Delhi District Court
Anil Kumar Vig vs (1) Smt. Sumeria Chadilal (Since ... on 4 March, 2021
IN THE COURT OF HARVINDER SINGH,
SCJcumRC, SOUTHWEST DISTRICT,
DWARKA COURTS, NEW DELHI.
JUDGMENT
Anil Kumar Vig S/o Late Sh. Baldev Raj Vig R/o III 2/9, Second Floor, Shri Rampuri Building, Gopinath Bazar/Shastri, Delhi Cantt., New Delhi - 110 010. ..................Petitioner Versus (1) Smt. Sumeria Chadilal (since deceased) W/o Late Sh. Chadilal R/o House No.III, 2/2, Ground Floor, Shri Ram Puri Building, Gopi Nath Bazar, Delhi Cantt., New Delhi.
Also at C - 5A/142, Ground Floor, Janak Puri, New Delhi.
(2) Mr. Jagdish Prasad (since deceased) Prop. Modern Shoe Manufactures Shop No.III, 2/2, Ground Floor, Shri Ram Puri Building, Shastri Bazar/Gopi Nath Bazar, Delhi Cantt., Delhi - 110 010.
Both through LRs (as per latest amended memo of parties)
..................Respondents
DATE OF INSTITUTION : 20.01.2009
DATE OF ARGUMENTS : 18.02.2021
DATE OF DECISION : 04.03.2021
1. Vide this judgment, this Court shall decide the present petition (amended one) filed by the petitioner under Section 14 (1) (e) of The Delhi Rent Control Act, 1958 (hereinafter referred to as DRC Act) qua premises i.e. House No.III, 2/2, Ground Floor front portion being shop, Shri Ram Puri Building, Shashtri Bazar/Gopinath Anil Kumar Vig Vs. Smt. Sumeria Chadilal & Ors. RC No.4439/2016 [04.03.2021] Page No.1 of 24 Bazar, Delhi Cantt, New Delhi - 110 010 (hereinafter referred to as tenanted premises).
PETITIONER SIDE CASE (AS PER AMENDED PETITION)
2. Succinctly, the case of petitioner as discernible from petition is that father of petitioner namely Baldev Raj Vig bought property bearing house no.III, 2/2, Ground Floor, Shri Ram Puri Building, Shashtri Bazar/Gopinath Bazar, Delhi Cantt, New Delhi
- 110 010 in year 1976. The father of petitioner executed a Will in his lifetime in favour of petitioner regarding property where tenanted premises is situated. After demise of father of petitioner namely Sh. Baldev Raj Vig, petitioner became absolute owner/landlord of the said premises. Petitioner is suffering from various health issues including arthritis, asthma and heart problems. In year 2005, the petitioner has to undergo angiography. The doctors have advised the petitioner to remain careful. The doctors have also advised petitioner to avoid climbing stairs due to being suffering from arthritis. Due to health issues, petitioner is not able to do any business and to earn his livelihood. On account of his ill health, the petitioner has been left with no means of earning as he is not doing any business. Petitioner is not in position to sustain himself and his family members who are dependent upon him. Petitioner cannot travel long distances in Delhi to undertake any business acitivity due to health issues. Petitioner at the most can open a small shop and do business near his house in the shop of tenanted premises. Petitioner needs the tenanted premises for his own personal use to start business. On account of his ill health, petitioner is not engaged in business activities, is left totally isolated and is suffering from extreme financial crisis. Anil Kumar Vig Vs. Smt. Sumeria Chadilal & Ors. RC No.4439/2016 [04.03.2021] Page No.2 of 24 Petitioner approached respondent side several times with request to vacate the tenanted premises, so that he can occupy the same for his personal use to open a shop. The tenanted premises is the only commercial property where petitioner can start his business activity as he has no other commercial place to start business. The tenanted premises was originally rented out by Late Sh. Baldev Raj Vig, father of petitioner to late Sh. Chhedi Lal, husband of respondent no.01 (since deceased) which devolved upon respondent no.01 (since deceased). The petitioner has three sisters who are staying outside Delhi and two brothers, one of whom stays at Mussoorie. The three sisters of petitioner and his brother from Mussoorie frequently visit petitioner and stay with petitioner in his house which is not sufficient to accommodate them and they have to stay in drawingcumdining room only. The accommodation of petitioner is extremely insufficient as well as it is difficult for petitioner to stay at 2 nd floor due to health problems and thus, petition needs the tenanted premises for his own personal bonafide use. It has come to the knowledge of the petitioner that respondent no.01 (since deceased) is not residing in the premises and is residing at C - 5A/142, Ground Floor, Janak Puri, New Delhi, therefore, is disentitle to retain the premises. The petitioner sent a legal notice for termination of tenancy to respondents on 22.09.2008 through registered post/AD. The petitioner requires the tenanted premise for his bonafide need to start some business to sustain himself and his family members dependent upon him. With these averments, present petition has been filed by petitioner for eviction of respondents from tenanted premises.
It is noted that though in the paragraph of relief claimed in the amended Anil Kumar Vig Vs. Smt. Sumeria Chadilal & Ors. RC No.4439/2016 [04.03.2021] Page No.3 of 24 petition, the petitioner has sought eviction of respondent side from tenanted premises front portion being shop of H. No.III, 2/2, Ground Floor, Shri Ram Puri Building, Shashtri Bazar/Gopinath Bazar, Delhi Cantt, New Delhi - 110 010, however, in many of the paragraphs of even amended petition, the petitioner has mentioned the tenanted premises of this petition comprising of one room, one bathroom and kitchen on the ground floor of H. No.III, 2/2, Shri Ram Puri Building, Shashtri Bazar/Gopinath Bazar, Delhi Cantt, New Delhi - 110 010 and has stated that he needs it for his bonafide need of residence.
3. The notice of this petition was given to the respondents in prescribed format, same was served upon respondent side, respondent side filed leave to defend application and same was allowed vide order dated 27.07.2009. Respondent side filed written statement and then matter was fixed for petitioner's evidence, however, during course of evidence, the petitioner side moved an application under Order VI Rule 17 of The Code of Civil Procedure, 1908 (hereinafter referred to as CPC) read with Section 151 CPC for filing amended petition and site plan, same was allowed vide order dated 05.11.2009. Amended petition and site plan were taken on record. Replication was also filed by the petitioner side to the written statement of the respondent side. RESPONDENT SIDE CASE AS PER WRITTEN STATEMENT
4. Succinctly, the case of the respondent side as discernible from written statement is that tenancy of the tenanted premises was created in favour of late Sh. Chhadi Lal in year 1936 by erstwhile owner of the property. The tenanted premises consists of an area of 10 feet 6 inches x 72 feet which comprises of one shop ad Anil Kumar Vig Vs. Smt. Sumeria Chadilal & Ors. RC No.4439/2016 [04.03.2021] Page No.4 of 24 measuring 10 feet 6 inches and remaining being residential house. The said situation is present since inception of tenancy. The tenancy was incepted for composite purposes. The front portion of tenanted premises is shop where the respondent side is running a shoe shop for last 70 years. The back portion of the same is used as residence by the respondent side. The tenancy was also inherited by LRs of late Sh. Om Prakash and LRs of late Sh. Ashok Kumar, apart from the respondents arrayed in the petition. The father of the petitioner late Sh. Baldev Raj became owner of premises comprising of 63 feet in width and 72 feet in length. The ground floor of said premises consisted of six portions having equal front of 10 feet 6 inches in width and 72 feet in length. All the portions of ground floor were letout on rent for composite purposes including that of respondent side. Single rent is charged for tenanted premises. As per family settlement, all three sons of late Sh. Baldev Raj got two portions each out of the premises. The tenanted portion of respondent side and of one Neeraj came in share of petitioner and remaining four portions were shared by his brothers. The petitioner family has total living area equivalent to 4800 square feet at 2 nd floor and one room at first floor. The entire 2nd floor is in possession of petitioner and his family. The portion owned by petitioner comprises of two equal portions of ground floor, entire 1 st floor, 2nd floor and servant room thereupon. The 2 nd and 3rd floor has been constructed by petitioner after the demise of his father. During the pendency of the present petition, petitioner has put on rent one room of 1st floor and 3rd floor of property at monthly rent of Rs.3,000/ and Rs.8,000/ respectively. The present petition has been preferred in order to get property vacated from respondents to let it out on higher rate of rent. The Anil Kumar Vig Vs. Smt. Sumeria Chadilal & Ors. RC No.4439/2016 [04.03.2021] Page No.5 of 24 petitioner has no bonafide requirement. The petitioner deliberately excluded the shop portion of tenancy in his first petition since judgment of Hon'ble Supreme Court of India in matter of "Satyawati Sharma (dead) by LRs Vs. Union of India & Anr." (2008) 5 SCC 287 was not pronounced till then. In first petition, the petitioner averred case of bonafide requirement of residential accommodation only and once the scope of Section 14 (1)(e) of DRC Act was extended by judgment of "Satyawati Sharma (dead) by LRs Vs. Union of India & Anr." (2008) 5 SCC 287, he preferred this petition to exploit the mandate given by Apex Court. It itself shows that he has no bonafide requirement. The most of the paragraphs of present petition of bonafide requirement are common as that of petition filed for residential portion. The petitioner has filed wrong site plan. The petitioner by way of concealment and suppression of material facts has tried to divide one composite tenancy in two parts. The petitioner has recently sold ground floor of adjacent part to Sh. Naveen Jain and Sh. Rakesh Jain for Rs.15,00,000/. The petitioner has also recently sold 1 st floor to one Mrs. Shakuntala Yadav for sale consideration of Rs.27,00,000/. The respondent side is using the tenanted premises for composite purpose as they are residing in rear portion and are running a shoe shop in name and style of 'M/s Modern Shoes' for last 70 years in front portion. The correct description of tenanted premises is one shop admeasuring 10.6 feet x 36 feet, one bedroom and one kitchen on ground floor. The petitioner is not suffering from any ailment. Petitioner is actively involved in business. Petitioner is a man of means and is doing various types of businesses like running canteens in schools and stalls in various hospitals. Petitioner is receiving handsome income by lettingout Anil Kumar Vig Vs. Smt. Sumeria Chadilal & Ors. RC No.4439/2016 [04.03.2021] Page No.6 of 24 1st floor and entire 3rd floor of same premises and other properties to tenants. Even son of the petitioner is working with Lufthansa Airlines and is receiving handsome package. The petitioner has three cars, rental income, income from businesses and his son is gainfully employed. The respondent side has denied almost all the averments of the petition vide their written statement. With these submissions, the respondent side has sought dismissal of petition.
FURTHER CASE OF PETITIONER SIDE AS PER REPLICATION TO WS
5. Succinctly, vide replication, the petitioner side has denied that tenancy was incepted for composite purposes. The petitioner side however submitted that late Sh. Chhadi Lal was running shop in front portion and was residing with his family in the rear portion. The shop and residence part is partitioned with brickwall, so, the shop and residence part are separate from each other. The petitioner side denied that composite/single rent receipt is issued for present tenanted premises and residential part of the connected petition. The petitioner denied that their site plan is incorrect. The petitioner side denied the site plan of respondent side to be correct. The rent of shop and residential portions used to be realized separately, but for convenience, single receipt used to be issued. After the death of late Sh. Chhadi Lal, the respondent Smt. Suneria Chhadi Lal (since deceased) inherited the tenanted premises and it was not inherited by sons of late Sh. Om Prakash and late Sh. Ashok Kumar who have different accommodations and are gainfully employed. The tenancy was inherited by respondent no.01 (since deceased) only and other members of family have their own houses and are living separately. At present, the residential portion is being used by the family of Anil Kumar Vig Vs. Smt. Sumeria Chadilal & Ors. RC No.4439/2016 [04.03.2021] Page No.7 of 24 late Sh. Ashok Kumar only. The petitioner side denied that any of the portions were letout for composite purposes including that of the respondent side. The petitioner side however submitted that the tenancies of all the portions were incepted even before father of petitioner became owner of premises and the rent charged for both shop and residence parts used to be charged collectively. Petitioner side further submitted that now the portions of the shop and house are clearly marked, the front portion being used for commercial purposes and back portion being used for residential purposes, hence cannot treated to be letout for composite purposes. The petitioner side denied that it has letout one room on first floor for Rs.3,000/ and the 3 rd floor @ Rs.8,000/ per month. The petitioner side further denied that it has preferred the present petition after judgment of "Satyawati Sharma (dead) by LRs Vs. Union of India & Anr." (2008) 5 SCC 287 only to exploit the mandate of Ld. Apex Court without any bonafide requirement. The petitioner side further submitted that it has sold the entire first floor barring one room which is rented out to meet the medical expenses. The 2 nd floor is actually under the possession of the petitioner. The petitioner sold the ground floor and the 1st floor due to financial crises as he has no source of income.
6. After completion of pleadings, matter was fixed for petitioner evidence. PETITIONER SIDE EVIDENCE 7.1 The petitioner examined himself as PW1, tendered his affidavit Ex.PW1/A as his examinationinchief reiterating almost similar facts as of their pleadings and further relied upon and exhibited documents i.e. site plan Ex.PW1/1, copy of saledeed dated 23.10.1978 Ex.PW1/1A, death certificate of late Sh. Baldev Anil Kumar Vig Vs. Smt. Sumeria Chadilal & Ors. RC No.4439/2016 [04.03.2021] Page No.8 of 24 Raj Ex.PW1/1B, copy of Will of late Sh. Baldev Raj Ex.PW1/1C, copy of relinquishment deed dated 21.12.2002 Ex.PW1/1D, voter IDcard Ex.PW1/2, ITRs Ex.PW1/17 to Ex.PW1/20, voter IDcard Ex.PW1/21, voter IDcard of wife of petitioner Ex.PW1/22, voter IDcard of son of petitioner Ex.PW1/23, copy of legal notice dated 22.09.2008 Ex.PW1/24, registered post/UPC Ex.PW1/25, postal receipts Ex.PW1/26 to Ex.PW1/27, AD card Ex.PW1/28 and marked documents like notice of demand, rent receipts, electricity bills and doctor's prescription slips as Mark 'A' to 'N' in his evidence. He was crossexamined at length by Ld. Counsel for the respondent side which is not reproduced herein for sake of brevity and was discharged. 7.2 No other witness was examined by petitioner side.
RESPONDENT SIDE EVIDENCE 8.1 The respondent side examined deceased Smt. Sumeria Chhadi Lal as DW1 who tendered her affidavit Ex.DW1/A as her examinationinchief wherein in gist, she deposed that tenancy is around 70 years old. It was incepted in name of her husband late Sh. Chhadi Lal and since then her family is in possession of ground floor of property no.III, 2/2, Shri Ram Puri Building, Shashtri Bazar/Gopinath Bazar, Delhi Cantt, New Delhi - 110 010. Since inception of tenancy front portion is used as shop and back portion as residence. The entire ground floor of III, 2/2, Shri Ram Puri Building, Shashtri Bazar/Gopinath Bazar, Delhi Cantt, New Delhi - 110 010 forms one tenancy. Due to old age she is not able to depose in length. The petitioner is a man of means and does not bonafidely require the tenanted premises. Her grandson Sumit Kumar knows all the facts of the case and she has authorized her vide Ex.DW1/1 to Anil Kumar Vig Vs. Smt. Sumeria Chadilal & Ors. RC No.4439/2016 [04.03.2021] Page No.9 of 24 depose properly about this matter. DW1 was crossexamined at length by Ld. Counsel for the petitioner which is not reproduced herein for sake of brevity and was discharged.
8.2 Sh. Sumit Kumar @ Pintu was examined as DW2 by respondent side, he tendered his affidavit Ex.DW2/A as his examinationinchief retreating almost similar facts as of their pleadings and exhibited/marked documents i.e. certified copy of GPA Ex.DW2/1, six photograph Ex.DW2/2 to Ex.DW2/7, site plan of entire building Ex.DW2/8, site plan of tenanted premises (shop and house) Ex.DW2/9, rent receipts Ex.DW2/10 to Ex.DW2/20 (ranging from 1936 to 1993), copy of ration card of Jagdish Kumar Mark 'A', copy of ration card of Ashok Kumar Mark 'B', copy of ration card of Ram Dulari Mark 'C', voter IDcard of Smt. Suneria Mark 'D', copy of voter IDcard of Smt. Rama Mark 'E', voter IDcard of Ms. Nisha Mark 'F', voter IDcard of Sumit Kumar Mark 'G', voter IDcard of Ms. Asha Mark 'H', voter IDcard of Ashok Mark 'I', copy of voter IDcard of Smt. Ram Dulari Mark 'J', copy of voter IDcard of Anil Kumar Mark 'K', copy of House Tax receipts issued by Delhi Cantonment Board for the period 01.04.2004 to 31.03.2005 Mark 'L', receipt dated 12.08.2005 issued by Delhi Cantonment Board Mark 'M' and rent receipt dated 11.11.1993 Mark 'N' in his evidence. He also produced/exhibited/marked copy of relinquishment deed dated 31.12.2002 Mark 'O/P1', Bills Mark 'XXX1', photographs Ex.DW2/PXXX2, Form 'C' registration certificate of March, 1958 under Delhi Shop and Establishment Act, 1954 as Ex.DW2/XXX in his crossexamination. DW2 was crossexamined at length by Ld. Counsel for the petitioner which is not reproduced herein for sake of brevity and Anil Kumar Vig Vs. Smt. Sumeria Chadilal & Ors. RC No.4439/2016 [04.03.2021] Page No.10 of 24 was discharged.
8.3 DW3 Rakesh Kumar @ Bunty has tendered his affidavit Ex.DW3/A as his examinationinchief and exhibited documents i.e. copy of driving license Ex.DW3/1 and original mutation/renewal letter dated 29.06.2009 as Mark 'DW3/X' in his evidence. He further produced and exhibited receipt dated 13.09.1983 Ex.DW3/Z1, receipt dated 09.09.1993 Ex.DW3/Z2, receipt dated 01.02.2000 Ex.DW3/Z3, receipt dated 22.12.2000 Ex.DW3/Z4, receipt dated 18.11.2005 Ex.DW3/Z5, receipt dated 14.02.2008 Ex.DW3/Z6, receipt dated 21.03.2011 Ex.DW3/Z7 and three other documents Ex.DW3/Y, Ex.DW3/P1 and Ex.DW3/P2 pertaining to Modern Shoe Maker in his crossexamination. DW3 was crossexamined at length by Ld. Counsel for the petitioner which is not reproduced herein for sake of brevity and was discharged. 8.4 DW4 Pranab Chaudhary, Senior Assistant, Office of SubRegistrar IX, Kapashera, New Delhi exhibited relinquishment deed dated 13.12.2002 as Ex.DW4/1, saledeed dated 24.05.2003 as Ex.DW4/2, saledeed dated 30.01.2004 as Ex.DW4/3, saledeed dated 06.09.2005 as Ex.DW4/4, saledeed dated 18.10.2005 as Ex.DW4/5 and saledeed dated 26.10.2005 as Ex.DW4/6 in his evidence. DW4 was examined, was not crossexamined by petitioner side despite opportunity given and was discharged.
8.5 DW5 Ranbir Singh, UDC, SubRegistrar VIIA, Sarojini Nagar, New Delhi exhibited saledeed dated 25.04.2017 as Ex.DW5/1 in his evidence. DW5 was examined, was not crossexamined by petitioner side despite opportunity given and was discharged.
Anil Kumar Vig Vs. Smt. Sumeria Chadilal & Ors. RC No.4439/2016 [04.03.2021] Page No.11 of 24 8.6 DW6 Pragya Tiwari, Draftsman, GradeII, Delhi Cantonment Board, Delhi Cantt, New Delhi in gist has deposed in her examinationinchief that owner of Sh. Ram Puri Building, Gopi Nath Bazar, Delhi Cantt is Ministry of Defence, Government of India. Its lease was given to Sh. Ram Puri, was extended from time to time and finally got expired on 28.02.2017. As per MOD policy, letter dated 10.03.2017, all lessees and their legalheirs including purchasers of leasehold rights were given option for extension of lease up to 31.12.2018 subject to conditions mentioned in said letter. In present case, conditions are not fulfilled. Initially, property was given on lease for period of 90 years and was required to be renewed after every 30 years. In present case, same expired in year 1987 and was not renewed. On 28.02.2017, even the 90 years have expired. A person cannot sell the leasehold rights of lease property by execution of saledeed or by any other means. For execution of saledeed, permission of cantonment board is required. She exhibited the extracts of general land register pertaining to survey no.52/5, Delhi Cantonment Board as Ex.DW6/1 in her evidence. DW6 was crossexamined by Ld. Counsel for the petitioner side and was discharged.
8.7 DW7 Sunil Kumar, JA, Record Room (Civil), Dwarka Courts, New Delhi exhibited petitions and judgments of eviction petition no.12/2009/2008 dated 22.01.2009 titled as 'Swatantra Kumar Vig Vs. Surender Kumar' and petition no.45/2014/2010 titled as 'Raj Kumar Vs. Pyare Lal' as Ex.DW7/A and Ex.DW7/C, Ex.DW7/B and Ex.DW7/D respectively. He exhibited the examination of Dr. Dheeraj Diwan of said petitions as Ex.DW7/E and Ex.DW7/F respectively. DW7 was Anil Kumar Vig Vs. Smt. Sumeria Chadilal & Ors. RC No.4439/2016 [04.03.2021] Page No.12 of 24 examined, not crossexamined by Ld. Counsel for the petitioner side despite opportunity given and was discharged.
8.8 DW8 Narender Singh, Marketing Assistant, Office at C123, Lawrence Road, Delhi brought the record of sales of HPMC, Kiosk at DDU Hospital, Delhi. He brought the agreement dated 01.07.1999 executed with Neeru Vig on record. He also brought on record records of Sales as Ex.DW8/1 in his evidence. He further deposed that he has not brought the agreement pertaining to Anil Kumar Vig as same is not available with his office. In his crossexamination, he deposed that the petitioner Anil Kumar Vig is vendor for HPMC at DDU Hospital, Delhi and is running same for last 15 - 16 years without default. DW8 was examined, crossexamined by Ld. Counsel for the petitioner and was discharged.
8.9 No other witness was examined by respondent side.
ARGUMENTS/SUBMISSIONS/CONTENTIONS 9.1 In gist, it is submitted/contended by the respondent side vide oral and written submissions that late Sh. Chhadi Lal was inducted as tenant in the tenanted premises in year 1936 for composite tenancy, the front side being used for Shoe making and selling business and rear side being used as residence. The petitioner has filed this petition only qua part portion of tenancy i.e. front portion used as shop mainly on ground that he has no business for livelihood and he wants to open a shop in the tenanted front portion of shop. The petitioner has filed this petition breaking the tenancy into two parts as per his own whims and fancies, pleading incorrect facts and filing incorrect site plan to justify his pleadings. A single rent receipt for whole Anil Kumar Vig Vs. Smt. Sumeria Chadilal & Ors. RC No.4439/2016 [04.03.2021] Page No.13 of 24 premises is issued since beginning which establishes that the tenancy of whole premises available with respondent side is a single tenancy. The petitioner side has averred in paragraph no.04 of this petition that the respondent side is using it for commercial purposes and has averred in paragraph no.05 of this petition that respondent side is occupying the premises as residence. Had it been so, the petitioner side could have filed single petition qua whole of premises available with the respondent side under Section 14 (1) (e) read with its explanation at the time of filing first petition. The petitioner side has thus concealed material facts regarding the nature of premises available with respondent side and it being a single tenancy. The petition of the petitioner side needs to be rejected on this account alone as it could not have split a single tenancy into two parts as per their convenience. The petitioner has concealed material facts from this Court regarding availability of one room with the petitioner at the first floor of the premises. He has also concealed fact of sale of 1 st floor of the premises to one Shakuntala around three years before filing of this petition. The petitioner has also concealed the factum of availability of accommodation at 3 rd floor/top floor of the premises at the time of filing of the present petition. The petitioner has no medical issues as have been averred by him. The prescriptions and diagnoses filed by the petitioner to prove his health issues have been issued by Dr. Dheeraj Diwan who is soninlaw of brother of petitioner. He has issued almost similar receipts and diagnoses to the brothers of petitioner for filing similar eviction petition against their tenants and has also deposed in favour of brothers of petitioners in their petitions. The petitioner letout space at 1 st floor to two contractors during pendency of Anil Kumar Vig Vs. Smt. Sumeria Chadilal & Ors. RC No.4439/2016 [04.03.2021] Page No.14 of 24 this petition and has admitted that same is used by his tenant for commercial activity. The one portion of the property vacated vide orders of the Court was sold by the petitioner side to the same tenant vide saledeed Ex.DW5/1 on record which proves that the petitioner wants to get vacated the shop to sell it further and has no bonafide requirement to open any shop. The petitioner sold the ground floor portion of property bearing no.III, 2/2, Shri Ram Puri Building, Shashtri Bazar/Gopinath Bazar, Delhi Cantt, New Delhi - 110 010 vide Ex.DW4/3 to the tenant before preferring the present petition which also shows that the petitioner has no bonafide requirement of opening any shop for business instead has tried to create fake one. The petitioner has concealed that by virtue of relinquishment deed Ex.DW4/1, he has become owner of entire Shri Ram Puri Building comprising properties no.III 2/1 to III 2/9 Shri Ram Puri Building, Shashtri Bazar, Delhi Cantt, New Delhi - 110 010. The petitioner has filed this petition malafidely by concealing his businesses of canteens, businesses of running kiosks of HPMC at DDU Hospital, income of rented properties and income earned from tuitions. He has relied upon false ITRs which he were filed qua four years in a span of month or two. The petitioner has filed this petition making false averments of illness and that he is not able to do any business due to health issues. The petitioner malafidely filed this petition without any bonafide requirement of starting any business only to exploit the mandate of Hon'ble Apex Court given vide judgment of "Satyawati Sharma (dead) by LRs Vs. Union of India & Anr." (2008) 5 SCC 287. With these submissions and contentions, the respondent side has prayed for dismissal of the petition. 9.2 Per contra, in gist, it is submitted/contended by petitioner side vide oral Anil Kumar Vig Vs. Smt. Sumeria Chadilal & Ors. RC No.4439/2016 [04.03.2021] Page No.15 of 24 and written submissions that tenanted premises was purchased by father of petitioner and it was in occupation of respondent side at that time. Most of family members of respondent side have now shifted to other places. The relationship of landlordtenant is admitted by the respondent side. The rate of rent is also admitted. The petitioner is suffering from various health issues and has undergone angiography in year 2005. Petitioner is also suffering from arthritis. The petitioner has terminated the tenancy vide legal notice dated 22.09.2008. The petitioner needs the present tenanted premises to open a shop to earn living for himself and his family members dependent upon him. The petitioner has no other alternative accommodation to open a shop. The petitioner side has specifically denied the tenancy to be for composite purposes as it is separated with brickwall. The respondent side is not doing any business at the tenanted premises of shop and is occupying it only for the purpose of extorting money from the petitioner side. The ITRs have been filed by the petitioner to show his income and this Court cannot go into their wrongfulness or correctness as same could be challenged only vide separate proceedings before appropriate forum. With these submissions and contentions, the petitioner side has prayed that their petition be allowed. The petitioner side has relied upon the judgments of "Sarvate T.B. Vs. Nemi Chand" 1965 Jab LJ 973 : 1966 MPLJ 26 (SC), "Shiv Sarup Gupta Vs. Mahesh Chand Gupta" AIR 1999 SC 2507 : AIR 2005 SC 996, "Maganlal Kishan Lal Godha Vs. Nanasaheb Uddhaorao Gadewar" 2008 AIR 2009 SC 278, "Sudesh Kumari Soni Vs. Prabha Khanna" 153 (2008) DLT 652, "Shakuntla Gupta Vs. Surinder Kumar" 1994 (53) DLT 767, "Sushila Devi Vs. Raghunandan Prasad" 1996 (61) DLT 426, "Ajit Singh Vs. Inder Saran" 1979 Anil Kumar Vig Vs. Smt. Sumeria Chadilal & Ors. RC No.4439/2016 [04.03.2021] Page No.16 of 24 (1) RCR 602 : 1979 (1) RCJ 152 (170) (Del), "Freddy Fernandes Vs. P. L. Mehta"
1973 RCR 53 (Del) and "Prativa Devi (Smt) Vs. T. V. Krishnan" (1996) 5 Supreme Court Cases 353 in support of their contentions. 9.3 Arguments/submissions/contentions of both sides considered. Records perused.
DISCUSSION 10.1 To bring home success to a petition under Section 14 (1) (e) of The DRC Act, the petitioner is obliged to establish/prove the following :
(i) Ownership in respect of tenanted premises,
(ii) Relationship of landlord and tenant between the parties,
(iii) Petitioner bonafidely requires the tenanted premises for himself or his family member(s)/dependent(s) and ;
(iv) Petitioner does not have any other suitable alternative accommodation available with him/her/it.
Beside above requirements to successfully establish a case for eviction, the petitioner is also required to clear the hurdle of maintainability of the present petition raised by the respondent side. Let, it be given number (v).
POINTWISE DISCUSSION
(v) Issue of maintainability.
10.2 Before discussion upon other requirements for success of petition under
Section 14.1 (e) of The DRC Act, it would be appropriate to first discuss the legal issue of maintainability of the petition raised by the respondent side as to nature of tenancy Anil Kumar Vig Vs. Smt. Sumeria Chadilal & Ors. RC No.4439/2016 [04.03.2021] Page No.17 of 24 of present tenanted premises and of residence part of connected rent petition. The case of the respondent side since inception is that the present tenanted premises and residence part are composite tenancy. The said factum was denied by the petitioner side vide their replication to the WS. Now, if we go through the pleadings and evidence of the petitioner side, petitioner has admitted in his replication that rent is collectively charged for both portions and has also admitted in his crossexamination that only one rent receipt is issued qua whole of the premises available with the respondent side. It implies that there is no bifurcation of admitted rent of Rs.100/ for premises available with the respondent side consisting of tenanted premises and residence part. It is also admitted case as per pleadings of petitioner side that the respondent side was tenant in the premises even before purchase of property by the father of petitioner. The only factum pleaded by the petitioner side in support of their case of tenancy of shop and the residence premises being different tenancies is that residence part and shop part of premises available with the respondent side is partitioned with a brickwall. Now, if we go through the evidence available on record, the respondent side has brought on record the photographs of the premises available with them as Ex.DW2/2 to Ex.DW2/7 which shows that there exists a door between both parts making it one. In given circumstances, the only inference which could be drawn from the facts available on record is that the whole of the premises available with the respondent side consisting of present tenanted premises and tenanted premise of residence constitutes a single composite tenancy charged with a single/composite rent of Rs.100/ per month. The present petition was filed on 20.01.2009 i.e. after Anil Kumar Vig Vs. Smt. Sumeria Chadilal & Ors. RC No.4439/2016 [04.03.2021] Page No.18 of 24 judgment of Hon'ble Supreme Court of India in matter of "Satyawati Sharma (dead) by LRs Vs. Union of India & Anr." (2008) 5 SCC 287 which extended the scope of section 14 (1) (e) to the commercial tenancies. Before filing of this petition, the petitioner filed connected petition on 10.05.2007 [prior to "Satyawati Sharma (dead) by LRs Vs. Union of India & Anr." (2008) 5 SCC 287] qua residence part. It appears that to bring out case from a case of commercial premises, the petitioner side filed connected petition qua only residence part knowingfully well that the tenanted shop also forms part of same tenancy. Had it been that the shop part was letout for residential purpose as is averred in the petition and the respondent side was using it for commercial purposes without consent/permission of the petitioner side, the petitioner would have certainly preferred petition for whole of the premises as per explanation provided to Section 14 (1) (e) of DRC Act. The petitioner side could have preferred petition under Chapter II of DRC Act for fixation of separate rent of both parts before filing of connected petition and once that have been done, could have filed the connected petition on the ground of bonafide need of the residence part excluding the shop part of present petition. In the opinion of this Court, filing of the present petition concealing/suppressing the aspect of a single composite tenancy itself entitles rejection of this petition.
(i) (Ownership in respect of tenanted premises) & (ii) Relationship of landlord and tenant between the parties 10.3 Both these points/aspects/issues are interrelated and are interconnected with each other and can be decided by way of common discussion, therefore, they are Anil Kumar Vig Vs. Smt. Sumeria Chadilal & Ors. RC No.4439/2016 [04.03.2021] Page No.19 of 24 taken up together for sake of convenience and brevity. It is not in dispute that the premises including the tenanted premises was acquired by the father of petitioner in year 1976 vide Ex.PW1/2. The respondent side has also admitted vide their written statement that after demise of father of petitioner, two portions out of total six portions of the premises owned by father of petitioner fell into the share of petitioner. The tenanted premises forms part of the premises which fell into the share of the petitioner. The respondent side has accepted the petitioner as landlord/owner of the tenanted premises and has been paying admitted rent of Rs.100/ to the petitioner. The respondent side has also specifically admitted that the petitioner is landlord of the respondent side. It is well settled preposition of law that landlord/owner is not supposed to prove his absolute ownership/title and has to merely show that he is something more than tenant. Reliance can be placed upon decisions of matters of "Rajender Kumar Sharma Vs. Smt. Leelawati" 155 (2008) DLT 383 and "Milk Food Limited Vs. Kiran Khanna" 51 (1993) DLT 41. In totality of circumstances, where the petitioner has been able to show that father of petitioner had lease hold rights qua tenanted premises, the deposition of the petitioner that tenanted property devolved upon him by Will of his father is not disputed, the respondent side has admitted the petitioner to be its landlord and has been paying rent to the petitioner, the petitioner side has been able to establish better title to the tenanted premises than the respondent side and has been able to establish landlordtenant relationship between both sides. Hence, said issues/aspects/points stands decided accordingly.
(iii) Petitioner bonafidely requires the tenanted premises and (iv) Alternative suitable Anil Kumar Vig Vs. Smt. Sumeria Chadilal & Ors. RC No.4439/2016 [04.03.2021] Page No.20 of 24 accommodation not available.
10.4 Both these points/aspects/issues are interrelated and are interconnected with each other and can be decided by way of common discussion, therefore, they are taken up together for sake of convenience and brevity. The petitioner has preferred this petition on the ground that he is suffering from various health issues and underwent angiography in year 2005. He has arthritis also and doctors have advised him to avoid climbing stairs. He is not in position to do any business and to earn livelihood for himself and his family. He is not doing any business and have no means of earning. He can at the most open a small shop and do business near his house in the tenanted shop. Due to ill health he is not engaged in any business activity. He is suffering from extreme financial crisis. He needs the tenanted premises to start his business i.e. to open a shop. The tenanted premises is the only commercial property available with him. His family is dependent upon him. Now if we go through the crossexamination of the petitioner, he has admitted in his crossexamination that he has rentedout property after getting it vacated from one earlier tenant Colonel Manmohan. The same was lying vacant and was in his possession. He has also admitted in his cross examination that he was in possession of one room on 1st floor and has rentedout same to one Mr. Jain who is using the said property for commercial activity/as an office. The petitioner has also admitted in his crossexamination that he is running kiosk of HPMC at DDU Hospital in the name of his wife. Though, in his crossexamination he deposed that he has no other source of income except kiosk in the name of his wife, but in the crossexamination of DW8 the petitioner side itself suggested that there is another Anil Kumar Vig Vs. Smt. Sumeria Chadilal & Ors. RC No.4439/2016 [04.03.2021] Page No.21 of 24 license between HPMC and DDU Hospital pertaining to petitioner and he is running same without any dispute or default for last 15 - 16 years. The petitioner has also admitted in his crossexamination that he is charging Rs.8,000/ per month from a tenant of 3rd floor namely Ajit Singh. He also admitted in his crossexamination that he alongwith his three brothers simultaneously filed various petitions for bonafide requirement against their tenants. He also admitted to have sold portion of adjoining ground floor and 1st floor of the given premises for Rs.5,00,000/ and Rs.6,00,000/ respectively. He also admitted in his crossexamination that he is in possession of area admeasuring 7 feet x 56 feet area on ground floor under Flat No.III/2/9, Shri Ram Puri Building, Shashtri Bazar, Delhi Cantt, New Delhi - 110 010 and the said space was given to him vide Ex.PW1/1C to start any business. He however voluntarily deposed that it is common passage for residents of building. The petitioner has certainly not disclosed the availability of said ground floor commercial area available with him in the same vicinity in his petition. He has also not brought on record any evidence to show that the same is a common passage after said crossexamination. Now, we come to the other limb of the bonafide ground raised that plaintiff is suffering from arthritis and other health issues. The petitioner has brought in his evidence medical prescriptions/slips/receipts Mark 'H' to 'N' to prove the same. The petitioner has admitted in his crossexamination of connected petition that Dr. Dheeraj Diwan who has written prescriptions Mark 'I' to 'N' is soninlaw of his brother. The said Dr. Dheeraj Diwan was not brought as witness in evidence by the petitioner side despite filing his affidavit of evidence. In given circumstances, this Court sees force in the Anil Kumar Vig Vs. Smt. Sumeria Chadilal & Ors. RC No.4439/2016 [04.03.2021] Page No.22 of 24 contention of the respondent side that prescriptions were not genuinely issued, but were issued by said doctor to help his relative to file eviction petition against his tenant on ground of bonafide requirement. This Court is also convinced so because same doctor appeared as witness in eviction petitions filed by brothers of the petitioner against their tenants records of which are available as Ex.DW7/A to Ex.DW7/F on record. Though, persons of old age may suffer from such health issues, but prescriptions of almost similar ailments by same relative doctor to all the three brothers including petitioner raises number of doubts. It appears that since the respondent side has elicited admission from the petitioner in his crossexamination of connected matter that Dr. Dheeraj Diwan is soninlaw of his brother and was suggested that the prescriptions are procured one and are prepared on a single day with a similar pen, therefore, the petitioner side dropped the idea of examining Dr. Dheeraj Diwan as witness despite furnishing his affidavit of evidence on record. So, the authenticity of documents Mark 'I' to 'N' is highly doubtful. Mark 'H' pertains to receipt of payment of glucometry charges only. As far as angiography of the petitioner is concerned, there is no prescription/advise of any doctor brought on record to show that he could not travel. The deceased respondent Smt. Sumeria Chhadi Lal has deposed in her cross examination that she has seen petitioner climbing stairs and taking dog for strolling number of times. Same was not controverted by petitioner side in her further cross examination. In given circumstances, it is clear that petitioner side has filed this petition concealing the availability of ground floor commercial premises admeasuring 7 feet x 56 feet of III/2/9, Shri Ram Puri Building, Shashtri Bazar, Delhi Cantt, New Anil Kumar Vig Vs. Smt. Sumeria Chadilal & Ors. RC No.4439/2016 [04.03.2021] Page No.23 of 24 Delhi - 110 010 of same vicinity with the petitioner. It has filed this petition with wrong averments of no source of income/no business while his family have been running two kiosks at DDU Hospital and were drawing rented incomes etc. Though, a landlord can seek eviction of tenant from any commercial property for start of any new business even if he has been running number of other businesses, but the factum of concealing of a commercial ground space available with the petitioner in same vicinity which could be utilized for purpose of opening a shop for which eviction is sought vide present petition, nails the genuineness of the bonafide requirement pleaded by the petitioner vide this petition. In totality of circumstances, this Court sees substance in the contention of the respondent side that the petitioner has filed this petition on the ground of bonafide requirement only to exploit the mandate of "Satyawati Sharma (dead) by LRs Vs. Union of India & Anr." (2008) 5 SCC 287 given by Hon'ble Apex Court. Petitioner has thus failed to establish/prove both these issues/aspects/points in his favour. Hence, said issues/aspects/points stands decided accordingly. CONCLUSION
11. In view of the above discussions, the present petition of petitioner is hereby dismissed. The parties are left to bear their own costs.
12. File be consigned to Record Room after due compliance.
Digitally signedby HARVINDER
Announced in open Court HARVINDER
SINGH
SINGH
Date: 2021.03.05
on 04.03.2021. 05:32:50 +0530
(HARVINDER SINGH)
SCJcumRC/SouthWest,
DWK/ND/04.03.2021
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