Delhi District Court
Mr. Sanjeev Kumar vs Sh. Jogminder Dass Mittal on 1 December, 2011
IN THE COURT OF AJAY GOEL:SCJ CUM RC(CENTRAL):DELHI
E- 16/09
1. Mr. Sanjeev Kumar
s/o Sh. Om Parkash Gupta
r/o 5011/4-5, Sant Nagar,
Karol Bagh, New Delhi-5
2. Rajiv Kumar
s/o Sh. Om Parkash Gupta,
r/o 5011/4-5, Sant Nagar,
Karol Bagh, New Delhi-5
.......... Petitioners
VERSUS
1. Sh. Jogminder Dass Mittal,
s/o late Sh. Sri Lal Mittal,
r/o 3/22, Onkar Nagar-B,
Tri Nagar, Delhi-110035
2. Sh. Ravi Mittal,
s/o late Sh. Attar Chand Mittal,
Grand s/o late Sh. Sri Lal Mittal,
r/o 614/38, Onkar Nagar-C,
Tri Nagar, Delhi-110035
3. Sh. Rakesh Mittal
s/o late Sh. Jai Kishan Dass Mittal,
Grand s/o late Sh. Sri Lal Mittal,
r/o 41/6, Onkar Nagar-B,
Tri Nagar, Deli-110035
4. Sh. Subhash Chand Mittal,
s/o late Sh. Sri Lal Mittal,
r/o 32/426 A, Onkar Nagar-C,
Tri Nagar, Delhi-110035
5. Sh. Jai Parkash Mittal,
s/o late Sh. Sri Lal Mittal
r/o 91/11, Onkar Nagar-B,
Tri Nagar, Delhi-110035
All also at:-
Shop no. 4551, Main Arya Samaj Road,
Reghar Pura, Karol Bagh,
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New Deli-110 005
(All LRs of late Ms. Gian Devi widow of deceased statutory tenant
namely Sh. Sri Lal).
................Respondents
Date of filing of petition:- 10.9.08
Date of assignment to this court:- 5.11.11
Date of arguments:- 15.11.11/1.12.11
Date of decision:- 1.12.11
JUDGMENT
1. Vide this judgment I shall dispose off the leave to defend application filed by the respondents in the instant eviction petition filed u/s 14(1)(e) r/w Section 25-B of DRC Act.
2. In the petition it was stated that Smt. Razo Devi was the owner of the property no. 4551-4552, Arya Samaj Road, Karol Bagh who sold the said property to Smt. Shingaro Devi w/o late Sh. Chandgi Ram in the year 1966 and at that time there were two tenants in the property namely Sh. Panna Lal and Sri Lal s/o late Prithi Singh who duly attorned the ownership and landlordship rights of late Smt Shingaro Devi and started paying rent to her. As stated Smt. Shingaro Devi during her life time executed a Will dated 11.1976 in favour of the petitioners and she died on 8.2.1978 and accordingly petitioners became the owners and landlords by virtue of the said will dated 11.8.1976. Property was duly mutated in the MCD records in the year 1981 and also in the DDA record in the name of the petitioners. Sri Lal was goldsmith/jeweler by profession and had been E 16/09/08 Page2/18 carrying on his business in the suit shop no. 4551, Main Arya Samaj Road measuring 130 sq. ft. approximately under the tenancy of petitioners. Sri Lal was habitual defaulter in the payment of rent and other charges thus petitioners terminated the tenancy vide notice dated 31.12.90 sent by registered post and thereafter late Sh. Sri Lal became the statutory tenant. As stated vide said notice Sh. Sri Lal was also called upon to vacate the tenanted premises on or before 28.2.91 as per the agreement executed between Razo Devi and Late Sh. Sri Lal but thereafter he assured that he would be regular in paying the rent and in case of consecutive default he would vacate the tenanted premises and lastly he paid rent till 29.3.95 as statutory tenant. It was further stated that Sh. Sri Lal expired on 6.9.96 as statutory tenant and as per law the statutory tenancy was devolved upon his wife Gian Devi. After the death of Sri Lal the jewellery shop was looked after by three sons of respondent no. 1 on behalf of the respondent no. 1 for some time but later on Sh. Jugminder Dass, respondent no. 1 started looking after the business on her behalf. As stated despite numerous request respondent no. 1 did not handed over the possession of the suit premises and in October,2004 petitioners came to know that respondent no. 1 was making major structural changes and when petitioner no. 1 enquired from the respondent no. 1 as to why he was making the changes the work was stopped and petitioner was assured that E 16/09/08 Page3/18 respondents will hand over the possession of the suit shop to the petitioners on or before 31.3.05 but failed to do so and carried out the illegal constructions. Petitioners finding no other alternative sent a legal notice dated 4.4.05 for paying arrears of rent and for vacating the premises but a false and frivolous reply dated 4.7.05 was sent whereby Smt. Gian Devi alleged that she had no concern with the tenanted shop and only respondent no. 1 is the sole proprietor of the same. Rejoinder to the said application has already been sent to Smt. Gian Devi. Respondent no. 1 thereafter filed a false and frivolous case under Section 31 of Punjab Indebtedness Act for depositing the arrears of rent in his name and the same was dismissed vide order dated 5.9.06. An eviction petition u/s 14(1)
(a)(b) and (j) was filed against the deceased statutory tenant Gian Devi which is pending. It was stated that the petitioner no. 1 is ailing with backbone problems and the doctors have advised him to have rest and not to travel otherwise it would aggravate the illness of the petitioner no.
1. It was stated that petitioner no. 1 has to go to his jewellery shop situated at Shani Bazar, Hastal Gaon, Uttam Nagar, Delhi from Karol Bagh against the medical advise to earn the livelihood for his family thus petitioner no. 1 requires the suit shop for running his own business. Even son of petitioner no. 1 is studying in Class XII and after completing his XII he shall be observed in the family business of jewellers as per the custom E 16/09/08 Page4/18 in the family and he shall be given the charge of the shop at Uttam Nagar from which the petitioner no. 1 is carrying on his business and suit shop on vacation shall be solely used by the petitioner no. 1 for his own business for earning his livelihood. As stated tenanted premises is required by the petitioner no. 1 for his own bonafide need and petitioner no. 1 do not own any other place in the vicinity to carry on work for gain to earn his livelihood. It is also stated that agreement dated 2.9.1948 also bounds the respondent's to vacate the tenanted premises in case the owner/landlord require the premises for his bonafide use/need after giving one month notice. Therefore it was prayed that eviction order for the property in question be passed in favour of the petitioners and against the respondents.
3. Leave to defend application was filed on behalf of respondents, however later on same was amended. In amended leave to defend application it was admitted that respondents are LRs of Late Sri Lal and it relationship of landlord and tenant between the parties was also admitted. However it was stated that property no. 4551-4552 had not devolved upon the petitioners as owners of the property. It was stated that since the tenancy of the deceased Sri Lal was not terminated till his death therefore he remained lawful tenant qua the suit property and he died as contractual tenant. As stated Sh. Panna Lal had nothing to do with the tenanted E 16/09/08 Page5/18 premises bearing no. 4551 in any manner. It was denied that Late Sh. Sri Lal was defaulter in payment of rent. It was denied that tenanted premised devolved upon Smt. Giani Devi after the death of Sri Lal and it was stated that Jagmander Das was solely looking after and carrying on the said business of Shrilal of Silvar and goldsmith in the tenanted shop in his own independent right as a sole proprietor and his three brothers never participated in the business in any capacity whatsoever nor they were ever in occupation or possession of the tenanted shop. It was stated that rent stands paid w.e.f 1.4.95 to 31.3.96 against the receipt issued by the petitioners. It was denied any structural changes were made by the respondents and if any repair work was carried out by the respondents then the same is in parity with the building by-laws. It was stated that there is no change in the status, income and requirement of the petitioner and the petition being framed on the weak foundations of egg shells is liable to be dismissed. It was stated that the petitioners are having more than sufficient accommodation available at their disposal in the form of shop no. 4552 and 4553 Arya Samaj Road, Karol Bagh, New Delhi which are in occupation of the petitioners being owners of the said shops and the alleged requirement of the petitioners on the pretext of establishing his son in family business is contrary to factual position. It was stated that petitioners have fabricated false medical certificates to claim an equity E 16/09/08 Page6/18 from the court knowing fully well that they have no case at all. It was submitted that petitioners are highly educated and cannot play with the future of the son by making frivolous submissions. As stated apart from shop no. 4552, 4553 the petitioners are maintaining one more jewellery shop at Shani Bazar, Uttam Nagar and from the said business they have lucrative income of more than Rs. 4 lakhs per month. It was stated that the present petition was filed with an intent to get the rent increased with the upliftment of the area because of the malls coming in the vicinity which has promoted the petitioner to let out the property to fetch higher rent. As stated petitioners have no bonafide need for the suit shop. Accordingly it was prayed that instant petition be dismissed or in alternative respondents be granted leave to defend to contest the petition.
4. Reply to leave to defend application of respondent was filed by the petitioner in which contents of leave to defend application were denied and those of the petition were reiterated.
5. I have heard Ld. Cl. for both parties and perused the record.
6. To make out a case here u/s14(1) (e) of DRC Act the landlord has to prove the following:-
➢ That he is owner/landlord of the suit premises;
➢ That the suit premises were let out for particular purpose; ➢ That he has no other reasonably suitable accommodation and E 16/09/08 Page7/18 ➢ That the premises are required bonafide by him for occupation for himself or for any member of his family dependent upon him.
7. The aforesaid is dealt as follows:
i. In the instant case though relationship of landlord and tenant between the parties was admitted in para no. 6 of the amended leave to defend application, however ownership of the petitioners was disputed and it was stated that property no. 4551-4552 did not devolve upon the petitioners as owners. On the other hand it was the case of petitioners that their mother Shingaro Devi purchase the said property from Razo Devi in the year 1966 and their mother during her lifetime executed a Will dated 11.8.76 whereby suit property was devolved upon them. Petitioners in support of their case have placed copy of lease deed in favour of Razo Devi, sale deed dated 11.12.1966 and Will of Smt. Shingaro Devi dated 11.8.76 whereas except for the bald assertion nothing has been proved on record by the respondent in support of their contentions. Even otherwise ownership of predecessor-in-interest i.e Rajo Devi has not been challenged by the respondents nor it is a case here that the Will of Shingaro Devi or sale deed betwen has ever been in dispute or under challenge before any court of law and it is also admitted that predecessor of respondents was tenant in suit premises and rent agreement of predecessor in interest of respondents and petitioner both is also on E 16/09/08 Page8/18 record, hence now respondents are estopped u/s 109 of Indian Evidence Act. It has been held in 157(2009)DLT 450 Ramesh Chand Vs. Uganti Devi in which Hon'ble High Court has held that " If landlord has been receiving rent for his own benefit and not for and on behalf of someone else, the requirement of law that he is owner as well as landlord is fulfilled." It has been further held that " he shall be considered as owner howsoever imperfect his title over the premises may be and that will not come in the way of eviction petition u/s 14(1)(e) of DRC Act and even otherwise Section 116 of Indian Evidence Act create estoppel against such a tenant and in these circumstances the tenant should surrender the possession of the premises otherwise the tenant if denies the title of the landlord qua the premises to whom he is paying rent acts dishonestly".
Further, support for this view has been taken from Shanti Sharma Vs. Ved Prabha and other AIR 1987 SC 2028 in which Hon'ble Supreme Court has held that "ownership is not to be understood as absolute ownership but only as a title better than a tenant". In the present case the registered documents are available on the record and nothing else is required. It is also the contention of the respondents that since petitioners themselves have no admitted respondents no. 2 to 4 as tenants and has admitted only respondent no. 1 as tenant hence there is no relationship of E 16/09/08 Page9/18 landlord and tenant between the parties. I disagree with the contention of the respondents since in para no. 3(b) of the petition the tenancy history has been fully narrated by the petitioners and even it was clarified that since the names of other LRs of Giani Devi were disclosed by respondent no. 1 only on 11.8.08, hence the present petition is filed against all the LRs. Tenancy of Late Sri Lal is not disputed and it is not disputed that all the respondents are LRs of late Sri Lal hence after the death of Sri Lal and Smt. Giani Devi w/o Sri Lal the tenancy rights would have been devolved upon all the LRs of Sri Lal and since only one LR is using the suit shop does, it cannot be said that there is no relationship of landlord and tenant between the parties. Even respondents themselves have filed the rent receipts which shows the petitioners as landlords and now they cannot take a contradictory stand. Accordingly in view of the above it is held that petitioners are owners/landlord of the suit shop and there exist relationship of landlord and tenant between the parties.
ii. The purpose of letting as mentioned by both the parties is commercial. However now it is not material whether the property is residential or commercial as both of them can be got evicted for bonafide requirement. Reliance is placed upon 148(2008) DLT 705(SC) Satyawati Sharma & Anr. vs. UOI wherein the commercial property has also been allowed to be evicted on the ground of bonafide need as the arbitrary E 16/09/08 Page10/18 classification between residential and commercial tenancy has been done away with.
iii. As far as third ingredient is concerned respondent has averred that petitioners are owners in occupation of shops no. 4552 and 4553 which are adjoining the suit property. On the other hand in reply to the said contention petitioners themselves admitted that property no. 4552,4551,4583 and 4584 are owned by them. During the course of the arguments it is submitted on behalf of the petitioners in rebuttal to the said contention of respondents that property no. 4551 is the suit property and property no. 4552 is occupied by petitioner no. 2 from where he is earning his livelihood whereas other two properties are on the back side and are shown as remaining portion of the premises in north side in the site plan. Further on court questioning it was explained during the course of the arguments that at present there is access to the properties at the back side from property no. 4552 which is used by his brother though there is a road of 20 feet on the back side but petitioner no. 1 wants to use the shops at back side and suit property for running his business and want to give convenient access to the same through the suit shop, therefore the suit shop is claimed by the petitioners. The abovesaid explanation given by the petitioner no. 1 is reasonable since sufficiency and suitability of the accommodation is to be seen by the landlord and in the present case I do E 16/09/08 Page11/18 not see any wrong if the petitioner wants to use the suit shop which is on front side for running his business as well as the wants to put to use the shops on the backside giving convenient access to the same from suit after obtaining vacant possession of the suit shop. Hence the said plea of respondents is rejected. With regard to the property no. 4553 it is submitting by the petitioner no. 1 during the course of the arguments that the said shop is used and occupied by his brother for running his business which fact is also admitted by the respondents during the course of arguments, even copy of local surety bond placed on record by respondents themselves shows that petitioner no. 2 is the proprietor of said shop bearing no. 4553 and rather shows the bonafide intentions of the petitioners that they have not concealed anything and since the said shop is already in use and occupation of elder brother of petitioner no. 1 hence the same cannot be said to available at the disposal of the petitioner no.1 whereas the case of the petitioners rest upon the contention of bonafide need of petitioner no. 1. Respondents have also placed on record copy of telephone bill of shop no. 4553 and stated that since the same is in name of petitioner no. 1 hence the said shop is available to the petitioner no. 1. Again I am disagreement with the respondents mere having a telephone connection in ones name does not prove the title or possession of the said person over the said property. It E 16/09/08 Page12/18 may quite be possible that brother of petitioner no. 1 would have taken the said telephone connection in the name of his brother and mere telephone bill cannot be taken as a documentary proof with regard to the possession of said property by petitioner no. 1. Accordingly said plea is also rejected. It was also contended by the respondents that one shop is owned by the petitioner no. 1 at Uttam Nagar from where he is running the business. Petitioner no. 1 himself has stated in the petition that he is running his business from a shop at Uttam Nagar and during the course of the arguments it was stated by petitioner no. 1 that the said shop at Uttam Nagar is on lease with DDA and petitioner no. 1 is paying the rent for the same. Even otherwise the shop at Uttam Nagar as contended by the petitioner no. 1 would be used by his son and he want suit property for running his own business. Hence the abovesaid rather shows the bonafide intention of the petitioner as he has not concealed about the shop at Uttam Nagar and in view of the facts and circumstances the said shop at Uttam Nagar cannot be said to be an alternative accommodation available to the petitioner since the same is already being used by the petitioner no. 1 whereas petitioner no. 1 wants to use the suit shop for his business and want to give the shop at Uttam Nagar for his independent business. Accordingly it is held that petitioner no. 1 has no other alternative suitable property available with him and this ingredient is E 16/09/08 Page13/18 also decided in favour of petitioners.
iv. As far as bonafide need of the petitioners is concerned it was contended by the respondents that the need of petitioners is not bonafide. It is the case of the petitioners that petitioner no. 1 is ailing with the backbone problems and the doctors have advised him to have rest and not to travel otherwise it shall aggravate the illness of petitioner no. 1. As stated petitioner no. 1 at present has to go to Uttam Nagar from his residence at Karol Bagh to earn his livelihood and thus petitioner no. 1 require the suit property for running his own business from the tenanted shop. However respondents have contended that petitioners have fabricated false medical certificate. Petitioners in support of their contention record of medical treatment whereas respondents have failed to place any document on record in substantiation of their contentions and in light of the medical documents placed on record it is made out that petitioner no. 1 is under treatment for backbone problem. Hence mere bald assertion by the respondents will not help their case and accordingly the said plea of respondent is hereby rejected. Other connection of respondents is that son of petitioner no. 1 is still studying and cannot be said to run a business. Petitioner no. 1 has himself submitted that his son is studying in class 12th and after his schooling his son would be doing the business from his shop at Uttam Nagar and I again disagree with the said E 16/09/08 Page14/18 contention of respondents since in our society in business families it is quite common that male members of the family join the family business at an early age. Moreover the petition was filed in 2008 and three years have already been passed and now the petitioner's son is of 22 years of age as is also admitted by the respondents and thus the case of petitioner is genuine and on better footing. Even otherwise it a matter of personal choice of petitioner no 1 or his son to do the business of not and it does not lie in the mouth of the respondents to raise any objection regarding the same or dictate terms on landlord. Respondent except for raising bald assertions has failed to bring any sound ground for challenging the bonafide need of petitioners. Hence in view of the above it is held that the requirement of the petitioners seems to be well justified and respondents cannot dictate terms to the landlord and landlord is best judge of his requirements. For this reliance is placed upon :-
➢ Prativa Devi Vs. TBN Krishnan (1996)5 SCC 353 wherein it was held that " The landlord is the best judge of his requirements. It is not concern of the court to dictate to the landlord how and in what manner he should live or to prescribe for him a standard for their own. There is no law which deprives the landlord of the beneficial enjoyment of his property."
➢ Sarla Ahuja Vs. United Insurance Company 1998(8) SCC 119 E 16/09/08 Page15/18 wherein it was held that it is not for the tenant to dictate terms for the landlord as to how and when he can adjust himself without getting possession of the tenanted premises. It was further held that when the landlord asserts that he required his building for his own occupation, the Rent Controller shall not proceed on the presumption that the requirement is not bonafide.
➢ (1996) 5 Supreme Court Cases 344 Meenal Eknath Kshirsagar Vs. Traders & Agencies and Another wherein it was observed that " It is for the landlord to decided how and in what manner he should live and he is the best judge of his requirement. If the landlord desires to beneficially enjoy his own property when the other property occupied by him as a tenant or on any other basis is either insecure or inconvenient it is not for the courts to dictate to him to continue to occupy such premises."
8. It was further argued on behalf of the respondents that petitioners wants to get the premises in question evicted for his ulterior motives and would misuse the same after eviction. The said apprehension is already taken care of in the DRC Act itself by our legislative fore fathers while enacting the laws who have already considered possibility of misuse in the hands of unscrupulous landlords and thereby inserted Section 19 of DRC Act according to which " Where a E 16/09/08 Page16/18 landlord recovers possession of any premises and the premises are not occupied by the landlord or by the person for whose benefit the premises are held, within two months of obtaining such possession, or the premises having been so occupied are, at any time within three years from the date of obtaining possession, re-let to any person than the evicted tenant without obtaining the permission of the Controller such tenant can be put back to the premises or can be paid such compensation as the Controller thinks fit." For the abovesaid reliance is also placed upon 2000 Rajdhani Law Reporter 83 wherein it was observed that "if the requirement of landlord is not bonafide and if a landlord abuses the process of the court, obtains an order of eviction, subsequently lets out the property or sells the same, the tenant can always apply for restitution u/s 19 of the Act."
9. In view of the above, it is held that respondents have not been able to show existence of any triable issue whereas petitioners have been able to show that they have no alternative places available with them for meeting out their requirements and the suit property is bonafidely required by them. Accordingly leave to defend application of respondents is hereby declined and eviction order against the respondents and in favour of petitioners is passed with respect to the E 16/09/08 Page17/18 suit shop bearing no. 4551 Arya Samaj Road, Karol Bagh, New Delhi as shown in red colour in the site plan now Ex. C-1. However this order shall not be executable before the expiry of period of six months which time is granted to the respondents to vacate the premises. No order as to cost. File be consigned to record room.
Announced in open court (Ajay Goel)
on 1.12.11 SCJ cum RC(Central)/Delhi
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