Delhi District Court
Hazari Courts vs Smt. Krishna Manchanda on 13 March, 2013
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IN THE COURT OF SATISH KUMAR ARORA, ARC-1 (CENTRAL) TIS
HAZARI COURTS, DELHI.
E-108/12
13.03.2013
Smt. Sunit Mohan
w/o Sh. Mohan Kumar Vasudeva,
R/o 5/3, Old Rajinder Nagar,
New Delhi-110060. ...Petitioner
VERSUS
Smt. Krishna Manchanda
w/o Late Sh. Sat Pal Manchanda
26/9, First Floor, Old Rajinder Nagar,
New Delhi-110060. ...Respondent
Petition u/s 14 (1) (e) r/w section 25-B of Delhi Rent Control Act
1. Date of institution of the case : 26.11.2011
2. Date of Judgment reserved : 06.03.2013
3. Date of Judgment pronounced : 13.03.2013
JUDGMENT
By this order, I shall dispose of the application u/s 25-B (4) of DRC Act filed by the respondent seeking leave to defend and contest the eviction petition filed by the petitioner u/s 14 (1) (e) r/w section 25-B of DRC Act.
2. Briefly stated, the facts as narrated by the petitioner in the eviction petition are that she is the sole and exclusive owner of the property bearing no. 26/9, Old Rajinder Nagar, New Delhi-110060 and the respondent is a tenant on the first floor of the said property which is comprising of one drawing cum dining room, two bedrooms, one kitchen, one lobby and one bathroom cum WC and front and side balcony, hereinafter called the suit premises and more specifically shown in red color in the site plan filed therewith. It is further E-108/12 Sunit Mohan Vs. Krishna Manchanda Page 1 of 12 //2// stated that the suit premises was let out to the respondent for residential purposes by the predecessor in interest of the petitioner at a monthly rent which is presently Rs. 440/- excluding electricity, water and house tax charges. It is further stated that besides the suit premises, the property is comprising of ground and the terrace floor which is in the possession of the petitioner and the ground floor whereof is being used by the husband of the petitioner for carrying on his real estate consultancy business. It is further stated that the entire property including the suit premises is situated on a road known as Bazar Lane which has been declared as a commercial street under the Master Plan, 2021 and thus, the suit premises can be used for commercial purposes. It is further stated that the petitioner has one married son namely Dhruv Mohan who is a practicing advocate in Delhi and requires the suit premises for setting up his business/office as other lawyers are also running their offices from different places in old Rajinder Nagar. It is further stated that neither the petitioner or her husband nor the son of the petitioner or his wife are owning any property which can be used for commercial purposes, that is, setting up lawyers office for the son of the petitioner. It is further stated that, thus, the need of the petitioner in requiring the suit premises for setting up the lawyers office for her son is a bona fide and genuine need. It is on the basis of these facts that a prayer is made for passing of an eviction order in respect of the suit premises in favour of the petitioner and against the respondent.
3. Upon being served with the notice of the petition, the respondent entered her appearance by filing leave to defend application u/s 25 -B (4) r/w section 14 (1) (e) of DRC Act supported with her affidavit. In the affidavit supporting the application, the respondent/tenant had challenged the bonafide E-108/12 Sunit Mohan Vs. Krishna Manchanda Page 2 of 12 //3// requirement of the petitioner on the following grounds :-
(i) That the petitioner is not the owner of the suit premises as she has failed to place on record any title document in her favour evidencing the factum of her being the owner of the suit premises. Further, that the petitioner and her husband had earlier instituted a Civil Suit for injunction bearing suit no. 673/07 titled as 'Sh. Mohan Vasudeva & Anr. Vs. Smt. Krishna Manchanda & Ors.' before the Ld. Civil Judge, Delhi which is presently pending adjudication before the Ld. Court of Sh. Ravinder Kumar Pandey, Ld. Civil Judge, Delhi and in the said suit, the petitioner had asserted her rights as owner of the suit property by virtue of sale deed dated 17.03.94 and 29.05.2000 respectively executed in her favour by the owners namely Sh.
Mohinder Singh and Smt. Prakash Kaur. That, a bare perusal of the said sale deeds demonstrate that by virtue thereof, only the proprietary rights with respect to the portion on the ground floor of the property bearing no. 26/9, Old Rajinder Nagar, Delhi have been transferred in favour of the petitioner and that the entire first floor or the terrace above it have never been sold by the owners of the property to the petitioner. That further, the petitioner is not the owner of the suit premises is also evident from the letter of mutation issued by the Govt. of India, Ministry of Urban Development, Land & Development Office, Nirman Bhawan, Delhi which is jointly in the name of Mohinder Singh, Prakash Kaur and the petitioner with respect to the entire property. Further, that Sh. Mohinder Singh Saluja had also lodged a complaint against the petitioner, her husband and their associates on or about September, 2007 which culminated into an FIR with respect to the forgery committed by the petitioner and her husband in respect of property bearing no. 26/9, Old Rajinder Nagar, New Delhi which includes the suit premises.
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(ii) That the eviction petition of the petitioner is also barred under the provisions of section 14 (6) of DRC Act.
(iii) That to the best of the knowledge and belief of the respondent, there are lot of properties either in the name of the petitioner or her husband which have been purchased by the husband of the petitioner being an estate agent and the details of the same are as under :-
(a) Property bearing no. 25/23, Ground Floor and First Floor, Old Rajinder Nagar, New Delhi.
(b) Flat No. R-896, New Rajinder Nagar, New Delhi.
(c) Property No. 5/3, Old Rajinder Nagar, New Delhi comprising of
five floors, out of which the ground floor and first floor are in use and occupation of the petitioner and her family while the remaining three floors are being used as PF Hostel.
(d) Property bearing no. J-1046, Palam Vihar, Gurgaon, Haryana.
(iv) That the claim of the petitioner for the use of the first floor/suit premises for commercial purposes on the basis of Master Plan 2021 is ill founded as the legality and validity of MPD 2021 is sub judice before the Hon'ble Supreme Court of India.
(v) That the son of the petitioner is using a portion on the ground floor for his office having a separate room which is being used as his office and chamber. Further, that the son of the petitioner had also put up his signboard on the ground floor of the said property thereby highlighting the fact he already has an office space in the said property where he is meeting his clients and is also engaged in his legal consultancy business.
4. The petitioner by filing her reply in the form of her affidavit denied all the grounds taken up by the respondent as sham and baseless and not raising E-108/12 Sunit Mohan Vs. Krishna Manchanda Page 4 of 12 //5// any triable issue. It was stated that the filing of the DR applications u/s 27 of DRC Act by the respondent wherein petitioner has been shown as one of the respondents evidents that the petitioner herein is admitted by the respondent herself to be the owner of the suit premises. Further, it was the respondent herein who herself in the DR application filed the mutation letter so as to assert that the petitioner is a landlord and is not accepting the rent. However, the dispute between the previous owners Sh. Mohinder Singh and Smt. Prakash Kaur on the one side and the petitioner and her husband on the other side was not denied, but it was stated that it is not concerning the suit premises and in fact the earlier owners have not disputed the ownership of the petitioner and as such it does not lie with the respondent to challenge the ownership of the petitioner regarding the suit premises. Insofar as the other properties as detailed by the respondent in her application, it was stated that all the said properties are residential properties and of which 5/3, Old Rajinder Nagar which is 85.9 sq. yard is the dwelling house of the petitioner of which the four floors are in occupation of the petitioner and her family. Even the son of the petitioner is also residing therein. It was also denied that the son of the petitioner is using a portion of the ground floor as a lawyer's office for carrying on his profession.
5. Respondent filed the rejoinder wherein the averments made in the application for leave to defend were reiterated and reaffirmed and those made in the reply were denied.
6. Ld. Counsel for the petitioner and Ld. Counsel for the respondent were heard and the record including the written submissions was carefully perused.
7. At the outset, it may be taken note of that the Ld. Counsel for the respondent in his arguments, written as well as oral, only stressed upon the E-108/12 Sunit Mohan Vs. Krishna Manchanda Page 5 of 12 //6// issue concerning the ownership of the petitioner regarding the suit premises and did not touch upon or argued with respect to the other grounds taken up in the application.
8. In order to succeed in her eviction petition, the petitioner has to prove/establish - (i) ownership of the suit premises; (ii) purpose of letting; (iii) alternative accommodation and (iv) bonafide requirement. 8 (i) (ii) Ownership of the suit premises & Purpose of letting As already noted, the respondent has made an effort to challenge the bona fide requirement of the petitioner primarily on the ground that she is not the owner of the suit premises. It was submitted by the Ld. Counsel for the respondent that at the time of filing the present petition, the petitioner filed the documents which are the copy of notice u/s 106 of Transfer of Property Act dated 20.07.2011 and 06.09.2011, the copy of DR application dated 16.07.2010, the copy of master plan, the copy of Bar Council of Delhi Enrollment Certificate and copy of Trader Association Registration. It was submitted that none of these documents even prima facie establish that the petitioner is the owner of the suit premises. It was further submitted that it was the respondent, who in order to establish her contention that the petitioner is not the owner of the suit premises, filed on record copy of the sale deeds dated 17.03.1994 and 29.05.2000 executed by Mohinder Singh and Smt. Prakash Kaur in favour of the petitioner and the said sale deeds substantiated the plea of the respondent that the petitioner is not the owner of the suit premises as both the sale deeds are with respect to the ground floor of property bearing no. 26/9, Old Rajinder Nagar, New Delhi which in any case is not including the suit premises which is admittedly on the first floor of the said property. It was further submitted that even as per the copy of the letter of E-108/12 Sunit Mohan Vs. Krishna Manchanda Page 6 of 12 //7// mutation dated 16.04.2003 issued by the Ministry of Urban Development, L&D office, which is not disputed by the petitioner, it is again evident that the petitioner is not the owner of the suit premises. It was further submitted that merely because respondent herein has filed a DR application u/s 27 of DRC Act inter alia against the petitioner cannot in itself be said to be a proof of ownership of the petitioner over the suit premises. Further, even in the said application, Mohinder Singh and Prakash Kaur were also joined as the respondents alongwith the petitioner herein. It was further submitted that as per the settlement agreement dated 23.03.2012 subsequently filed on record by the petitioner to again assert her ownership over the suit property, it is evident that the petitioner and her husband are now sought to be declared as the owners of the entire property including the suit premises and, thus, the present petition is barred u/s 14 (6) of DRC Act. The sanctity of the said agreement is nonetheless challenged by the respondent. In support of his contention, Ld. Counsel for the respondent relied upon the judgment of Hon'ble Supreme Court in Liaq Ahmed and Ors. Vs. Habeeb-Ur-Rehman, IV (2000) SLT 148 wherein it was held that "from the scheme of the Act, it is evident that if the tenant discloses the grounds and pleads a cause which prima facie is not baseless, unreal and unfounded, the Controller is obliged to grant him leave to defend his case against the eviction sought by the landlord. The inquiry envisaged for the purpose is a summary inquiry to prima facie find out the existence of reasonable grounds in favour of the tenant. If the tenant brings to the notice of the Controller, such facts as would disentitle the landlord from obtaining an order for recovery of possession, the Controller shall give him leave to contest. The law envisages the disclosure of the facts and not the proof of the facts". Ld. Counsel for the respondent further relied E-108/12 Sunit Mohan Vs. Krishna Manchanda Page 7 of 12 //8// upon the judgment of Hon'ble High Court of Delhi in Aggarwal Papers Vs. Mukesh Kumar (deceased) through LRs, 194 (2012) DLT 605 wherein it was held that "it is settled that at the stage of granting leave to defend, the test that is applied is whether in the facts disclosed in the affidavit, filed seeking leave to defend, prima facie shows that the landlord would be disentitled to obtain an eviction order and not, where at the end, the defence taken by the tenant may fail. If the application filed u/s 25-B disclosed some substantial triable issues, then it would be grave Injustice to brush them out rightly, without testing the veracity of the claims made by the tenant/applicant. It was further observed that the law in this regard is well settled in various pronouncements and reference can also be made to Inderjeet Kaur Vs. Nirpal Singh, VII (2001) SLT 602 wherein it was held that a landlord who bona fidely requires a premises for his residence and occupation should not suffer for long waiting for eviction of a tenant. At the same time, a tenant cannot be thrown out from a premises summarily even though prima facie he is able to say that the claim of the landlord is not bona fide or untenable and as such not entitled to obtain an order of eviction. Hence the approach has to be cautious and judicious in granting or refusing leave to defend to a tenant to contest an eviction petition within the broad scheme of chapter III A and in particular having regard to the clear terms and language of section 25-B (5)"
It was thus submitted by the Ld. Counsel for the respondent that the respondent had sufficiently raised a triable issue by bringing on record the apparent discrepancy regarding the ownership of the petitioner over the suit property and on that ground alone, the leave to defend application of the respondent needs to be allowed.
Per Contra, Ld. Counsel for the petitioner while negativing the E-108/12 Sunit Mohan Vs. Krishna Manchanda Page 8 of 12 //9// contentions of the Ld. Counsel for the respondent submitted that the respondent by her own admissions and documents placed on record had admitted the ownership of the petitioner over the suit property. It was submitted that the respondent had herself admitted the petitioner as a joint owner along with Mohinder Singh and Smt. Prakash Kaur in her two DR petitions u/s 27 of DRC Act. It was further submitted that despite their being a dispute between the petitioner and Mohinder Singh Saluja and Smt. Prakash Kaur, the same stood settled in the Hon'ble High Court of Delhi Mediation Centre vide settlement agreement dated 23.03.2012. It was further submitted that u/s 14 (1) (e) of DRC Act, the ownership required to be determined vis a vis the tenant means that the owner should be something more than the tenant. Reliance was placed upon judgment of Hon'ble Supreme Court in Mrs. Meenakshi Vs. Ramesh Khanna etc., 1995 RLR 322 wherein it was held that a mere denial of ownership is no denial. Reliance was also placed upon the judgment cited as Rakesh Sood Vs. Arun Kumar Gupta, Manu/DE/1221/2012 wherein it was observed that "the word 'owner' is not used in sec. 14 (1) proviso (e) of DRC Act in the sense of absolute owner". Reliance was also placed upon the judgment of Hon'ble High Court of Delhi in Rajender Kumar Sharma & Ors. Vs. Smt. Leelawati & Ors., 155 (2008) DLT 383 wherein it was observed that "it is a settled law that for the purpose of section 14 (1) (e) of DRC Act, landlord is not supposed to prove absolute ownership as required under Transfer of Property Act. He is required to show only that he is more than a tenant".
Having heard the respective submissions and having gone through the judgments cited in support of the contentions, I am of the considered view that the petitioner has sufficiently shown herself to be the owner of the suit E-108/12 Sunit Mohan Vs. Krishna Manchanda Page 9 of 12 //10// premises insofar as the question of landlord-tenant relationship between the petitioner and the respondent is concerned. Notwithstanding the fact that in the two sale deeds filed and relied upon by the respondent, the suit premises was not specifically included, still the matter concerning the ownership of the petitioner over the suit premises was put to rest not only by the respondent herself when in the deposit of rent applications, she made the petitioner herein as one of the respondents alongwith Mohinder Singh and Smt. Prakash Kaur, but also by the settlement agreement dated 23.03.2012 between the previous owner and the petitioner herein which also substantiated the claim of the petitioner as the owner of the suit premises insofar as the petition u/s 14 (1) (e) of DRC Act is concerned. As rightly submitted by the Ld. Counsel for the petitioner by relying upon the judgment of our own High Court in Rajender Kumar Sharma's case (supra) that it is not the absolute ownership which is required to be established by the landlord for the purposes of section 14 (1) (e) of DRC Act, what is required is that he/she is more than a tenant. As is to be seen from the documents placed on record and relied upon by the parties, the petitioner has prima facie established that insofar as her rights over the suit premises are concerned, they are definitely more than that of the respondent/tenant. Thus, it is held that insofar as the issue of ownership is concerned, the respondent has failed to raise any triable issue. So far the purpose of letting is concerned, after the judgment of Hon'ble Apex Court in Satyawati Sharma Vs. Union Of India III (2008) SLT 553, an eviction petition is maintainable on the ground of bonafide requirement even in respect of commercial property. Hence both the ingredients are decided in favour of the petitioner and against the respondent.
E-108/12 Sunit Mohan Vs. Krishna Manchanda Page 10 of 12//11// 8 (iii) (iv) Alternative accommodation & Bona fide requirement Insofar as the alternative accommodation and bona fide requirement of the petitioner for the use of the suit premises as a lawyers office for her son is concerned, it has already been noted that the thrust of the submissions of the Ld. Counsel for the respondent was only with respect to the ownership of the petitioner and nothing else. Moreover, the petitioner in her reply to the application of the respondent sufficiently explained that the properties as mentioned by the respondent in her application as belonging to the petitioner, are all properties of residential nature and the said fact was not controverted by the respondent by filing on record any documentary proof. Insofar as the plea of the respondent that the son of the petitioner is already carrying on his business/profession from a portion on the ground floor of property bearing no. 26/9, Old Rajinder Nagar, New Delhi, the same is a vague assertion as no document either in the form of photograph or anything else was placed on record by the respondent to substantiate the same. It was held in Rajender Kumar Sharma & Ors. Vs Leela Wati & Ors (supra) that mere assertions made by the tenant in respect of landlord's ownership of other buildings and in respect of alternate accommodation are not to be considered sufficient for grant of leave to defend. Only those averments in affidavit are to be considered by Rent Controller which have some substance in them and are supported by some material.
Further, it is well settled legal principle that leave to defend is granted to the tenant in case of any triable issue raised which can be adjudicated by consideration of additional evidence. The whole purpose and import of summary procedure u/s 25-B of DRC Act would otherwise be frustrated. In Precision Steel & Engineering Works & Anr. Vs. Prem Devi Niranjan Deva E-108/12 Sunit Mohan Vs. Krishna Manchanda Page 11 of 12 //12// Tayal, (1982) 3 SCC, 2870, it was held by the Hon'ble Apex Court that "the prayer for leave to contest should be granted to the tenant only where a prima facie case has been disclosed by him. In the absence of the tenant having disclosed a prima facie case that is such facts as to what disentitles the landlord from obtaining an order of eviction, the court should not mechanically and in routine manner grant leave to defend".
9. In view of the aforesaid, it is held that whereas the respondent has failed to raise any triable issue that would merit grant of leave to defend the eviction petition, the petitioner/landlord on the other hand successfully establishes the bona fide requirement regarding the need of her son to open his office (lawyers office) in the suit premises.
10. 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 25-B of DRC Act in favour of the petitioner and against the respondent in respect of suit premises which is more specifically shown in red color in the site plan filed by the petitioner. However, it is made clear that the petitioner shall not be entitled to get the eviction order executed before expiry of six months running from today. No order as to costs.
File be consigned to Record Room.
(Announced in the open court
on 13.03.13) (Satish Kumar Arora)
ARC-1/Central/THC/Delhi
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