise, Sh. Gokal Chand Khanna explained in his testimony that there are three bedrooms in property no. 1, Sri Ram Road. The said property is being used by Sh. Gokal Chand Khanna and his wife. Their two servants are also using the same. Presently, Sh. Arun Khanna and his family is also residing in that property, however the family of Sh. Gokal Chand Khanna and Sh. Arun Khanna feel cramped in that property. In these circumstances, the need of the coparceners qua property in question appears to be a bonafide need.
30. Moreover, if the petitioner does not use the property for the purposes claimed in the petition, the respondent has a statutory remedy available U/s 19 of the DRC Act to seek reentry.
31. In view of the aforesaid discussion, this Court is of the considered opinion that the petitioner has proved all the necessary ingredients of Section 14 (1) (e) of Delhi Rent Control Act, 1958. It has been proved that the need of the petitioner is bonafide. Further, it has also been proved that the petitioner has no other alternative suitable accommodation.
32. Accordingly, an eviction order is passed U/s 14 (1) (e) of DRC Act in favour of the petitioner and against the respondent in respect of part of House No. 7, commonly known as House No. 7B (East Flat), Sri Ram Road, Civil Lines, Delhi comprising of one drawing roomcumdining room, one bedroom with attached bathroom, one pantry, one kitchen, a staircase and a stairwell, one verandah, one garage and open parking space and a front lawn; boundary wall on the ground floor, two bedrooms with attached bathrooms (one with a dressing area), a store and a servant room with E77614/16 Page 27/28 attached toilets, one terrace and a verandah/ balcony on the first floor and barsati, open toilet and two terraces on the second floor, as shown in red colour in the site plan filed by the petitioner. However, this order shall not be executable before the expiry of six months from the date of this order as provided U/s 14 (7) of DRC Act. Parties to bear their own costs.
File be consigned to Record Room.
Digitally signed by GAJENDER GAJENDER SINGH
SINGH NAGAR
Date: 2018.07.04
NAGAR 15:25:01 +0530
Announced in the open court (GAJENDER SINGH NAGAR)
on 04.07.2018 Administrative Civil Judge cum
Additional Rent Controller (Central)
Delhi/04.07.2018
(This judgment contains 28 pages in total)
E77614/16 Page 28/28
E77614/16
04.07.2018
Present : None.
Vide separate order, the present eviction petition of the petitioner is allowed. Accordingly, eviction order is passed in favour of the petitioner and against the respondent in respect of part of House No. 7, commonly known as House No. 7B (East Flat), Sri Ram Road, Civil Lines, Delhi comprising of one drawing roomcumdining room, one bedroom with attached bathroom, one pantry, one kitchen, a staircase and a stairwell, one verandah, one garage and open parking space and a front lawn; boundary wall on the ground floor, two bedrooms with attached bathrooms (one with a dressing area), a store and a servant room with attached toilets, one terrace and a verandah/ balcony on the first floor and barsati, open toilet and two terraces on the second floor, as shown in red colour in the site plan filed by the petitioner. However, this order shall not be executable before the expiry of six months from the date of this order as provided U/s 14 (7) of DRC Act.
Parties to bear their own costs.
File be consigned to Record Room.
(Gajender Singh Nagar) ACJcumARC (Central) Delhi/04.07.2018 E77614/16 Page 29/28