Delhi District Court
Hameeda Shahzad vs Master Abdul Aleem (Deceased) on 4 September, 2013
Hameeda Shahzad v. Master Abdul Aleem E-18/12
IN THE COURT OF SH. MANISH YADUVANSHI
SCJCUMRC (SOUTH) SAKET COURTS COMPLEX
NEW DELHI
E18/12
IN THE MATTER OF:
HAMEEDA SHAHZAD ....PETITIONER
VERSUS
MASTER ABDUL ALEEM (DECEASED)
THROUGH LRS ....RESPONDENT
ORDER ON LEAVE TO DEFEND APPLICATION
1. This order disposes off application under Section 25B of the Delhi Rent Control Act, 1958 (hereinafter, called 'DRC Act') filed by the respondent Master Abdul Aleem (since deceased) and now being represented through his LRs.
2. As per the petition for eviction filed by the petitioner under Section 14(1)(e) read with Section 25B of the DRC Act, she is the owner of property bearing No. 413, Batla House, Okhla, Jamia Nagar, New Delhi measuring 75 yards and constructed up to third floor. The Result: Application allowed Page 1 of 11 Hameeda Shahzad v. Master Abdul Aleem E-18/12 said property was purchased by her on 22.06.1983 vide GPA, SPA, Agreement to Sell and other collateral documents. The property has three shops on the ground floor. The first floor of the property is being used by the husband of the petitioner for his workers engaged in a 'Dhaba' run by him on the said floor. The petitioner herself and her husband are living on second floor while the petitioner's son is living on third floor of the property.
2.1 On 28.06.1983, the petitioner had let out premises i.e. shop No. 413, Gali No. 4, Okhla, P.O. Jamia Nagar, New Delhi110025 (hereinafter, called 'demised premises') to Master Abdul Aleem (now deceased) for nonresidential purposes at a monthly rent of Rs.350/ per month exclusive of electricity charges. The respondent was running a kiryana shop from the tenanted premises.
2.2 It is in respect of this premises that the present eviction petition has been filed.
2.3 The petitioner submitted to be aged 50 years on the date of filing of the petition. She is a housewife who stays on the second floor of this property. The petitioner's husband runs a dhaba in the name and style Result: Application allowed Page 2 of 11 Hameeda Shahzad v. Master Abdul Aleem E-18/12 of 'Moonis Kada' from where he earns his livelihood. It is submitted that the petitioner has one son namely Sh. Moonis Alim, three daughters namely Ms. Tabinda, Ms. Shahnawaz, Ms. Rakshindha Shahzad and Ms. Samra Shahzad. It is submitted that the son of the petitioner got married in '200'. This pleading in para 3 is not complete as the complete year has not been provided in the petition. It is further submitted that Sh. Moonis Alim is unemployed and is doing nothing. He along with his wife are dependent on petitioner and her husband. The petitioner requires the tenanted shop for her said son from where Sh. Moonis Alim wants to start his business for his settlement. Besides, the petitioner requires another shop for settlement of her daughter namely Ms. Rakshindha Shahzad and Ms. Samra Shahzad in regard to which she has already filed another petition under Section 14(1)(e) of DRC Act for eviction of the tenant from shop No. 413A, Okhla, Jamia Nagar, New Delhi. It is stated to be pending in the Court of concerned Rent Controller. It is pleaded that the petitioner does not have any alternative shop in her own name or in the name of other family members.
2.4 In the application for leave to contest, it is contended that the
Result: Application allowed Page 3 of 11
Hameeda Shahzad v. Master Abdul Aleem E-18/12
previous petition of the petitioner bearing No. E228/08 under Section 14(1)(e) of the DRC Act was dismissed by the Court of Sh. Sandeep Yadav, the then Ld. SCJcumRC on 15.07.2009 and the petition on the same ground is not maintainable. I may point out that this ground is no more available to the present respondent in view of the fact that the issue has been already settled by the Ld. Predecessor Court on 09.10.2009 and as recorded in the order sheet of the said date. 2.5 The respondent challenges ownership of the petitioner qua the demised premises. It is further contended that the petitioner is using the entire ground floor of the property in the name and style of 'Moonis Kada Hotel' and the first floor of the said premises is being used for commercial purposes for catering business of the petitioner. It is contented that the petitioner has deliberately not filed site plan in order to hide the said fact.
2.6 It is further submitted that the suit premises was let out for commercial purposes by the erstwhile landlord namely Sh. Abdul Malik at at monthly rent of Rs.150/ in November, 1976 and since then the property is being used as a kiryana shop. In 1983, the present petitioner claimed herself to be the landlord and demanded rent of the Result: Application allowed Page 4 of 11 Hameeda Shahzad v. Master Abdul Aleem E-18/12 suit property. On this assertion, the respondent started making payment of rent to the present petitioner who also started issuing the rent receipts but not regularly. It is submitted that since the last two years, no rent receipts had been issued despite regular payment of agreed monthly rent at the rate of Rs.350/ per month. It is further contented that the petitioner's son is looking after and controlling the hotel business as well as the catering business of the petitioner's husband. It is thus, stated that the petitioner does not have any bona fide need in the manner projected. It is further stated in the petition that the petitioner's son namely Sh. Moonis Alim is married since last three years as on the date of filing of the leave to contest application. It is submitted that two of the daughters of the petitioner are already married while the third daughter is employed with some organization at Bharat Nagar, Delhi. It is further contended that the intention of the petitioner is to have the premises evicted and build a multistoreyed commercial complex or to sell it to some builder.
3. The petitioner filed reply to the leave to contest application which is primarily a denial of the contents of the application and reassertion of the contents of the eviction petition as correct. Result: Application allowed Page 5 of 11
Hameeda Shahzad v. Master Abdul Aleem E-18/12 3.1 It is further reasserted that the petitioner is owner of the
demised premises after having purchased the same from Sh. Abdul Malik. The petitioner denies that the entire ground floor of the property is being used under the name and style of 'Moonis Kada Hotel' or that the first floor of the suit property is used for catering business. It is reasserted that the site plan has been already filed on record. The petitioner denies that the shop was let out to the respondent by Sh. Abdul Malik at Rs.150/ per month as rent in November, 1976. It is further contended that the respondent is also the owner and in occupation of two shops constructed on plot No. 208C/D20, Batla House, Main Road, Okhla, New Delhi from where he is running wholesale business of grocery items. The petitioner admits that the respondent has been paying rent against rent receipts and the present rate of rent is Rs.350/ per month. It is further denied that it was in the year, 1983 that the petitioner claims herself to be the landlady of the premises and demanded rent from the present respondent. It is further in the reply that the first floor of the premises is being used by the husband of the petitioner for residential purposes of his staff/workers engaged in dhaba run by him. It is denied that the petitioner's son is either managing, controlling or looking after the said business. It is Result: Application allowed Page 6 of 11 Hameeda Shahzad v. Master Abdul Aleem E-18/12 further admitted that that two daughters of the petitioner are already married however it is submitted that one of them namely Ms. Rakshindha Shahzad is living with the petitioner on account of matrimonial dispute along with her daughter aged 4 years.. The youngest daughter Ms. Samra is stated to be dependent on the petitioner.
4. The respondent has filed a rejoinder to the petitioner's reply which is in fact a complete denial of the contentions so raised by the petitioner in the reply to the leave to contest application. The respondent has reasserted the grounds earlier raised as genuine grounds seeking leave to contest. Additionally, it is denied that the respondent owns any other property in the manner alleged.
5. During the proceedings, the respondent died on 11.02.2011. His legal heirs were brought on record. Out of the six LRs of the respondent, as many as four LRs namely Smt. Farhana, Sh. Margub Hasan, Sh. Matloob Hasan, Sh. Rizwan Ahmad have given statements on 10.05.2011 that they have no concern with the tenanted shop and they are not claiming tenancy rights in the shop. Their no objection has been recorded for decision on the petition in their absence. Result: Application allowed Page 7 of 11
Hameeda Shahzad v. Master Abdul Aleem E-18/12
6. On 17.10.2011, the Ld. Predecessor Court had held that leave to contest application was time barred and was pleased to pass an eviction order. The said order was challenged in the Hon'ble High Court of Delhi in RCR No. 539/2011. The Hon'ble Delhi High Court vide its order dated 09.02.2012 was pleased to hold that the leave to contest application was within limitation. Order dated 14.02.2010 was set aside. The matter was directed to be proceeded on the application on its merit.
7. I have heard Sh. Shahzad Hussain, counsel for the petitioner and Sh. Sandeep Phogat, proxy counsel for Sh. Jayant Mehta, counsel for the respondent.
8. In the instant case, initially the petition was filed in regard to the occupation of first floor of the premises No. 413, Batla House, Okhla, Jamia Nagar, New Delhi. All that was pleaded in the petition was to the effect that the first floor was being used by the husband of the petitioner for his workers engaged in the 'dhaba' run by him in one of the shop. In reply to the leave to contest application, it has been further stated that the staff of the husband of the petitioner so employed by him in regard to Moonis Kada dhaba are using the first floor of the Result: Application allowed Page 8 of 11 Hameeda Shahzad v. Master Abdul Aleem E-18/12 premises. In what context and in what regard the said first floor has been used has not been provided. What implies is that the first floor of the premises is indeed used as an extension of the ground floor premises from where the aforesaid eating joint is being operated. The respondent has placed on record as many as three visiting cards of the said eating joint namely Moonis Kada. The petitioner has been referring the same as a 'dhaba'. On the contrary, the visiting cards would indicate that the said eating joint has been portrayed as 'restaurant' which is run from 413, Batla House, Jamia Nagar, Okhla, New Delhi110025. One of the visiting cards also clarifies that the said eating house is also engaged in outdoor catering for marriages and parties. The defence of the respondent that the petitioner's husband has two businesses i.e. catering business at the first floor of the premises and a restaurant on the ground floor of the premises seems to have some substance. Furthermore, the name of Sh. Moonis Alim along with his mobile number is appearing on as many as two visiting cards that have been filed by the respondent. The petitioner has totally denied that the petitioner's son ever helped her husband in running of the said eating joint. On the contrary, the name of Sh. Moonis Alim and his mobile number as appearing in the said visiting cards indicates to the Result: Application allowed Page 9 of 11 Hameeda Shahzad v. Master Abdul Aleem E-18/12 contrary. The respondent has also filed photographs of the said eating joint. One of the photographs reveal that on the menu in the form of display board qua the food items prepared at the said restaurant, the mobile number as that of Sh. Moonis Alim is also appearing. Furthermore, one of the photographs also indicates that that the said eating joint is being referred to as a restaurant and not dhaba as alleged.
9. The respondent has also filed copy of a pamphlet purportedly circulated by the said eating joint to the effect that it is also engaged in outdoor catering. The said letter at page 37 of the judicial file also has the name and mobile number of Sh. Moonis Alim indicating that he is actively engaged in the said business. There is no denial qua the correctness of mobile phone number.
10. This is a case wherein the petitioner has projected that her son Sh. Moonis Alim is absolutely unemployed. It is further submitted that the said son of the petitioner, who is also married, is required to be settled in some business. It is not for this Court to see as to which business is proposed by the petitioner however it is definitely for this Court to see as to whether the said son is actually not engaged in some Result: Application allowed Page 10 of 11 Hameeda Shahzad v. Master Abdul Aleem E-18/12 other economically viable field as against the avernment that he is not so. The situation would have been different if the petitioner admitted that for the time being, the petitioner's son does help his father in his eatery but he is desirous of opening his own business. It is not so. The petitioner has stood in complete denial that her son is helping her father at all. It has been given to understand that her son is totally unemployed and fully dependent upon the petitioner and her husband for his living which does not appear to be a case here and thus the respondent herein does make a ground worth trial. The need of the landlord and the sufficiency of accommodation for his possession are triable issues in the present petition. The respondent relies on Prakash Chand Gupta v. K.S. Gupta, (1999) 4 SCC 418 on the said aspect. The said reliance is correct in view of the pleadings before me.
11. In the result, the application in hand is allowed. The respondent is given leave to contest.
Announced in the open Court (MANISH YADUVANSHI)
on 04.09.2013 SCJCUMRC (SOUTH)
SAKET COURTS,
NEW DELHI
Result: Application allowed Page 11 of 11