Delhi District Court
Anand Tyagi vs . Pushpa Gupta & Ors. on 20 April, 2019
IN THE COURT OF ACJ/CCJ/ARC(WEST)
TIS HAZARI COURTS, DELHI
PRESIDED BY SH. VISHAL PAHUJA
E No. 85/2018
Anand Tyagi Vs. Pushpa Gupta & Ors.
Sh. Anand Tyagi
S/o Late Sh. G. C. Tyagi
R/o WZ-69, Basai Darapur, New Delhi
...... Petitioner
Versus
1. Smt. Pushpa Gupta
W/o Late Sh. Hariom Gupta
2. Sh. Vikas Gupta
3. Sh. Sachin Gupta
4. Sh. Manish Gupta
All S/o Late Sh. Hariom Gupta
All Respondent are R/o
A-82, Jaswant Colony, Budh Vihar Phase-II, Near Mother Dairy, Delhi Second Address;
WZ-11, Kailash Park New Delhi-110015 ...... Respondents Order on the application for leave to defend u/s 14 (1)
(e) r/w section 25 B of Delhi Rent Control Act, 1958
1. The present eviction petition under Section 14 (1)
(e) of Delhi Rent Control Act, 1958 (hereinafter, referred to as 'the Act') filed on behalf of Sh. Anand Tyagi (hereinafter, referred to as 'the petitioner') against Smt. Pushpa Gupta, Sh.
E No. 85/2018Anand Tyagi Vs. Pushpa Gupta & Ors. Page No. 1 of 14 Vikas Gupta, Sh. Sachin Gupta and Sh. Manish Gupta (hereinafter, referred to as 'the respondents') in respect of Shop in property bearing no. WZ-11, Kailash Park, Opposite Kirti Nagar, New Delhi (hereinafter, referred to as "tenanted shop") as shown in red colour in site plan.
2. Succinctly noted, the case of the petitioner is as follows:
" The petitioner is the owner/landlord of one shop in the property bearing no. WZ-11, Kailash Park, Opposite Kirti Nagr, New Delhi (tenanted shop) which was let out to deceased Sh. Hariom Gupta who is the father of the respondents by the father of the petitioner for commercial purposes at a monthly rent of Rs. 50/-. It is pertinent to mention here in that after the death of deceased Sh. Hariom Gupta, his legal heirs i.e. the respondents have inherited the said tenancy in respect of the aforesaid shop and after receiving the legal notice they tendered the arrears of rent to the petitioner through money order which was accepted by the petitioner under protest. The tenanted shop was let out to Sh. Hariom Gupta for commercial use and after his death the said shop is lying locked. The said tenancy was old tenancy and no agreement was executed for the said tenancy. That after the death of the father of the respondents no rent was paid. That petitioner needs this shop for running the business by one of his son namely Sh. Abhimanyu Tyagi as the petitioner is not having any other reasonable suitable accommodation for the purpose of said business. Hence, the present petition has been filed.
3. Leave to defend application was filed on behalf of E No. 85/2018 Anand Tyagi Vs. Pushpa Gupta & Ors. Page No. 2 of 14 the respondents vehemently contesting the petition on following grounds:
" That the petitioner is neither owner nor landlord of the suit premises. That the plea of bonafide requirement of the petitioner is false and frivolous as the petitioner has various other properties. It is further averred that the petitioner got served a false notice dated 12.04.2018 demanding the arrears of rent @ Rs. 50/- per month and they have filed the reply through their counsel. That the petitioner had sold the property / shop in question to the deceased predecessor in interest of the respondents late Sh. Hariom Gupta for lawful sale consideration and exeucted title documents such as agreement to Sell, Affidavit, Receipt, GPA, all dated 07.05.2001. It is also submitted that the arrears of rent at the agreed rate of rent was also tendered through MO in good faith which has been recieved by the petitioner and same is evident from the postal tracking report. It is further submitted that for whom the petitioner wants to vacate the tenanted shop has not done any course and has no experience of any kind , no documents have been filed on record. He has already having his own flourishing business and earning lot there from. The size of the said shop is too small and no business of alleged hospitality / tourism can be run there in as same requires lot of space. That the bonafide requirement of the petitioner is self created and the only intention of the petitioner is to let out the tenanted shop at a higher rate. Lastly, the petitioner has not joined the co-ownwers of the suit property who are necessary party in the present petition, hence, the petitioner is not entitled to any relief as sought for. Thus, on all these triable issues respondents are E No. 85/2018 Anand Tyagi Vs. Pushpa Gupta & Ors. Page No. 3 of 14 entitled to grant of leave of defend.
4. In reply to leave to defend application, petitioner has denied the all the grounds raised in the leave to defend application wherein the averments made in the present petition were reaffirmed and assertions made in the reply were denied.
5. Both the Ld. Counsels addressed their arguments on the leave to defend application.
6. This Court has considered the submissions made and material on record. The parameters for granting leave to defend is no longer res integra. The respondents are required to prima facie show triable issues which may dis-entitle the petitioner to seek the relief of eviction. It has been held in Charan Das Duggal v. Brahma Nand(1983) 1 SCC 301 as under:
"...5. What should be the approach when leave to defend is sought? There appears to be a mistaken belief that unless the tenant at that stage makes out such a strong case as would non-suit the landlord, leave to defend cannot be granted. This approach is wholly improper. When leave to defend is sought, the tenant must make out such a prima facie case raising such pleas that a triable issue would emerge and that in our opinion should be sufficient to grant leave. The test is the test of a triable issue and not the final success in the action (see Santosh Kumar v. Bhai Mool Singh1). At the stage of granting the leave parties rely in support of their rival contentions on affidavits and assertions and counter-assertions on affidavits may not afford such incontrovertible evidence to lead to an affirmative conclusion one way or the other. Conceding that when possession is sought on the ground of personal requirement, an absolute need is not to be satisfied but a mere desire equally is not sufficient. It has to E No. 85/2018 Anand Tyagi Vs. Pushpa Gupta & Ors. Page No. 4 of 14 be something more than a mere desire. And being an enabling provision, the burden is on the landlord to establish his case affirmatively...".
7. Reliance is also placed upon Deepak Gupta v. Sushma Aggarwal, 2013 (202) DLT 121 where in it has held as under:
"...24. From the mere reading of the afore mentioned illuminating observations of the Supreme Court in the case of Precision Steels (supra), it is apparent that the Controller has a statutory duty to grant the leave to defend if the affidavit discloses the facts which could raise suspicion on the genuineness of the need of the landlord which can in effect disentitle the landlord from recovering the possession on the ground of bonafide requirement. The likelihood of success or the failure of the defence is not really determinative of the question as to grant or not grant of the leave to defend but the real question is tenability of the plea which may raise a suspicion on the need of the landlord which may if proved can also lead to disentitlement to the recovery of the possession. Thus, the plea raising a doubt in the mind of the Controller is sufficient to grant the leave. The Controller can also not record the findings on disputed question of the facts by preferring the one set of facts over and above the other. The merits of the pleas raised are not to be gone into at the time of the grant of the leave to defend by going into the complicated questions of fact. For making the enquiry, the affidavit filed by the tenant is helpful"...
8. Further, the Court has to guard against illusionary, sham and moonshine defences. Reliance is placed on Harish Chand v. Mukesh Kumar, 2015 (1) RR 236 wherein it was held that :
"21. The scheme of the DRC Act would show that at this stage no substantive proof is required E No. 85/2018 Anand Tyagi Vs. Pushpa Gupta & Ors. Page No. 5 of 14 because no evidence is being led however, alongwith an affidavit the tenant has to place some material to discharge his burden to show that the defence taken by him is not illusionary, sham or moonshine. Similarly the site plan also at this stage is not a substantive evidence however, it is a prima facie material to substantiate the case of a party which gives assurance to the court that what is being stated is not a bald assertion and if trial is granted the tenant will be in a position to prove a defence which may oust the landlord. Merely by raising the so called issues as raised by the Petitioner before this court the petitioner cannot claim leave to defend and a trial. Though the stage of proving facts does not arise while granting leave to defend however the assertions of the tenant should be prima facie substantiated by material on record so as to show that the defence raised by him is not sham or illusionary or moonshine".
9. At this stage, to succeed in his petition, the petitioner has to establish the following ingredients :-
(i) That petitioner is the owner / landlord in respect of the tenanted premises.
(ii) That petitioner requires the premises bonafide for himself or for any member of his family dependent upon him.
(iii) That petitioner has no other reasonably suitable accommodation.
10. Let us deal with the aforementioned aspects one by one.
(i) That petitioner is the owner / landlord in respect of the tenanted premises.
It is argued by the Ld. Counsel for the respondent E No. 85/2018 Anand Tyagi Vs. Pushpa Gupta & Ors. Page No. 6 of 14 that petitioner has not filed on record any document pertaining to the ownership of the suit property to show himself the owner of the same. Another leg of argument of the respondent is that the petitioner has not joined the co-owners of the suit property being necessary party in the present petition, hence petition is not maintainable. Lastly, the contentions raised by the Ld. Counsel for the respondents is that there is no relationship of landlord and tenant between the parties and the suit property has already been sold to the deceased father of the respondents by the brother of petitioner namely Sh. Bharat Tyagi.
As far as ownership of the property is concerned, the petitioner has placed on record the copy of girdawari which is not disputed by the respondents at any juncture. In fact, the respondents in their affidavit asserted that petition has been filed by the petitioner alone without joining the co-owners of the suit property, meaning thereby the respondents themselves admitted the petitioner to be one of the co-owner of the suit property. It is a settled position of law that any one co-owner of the property can file the eviction petition and there is no requirement of law to join the co-owners as the petitioners.
Reliance is placed upon Kanta Goel Vs. B. P. Pathak (1977) 2 SCC 814, Pal Singh VS. Sunder Singh (Dead) By Lrs. (1989) 1 SCC 444 and Dhannalal VS. Kalawatibai (2002) 6 SCC 16 wherein it has held as under :
"Petition under Section 14 (1) (e) of the Act can be filed by any one of the co-owner / co- landlords also".
Secondly, the contention of respondents that there E No. 85/2018 Anand Tyagi Vs. Pushpa Gupta & Ors. Page No. 7 of 14 is no relationship between the parties as that of landlord and tenant also falls flat in view of the rent receipts filed on record by the petitioner issued in the name of deceased father of the respondents. After the death of the deceased the tenancy devolved upon the respondents so they cannot take a plea that petitioner was not the landlord. In fact, in paragraph no. 3 clause (m) of the affidavit filed along with their application, the respondents categorically admitted that arrears of rent at the agreed rate of rent were tendered through MO which were received by the petitioner and it is evident from the postal tracking report. Respondents are estopped to take such plea. Hence, the relationship of landlord and tenant stands established.
Lastly, the contention raised by the respondents is that the brother of the petitioner has already sold the property in question to the deceased father of the respondents in the year 2001. This argument is also without any merits as no titled documents transferred in the name of deceased Sh. Hariom Gupta has been filed on record by the respondents. Further, the documents are claimed to have been executed in the year 2001 whereas on the contrary the rent receipts filed by the petitioner pertains to the year 2002, 2004, 2005, 2007, 2011 and 2013 which have been subsequently executed on payment of rent by the deceased Sh. Hariom Gupta during continuation of the tenancy. Hence, this plea taken by the respondents also gets demolished.
11. In the judgment of Sushil Kanta Chakarvarty Vs. Rajeshwar kumar, 79 (1999) DLT 2010, Hon'ble Delhi E No. 85/2018 Anand Tyagi Vs. Pushpa Gupta & Ors. Page No. 8 of 14 High Court had the occasion to elaborate the concept of ownership as envisaged in aforenoted provision of DRC Act. It has held as under:
"In case of a petitioner u/s 14 (1) (e) of the Act, in order to show the ownership, it is not necessary to show absolute ownership. The legislature used the word "owner", in Section 14 (1) (e) not in the sense of absolute owner, but it was used in contra distinction with a landlord as defined in the Act who is not an owner but who owns the property for the benefit of another person and merely collects the rent. If the person collected the rent for himself and for his own benefit and the property is his own even in the loose sense and no one is claiming rights over the property, then he is considered as owner for the purpose of Section 14 (1) (e) of the Act. Even possessory rights over the property of a person have been given recognition as ownership visa vis tenant under Delhi Rent Control Act".
12. Also in Meenakshi Vs. Ramesh Khanna and Anr. 60 (1995) DLT 524 it was held as under:
"Mere denial of ownership is no denial at all. It has to be something more. The object of the requirement contained in clause (e) that the petitioner should be the owner of the premises is not to provide an additional ground to the tenant to delay the proceedings by simply denying the ownership of the landlord of the premises and thereby putting him to proof by way of a full fledged trial. The object seems to be to ensure that the provision is not misused by the people having no legal right or interest in the premises. In proceedings under section 14 (1) (e) of the Act, the tenant is never a contender for title to the property".
13. Thus in view of this discussion, there is no triable issue as far as relationship of landlord and tenant between the parties and the issue of ownership of the petitioner are concerned.
E No. 85/2018Anand Tyagi Vs. Pushpa Gupta & Ors. Page No. 9 of 14
(ii) That petitioner requires the premises bonafide for himself or for any member of his family dependent upon him.
It is not disputed by the respondents any where in their application or their affidavits that the petitioner have three sons and a wife dependent upon him. It is also nowhere disputed that one of the son namely Sh. Abhimanyu Tyagi is yet to start any business / profession for his earning where as bald assertion has been made that son of the petitioner must be married and earning from some business without any basis.
Ld. Counsel for the respondents raised the contention that the said son of the petitioner has not done any course or has no experience of any kind no documents pertaining to qualifications has been filed on record by the petitioner. It is also argued that the size of the suit property is too small where no such business can be run that requires a lot of space.
It is a settled position of Law that no experience is required before starting a new business or profession. The petitioner has categorically stated that that his son Sh. Abhimanyu Tyagi has done masters degree course in hospitality and tourism in his petition and he is not supposed to give proof of the same to the respondents for filing the petition. Even, if a person does not hold any such qualification is entitled to start any such business anywhere at any point of time.
In Judgment titled as M/S Sethi & Sons Private Limited Vs. Arjun Uppal & Anr. RC.REV. 116/2016 of Delhi High Court it has been held that :-
"Prior experience in running of a business is not E No. 85/2018 Anand Tyagi Vs. Pushpa Gupta & Ors. Page No. 10 of 14 necessary prior to filing of an Eviction Petition. This aspect has no bearing on the bona fide of the requirement".
In Ram Babu Aggarwal Vs. Jay Kishan Das, MANU/SC/1719/2009MANU/SC/1719/2009. (2010) 1 SCC 164, it was observed that :-
"A person can start a new business even if he has no experience in the new business that does not mean that his claim for starting new business must be rejected on the ground that it is a false claim. Many people start new business even if they do not have experience in the new business and sometimes they are successful in the new business also".
Hence, the contentions raised above by the respondents in this respect has no force. The apprehension of the respondents that such business of hospitality and tourism cannot be run in such a small shop is also mis-conceived as it is the landlord who is the master of his property and is a better Judge to utilize his property in his own way to the optimum. Further, the respondents in their application nowhere has asserted as to whether the son of the petitioner is doing any particular business anywhere else. No such details have been given by the respondents therein. Thus, the aforesaid contention of the respondents also stands rebutted.
14. In the judgment titled as Ragavendra Kumar v. Firm Prem Machinary reported as AIR 2000 SUPREME COURT 534 the Hon'ble Supreme Court held that it is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter. Reference be made to Prativa Devi Vs T.V. Krishnan (1996) 5 SCC 353.
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15. In view of the discussion above, it is held that petitioner has been able to establish his bona fide requirement. Thus, no triable issues arises as far as bona fide requirement of the petitioner is concerned.
(iii) That petitioner has no other reasonably suitable accommodation.
Ld. Counsel for the respondents raised the contention that petitioner has several other spacious properties such as WZ-119, Basai Darapur, New Delhi, WZ-3/2, Basai Darapur, property no WZ-A, Basai Darapur, property no. WZ- 58 Basai Darapur, WZ-2/42 Basai Darapur and Kothi in Bali Nagar and Sudhama Puri. The petitioner in his reply by way of counter affidavit has categorically denied having his ownership or possession qua the aforesaid properties referred by the respondents. The respondents did not file any rejoinder nor placed on record any document to give details of ownership of the petitioner qua the aforesaid properties. Making mere bald assertions without any basis is of no help to the respondents. Law is settled on this aspect as where mere bald assertions of the petitioner / tenant are not sufficient for granting leave to defend. He is enjoined upon to substantiate his assertions with prima facie material which can tantamount to triable issues.
16. To embolden the abovesaid observation, reliance is hereby placed upon the judgment of Hon'ble Delhi High Court in the case titled as Harish Chand v. Mukesh Kumar & Ors, 2015 (1) RR 236, wherein it was held that :
E No. 85/2018Anand Tyagi Vs. Pushpa Gupta & Ors. Page No. 12 of 14 " 21. The scheme of the DRC Act would show that at this stage no substantive proof is required because no evidence is being led however, alongwith an affidavit the tenant has to place some material to discharge his burden to show that the defence taken by him is not illusionary, sham or moonshine. The petitioner in the present case seeks a trial to dispute the oral settlement. The landlord/respondent has has discharged the onus which was on him as he is admittedly one of the co-owners of the property and the other co-owners have not disputed the oral settlement. The petitioner has placed no material on record to show how he would rebut the oral settlement if leave to defend is granted. Similarly the site plan also at this stage is not a substantive evidence however, it is a prima facie material to substantiate the case of a party which gives assurance to the court that what is being stated is not a bald assertion and if trial is granted the tenant will be in a position to prove a defence which may oust the landlord. Merely by raising the so called issues as raised by the Petitioner before this court the petitioner cannot claim leave to defend and a trial. Though the stage of proving facts does not arise while granting leave to defend however the assertions of the tenant should be prima facie substantiated by material on record so as to show that the defence raised by him is not sham or illusionary or moonshine".
17. Thus the aforesaid argument / contention raised by the respondents cannot be given due consideration and does not raises any triable issues on this aspect as well.
18. In the light of the above discussion, no ground is made out to grant leave to contest in favour of the respondents as they have failed to raise any triable issues. Leave to defend application accordingly stands dismissed. Consequently, eviction order is passed in favour of the petitioner in respect of Shop in property bearing no. WZ-11, Kailash Park, Opposite Kirti Nagar, New Delhi as shown in Red Color in Site Plan. However, by virtue of section 14 (7) of DRC Act, the petitioner E No. 85/2018 Anand Tyagi Vs. Pushpa Gupta & Ors. Page No. 13 of 14 shall not claim possession until the expiration of six months from the date of the order.
19. No order as to costs. File be consigned to record room.
Announced in the open Court (Vishal Pahuja) on this 20th Day of April, 2019 ACJ/CCJ/ARC(West) Tis Hazari Courts, Delhi E No. 85/2018 Anand Tyagi Vs. Pushpa Gupta & Ors. Page No. 14 of 14