Delhi District Court
M/S.Vinod Kumar Pramod Kumar vs Smt.Sangeeta Madan on 7 June, 2012
IN THE COURT OF SH. S.K.MALHOTRA, SENIOR CIVIL
JUDGE CUM RENT CONTROLLER (NORTH) DELHI.
E. No.40/11.
M/s.Vinod Kumar Pramod Kumar
Through its partner Sh.Ashok Kumar
S/o.Late Sh.Mulk Raj Sehgal
E-106, Kamla Nagar,
Delhi-110007. .............Petitioner
Vs.
Smt.Sangeeta Madan
W/o.Late Sh.Avinash Madan
C/o.M/s.S.M.Garments,
E-106, Kamla Nagar,
Delhi-110007.
2nd Address:-
C-7/130A, Lawrence Road,
Delhi-110035.
Mr.Yogesh Madan
S/o.Late Sh.Avinash Mandan
C/o.M/s.S.M.Garments,
E-106, Kamla Nagar,
Delhi-110007.
2nd Address:-
C-7/130A, Lawrence Road,
Delhi-110035.
Mr.Bharat Madan
S/o.Late Sh.Avinash Madan
C/o.M/s.S.M.Garments,
E-106, Kamla Nagar,
Delhi-110007.
2nd Address:-
C-7/130A, Lawrence Road,
Delhi-110035. ................Respondents
E. No.40/11 page 1 of page 13
ORDER
11.01.2012.
01. By way of present order I shall dispose off an application u/s 25-B(5) of DRC Act 1958, dt.06.08.2011, as filed on behalf of respondents, for leave to contest the present eviction petition.
02. In brief, facts necessary for disposal of present application are that the petitioner filed the present eviction petition on the ground of banafide requirement u/s 14 (1) (e) r/w 25 (B) of DRC Act 1958, for eviction of respondents from tenanted premises i.e.one shop, situated on the ground floor of the property bearing No.E-106, Kamla Nagar, Delhi-110007, as shown in red colour in the site plan.
It is stated that petitioner is a registered partnership firm and an owner of part of property bearing no.E-106, Kamla Nagr, Delhi-07 by virtue of Registered sale deed dated 4.12.90 vide registration no.6507 dated 02.12.1990 registered with Sub-Registrar, in which late Sh.Avinash Madan i.e.the husband of respondent no.1 and father of respondents no.2 and 3 respectively was inducted as a tenant in respect of one shop on Ground Floor in the aforesaid property more than 30 years ago. Sh.Avinash Madan has expired and now respondents have come into the shows th Sh.Avinash Madan being his legal heirs. The last monthly payable rent is Rs.154/-. Respondents are habitual defaulter regarding payment of rent towards the petitioner and the respondents have not been paying rent since 1994, though the petitioner has sent a legal notice dt. 18.02.11 by post to the respondents. It is stated that petitioner is a partnership firm, it has four partners and two partners, namely Sh.Ashok Kumar and Pramod Kumar, are in dire need of the premises in question for themselves and their family members dependent upon them for the purpose of the accommdation to run the business. It is submitted that young children of the said partners want to stand on their own legs.
It is stated that the family of Sh.Ashok Kumar consists of E. No.40/11 page 2 of page 13 himself, his wife Smt.Neelam and two children namely Sh.Anish who is aged about 25 years old and Ms.Anjali who is aged about 22 years old. Sh.Anish has no independent business and he merely goes with Sh.Ashok Kumar to help him in his firm M/s.Dress Age which is being run in the property in question bearing No.E-106, Kamla Nagra, Delhi-7. It is submitted that Sh.Anish is of marriageable age and he wants to stand on his own legs, hence, he wants to do separate business for his livelihood. It is submitted that he wants to open a show room for Readymade Garments because Kamla naagar is a big market for Readymade Garments. It is submitted that Ms.Anjali is studying in LL.B (Final year) from Delhi and she would complete her degree very soon and thereafter she wants to do her own legal practice, hence she also requires one office for her need.
The family of Sh.Pramod Kumar consists of himself and wife Smt.Preanjani Kapoor and two children namely one son Prateek Kapoor and one daughter Ms.Pallavi kapoor. Sh.Prateek is aged about 21 years old and he is studying in B.Tech (last year) which would be completed in 2012. Sh.Prateek Kapoor wants to stand on his own legs, thereby he wants to open a Consultant/Professional office for his livelihood.
It is submitted that Sh.Pramod kapoor wants to make a big office, however, the same is not possible due to paucity of accommodation. It is submitted that one shop under the ownership of the petitioner is with the respondent. Hence, the present petition is filed.
04. In for leave to contest, supported with an affidavit, the respondents took the defence there exit no relationship of landlord and tenant between the petitioner and respondents. The respondents are the owners in possession and occupation of the suit premises having perfected their title by adverse possession. Sh.Avinash Kumar Madan and the respondents have always possessed the suit premises as owners E. No.40/11 page 3 of page 13 thereof and were neither tenants/licensees nor occupants under anybody. The possession of Sh.Avinash Kumar Madan as well as that of respondents has always been open and hostile enough to the knowledge of all/any party interested in the suit property, including the petitioner; Since the civil procedure code does not apply to proceedings under the Rent Control Act, no petition/application for eviction under Rent Control Act can be filed by or maintained against a partnership firm in the name of the firm without impleading all its partners, as the firm is merely a compendious name of the partners constituting it and it is only by virtue of provision s of order 30 CPC that a firm can sue and be sued in its name without the partners being impleaded, therefore eviction petition is liable to be dismissed; Mere wish of the petitioners cannot be taken as requirement much less bonafide requirement, as envisaged under the provisions of section 14(1)(e) of DRC Act. The requirement pleaded by the petitioners is absolutely imaginary and a mere wish/desire; The partners of the petitioners and their family members are in actual physical possession of the commercial as well as residential premises which are more than sufficient even to meet the requirement alleged in the present petition; the partners of the petitioner are in possession of ground floor and basement at premises in question, are owners of 12/1, Shakti Nagar, Delhi, 10A/34, Shakti Nagar, Delhi-110007, Y-97, Loha Mandi, Naraina, New Delhi, alongwith many other residential and commercial properties in Delhi. It is thus claimed that the defence raised by way of present affidavit is bonafide and needs evidence to be led and adjudicated upon.
Petitioners filed the reply to present application supported with counter affidavit, while denying that the affidavit filed alongwith application discloses any such defence which would disentitle the petitioner from getting an order of eviction against the respondents. In their counter affidavit Sh.Ashok Kumar partner of petitioner, submits that E. No.40/11 page 4 of page 13 respondents are taking false and frivolous plea of adverse possession and they have not produced even an single document whereby it has been proved that the ownership became hostile against the actual owner. It is submitted that the previous owner had executed sale deed dated 04.12.90 in favour of petitioner and on page no.7 in clause no.3 of the sale deed, it is mentioned that one shop on ground floor is occupied by Sh.Avinash Madan on a monthly rent of Rs.154/- per month. The respondents have paid the rent till 1994 and thereafter no rent was paid to the petitioner. It is further deposed by petitioner in the counter affidavit that Sh.Avinash Madan Had been using the electricity connection no.K-34-302043 in his favour and previous owner Sh.B.S.Gupta had issued a rent receipt in favour of Ashok Kumar for transferring the electricity connection in his name and enclosed the document filed by Sh.Avinash Kumar Madan before the electricity department on record. It is submitted that respondents are creating nuisance and compelling the petitioner to lodge the complaint dated 09.11.95 and 02.01.95 to the SHO, PS Roop Nagar, in which M/s.S.M.Garments was mentioned as a tenant. It is prayed by petitioner that DRC Act does not say that the present petition should be filed by all the partners. Petitioner firm is a registered one and apparently the sale deed was executed in favour of partnership firm and any partner can file the petition on behalf of other partners and there is no bar for the same.
In counter affidavit, it is further deposed by respondent that property no. 12/1, Shakti Nagar, Delhi, 10A/34, Shakti Nagar, Delhi-110007, are being used for residential purposes as both the properties are situated in residential area and cannot be used for commercial purposes. The property no.Y-97, Loha Mandi, Naraina, New Delhi is the self acquired property of Sh.A.L.Kapoor the father of Sh.Pramod Kumar and thus, the petitioner has no concern with the E. No.40/11 page 5 of page 13 ownership of the said property.
Respondent filed rejoinder affidavit to the reply whereby they denied all the facts as mentioned in the reply while reaffirming the averments as mentioned in the application.
I have heard ld.counsel for parties and perused the record. Ld.counsel for parties drawn my attention in respect of authorities that petitioner is not the absolute owner and landlord of the property in question and petitioner has no locus-standi to file the present petition and petition by co-owner and co-landlord is not maintainable; petition is bad for non-joinder of other co-tenants in the property in question, as the premises was let out to the husband of the respondent late Sh.Lalit Prasad, who expired after leaving behind his wife, son and daughters; the petitioner wrongly stated in the petition that the rate of rent is Rs.2500/- p.m. excluding all other charges and the rate of rent is Rs.60/- p.m.; petitioner has not disclosed the details of the members of his family, the petitioner has not fulfilled the ingredients of section 14(1)(e) of DRC Act, therefore, the petition is liable to be dismissed; petitioner has the sufficient accommodation for his residence as well as residence of his family at Krishna Nagar, Delhi. The family of petitioner consists of petitioner himself, wife, son, daughter. The petitioner having the residential accommodation at F-19/18, Krishna Nagar, Delhi, comprising three bedrooms, one drawing-dining, store room, two latrine, two bathrooms, two kitchens. The petitioner requires one room for himself and wife, one room for son and one room for daughter. The daughter of the petitioner is of marriageable age. The petitioner also having one shop vacant on the E. No.40/11 page 6 of page 13 ground floor at property no.1028, Gali Teliyan, Tilak Bazar, Delhi. The petitioner is also having first floor comprising two rooms, one kitchen, bathroom, latrine etc.; the petitioner wants to convert the property in question into the market to get more pecuniary benefits, therefore, petitioner wants to evict the respondent from the suit premises; petitioner had already filed an eviction petition us. 25-B of DRC Act for bonafide requirement titled as Rajiv Gagrena Vs.Rajender Kumar Gupta which was decided by the court of Sh.Devender Kr.Sharma, Ld.ARC on 29.11.2009, in respect of property bearing no.1028, Gali Teliyan, Tilak Bazar, Delhi and the petitioner is now having an alternate vacant premises, which is now available to the petitioner for his personal use.
05. Petitioner filed the reply to the amended application of leave to defend alongwith counter affidavit while taking preliminary objections that applicant/respondent has not disclosed any ground in his favour in the application for grant of leave to defend, therefore application is liable to be dismissed outrightly; In counter affidavit, the petitioner on oath deposed that in the will executed by Smt.Shanti Devi Gagerna, the property of Tilak Bazar as well as Krishna Nagar was divided between her two sons namely Sh.Rajiv Gagerna and Sh.Sanjeev Gagerna and as such, only the petitioner and his younger brother Sh.Sanjeev Gagerna are the joint owners of the suit property. Petitioner in his counter affidavit has also denied that he is also having one shop on the ground floor at property no.1028, Gali Teliyan, Tilak Bazar or that the petitioner is also having entire first floor of the abovesaid property. Petitioner has also denied that the residential accommodation at F-19/18, Krishna Nagar, comprises of three bedrooms, one drawing-dining, store room, two latrines, two bathrooms, two kitchens. In respect of eviction petition filed against other tenants Sh.Rajender Prasad Gupta, it is denied that petitioner is now having a alternate vacant premises which is now E. No.40/11 page 7 of page 13 available to the petitioner for his personal use. Petitioner deposed that he has not yet got the possession of said premises and further the said premises do not fulfill his requirements as he has also required the premises with the respondent as he is also not doing any work and after getting the tenanted premises vacated from the respondent, he will start his own business and further his son has also attained the age of 20 years and he also required one office as he is studying in LLB, hence the premises will be used by him and his family members who are dependent upon him.
06. I have heard ld. counsel for parties as well as perused the material placed on record including written arguments as filed on behalf of petitioner. Ld.counsel for petitioner has also relied upon authorities reported as 2006 IV AD (DELHI) 682 titled as Yashpal Vs. Chamanlal Sachdeva, 2009 (107) DRJ 517 titled as Bhatwat Prasad Sharma Vs. Pinky Aggarwal & Anr., 2008 VIII AD (DELHI) 328 titled as Inder Pal Khanna(Sh.) Vs. Commander Bhupinder Singh Rekhi (Rtd.), 2009 VIII (DELHI) 445 titled as Mukesh Kumar Vs. Rishi Prakash, 157 (2009) DLT 690 titled as Mahendra Trivedi Vs. Jai Prakash Verma, 161(2009) DLT 511 titled as Krishan Kumar Alag Vs. Jambu Prasad Jain decd. Through LR Anand Kumar Jain, AIR 1977 SC 1599 titled as Smt.Kanta Goel Vs. B.P.Pathak and others and 161 (2009) DLT 232 titled as Tagore Education Society Regd. Vs. Kamla Tandon & Anr etc.
07. It is a settled law, that while deciding the application for leave to contest, the controller has to confine himself to the affidavit filed by the tenant under sub section (4) and the reply if any. On perusing the affidavit filed by the tenant and the reply if any filed by the landlord, the controller has to pose to himself the only question, "Does the affidavit disclose, not prove, facts as would disentitle the landlord from obtaining an order for the recovery of possession on the ground specified in clause E. No.40/11 page 8 of page 13 of the proviso to Section 14 (1) ?". The controller is not to record a finding on disputed questions of facts or his preference of one set of affidavits against the other set of affidavits. Reliance is placed upon an authority reported as AIR 1982 Supreme Court 1518 titled as Precision Steel & Engineering Works and another V. Prem Deva Niranjan Deva Tayal.
08. The first ground taken by respondent in his amended application for leave to contest is that petitioner has no locus standi to file the present petitioner and the petition by co-owner and co-landlord is not maintainable. It is further submitted by the respondent that petitioner is not the absolute owner and landlord of the property in question and Smt.Shanti Devi was the owner of the tenanted premises to whom the respondent was paying the rent. Petitioner has also admitted in his counter affidavit that Smt.Shanti Devi was the owner of the tenanted premises who executed a will in which the tenanted premises was given to the father of the petitioner and after his death, the mother of the petitioner executed the will and bequeathed the tenanted premises alongwith property at Krishna Nagar in favour of petitioner and his brother. Petitioner has also filed the photocopies of registered will in support of its submission. It is a settled law that a co-owner can maintain a petition and that inter se arrangement between owners is no business of tenant. Reliance is placed upon authority reported as 2006 IV AD Delhi 682 titled as Yashpal Vs. Chaman Lal Sachdeva. It is further settled preposition of law that tenant has no right to challenge the ownership of landlord. No one has disputed the will dt.03.03.1997 executed by late Smt.Bela Devi in favour of father of the petitioner i.e.late sh.Mahender Chand Gagerna, which was later on inherited by petitioner alongwith his brother. An owner requiring the tenanted premises for own use need not strictly show that he is absolutely owner. His claim is good against all the world (including tenant) except true owner. He has only to show that he E. No.40/11 page 9 of page 13 has better and superior title then tenant. Therefore, this plea of the respondent is not tenable.
09. The second ground taken by the respondent is that the tenanted premises was let out to the husband of the respondent who expired leaving behind his wife, son and daughters who became the co- tenant of the premises, in question and co-tenants are the necessary parties and thus, the petition is bad for non joinder of other co-tenants in the property in question. It is settled law that on death of tenant, tenancy devolves upon legal heirs as a joint tenancy and the LRs are joint tenants and not tenants in common and once tenancy is a joint tenancy, notice to one of joint tenant is sufficient to terminate tenancy and petition cannot be held to be bad for non joinder for other joint tenant or all legal heirs of the deceased tenants. Reliance is placed upon an authority reported as 2008 VIII AD (Delhi) 321 titled as Inderpal Khanna Vs. Commander Bhupender Singh Rekhi.
10. The next ground as taken by the respondent is that the petitioner has the sufficient accommodation for his residence as well residence of his family at Krishna Nagar, Delhi. The petitioner has filed the site plan of the property at Krishna Nagar and of Tilak Bazar and in the site plan, it is disclosed that the remaining portion of the property at Krishna Nagar is in possession of the brother of the petitioner i.e.Mr.Sanjeev Gagerna. No other site plan is filed by respondent to controvert the facts as shown by petitioner in his site plan. The site plan as filed by the petitioner is also supported with the detail of the property as mentioned in the copy of registered will dt.17.06.05 as executed by the mother of the petitioner in his favour as well as in favour of his brother. As per site plan filed by the petitioner he is having two rooms on the ground floor and one barsati room being used as Pooja Ghar on the first floor of the property bearing no.19/18, Krishna Nagar, Delhi. There is no dispute E. No.40/11 page 10 of page 13 that the family of the petitioner consists of petitioner, his wife, one daughter who is an advocate and another son who is also doing LLB and is of age about more than 20 years. The bonafide requirement of petitioner for his residence is atleast one room for himeslf, one room for his daughter, one study room for his son, one drawing-cum-dining room, one pooja ghar and one guest room. The petitioner is having only three rooms in the property bearing no.F-19/18, Krishna Nagar, Delhi and his requirement is of atleast of six rooms. Therefore, I find no force in the plea of the respondent that petitioner has sufficient accommodation for his residence as well residence of his family at Krishna Nagar.
11. The next ground as taken by the petitioner is that after passing the eviction order, in eviction petition titled as 'Rajeev Gagerna Vs. Rajender Prasad Gupta', the petitioner is now having alternate vacant premises which is now available to petitioner for his personal use. Petitioner has also filed a site plan of H.No.1028, Gali Teliyan, Tilak Bazar, Delhi, wherein, on the ground floor one shop and one godown was with Sh.Rajender Prasad Gupta, for which the petitioner filed another petition u/s14(1)(e) of DRC Act, which has been allowed and eviction order has been passed against that tenant by the court of Sh.D.K.Sharma, Ld.ARC, North. The other one shop and one room on the first floor which is alleged by respondent in possession of petitioner is stated to be with one Rajesh Kumar Gupta and the another room on the first floor as shown in green colour is with the brother of the petitioner. The petitioner has on oath denied that he is having a shop vacant on the ground floor or portion of entire first floor of the property no.1028, Gali Teliyan, Tilak Bazar, Delhi, are lying vacant or is in possession of petitioner. No counter site plan is filed by the respondent rebutting the claim of the petitioner and in absence of any counter site plan, the site plan filed by the petitioner, is deemed to be correct. Even, if we consider E. No.40/11 page 11 of page 13 the one shop and godown available to petitioner for which the eviction order has been passed in another petition, same is for the bonafide requirement of the daughter of the petitioner for setting her office in that premises. If the petitioner wants to settle his son, on the second floor of the tenanted premises either for residential purpose or for opening his office, the requirement of petitioner is bonafide. The ground floor portion of the property i.e.one shop and godown for which eviction order is passed, for requirement of the daughter of the petitioner for opening her office, cannot be termed as alternate vacant premises available to the petitioner. It is settled law that it is not for the tenant to dictate the terms to the landlord as to how and what manner he should adjust himself, without calling upon the tenant to vacate a tenanted premises. As both the children of the petitioner have grown up, their need to setup their offices or residence, in the tenanted premises i.e.one room on second floor with latrine in property bearing no.1028, Gali Teliyan, Tilak Bazar, Behind Novelty Cinema, Delhi-110006, is bonafide.
12. The respondent has failed to raise any triable issue in his affidavit accompanied with amended application for leave to contest, which may disentitle the landlord from obtaining an order of recovery of possession for his bonafide requirement. Accordingly, amended leave to contest application of the respondent is liable to be rejected and is rejected. In result, an eviction order is passed in favour of petitioner and against the respondent, in respect of tenanted premises i.e.one room on second floor with latrine in property bearing no.1028, Gali Teliyan, Tilak Bazar, Behind Novelty Cinema, Delhi-110006, as shown in red in the site plan, now exhibited by me as Ex.C-1 during this order. This order, however, shall not be executable for a period of six months from today as provided u/s 14(7) of DRC Act. File be consigned to record room.
E. No.40/11 page 12 of page 13 Announced in open court ( S.K.MALHOTRA ) on 11.01.2012. SCJ/RC/(North)/DELHI E. No.40/11 page 13 of page 13