Delhi District Court
Ravi Kumar Jain vs Brij Mohan on 23 December, 2023
RC ARC 354/22 Sh. Ravi Kumar Jain Vs Brij Mohan & Ors.
In the Court of Ms. Neetu Nagar, JSCC cum Additional SCJ cum
Guardian Judge, South East District, Saket District Court, New
Delhi (the then Additional Rent Controller-02, Central District,
Tis Hazari Courts, Delhi)
E-116/22
RC ARC 354/22
Sh. Ravi Kumar Jain
S/o Late Sh. Mehtab Rai Jain
R/o R-8, Ground Floor, Greater Kailash-I,
New Delhi-110048. .... Petitioner
VERSUS
1. Sh. Brij Mohan
S/o Sh. Om Prakash
Shop no. 3602A, Chawri Bazar
Delhi-110006.
2. Sh. Ashish Agarwal
S/o Sh. Brij Mohan
Shop no. 3602A, Chawri Bazar
Delhi-110006.
3. Sh. Gaurav Agarwal
S/o Sh. Brij Mohan
Shop no. 3602A, Chawri Bazar
Delhi-110006. .... Respondents
******
Date of Filing of petition : 29.07.2022
Date of reserving order : 03.10.2023
Date of pronouncement of Order : 23.12.2023
******
(NEETU NAGAR)
JSCC-ASCJ-GJ, South East District, Saket Courts
(the then ARC-02, Central District, THC)
23.12.2023 Page no.1 of 31
RC ARC 354/22 Sh. Ravi Kumar Jain Vs Brij Mohan & Ors.
ORDER
1. This order of mine shall dispose off an application under Section 25(B) (4) of Delhi Rent Control Act, 1958 (in short "DRC Act") for seeking leave to defend filed by the respondents.
2. The brief facts necessary for disposal of leave to defend application can be enunciated as follows:
2.1 The present eviction petition has been filed by the petitioner against the respondents under section 14 (1) (e) read with Section 25-B of DRC Act in respect of premises (in short "tenanted premises") consisting of one shop bearing no.3602 A, Chawri Bazar, Delhi-110006 as shown in red colour in site plan(s) annexed with the petition.
2.2 It is averred by the petitioner that the property bearing no. 3601-3603 measuring 175 sq. yds. situated at main road, Chawri Bazar, Delhi-110006 was jointly purchased by the petitioner and his elder brother late Sh. Anil Kumar Jain through a registered sale deed dated 28.02.1985. Sh. Anil Kumar Jain unfortunately died on 06.12.2021 and his wife had predeceased him. He has left behind one son Mr. Arihant Kumar Jain and two daughters Ms. Kartiky Jain and Mrs. Shraviky Jain. There are 6 shops on the ground floor of the aforesaid property which are numbered as 3601, 3601A, 3602, 3602A, 3603 and 3603A. Above the ground floor, there is first floor which is in possession and tenancy of UCO Bank @ Rs.1,48,830/- per month. The mezzanine floor is used as store.
2.3 It is submitted that vide registered partition deed dated 18.05.2022, the aforesaid property has been partitioned between the petitioner and legal heirs of late Sh. Anil Kumar Jain, pursuant to (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 23.12.2023 Page no.2 of 31 RC ARC 354/22 Sh. Ravi Kumar Jain Vs Brij Mohan & Ors.
which petitioner became owner of four shops bearing no. 3601, 3601A, 3602 and 3602A besides half portion of the first floor and obtained symbolic possession of the said portion. The rental of the first floor portion is being shared equally by the petitioner on the one hand and legal heirs of late Sh. Anil Kumar Jain on the other. 2.4 It is stated that shop no. 3601 is in possession of tenant M/s. R Kumar and Co. who is paying rent @ Rs.586/- per month; shop No. 3601A is in possession of tenant M/s. Shyam Sons @ Rs.523/- p.m.; shop no. 3602 is in possession of tenant Sh. Shiv Prakash Ravi Prakash Gupta @ Rs.528/- p.m. and the tenanted bearing Shop no. 3602A is in joint tenancy of present respondent namely Sh. Brij Mohan, Sh. Ashish Agarwal and Sh. Gaurav Agarwal @ Rs.674/- pm. 2.5 It is submitted further that the Petitioner is married to Mrs. Savita Jain and from this marriage, one daughter Ms. Arushi Jain and one son Mr. Rishabh Jain are born.Petitioner is a Civil Servant and is presently posted as Commissioner, Income Tax in Delhi. He is educated upto B.Com (H) and LLB. He is aged around 60 years and is due to retire on 31.10.2022. He had been representing Income Tax Department before the Income Tax Appellate Tribunal as Commissioner, Income Tax and before the Income Tax Settlement Commission as Director (Investigation) and is presenting or defending the cases on behalf of Income Tax Department which is akin to the role of a lawyer. Upon his retirement, the petitioner is willing to start his practice as an Advocate primarily in the taxation field of which he has gained vast experience while being in the employment for almost 34 years. It is stated that Mr. Rishabh Jain, son of the petitioner, after (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 23.12.2023 Page no.3 of 31 RC ARC 354/22 Sh. Ravi Kumar Jain Vs Brij Mohan & Ors.
having completed his BA.LLB. has joined the Bar Council as an Advocate since 2020 and he is now willing to start his own independent practice as an Advocate.
2.6 It is averred that the petitioner and his son both want to set up their office as advocates in all the four shops referred above as bearing no. 3601, 3601A, 3602 and 3602A for which the petitioner at least requires area approx. 500 sq. ft. for the support staff, 500 sq. ft. for the clients and visitors, 2 cabins of about 400 sq. ft. each for the petitioner and his son besides space for library, files, pantry, toilet and other amenities.
2.7 It is stated that the Petitioner and his predecessors had been the residents of Bazar Guliyan, Jama Masjid, Delhi and were well known in the locality. There is also very good scope for civil and criminal litigations in the said locality.
2.8 It is stated that the wife namely Mrs. Savita Jain and daughter of the petitioner namely Ms. Arushi Jain are not only educated but are enterprising also and intend to start their own business of sanitary wares. The Chawri Bazar market is well known for hardware and sanitary products. The petitioner is willing to set up business of sanitary and aluminum products for his wife and daughter from the shop in tenancy of the respondent and the other shops in tenancy of other tenants. The wife, son and the daughter of the petitioner have no commercial properties to fulfill their requirements and are dependent only upon the petitioner to set up their business and profession.
2.9 It is further stated that the wife of the petitioner is owner of property no. R-8, Ground Floor, Greater Kailash-1, New Delhi (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 23.12.2023 Page no.4 of 31 RC ARC 354/22 Sh. Ravi Kumar Jain Vs Brij Mohan & Ors.
which consists of 4 bedrooms and other amenities where the petitioner and his family members are presently residing. The said house is not even sufficient to accommodate all four of them for a decent living as it has covered area of only 1800 sq. ft. on the ground floor with no parking space. The said residential property is not suitable for any professional activity as entertaining any client therein shall disturb the household set up besides creating parking chaos. It is stated that the petitioner has no other suitable commercial property. Hence, the instant petition for eviction of the tenanted premises.
3. Summons were served upon the respondents who filed leave to defend application with document(s) alongwith separate detailed affidavit, by taking following grounds inter alia which can be outlined as follows:
3.1 It is averred that the present eviction petition is wholly malafide and is filed on manipulated and distorted facts with the ulterior motive to get vacated the disputed shop and thereafter to sell/alienate the same to some prospective buyers as similar eviction petitions have been filed against the other old tenants. 3.2 It is averred that the tenanted premises under the tenancy and occupation of the respondents does not bear shop No. 3602A, Chawri Bazar, Delhi and the respondents are the lawful tenants in respect of one shop bearing No. 3603, Ground Floor, Chawri Bazar, Delhi-6. Even in the Sale Deed 28.02.1985 by which the suit property was allegedly purchased by the petitioner and his brother Anil Kumar Jain, there is no mention of any shop bearing No. 3602-A, Chawri Bazar, Delhi. In the rent receipts also issued to the respondents, the tenanted shop has been described as Shop No. 3603, GF, Chawri (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 23.12.2023 Page no.5 of 31 RC ARC 354/22 Sh. Ravi Kumar Jain Vs Brij Mohan & Ors.
Bazar. Further in all the Govt. and other Records, including in Bank A/c, GST, Sale Tax, Income Tax etc., the demised shop is always known as Shop No. 3603.
3.3 It is averred that the site plan filed by the petitioner is not correct. It is alleged that the petitioner is guilty of suppression and concealments. The petitioner and his other family members i.e. his wife, son and daughter own numerous properties in Delhi, which are available to them, but the same are not disclosed in the eviction petition. In order to mislead the Hon'ble Court, the petitioner has filed his one single page ITR for the A.Y 2021-22 and one single page ITR of his wife, son and daughter and not the complete copies of the ITRs in order to suppress the details of the other properties owned by him and his other family members.
3.4 It is submitted that the petitioner claims to have been representing the I.T. Dept. before the I.T. Tribunal or before I.T. Settlement Commission as Director (Investigation) etc., but no material is placed on record to substantiate the same. Without prejudice, that even after retirement, a Govt. Employee remains entitled for his extension in service or his re-appointment in some other departments, hence, retirement date, mentioned by the petitioner in the eviction petition cannot be taken to the final and conclusive. 3.5 It is stated that the petitioner is residing in a very posh locality at G.K.-I, New Delhi, while the shop in question admittedly is situated in the slum area at a distance of about 20 kilometers. Moreover, there is no car parking available in the Chawri Bazar area. It is unbelievable that after retiring as the Commissioner, I.T. the (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 23.12.2023 Page no.6 of 31 RC ARC 354/22 Sh. Ravi Kumar Jain Vs Brij Mohan & Ors.
petitioner would be willing and rush to open and operate his law office.
3.6 It is not disputed that earlier, the petitioner was residing at Jama Masjid area.It is not disputed that the localities of Chawri Bazar, Sadar Bazar, Nai Sarak, Dariba Kalan, Jama Masjid etc. are well known markets, however it is not true and desirable that any growing advocate would prefer to open his new office in the very narrow and congested area, having no parking space or other amenities, required to establish a comfortable office. 3.7 It is averred that the wife of the Wife of the petitioner is a house wife and remains at home. Similarly, his daughter is in job and remains there since morning till evening. Hence, there is no question of sitting at the shop for learning of any trick of the trade by them, as alleged.
3.8 It is submitted that as per the sale deed dated 07.02.2010, two floors i.e. entire basement floor and ground floor were purchased by the father of the petitioner's wife namely Shri Prem Chand Aggarwal, which both are owned by his wife, but petitioner has suppressed these important and material facts from this Hon'ble Court. It is averred that the petitioner and his family is also in possession and occupation of the entire basement floor of the property bearing No. R-8, G.K.-I, New Delhi, built in 300 sq. yards area, which is most suitable to meet the alleged requirements of the petitioner and his wife to open and start the office for the Advocates either in taxation or in civil/criminal, duly equipped with all the required amenities and facilities including ample parking area also, and would be most convenient and comfortable for the petitioner and his son, who (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 23.12.2023 Page no.7 of 31 RC ARC 354/22 Sh. Ravi Kumar Jain Vs Brij Mohan & Ors.
admittedly are residing at ground floor of the property as in the vicinity of Greater Kailash there are numerous offices of various advocates, doctors and others business establishments, situated in the basement floor, ground floor and other floors. Hence, the basement floor, available to the petitioner and his family would be most suitable to meet their so called requirements.
3.9 Lastly, it has been prayed that the application for leave to defend be allowed as various triable issues have been raised by the respondents.
4. The application is contested by the petitioner by way of a written reply and counter affidavit, wherein the contents of the petition have been re-iterated and re-affirmed and the same need not be reproduced for the sake of brevity.
4.1 Additionally, it is submitted that the sale deed did not specify any particular number of tenanted shops and merely stated that it is situated in property no. 3601 to 3603. In the partition deed, it has been given private no. 3602A. The tenanted shop is clearly shown in the site plan which is not disputed by respondents. It is denied that the petitioner and his family is also in possession and occupation of the entire basement floor of the property No. R-8, G.K.-I, New Delhi. The alleged property is being used by petitioner and his family member for residence purposes only and any commercial activity run therefrom is bound to disturb the peace at home. People from every walks of life meets/visit the Advocate and it is not prudent to let them have access to the residential portions. Basement is not permissible for any commercial activity as per building norms. Rest of the contentions have been denied in toto.
(NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 23.12.2023 Page no.8 of 31 RC ARC 354/22 Sh. Ravi Kumar Jain Vs Brij Mohan & Ors.
5. Rejoinder was filed by the respondents to the reply of leave to defend application of petitioners reaffirming and reaverring the facts which they stated in the leave to defend application alongwith their detailed affidavit.
5.1 Additionally, it is submitted that the petitioner has not disclosed the facts of the case in his petition that the partition dated 18.05.2022 made and executed between the legal heirs of Sh. Anil Jain and the petitioner Sh. Ravi Jain in respect of the shops bearing no. 3601 to 3603 is/was illegal and fabricated one as Sh. Anil Jain the brother of the petitioner and petitioner prior to the alleged partition deed had sold the shop No. 3603, Chawri Bazar, Delhi -110006 to one Sh. Satish Kumar Gupta, S/o Sh. Jagdish Persad, R/o 7/32, Roop Nagar, Delhi-110007, for a total consideration of Rs. 2,65,000.00/- (Rupees two crores sixty five lacs only) as is evident from the deed of agreement dated 15.09.2021 executed between Sh. Anil Kumar Jain and said Sh. Satish Gupta. This fact has come in the notice of the respondent after filing his application for leave to defend. It is further submitted that the petitioner and his brother never provided the copy of the alleged sale deed to the respondent as such the rent of suit premises was being paid by the respondent to the petitioner and his brother under protest.
5.2 It is averred that the sale deed alleged to have been made and executed on behalf of Sardar Ram Singh Kabli and Sardarni Harnam Kaur Trust through its General Attorney and Trustee Mrs. Rail Basu in favour of the petitioner and his brother is illegal and unauthorized as the said Smt. Rasil Basu was domiciled abroad at the (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 23.12.2023 Page no.9 of 31 RC ARC 354/22 Sh. Ravi Kumar Jain Vs Brij Mohan & Ors.
relevant time and according to Section 60 of Indian Trust Act, she was not competent to be the trustee of trust.
6. I have heard learned counsel for both the parties and have gone through the material on record carefully as well as written submissions filed on behalf of respondents. I have also given my thoughtful consideration to the submissions made on behalf of both the parties.
7. The present petition for eviction is under clause (e) of proviso to sub-section (1) of section 14 of Act 59 of 1958 which after the judgment of Hon'ble Supreme Court in "Satyawati Sharma Versus Union of India", on 16.04.2008 reads as under :-
14.(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by and court or Controller in favour of the landlord against a tenant:Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:-
* * *
(e) that the premises are required bona fide by the landlord for occupation for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 23.12.2023 Page no.10 of 31 RC ARC 354/22 Sh. Ravi Kumar Jain Vs Brij Mohan & Ors.
person has no other reasonably suitable
accommodation :
8. In order to succeed in a petition for eviction filed under section 14 (1) (e) of the DRC Act, the petitioner must establish the following ingredients:-
(i) That he is the owner of the tenanted shop and there exits relationship of landlord and tenant between him and the respondent.
(ii) That tenanted shop is required bonafide by the petitioner for himself or for any member of his family dependent upon him.
(iii) Petitioner does not have any other alternate, reasonable and suitable accommodation.
9. It is now well settled that while deciding the question of the grant of leave to contest under the provisions of section 25B of Act 59 of 1958, the Rent Controller should see the affidavit filed by the tenant and the counter affidavit filed by the landlord. The Controller is not required to conduct a full fledged trial and should only see that if the affidavit of the tenant raise any triable point the decision on which may disentitle the landlord from recovering possession of the premises. At the time of the decision on the question of leave, the Controller is not required to seek the proof of the defence of the tenant. The tenant should only disclose such facts in his affidavit that would disentitle the landlord from recovering possession of the disputed premises. At the stage of granting the leave to defend, the Rent Controller should confine himself to the affidavit and reply, if any. The controller does not have the task of testing the veracity of the issues raised by the tenant, since that stage of the case will arise only after a leave to defend application has been allowed. The level of (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 23.12.2023 Page no.11 of 31 RC ARC 354/22 Sh. Ravi Kumar Jain Vs Brij Mohan & Ors.
proof at this stage is that of a prima facie case. Reference at this point can be made to the landmark judgment of the Apex Court in "Precision Steel Engineering Works and Anr. Versus v. Prem Deva Niranjan Deva Tayal, 1982 (2) RCR 544: AIR 1982 Supreme Court 1518", wherein it was held that:-
"If the averments in the affidavit disclose such facts which, if ultimately proved to the satisfaction of the Court, would disentitle the landlord from recovering possession, that by itself makes it obligatory upon the Controller to grant leave.
It is immaterial that facts alleged and disclosed are controverted by the landlord because the stage of proof is yet to come. It is distinctly possible that a tenant may fail to make good the defence raised by him. Plausibility of the defence raised and proof of the same are materially different from each other and one cannot bring in the concept of proof at the stage when plausibility has to be shown."
10. Further, the above cited case also poses a statutory duty on the Controller to grant leave to defend, if the tenant is able to disclose certain facts which would have to be tested at a later stage. Relevant paragraphs of the judgment are as under:
"Statutory duty is cast on the Controller to give leave as the legislature uses the expression 'the Controller shall give' to the tenant leave to contest if the affidavit filed by the tenant discloses such fact as would (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 23.12.2023 Page no.12 of 31 RC ARC 354/22 Sh. Ravi Kumar Jain Vs Brij Mohan & Ors.
disentitle the landlord for an order for recovery of possession. The Controller has to look at the affidavit of the tenant seeking leave to contest. Browsing through the affidavit if there emerges averment - of facts which on a trial, if believed, would non-suit the landlord, leave ought to be granted. Let it be made clear that the statute is not cast in a negative form by enacting that the Controller shall refuse to give to the tenant leave to contest the application unless the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order etc.... The language of sub-section 5 of section 25B casts a statutory duty on the Controller to give to the tenant leave to contest the application, the only precondition for exercise of jurisdiction being that the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of 13; possession of the premises on the ground mentioned in section 14(1) (e)."
11. Let us now discuss the facts and circumstances of the present case keeping the principle of law as discussed above. I. Ownership of the petitioner over the tenanted shop as well as existence of landlord-tenant relationship between the petitioner and the respondents.
Before proceeding further, let us first discuss the legal position with regard to ownership in rent matters. The Hon'ble Supreme Court has explained the scope of the term 'ownership' in (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 23.12.2023 Page no.13 of 31 RC ARC 354/22 Sh. Ravi Kumar Jain Vs Brij Mohan & Ors.
matters under rent control in the decision of Smt. Shanti Sharma & Ors. Vs Smt Ved Prabha & ors 1987 AIR 2028, wherein it was observed that the meaning of term 'owner' is vis a vis the tenant i.e. the owner should be something more than the tenant. Similarly, in the case of Jiwan Lal Vs. Gurdial Kaur & Ors. 1995 RLR 162, a Bench of Hon'ble High Court of Delhi while dealing with the concept of ownership in a pending eviction petition under Section 14(1)(e) of the DRC Act had noted as follows:
"There is a tendency on the part of tenants to deny ownership in cases under Section 14(1)(e). To test the substance of such a plea on the part of the tenants the Courts have insisted that they should state who else is the owner of the premises if not the petitioner. In the present case it is not said as to who else is the owner. Further these cases under Section 14(1)(e) are not title cases involving disputes of title to the property. Ownership is not to be proved in absolute terms."
12. In Ramesh Chand Vs. Uganti Devi 157 (2009) DLT 450, the Hon'ble High Court of Delhi held as under :
"...It is settled proposition of law that in order to consider the concept of ownership under Delhi Rent Control Act, the Court has to see the title and right of the landlord qua the tenant. The imperfectness of the title of the premises cannot stand in the way of an eviction petition under Section 14(1)(e) of DRC Act, neither (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 23.12.2023 Page no.14 of 31 RC ARC 354/22 Sh. Ravi Kumar Jain Vs Brij Mohan & Ors.
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..."
13. Thus, the legal position is well established that in a proceeding under Rent Control Act, while the petitioner may not be able to establish a perfect title over the tenanted premises, what is required is that his title must reflect as better than that of the tenant. In simple terms, the title of the landlord must appear to be over and above the title of the tenant.
14. Let us now discuss the facts of the present case. It is contended on behalf of the petitioner that the petitioner is the owner of the tenanted premises. The petitioner relied on registered sale deed dated 28.02.1985 in order to show his ownership therein. From a perusal of the same, it has transpired that the entire property bearing no. 3601-3603 measuring 175 sq. yards, Main Road, Chawri Bazar, Delhi-11006 was jointly purchased by Petitioner and his elder brother Shri Anil Kumar. Clearly, the shops numbers have not been specified therein as rightly stated by learned counsel of the petitioner. The factum of registration of the sale deed in favour of the Petitioner is mentioned on the back side of page no. 2 of the sale deed. It is duly (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 23.12.2023 Page no.15 of 31 RC ARC 354/22 Sh. Ravi Kumar Jain Vs Brij Mohan & Ors.
mentioned that Sub Registrar at the time of execution of sale deed has taken income tax clearance certificate, minutes of meeting dated 22.11.1984, affidavit of the parties, copy of power of attorney dated 08.02.1985 and thereafter only, the Sub Registrar has registered the sale dated 28.02.1985. It is stated in the sale deed that to sell the trust property, a Resolution was held in the meeting on 22.11.1984 by the trustees of the trust namely "Sardar Ram Singh Kabli and Sardarni Harnam Kaur Trust" and one Smt. Mrs. Rasil Basu was authorized to sell the said property by way of General Power of Attorney.
15. It is argued on behalf of the respondents that no copy of any resolution or G.P.A or any consent letter from the trustee have been filed or produced on record in absence of which the said sale deed of the trust property is illegal and unauthorized. To my mind, merely stating that the erstwhile ownership of the property belonged to a Trust with the name of "Sardar Ram Singh Kabli and Sardarni HarnamKaur" and that to the best of the knowledge of the Respondent, these trustees were only authorized to manage and control the property without the right to sell it is not suffice when none has challenged the same till date. The registered sale deed is a public document so it is a notice to the public at large that the Petitioner and his brother have purchased the property as mentioned therein.
16. Even if for the sake of arguments, it is considered that the title of the petitioner is defective as alleged by the respondents even in that scenario, the said contention does not help in raising any triable issue with regard to ownership as the legal position is well established that in a proceeding under Rent Control Act, while the petitioner may not be able to establish a perfect title over the tenanted (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 23.12.2023 Page no.16 of 31 RC ARC 354/22 Sh. Ravi Kumar Jain Vs Brij Mohan & Ors.
premises, what is required is that his title must reflect as better than that of the tenant. In simple terms, the title of the landlord must appear to be over and above the title of the tenant. Herein, the respondents failed to state if not the petitioner then who else is the owner of the tenanted premises. There is nothing on record from which it can be deduced that the said sale deed is a forged and fabricated document.
17. Further, it is not denied by the respondents that Shri Anil Kumar Jain died on 06.12.2021 and has left behind his son Mr. Arihant Jain and two daughters Ms. Kartiky Jain and Ms. Shraviky Jain. Further,from a perusal of registered partition deed dated 18.05.2022, it is clear that partition took place between the Petitioner and the legal heirs of his brother Late Shri Anil Kumar Jain pursuant to which Shop No. 3601, 3601A, 3602 and 3602A and half portion of 1" Floor fell in the share of the Petitioner. The names of the tenants alongwith the number of shops is also clearly mentioned in the partition deed.
18. It is also not disputed that the Petitioner has filed separate eviction petitions on the ground of bonafide requirements and all the petitions are pending before this court.
19. It has been vehemently contended by learned counsel of the respondents that the petitioner has concealed the fact that prior to the petition, the petitioner and his brother Anil Jain were the joint owners and Anil Jain with the consent of the petitioner had sold the shop no. 3603 to Sh. Satish Kumar as clear from the agreement dated
15. 09.2021 and the said fact came to the knowledge of the respondents just prior to filing of the present petition and a dispute has arisen between the petitioner and the legal hairs of his brother and (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 23.12.2023 Page no.17 of 31 RC ARC 354/22 Sh. Ravi Kumar Jain Vs Brij Mohan & Ors.
purchaser of shop no. 3603 so the best course was to file a petition for grant of administration so that public notice is circulated for filing the objections by the public, if any. It is clear that even Sh. Satish Kumar has not raised any objection to the present eviction petition so far. Further, it is clear from the partition deed that shop no. 3602A is in possession of tenants namely Sh. Brij Mohan, Sh. Ashish Aggarwal and Sh. Gaurav Aggarwal i.e. the present respondents. Hence, the petitioner has no concern with shop no. 3603 or any agreement to sell related thereto. Further, the contention on behalf of the respondents that the respondents are the tenants of shop number 3603 instead of 3602 A seems attractive in the first instance as has become clear from rent receipts and registration certificate of respondents. However, the said contention is meritless as no counter site plan has been filed with respect to shop no.3603. The shop no. 3602A has been clearly depicted in the site plan of the petitioner as well as amply mentioned in the partition deed. It is a settled law that in case counter site plan is not filed on behalf of the tenant then the site plan filed on behalf of the landlord has to be assumed to be correct. eliance can be placed in this regard on decision of the Hon'ble High Court of Delhi in "Satish Kumar Vs. Subhash Chand Aggarwal, 2012 SCC Online Del 4447 (SLP © No. 27341/2012)", wherein it has been held that "if a tenant does not file his site plan showing the site plan filed by the owner is incorrect, then, the site plan filed by the owner would be assumed to be true. In the present matter also, no such site plan has been filed by the respondent. Therefore, he has no right to question the site plan filed by the landlord to be (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 23.12.2023 Page no.18 of 31 RC ARC 354/22 Sh. Ravi Kumar Jain Vs Brij Mohan & Ors.
incorrect. Hence, in view of the judgments and observations made above, this contention of the respondent is vague and untenable."
20. Moreover, if we talk about the documents of the respondents, the respondents themselves placed on record one rent receipt dated 21.03.2017 wherein the number of tenanted shop has been mentioned as 3602 and there is no justification on behalf of the respondents regarding the same. It seems that the tenant is trying to take advantage of the rent receipts wherein the number of tenanted shop is reflected wrongly. Hence, the contention in this regards totally fails as there is no triable issues regarding identity of the tenanted premises.
21. The next contention of learned counsel of respondents that the present petition is not maintainable being filed within 5 years of partition deed is totally devoid of any merit as the Petitioner was already the co-owner of the property. Even if for the sake of arguments it is assumed that there are other co-owners qua subject property even in that scenario the present petition is maintainable .In the rent control matters, the proceedings are summary in nature and only landlord-tenant relationship is to be seen. Thus, the law as applicable in a case of co-owner in rent control and eviction proceedings will prevail. Reference can be made to the decision of the Hon'ble Apex Court in case titled as Mohinder Prasad Jain vs. Manohar Lal Jain, 2006 (2)SCC 724, para 10 and 11, relevant extract of which are quoted as under:
"10. This question now stands concluded by a decision of this Court in Indian Umbrella Mfg. Co. v.
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Bhagabandei Agarwalla, 2004 (3) SCC 178 wherein this Court opined (SCC p.183 para 6):
"Having heard the learned counsel for the parties we are satisfied that the appeals are liable to be dismissed. It is well settled that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners. This principle is based on the doctrine of agency. One co-owner filing a suit for eviction against the tenant does so on his own behalf in his own right and as an agent of the other co-owners. The consent of other co- owners is assumed as taken unless it is shown that the other co- owners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement. In the present case, the suit was filed by both the co-owners. One of the co-owners cannot withdraw his consent midway the suit so as to prejudice the other co-owner. The suit once filed, the rights of the parties stand crystallised on the date of the suit and the entitlement of the co- owners to seek ejectment must be adjudged by reference to the date of institution of the suit; the only exception being when by virtue of a subsequent event the entitlement of the body of co-owners to eject the tenant comes to an end by act of parties or by operation of law."
A suit filed by a co-owner, thus, is maintainable in law. It is not necessary for the co- owner to show before initiating the eviction (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 23.12.2023 Page no.20 of 31 RC ARC 354/22 Sh. Ravi Kumar Jain Vs Brij Mohan & Ors.
proceeding before the Rent Controller that he had taken option or consent of the other co-owners. However, in the event, a co-owner objects thereto, the same may be a relevant fact."
22. The partition merely specifies the share of the co-owners in the property which was earlier held jointly by them. Section 14(6) DRC Act is not applicable to property, ownership of which in favour of the landlord comes by way of partition as rightly argued by learned counsel of the petitioner. Hence, arguments of learned counsel of respondent is this regard are totally unsustainable.
23. Further, it has been stated on behalf of the respondents in the Rejoinder that rent was paid to the Petitioner though under protest because copy of the sale deed was not provided by the Petitioner. It is not the case of the respondent that anyone else has claimed ownership or demanded rent. The said admission makes it amply clear that there exists relationship of landlord and tenant between the parties to the present petition. It seems that the dispute regarding the relationship of landlord and tenant between the parties to the present petition has been raised for the sake of merely raising a plea. Hence, no triable issue arises regarding the relationship of landlord and tenant and the respondents are also estopped from challenging the title of the petitioner due to operation of Section 116 of Indian Evidence Act as it is an admitted fact that the respondents are paying rent to the petitioner.
BONAFIDE NEED
24. At this juncture, it is necessary to discuss law regarding bonafide need which has been made clear by Hon'ble Apex Court (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 23.12.2023 Page no.21 of 31 RC ARC 354/22 Sh. Ravi Kumar Jain Vs Brij Mohan & Ors.
titled as "Sarla Ahuja v. United India Insurance Co. Ltd., reported as AIR 1999 SUPREME COURT 100", has held that :
".....The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bonafides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself....".
25. The Hon'ble High Court of Delhi in case titled as "Saroj Malik v. O.P. Gupta bearing RC. REV. No. 122/2013 and CM 5176/2013 dated 29.08.2014" has held that :-
"The landlord's need for a tenanted premises could be not only on one but on a number of grounds and all of them could well be taken as grounds for eviction. They cannot be treated as competing needs, (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 23.12.2023 Page no.22 of 31 RC ARC 354/22 Sh. Ravi Kumar Jain Vs Brij Mohan & Ors.
but would only go to show urgency for the need of the premises on different counts. Insofar as the landlord has shown that need existed both for himself as well as for his grandson alongwith his mother, nothing further required to be seen in the matter. Hence, the petitioners are at liberty to use the premises for any of there bonafide requirements as mentioned in the petition."
26. Harking back, It is the case of the petitioner that he is married to Mrs. Savita Jain and from this marriage, one daughter Ms. Arushi Jain and one son Mr. Rishabh Jain are born. The said facts are not disputed between the parties. It is also not disputed that the Petitioner is a Civil Servant and posted as Commissioner, Income Tax in Delhi. It has been submitted on behalf of the petitioner that the petitioner has retired from the job during the pendency of this petition on 31.10.2022.There is nothing to prove the contrary.
27. Further, the petitioner as well as his son have done LLB. It was argued on behalf of the respondents that there is nothing on record to prove that the petitioner had been representing Income Tax Department before the Income Tax Appellate Tribunal as Commissioner (Income Tax) and before the Income Tax Settlement Commission as Director (Investigation) and in the said role was presenting or defending the case on behalf of Income Tax Department which is akin to the role of a lawyer. Copy of L.L.B. degree of the petitioner and his son is placed on record. Having done L.L.B., the petitioner can start practising law whenever he wants after his retirement and hence, there is no requirement for the petitioner to (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 23.12.2023 Page no.23 of 31 RC ARC 354/22 Sh. Ravi Kumar Jain Vs Brij Mohan & Ors.
show either his experience or previous practice, if any. It is not for the tenant to dictate the place which is most suitable for an advocate to practice. Hence, the bonafide requirement for the shop in tenancy in possession of the tenants for setting up lawyer's office for him and his son therein can not be doubted. Further, it is the moral obligation for a father to settle his children financially. In Balwant P. Doshi Vs Shantaben Dhirailal Shah &Ar 2003(2) BomCR 190, the coordinate bench has held that the Courts cannot ordinarily doubt the bonafide need of the landlord nor the Courts can dictate to the landlord as to how the premise owned by him should be used. It is sufficient for the landlord to express his desire to occupy the premises owned by him. It is not necessary for the landlord to establish the dire necessity but it is enough to show that some need exists.
28. Hence, whether the tenanted premises lie in congested area or whether there are parking issues or whether the petitioners are residing in posh area and can not be expected to start practice in a slum area like the tenanted premises as alleged by the respondents are all irrelevant considerations as the tenant can not decide the bonafide need of the landlord. It is for the landlord to see how he will adjust and do his proposed business from the tenanted premises when the respondents themselves are fulfilling their commercial need from the tenanted premises despite similar issues. It is the petitioner himself/ herself, who is the best person to explain as to what is his/ her bona- fide necessity and the tenant cannot dictate him what to do.
29. In Sudesh Kumari Soni v. Prabha Khanna, 2008 SCC OnLine Del 1128, inter alia, it held as under:-
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"25. It is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself.
26. Suitability has to be seen from the convenience of the landlord and his family members and on the basis of the circumstances including their profession, vocation, style of living, habits and background. Landlord is the best judge of his residential requirement. In view of well settled law, I hold that accommodation available with the petitioner is insufficient as against total family members. Hence the petitioner has made out a case under Section 14(1)(e) of Delhi Rent Control Act and is entitled for relief claimed."
30. Similarly, in Sait Nagjee Purushotham & Co. Ltd. v. Vimalabai Prabhulal, (2005) 8SCC 252, the Hon'ble Supreme Court has held as under:
"4. It is not the tenant who can dictate the terms to the landlord and advise him what he should do and what he should not. It is always the privilege of (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 23.12.2023 Page no.25 of 31 RC ARC 354/22 Sh. Ravi Kumar Jain Vs Brij Mohan & Ors.
the landlord to choose the nature of the business and the place of business."
31. It is next averred on behalf of the petitioner that both the wife and daughter of the petitioner are not only educated but are enterprising also and intend to start their own business of sanitary wares. It is not disputed by the respondent that Chawri Bazar market is well known for hardware and sanitary products. Even if the wife and daughter of petitioner have no experience of the trick, it is still not open to the respondents to dictate what his family members should do if the petitioner is willing to set up business of sanitary and aluminum products for his wife and daughter from the shop under the tenancy of the said tenants. Even if it is assumed that the wife of the petitioner is housewife and the daughter to be employed gainfully still, the landlord can intend to start a new business for them and it is not necessary that the daughter should leave her present employment. Hence, the argument that there is no need of the tenanted premises for the wife and daughter of the petitioner is also devoid of any merit. It is further contended on behalf of the respondent that the Petitioner has not duly explained as to how he would use the four shops in question. This contention is also meritless as the petitioner has detailed how he proposes to set up his law office in detail in his pleadings. Further, it was not necessary for the Petitioner to specify to which shop he would use and for what purpose. Reliance in this regard can be placed on case law titled as Balwant Singh alias Bant Singh and Anr. V. Sudarshan Kumar and Anr., 2021 SCC Online SC 114, it has been held as under:-
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"11. On the above aspect, it is not for the tenant to dictate how much space is adequate for the proposed business venture or to suggest that the available space with the landlord will be adequate...."
32. Thus, the petitioner has immediate and urgent bonafide requirement for the shop in question to fulfill the need for himself and his son for an advocate's office and for business needs of his wife and daughter. Hence, no triable issues arise regarding the bonafide need of the petitioner and his family.
AVAILABILITY OF ALTERNATE ACCOMMODATION
33. It is averred by the petitioner that neither the petitioner nor his family members have any other suitable commercial accommodation available with them in Delhi or elsewhere.
34. It is not disputed that the Ground floor shops are with the tenants and that on the mezzanine and first floor, UCO Bank is operating. Admittedly, there is no structure on the second floor. The tenant cannot dictate the petitioner to operate his office or run business from the bare roof on the second floor or from any other portion of the property which as per the petitioner is not suitable. The ground floor is most suitable for their advocate office and in any case is the most suitable for the business to be run by his wife and daughter which business cannot be run from the upper floors.
35. It was argued on behalf of the respondents that the first floor wherefrom UCO bank is operating can be made available to petitioner in June 2023 and would be most suitable to run office being a single unit on the first floor. It is further argued that the lease of the tenancy of the bank is going to expire in the month of April 2024 and (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 23.12.2023 Page no.27 of 31 RC ARC 354/22 Sh. Ravi Kumar Jain Vs Brij Mohan & Ors.
then the petitioner would have a large space available for him and his family members.
36. On the contrary, it is stated by the petitioner in the reply that letting to UCO Bank was an old tenancy with renewal clause. The other co-owner wanted the tenancy to continue as they are dependent upon the rental income and therefore petitioner had no choice. To my mind, the said premises even if available ,can not be termed as suitable as firstly the petitioner is not absolute owner thereof and secondly, the premises at ground floor are always more suitable for commercial purposes.
37. Further, the tenant cannot dictate the petitioner to operate his office or run business from the mezzanine floor. The Hon'ble High Court of Delhi in Anita Jain Vs. Praveen Kumar Jain 2023/DHC/000068 held as under (relevant paras 12-15):
"12. Even otherwise, it is not for the petitioner/tenant to insist that the respondent/landlord must seek to occupy/ carry out business from the adjacent shop in preference over the tenanted premises. The law is well settled that it is not for the tenant to dictate terms to the landlord as to how he can adjust himself without getting possession of the tenanted premises.
38. It was next contended on behalf of the respondents that the petitioner wants to sell/let out the tenanted premises. Here it would be relevant to state that the said apprehension is already taken care of in the DRC Act itself by our legislative forefathers while enacting the laws who have already considered possibility of misuse in the hands (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 23.12.2023 Page no.28 of 31 RC ARC 354/22 Sh. Ravi Kumar Jain Vs Brij Mohan & Ors.
of unscrupulous landlords and thereby inserted Section 19 of DRC Act which reads as follows:-
"Where a 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, relet 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."
39. Hence, 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 under section 19 of the DRC Act.
40. It is next averred that the petitioner has wrongly submitted that the basement is not authorized to be used for opening a law office as clear from the various photographs. This contention is also unsustainable as even if the law office can be started from basement, the landlord is not willing to utilise the same as it will affect the privacy of the petitioner as admittedly the petitioner along with his family is residing in the ground floor of the said property at G.K. Hence, the said apprehension is totally justified and raises no triable issue as the basement is not suitable for the needs of the petitioner.
41. Further, it was next urged on behalf of respondents that the petitioner has failed to disclose where his family shifted after vacating the property at Bazar Guliyan, Jama Masjid and his (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 23.12.2023 Page no.29 of 31 RC ARC 354/22 Sh. Ravi Kumar Jain Vs Brij Mohan & Ors.
residential address as described in the sale deed as 1223, Mahavir Bhavan, Chahrahat, Jama Masjid but he failed to disclose the present status of the said premises. To my mind, the petitioner has clearly mentioned in the eviction petition that he has no other property. Hence, it was for the tenant to place on record if the landlord has the said property presently but there is nothing on record to substantiate the same.
42. It has been next argued that the petitioner is having various other properties in his name and that of his wife but there is nothing on record to prove the same. Mere vague pleas has been raised by the respondents in this regard as no documents have been placed on record to substantiate the same.
43. Hence, the contention of the respondents that the petitioner has concealed material facts and properties and has not come to the court with clean hands totally fails as the same. Hence, in these circumstances, the need of the petitioner not only seems to be genuine but greater than the respondents. It is also now well settled that the leave to defend is not to be granted to the tenant on the basis of bald affidavit and bald averments and assertions. Only those averments in the affidavit are to be considered by the Rent Controller which have some substance in it and are supported by some material. The respondents have not placed anything substantial on record to contradict the submissions put forth by the petitioner or to support the submissions put forth by the respondents.
44. In view of above discussion and the documents filed by the parties, this court is of the considered view that there is no triable issue between the parties which entitles the respondents for leave to (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 23.12.2023 Page no.30 of 31 RC ARC 354/22 Sh. Ravi Kumar Jain Vs Brij Mohan & Ors.
contest the present application for eviction. The application for leave to contest is without merit and the same is dismissed.
45. In view of the provisions of sub-section (7) of section 14 of Act 59 of 1958, this order for recovery of possession of premises shall not be executed before the expiration of a period of six months from the date of this order.
46. Hence, the present petition for eviction is allowed. Petitioner is held entitled for recovery of the tenanted premises consisting of one shop bearing no.3602 A ,Chawri Bazar, Delhi- 110006 as shown in red colour in site plan(s) annexed with the petition. However, the petitioner would not be entitled to initiate execution proceedings for recovery of the possession of the tenanted premises before expiration of six months from today in view of provisions given in Section 14 (7) of the Act.
47. In the facts and circumstances of the case there shall be no order as to costs.
48. File be consigned to record room.
Digitally signed by NEETUAnnounced in the open Court NEETU NAGAR
on 23rd December, 2023 NAGAR Date:
2023.12.23
18:14:02 +0530
(This judgment contains 31 pages)
(Neetu Nagar)
JSCC-ASCJ-GJ/South East
Saket Courts: New Delhi
(the then ARC-02, Central District,
Tis Hazari Courts, Delhi).
(NEETU NAGAR)
JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 23.12.2023 Page no.31 of 31