Delhi District Court
Sh. Mohd. Din vs Haji Mohd. Saeed on 19 January, 2011
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IN THE COURT OF SH. PRITAM SINGH, ARC (CENTAL) TIS HAZARI
COURTS, DELHI.
E195/09
19.01.11
1. Sh. Mohd. Din
S/o Sh. Haji Abdul Shakur
2. Mst. Haseen Bano
W/o Sh. Mohd. Din
Both R/o 1853,
Katra Sheikh Chand, Lal Kuan,
Delhi110006. ...Petitioners
Versus
Haji Mohd. Saeed
S/o Late Haji Abdul Shakur,
R/o Mohalla Nal, Nai Basti,
Amroha. ...Respondent
Petition U/s 14 (1) (e) r/w Section 25B of Delhi Rent Control Act.
1. Date of institution of the case : 31.07.2008
2. Date of Judgment Reserved : 12.01.2011
3. Date of Judgment pronounced : 19.01.2011
JUDGMENT
The brief facts as stated in the petition are that the property bearing No. 1853, Katra Sheikh Chand, Lal Kuan, Delhi06, of which the premises in dispute forms part, was owned by Sh. Bal Kishan Monga, S/o Sh. Chuni Lal who had sold and transferred ½ undivided share in the property in 2 dispute to the petitioners vide sale deed dated 30.10.1998 and the remaining half undivided portion of the said property was sold to the petitioners vide sale deed dated 15.12.98.
2. It is further stated that the respondent was tenant of the premises in dispute under Sh. Bal Kishan Monga and after the purchase of the property by the petitioners, the respondent became tenant under the petitioners by operation of law. The notice dated 25.10.2000 in this regard from the petitioners and notice dated 18.10.2000 from Sh. Bal Kishan Monga were also sent to the respondent but he sent no reply to the same. The premises in dispute was let out to the respondent for the residential purposes and the same was always used by the respondent for residential purposes. The premises in dispute is residential in nature. The respondent himself has shifted permanently to the address given in the title of the petition and parted with its possession to his son named Sh. Mohd. Sultan who along with his family is residing over there.
3. It is further stated that the petitioners bona fidely require the premises in dispute for their residence and for the residence of their family members dependent upon them. The petitioners have no reasonable alternate suitable accommodation except the property in dispute. Infact the petitioners and their family members have got no other property in Delhi owned by any of 3 them. The family of the petitioners consists of petitioners themselves, one son namely Mohd. Yamin, his wife and four children aged from 7 to 16 years, and another son named Mohd. Arif, his wife and 3 daughters aged from 8 months to 8 years, third son namely Mohd. Qasin, his wife and two children aged 5 years to 1 ½ months and fourth son named Mohd. Asif and his wife and the fifth son named Mohd. Tosaf is of marriageable age. The petitioners have two daughters, one of them married at Amroha, UP and other daughter married at Delhi. Both the daughters of petitioners visit the petitioners and stay with the petitioners frequently. Sh. Modh. Yamin, the son of the petitioners and his family are in possession of three small rooms measuring about 8'X8' and open space on the ground floor which are marked A,B,C & D respectively in the plan. Sh. Modh. Arif, the son of the petitioners, with his said family is residing/occupation of the room, marked E and store marked F in the plan on the first floor. Sh. Mohd. Asif, the son of the petitioners with his said family is in living/in use and occupation of a room marked G and store marked H on the first floor of the property in dispute. Sh. Mohd. Qasim, the son of the petitioners, with his said family members is in occupation/living in a room on the first floor marked I in the plan. The petitioners along with their unmarried son Sh. Mohd. Tosaf, aged about 27 years, are in use and occupation of the room on the first floor marked J in the plan.
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4. It is further stated that the accommodation comprised of one room, varandah, kitchen, toilet, open space on the second floor is in the tenancy of one Sh. Mohd. Muzahid S/o Mohd. Yusuf against whom an eviction petition u/s 14 (1) (e) r/w Section 25B of DRC Act has been filed which is still pending adjudication in the court of Ms. Navita Kumar, ARC, Delhi. It is further stated that two rooms and varandah marked K,L & M respectively are in the tenancy of Sh. Mohd. Rais against whom an eviction petition u/s 14 (1) (e) of DRC Act is likely to be filed in the near future. It is also stated that two rooms on the ground floor marked N & O in the plan and the mezzanine above the room marked O is being used for doing the business of book binding as well as residence by the petitioners and their sons even before the year 1983 in as much they could not afford any other place elsewhere for the purpose of their business of book binding.
5. Respondent has filed an application U/s 25 B (V) of DRC Act along with an affidavit. It is stated in the said application that the respondent is the tenant in respect of the tenanted premises bearing No. 1853 Katra Sheikh Chand, Lal Kuan, Delhi110006. It is further submitted that respondent is an old tenant in respect of the tenanted premises which had been taken on rent in the year 1952 on monthly rent from the previous owner of the premises 5 in question which was now increased upto Rs. 100/ per month.
6. It is further stated that without prejudice to the fact that the present petitioners have no right to file the present eviction petition against the respondent. It is further stated that the petitioners have many residential and commercial immovable properties situated in Delhi. It is further stated that the present petition is malafide petition as the petitioner intend to relet the same after getting vacated from the respondent on higher rent. It is further stated that the present petition has been filed by the petitioner only to harras the respondent herein just to put forward illegal demand of increasing the rent which has been persistently demanded by the petitioners. It is further stated that the respondent has never shifted permanently to Amroha. It is further stated that respondent is living in the tenanted premises with his son and his family.
7. It is further stated that the petitioners have filed all the ration card and voter I card of Mohd. Yamen, Mohd. Arif and themselves but petitioners have not filed the copy of ration card and voter I. Card of their elder son namely Mohd. Qasim and Mohd. Asif. It is further stated that petitioners have filed only PAN card copy of Mohd. Qasim and photo copy of passport of Mohd. Asif. It seems that their ration card and voter I card have not been 6 issued on the address of tenanted premises but issued on the other address so petitioners have not filed their ration card copy and voter I card copy, hence the respondent herein is entitled for leave to defend on this score alone.
8. It is further stated that there are more tenant in the tenanted premises except respondent and petitioners have filed eviction petition against one tenant and the present petition has filed by the petitioners against the respondent for just to harass the respondent and other tenants of the tenanted premises in question.
9. Petitioners have filed the reply to the affidavit of the respondent wherein they stated that the names of Sh. Mohd. Qasim and Mohd. Asif are included in the ration card issued in the name of the respondent, copy of which is already placed on record.
10. Rejoinder filed by the respondent to the counter affidavit of the petitioner wherein he stated that the petitioner himself having a number of properties which are situated in one house in Haus Khasi, one house in Gali Chabuk Sawar Lal Kuan, Delhi110006 and another residential cum commercial properties measuring 800 sq. Yards in Tonica City P.O.Loni, Ghaziabad where the petitioner are running business in that property and 7 also residing himself and his family. It is further stated that the site plan filed by the petitioner itself shows there is a sufficient room in the ground floor, first floor and second floor for himself and his wife for residence. It is further stated that on the ground floor the petitioner are running a book binding factory in the entire floor and his family also residing at the another room which are situated in the same floor and there is sufficient space for residing of the petitioner and his wife. It is further stated that the petitioner has already filed a two petitions under the same provision against Mohd. Muzaahifd and Mohd. Rasisuddin tenants which are still pending before this Hon'ble Court.
11. It is further stated that Mr. Muzahid is already a tenant on the second floor in two rooms and open terrace and open space are already vacant if the petitioner has need then he and his family will be residing on the second floor and the ground floor.
12. Arguments heard. Record perused and considered.
13. Ld. Counsel for the petitioners relied upon the following rulings :
(i) Krishan Kumar Alag Vs. Jambu Prasad Jain Decd. Thr. LR Anand, 161 (2009) Delhi Law Times 511.
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(ii) Rajender Kumar Sharma & Ors. Vs. Leela Wati & Ors., 155 (2008) Delhi Law Times 383.
(iii) Madan Lal Vs. Vijay Rani & Ors., 158 (2009) Delhi Law Times 129.
(iv) Benson Shoes Vs. Chunni Lal Takkar, 167 (2010) Delhi Law Times
678.
(v) Krishan Kumar Gupta Vs. Swadesh Bhushan Gupta, 152 (2008) Delhi Law Times 556.
(vi) Tagore Education Society Regd. Vs. Kamla Tandon & another, 161 (2009) Delhi Law Times 232.
14. Ld. Counsel for the respondent relied upon the following rulings :
(i) Inderjeet Kuar Vs. Nirpal Singh, JT 2001 (1) SC 308.
(ii) B.R.Anand Vs. Mr. Prem Sagar, 2001 VI AD (Delhi) 266.
(iii) State of Maharashtra Vs. R.B.Sharma & others., 2001 VI AD (Delhi)
269.
(iv) Manoj Kumar Vs. Bihari Lal, (2001) 4 Supreme Court Cases 655.
(v) S.S.Puri (Lt. Col.) Vs. Mr. S.P.Malhotra, 2002 III AD (Delhi) 217.
(vi) Bhauri Devi (Deceased) Through LRs Vs. Mahender Kumar, 146 (2008) Delhi Law Times 117.
15. The present petition has been filed u/s 14 (1 ) (e) r/w section 25B of 9 DRC Act and in order to succeed in such a petition, petitioner has to prove
(i). Ownership of the suit premises ; (ii). Purpose of letting; (iii) Alternative accommodation; and (iv) bonafide requirement;. Let the same be discussed in detail.
Ownership
16. The respondent contended that the petitioners have no right to file present eviction petition. On the other hand the petitioner have claimed that they have purchased the property bearing no. 1853, Katra Sheikh Chand, Lal Kuan, Delhi06 of which tenanted premises in question is a part. The petitioners have also filed copy of sale deed. The respondent has not denied that he is a tenant in the shop in question and the entire premises was purchased by the petitioners. The relationship of landlord and tenant between the parties is not disputed. It is admitted case that the respondents are paying rent to the petitioners. The contentions of the respondents have no merits in view of the law laid down by various Hon'ble High Courts and the Hon'ble Supreme Court. It is well settled law that for an eviction of a tenant under the DRC Act, the landlord is not required to prove the absolute ownership. It was held in Ramesh Chand Vs. Uganti Devi, 157 (2009) DLT 450 by the Hon'ble High Court of Delhi that, "It is settled preposition of law that in order to consider the concept of ownership under Delhi Rent Control 10 Act, the court has to see the title and right of the landlord qua the tenant. The only thing to be seen by the Court is that the landlord had been receiving rent for his own benefit and not for and on behalf of someone else. If the landlord was receiving rent for himself and not on behalf of someone else, he is to be considered as the owner howsoever imperfect his title over the premises may be. The imperfectness of the title of the premises cannot stand in the way of an eviction petition under Section 14 (1) (e) of the DRC Act, neither the tenant can be allowed to raise the plea of imperfect title or title not vesting in the landlord and that too when the tenant has been paying rent to the landlord. Section 116 of the Evidence Act creates estoppels against such a tenant. A tenant can challenge the title of landlord only after vacating the premises and not when he is occupying the premises. In fact, such a tenant who denies the title of the landlord, qua the premises, to whom he is paying rent, acts dishonestly".
Purpose of letting
17. After the judgment of Hon'ble Apex Court in Satyawati Sharma Vs. Union Of India III (2008) SLT 553, an eviction petition is maintainable in respect of the commercial purposes.
Alternate accommodation & bonafide requirement 11
18. During the course of argument Ld. Counsel for respondent submitted that the respondent was not aware about the properties of petitioner when he filed leave to defend application. But later on he come to know about the properties of petitioners. It is further contended that the petitioners have many residential and commercial immovable property situated in Delhi. The respondent further contended that there are more tenants in the tenanted premises but petitioners have filed eviction petition against one tenant only. On the other hand petitioners denied that they have other property in Delhi. Petitioners have stated in the petition that they have also filed an eviction petition against tenant namely Mohd. Muzahid who is occupation on second floor in premises in dispute.
19. The contention of respondent that the petitioners have other properties in Delhi has no substance. The respondent has not filed any such document to show that petitioner own property as stated by him in rejoinder. Even, if it is assumed that petitioners have property as mentioned in rejoinder, the question arise whether those property are suitable for petitioners. It is well settled law that petitioner is best judge of his requirement. It is prerogative of the petitioner which property they require according to their need. A tenant cannot dictate term to the landlord. If each tenant take such plea then a landlord will never get back any of his property. 12
20. It was held by Hon'ble Supreme Court in M/s John Impacts Pvt. Ltd. Vs. Surender Singh, 2007 (1), RCR 509 that the landlord is best judge of his requirement and a tenant cannot dictate terms on which the landlord should live.
21. The respondent further contended that petitioners have not filed copy of ration card or voter I card of some of their children which show they do not reside in the suit premises. The petitioners have stated that the name of Mohd. Qasim & Mohd. Asif are given in the ration card issued in the name of petitioners, copy of which filed. These contention have no substance because it is not necessary that every member of family of landlord must have separate ration card. Non production of voter I card will not fatal for the petitioner.
22. The respondent further contended that the petitioner interested to relet the shop in question on higher rent after getting vacated from him. This contention has no force. There is always protection to the tenant u/s 19 of DRC Act. A landlord cannot relet or sale the tenanted premises within three years of its vacation.
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23. Ld. Counsel for the respondent submitted that the petitioner has earlier also filed an application for eviction against another tenant and leave was granted to the tenant in said case. Ld. Counsel further submitted that on the ground of parity the respondent herein may also be granted leave to contest this petition. Ld. Counsel for petitioners submitted that it is correct that leave was granted to the said tenant, however the said tenant had taken a plea that the previous owner had gifted the premises to him and thus he became the owner. Ld. Counsel further submitted that the said petition was filed in the year 2003 and this present petition was filed in the year 2008. Ld. Counsel further submitted that the respondent herein has not claimed himself owner of the tenanted premises and the facts of both the cases are different.
24. It is not in dispute that there is gap of about five year in these two petitions. I am of the considered view that to determine whether leave to defend should be granted or not, the affidavit of the respondent alongwith its reply has to be considered. In this petition the respondent has not claimed himself owner of the tenanted premises and admittedly he is paying rent to the petitioner.
25. The respondent further contended that the petitioners and his family members have sufficient accommodation and same is visible in the site plan 14 filed by the petitioner. On the other hand, the petitioners stated that they are living in one room on the first floor shown as marked J in the site plan alongwith their son Mohd. Tosaf, aged about 27 yrs. The petitioners further stated that their son Qazim who has two children is living in only one room on the first floor marked I in the site plan. The other son Mohd. Arif of the petitioners who has three children is living in one room and a small store marked E and F respectively. The fourth son Mohd. Asif is living with his wife in one room marked G and a small store marked H on first floor. All these shows that the petitioners and their family members do not have sufficient accommodation to live. The petitioners are living alongwith their unmarried son Mohd. Tosaf aged about 27 yrs. in one single room and Mohd. Qazim is also living in a single room alongwith his wife and two children. From this it is proved that the petitioners are not having sufficient accommodation at present for themselve and their family members and the need of the petitioners to get vacate the shop in question is genuine. Even, if it is accepted the contention of the respondent that the petitioners have got vacated two rooms from the tenant Mohd. Muzahid even then the bonafide needs of the petitioners cannot be fulfilled.
26. Considering all this aspects I am of the considered view that the petitioners are not having any suitable/alternative accommodation to live 15 alongwith his family members and he bona fidely needs the tenanted room in question. The respondent has failed to raise any tribal issue. Hence the petitioners are entitled for an eviction order u/s 14 (1) (e) r/w section 25B of DRC Act.
27. Accordingly, the application seeking leave to defend moved by the respondent is dismissed and an eviction order is passed u/s 14 (1) (e) r/w section 25B of DRC Act in favour of the petitioners and against the respondent in respect of the one room and a common bath room and latrine on the ground floor forming part of the property no. 1853, Katra Sheikh Chand, Lal Kuan, Delhi, more specifically shown in red colour in site plan Ex. C1 (exhibited today while passing the order). However, it is made clear that the petitioners shall not be entitled to get the eviction order executed before expiry of 6 months running from today. No order as to costs.
File be consigned to Record Room.
(Announced in the open court
on 19.01.2011) (Pritam Singh)
ARC/Central/Delhi