Delhi District Court
Wife Of Late Sh. S. N. Mehra vs Sh. Jagjit Singh Bhatia on 23 May, 2015
1
In the Court of Ms. Namrita Aggarwal
CCJ Cum Additional Rent Controller1 (Central)
Tis Hazari Courts, Delhi.
Case No. E 342/13
Unique I.D. No. 02401C0204202013
In the matter of :
Smt. Roop Rani Mehra (Sr. Citizen)
Wife of late Sh. S. N. Mehra,
R/o 813/817, Main Katra Neel,
Chandni Chowk, Delhi110006. ...........Petitioner
Versus
Sh. Jagjit Singh Bhatia
Son of late Sh. Amar Singh Bhatia,
R/o C789, First Floor, New Friends Colony,
New Delhi110065. ....... Respondent
ORDER
23.05.2015
1. Vide this order, I shall dispose off the application moved by respondent for grant of leave to defend the eviction petition filed by the petitioner u/s 14(1)(e) Delhi Rent Control Act, 1958 [in short, 'the Act']. Page 1 of 30 E. No. 342/13 2
2. An eviction petition has been filed by the petitioner Smt. Roop Rani Mehra against the respondent Sh. Jagjit Singh Bhatia for vacation of the tenanted premises, i.e., one shop measuring 8' x 18' bearing property No. 820, Katra Neel Chandni Chowk, Delhi110006, as shown in colour red in the site plan annexed alongwith the petition on the ground of bonafide requirement under Section 14 (1) (e) of the DRC Act.
3. The case of the petitioner is that the petitioner is the owner and landlord of the demised premises. Earlier the petitioner and her husband were the coowners of the property. Unfortunately, the husband of the petitioner had left for his heavenly abode on 13.04.2010 and after his death all the children of the petitioner had executed a relinquishment deed dated 12.05.2011 in favour of the petitioner in respect of aforesaid property and thus the petitioner become the absolute owner of the aforesaid property. That in the lifetime of the husband of the petitioner, the husband of the petitioner used to act as Karta of HUF M/s. Roop Rani Mehra Bal Kishan Dass and that after the death of the husband of the petitioner, the HUF has been abandoned and all the sons and daughters of the petitioner have executed relinquishment deed in favour of the petitioner in respect of the interest which they had acquired on account of the share of Sh. S. N. Mehra in the property in question. The demised premises was let out to Page 2 of 30 E. No. 342/13 3 the respondent vide rent note dated 01.04.1982 executed between Sh. Amar Singh Bhatia and the husband of the petitioner as Karta of HUF of petitioner family. That Sh. Amar Singh Bhatia expired leaving behind his children and the respondent is one of the LRs of deceased tenant. The respondent is in occupation of the demised premises and therefore he has been made a party in the present case.
4. Bonafide Requirement:
(i) That the petitioner requires the premises in dispute for her bonafide need and to satisfy the need of accommodation for the members of her family who are dependent upon her for the purpose of accommodation.
The dependent family members of the petitioner are as under:
(a) The petitioner herself. (b) The eldest son of the petitioner Sh. Satish Mehra who is aged 64
years and is doing the small scale business of Ayurvedic medicine from rented shop No. 226E, Tisra Pushta, Transformer Wali Gali, Jagjit Nagar, TransJamuna, Delhi. That Sh. Satish Mehra has one married son namely Sh. Amit Mehra aged about 34 years and one unmarried daughter Ms. Nidhi Mehra aged about 31 years.
(c) The second son of the petitioner, Sh. Anil Mehra aged 59 years is currently employed with Union Bank and he is due to retire in around 6 months. The said son has two sons, i.e., grandsons of the petitioner Page 3 of 30 E. No. 342/13 4 namely Sh. Vineet Mehra aged 33 years who is married and dealing in share and stock from basement shop bearing No. 501, Katra Neel, Chandni Chowk, Delhi which belonged to the husband of the petitioner. The second grandson namely Sh. Sumit Mehra is aged 29 years and is presently unemployed after completing his MBA (finance) from MIT, Gaziabad.
(d) The third son of the petitioner, Sh. Sunil Mehra aged 51 years is doing business of cloth from window counter in the side wall of shop bearing No. 817, Katra Neel, Chandni Chowk, Delhi. He has two sons namely Rahul Mehra aged 26 years who is running cloth business from shop bearing No. 817/8, Katra Neel, Chandni Chowk, Delhi which is also a window shop in Katra Neel, Chandni Chowk, Delhi and his second son is Sh. Sharad Mehra aged 25 years is awaiting completion of supplementary examination of his graduation.
(e) The petitioner has also one daughter namely Smt. Savita Seth. The son in law of the petitioner is doing the business of medicine from rented shop wherein he has no permanent right of use and occupation. The said daughter of the petitioner has two sons, one is Nimit Seth employed with HCL and other is a student.
(ii) That the petitioner wants her sons and grandsons to get settled in their respective business and thus, she decided to provide accommodation Page 4 of 30 E. No. 342/13 5 to her sons, daughter and grand children in the property owned by her as under:
(a) At least one shop is required for his son and grandson Sh. Anil Mehra and Sh. Sumit Mehra respectively since both the son and grandson have decided to start their consultancy business in finance, investment, securities etc., after retirement of Sh. Anil Mehra from the Union Bank.
(b) One shop for her grandson Sh.Amit Mehra son of Sh. Satish Mehra since there is no independent place available with Sh. Amit Mehra to start his independent business. Sh. Satish Mehra himself is carrying on business of ayurvedic medicine from a rented accommodation.
(c) One shop for grandson Sh. Sharad Mehra who is awaiting result of supplementary examination of final year of graduation and wants to start his business as he has no other avocation or business at present and one shop with adequate storage space for her son Sh.Sunil Mehra who is presently doing his business from window shop alongwith his son from the side wall of shop No. 817, Katra Neel, Chandni Chowk, Delhi110006.
The said window counter is in the passage and is not convenient for the said son of the petitioner.
(d) Sh. Amit Mehra son of Sh. Satish Mehra wants to start his independent business of fabric and cloth from the shop No. 812, Katra Neel, Chandni Chowk, Delhi for which the petitioner has already filed an Page 5 of 30 E. No. 342/13 6 eviction petition.
(e) The petitioner has also filed an eviction petition against the tenant Sh. Vijay Kumar Aggarwal where she has to accommodate her grandson Sh. Rahul Mehra son of Sh. Sunil Mehra who wants to start the business of ladies suit under the name and style of M/s. Shreejee Textile.
(f) Now the petitioner wants to settle her son namely Sh. Sunil Mehra, Sh. Anil Mehra, grandson Sh. Sumit Mehra and Sh. Sharad Mehra. That the petitioner wants to tenanted premises for setting her son Sh. Anil Kumar and grandson Sumit Mehra to start their own consultancy business in finance, investment, securities etc. for which they need space to set up office as Sh. Anil Kumar is due to retire from his job with Union Bank in another 6 months and the grandson of the petitioner is unemployed after completing his MBA (finance) from MIT, Gaziabad. That the petitioner does not have any other shop or commercial space to accommodate her sons and grandsons and satisfy their need for commercial accommodation. The portion of the first floor is a residence of the petitioner and her sons. The said portion cannot be used for commercial purpose and the petitioner and her sons do not want to disturb their residence which also has paucity of accommodation. That the petitioner has further two shops bearing No. 818, 819, Katra Neel, Chandni Chowk, Delhi in the name of grand daughter in law Smt. Neha to avoid uncongenial environment created by Page 6 of 30 E. No. 342/13 7 the grandson and his wife. The said two shops were also occupied by the tenants and these shops were not available to the petitioner to be used by her sons. In view of the above stated averments, prayer is made for vacation of the tenanted premises.
5. Summons were served upon the respondent who filed the leave to defend application on the following grounds:
a) That there is no relation of landlordtenant between the parties. The respondent is tenant under the firm M/s Roop Rani Mehra Bal Kishan Dass, a Hindu Joint Property through its Karta. The petitioner claimed that said HUF was abandoned on the death of Sh. S. N. Mehra. However, the letter dated 18.05.2011 and 17.02.2012 written by Sh. Anil Kumar and the petitioner contradicts the said version. By letter dated 18.05.2011, the petitioner informed the tenant that Sh. Anil Kumar will received the rent as Karta and vide letter dated 17.02.2012, Sh. Anil Kumar himself informed the respondent to pay the subhouse tax as Karta.
b) That the petitioner is not the owner of the suit property and no title document in her favour has been placed on record. The relinquishment deed dated 12.05.2011 does not create any right in favour of the petitioner and is not maintainable.
Page 7 of 30 E. No. 342/13 8
c) That Smt. Neha Bahal is the daughter in law of Sh. Anil Mehra and the joint family properties No. 818, 819, Katra Neel, Chandni Chowk, Delhi were illegally and malafidely transferred in the name of Smt. Nehal Bahal to show that the sale it to some outsider. Smt. Neha Bahal has already executed registered sale deed in favour of other persons with respect to premises No. 818, 819, Katra Neel, Chandni Chowk, Delhi.
d) That the property No. 501, Katra Neel, Chandni Chowk, Delhi is also owned by the petitioner and is in possession of him only.
e) That there are 8 shops on the ground floor of property bearing No. 817, out of which 4 shops are in possession of the petitioner besides the portion in the occupation of Sh. Sunil Mehra. One shop behind shop No. 812, Katra Neel and one shop behind shop No. 813, Katra Neel are in occupation of the petitioner which the petitioner has failed to disclose.
f) That there are 8 shops on the first floor of suit property out of which 4 shops are in possession of the petitioner. That the petitioner has intentionally not filed the site plan of the first floor of the suit property and that the said first floor is totally commercial.
g) That the son of the petitioner Sh. Satish Mehra is carrying on Page 8 of 30 E. No. 342/13 9 business of homeopathic medicines for the last about 25 years from E226, Jagjit Nagar, Delhi and has a flourishing business there and suit premises is situated in cloth market and it is highly improbable that the said son will leave his settled business and would start a new business from the suit premises.
h) That the petitioner got vacated a shop from one Sh. Hari Ram on the ground floor, which has been again rented out at a higher rent.
i) That the petitioner has sold part of the property to Sh. Baldev Raj Kapoor after the sale of the property to Neha Bahal, which clearly shows that the alleged need is not bonafide and malafide.
j) That Sh. Satish Mehra is residing at Vijay Block, Plot No. 1, Laxmi Nagar, Delhi and has filed a false election card at the address of the suit property.
k) That the son of the petitioner Sh. Sunil Mehra is in occupation of 5 shops and both his son namely Sh. Rahul Mehra and Sh. Sharad Mahra are working with him and they have sufficient accommodation with them and they do not require any accommodation.
l) That the present petition is not maintainable as all the LRs of late Sh. Amar Singh Bhatia have not been made a party.
Page 9 of 30 E. No. 342/13 10
6. Reply to the application for leave to defend has been filed by the petitioner wherein the petitioner has denied all the averments made by the respondent in his leave to defend application stating that after the death of husband of the petitioner, the petitioner and her children had decided to break the HUF and had transferred their share as well in favour of the petitioner by means of a registered relinquishment deed. The said relinquishment deed was executed out of love and affection of the children for their mother. The petitioner and her children and grand children are living in joint family. The said relinquishment deed was executed to keep the joint family together. It is denied by the petitioner that the letters dated 18.05.2011 and 17.02.2012 were written by the son of the petitioner on behalf of the petitioner. Even otherwise, the petitioner had informed the respondent to send the rent in her individual name which has been done by the respondent in acknowledgment of the petitioner. It is further submitted that said sale of two shops No. 818 and 819, Katra Neel, Chandni Chowk, Delhi to Neha Bahal on 16.07.2008 is valid and binding. Even otherwise, the said sale took place way back in the year 2008 in respect of the shops which were in the occupation of the tenants and the vacant possession of these shops was not available to the petitioner. It is also pertinent to mention here that the sale deed of these shops was executed by the petitioner and her husband as coowners of the property and not as HUF Page 10 of 30 E. No. 342/13 11 property. It is also stated that the alleged HUF was created to give authority to one of the family members to deal with the tenants and HUF was never registered with the Income Tax department and that the said HUF had no legal status meaning thereby that the petitioner and her husband were the coowners of the same. Shops bearing No. 818 and 819 were transferred in the name of the grand daughter in law of the petitioner under compelling family circumstances to avoid conflict and disharmony which was brewing up due to the temperamental differences of the petitioner and her family on the one hand and the grandson and his wife, Ms. Neha on the other hand. Since the petitioner had already transferred two tenanted shops on the ground floor, the petitioner has inquired from Ms. Neha and on inquiry, the petitioner came to know that the tenants did not vacate the said two shops and the grandson and granddaughter in law of the petitioner transferred the said two shops in the name of the occupants / tenants. It is further stated by the petitioner that shop No. 501, Katra Neel is already in occupation of Sh. Vinit Mehra. The petitioner has denied that there are 8 shops in the property No. 817 stating that the shop No. 817 is divided into 5 shops and two almirahs with the depth of around 1 ½ feet which are not regular shops. One of the shop is a toilet turned store with 2.5'x4' of size which is used for storing cloth by Sh. Sunil Mehra son of the petitioner. Out of 5 shops, 4 shops are in occupation of Page 11 of 30 E. No. 342/13 12 tenants, i.e., Savita Kapoor Family Trust, Sukhbir Singh and Co., Om Prakash Varinder Kumar and Anil Kapoor and Sahil Kapoor. That the shop No. 817/8 was got vacated from the tenant Vijay Kumar and the petitioner has accommodated her grandson Sh. Rahul Mehra in the said shop. The shops no. 817/2 and 817/3 are the two window / almirah shop and the same are in occupation of Sh. Sunil Mehra and the last Shop No. 817/4 is toilet turned store which is being used as store room by Sh. Sunil Mehra. It is further stated by the petitioner that the entire first floor over the shops under the ownership of the petitioner are being used as residence by the petitioner and her family members. The access to the first floor in the occupation of the petitioner is from the rear side of the property. It is denied that Sh. Anil Mehra son of the petitioner and his family have sufficient accommodation available to him. It is admitted that with respect to property No. 818 and 819, Katra Neel it has been informed that Ms. Neha Bahal had sold these shops to the tenants who were in occupation of these two shops on the ground that the tenants had refused to vacate the said shops. The petitioner has denied that her grandson Sh. Sumit Mehra is also carrying on the profession of subbroker of share and stocks with Sh. Vinit Mehra and Ms. Neha Bahal. The petitioner also stated that alleged shop behind shop No. 812 is a wooden Khokha with tin roof and is in the occupation of tenant. The said wooden Khokha is not a Page 12 of 30 E. No. 342/13 13 shop nor suitable for occupation by the petitioner or her sons to run their business or trade. The said Khokha (wooden cabin) was kept as guard's cabin but later on the same was used as tea stall by the tenant. It is a misnomer to call this Khokha as shop. It is further denied by the petitioner that any shop has been vacated by the tenant Sh. Hari Ram.
7. Rejoinder has been filed wherein the respondent has reaverred what was averred by him in his leave to defend application denying all the submissions made by the petitioner in reply to the leave to defend application.
8. I have heard the arguments and gone through the documents.
9. Proviso (e) to Section 14(1) is a special provision which has been enacted by the legislature for the class of landlords who require the premises genuinely and their requirement is bonafide and they do not have any suitable accommodation. The essential ingredients for attracting the proviso (e) of the Section 14(1) are :
a) The said premises are bonafide required by the landlord either for himself or for his family member.
b) The landlord or the family member has no other Page 13 of 30 E. No. 342/13 14 reasonable suitable accommodation.
These twin thresholds are to be satisfied conjunctively in order to attract the provisions of Section 14(1)(e) and the absence of even one of the said ingredients clearly makes the said provision inapplicable.
10. The satisfaction of the two requirements of bonafide need and no reasonably suitable accommodation has been time and again emphasized by the Supreme Court of India in several cases and more recently in the case Deena Nath Vs. Pooran Lal, (2001) 5 SCC 705 wherein the Supreme Court observed thus:
"The Legislature in enacting the provision has taken ample care to avoid any arbitrary or whimsical action of a landlord to evict his tenant. The statutory mandate is that there must be first a requirement by the landlord which means that it is not a mere whim or a fanciful desire by him; further, such requirement must be bonafide which is intended to avoid the mere whim or desire. The 'bonafide requirement' must be in presenti and must be manifested in actual need which would evidence the Court that it is not a mere Page 14 of 30 E. No. 342/13 15 fanciful or whimsical desire. The legislative intent is made further clear by making the provision that the landlord has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. This requirement lays stress that the need is pressing and there is no reasonably suitable alternative for the landlord but to get the tenant evicted from the accommodation. Similar statutory provision is made in subsection (e) of Section 12(1) of the Act in respect of accommodation let for residential purposes. Thus, the legislative mandate being clear and unambiguous, the Court is dutybound to examine not merely the requirement of the landlord as pleaded in the eviction petition but also whether any other reasonably suitable nonresidential accommodation in his occupation in the city/town is available. The judgment/order of the court/authority for eviction of a tenant which does not show that the court/authority has applied its mind to these statutory requirements cannot be sustained and the superior court will be justified in Page 15 of 30 E. No. 342/13 16 upsetting such judgment/order in appeal/second appeal/revision. Bonafide requirement, on a first look, appears to be a question of fact.
But in recording a finding on the question the court has to bear in mind that statutory mandate incorporated in Section 12(1)(f). If it is found that the court has not applied the statutory provisions to the evidence on record in its proper perspective then the finding regarding bonafide requirement would cease to be a mere finding of fact, for such erroneous finding illegally arrived at would vitiate the entire judgment."
11. Chambers 20th Century Dictionary defines bona fide to mean "in good faith and genuine i.e. without fraud or deceit". Requirement is not a mere desire. The degree of intensity contemplated by "requires" is much more higher than in mere desire. The phrase "required bonafide" is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with mere pretence or pretext to evict a Page 16 of 30 E. No. 342/13 17 tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of the landlord and its bonafides would be capable of successfully withstanding the test of objective determination by the court. In short, the concept of bonafide need or genuine requirement needs a practical approach instructed by the realities of life. It is no concern of the Courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own.
12. The meaning of "bonafide" in the context appears to be in two folds. (a) the need of the landlord must be a genuine one and not a frivolous one. (b) landlord is not motivated by extraneous considerations in trying to recover the possession from the tenant with a view to let it out again to another tenant on higher rent.
OWNERSHIP & LANDLORDTENANT RELATIONSHIP
13. It is averred by the petitioner that she is owner of the tenanted premises since all the other LRs of her husband late Sh. S. N. Mehra had Page 17 of 30 E. No. 342/13 18 relinquished their share of the suit property in her favour by way of a registered relinquishment deed dated 12.05.2011. That during the lifetime of the petitioner, the husband of the petitioner acted as Karta of HUF M/s Roop Rani Mehra Bal Kishan Dass and that after the death of husband of the petitioner the said HUF has been abandoned.
14. Per contra, it is averred by the respondent that the petitioner is neither the owner nor the landlord of the tenanted premises since the tenanted premises is under the ownership of HUF M/s Roop Rani Mehra Bal Kishan Dass through its Karta. Even letter dated 18.05.2011 and 17.02.2012 were written by Sh. Anil Mehra and the petitioner stating that Sh. Anil Mehra is Karta of the HUF and rent shall be paid to him.
15. I have heard the contentions of both the parties and also gone through the record carefully.
16. No document has been filed by either of the parties to show that M/s Roop Rani Mehra Bal Kishan Dass is still existing or that income tax return of any member of the family is being filed in the name of the said HUF M/s Roop Rani Mehra Bal Kishan Dass. Even in letter dated 18.05.2011 and 17.02.2012 which were written by Sh. Anil Mehra and the petitioner to the tenant, it has nowhere been stated that Sh. Anil Mehra is the Karta of HUF M/s Roop Rani Mehra Bal Kishan Dass and that the Page 18 of 30 E. No. 342/13 19 said HUF is still existing. Only the word "Karta" is mentioned in those letters and it is not indicative as to whether the said word Karta is the Karta of HUF or as the senior male member of the family of the petitioner. In Gulab Singh Vs. Dal Chand Lowadia & Ors. 2014 (141) DRJ 203, it has been held that "after the passing of the Hindu Succession Act, merely because a person inherited property from parental ancestral, the inherited property will not become a HUF property in the name of the person inherited the same until and unless HUF is shown to be existing on the date of death of ancestor."
In line of this judgment, it can also be said that until and unless after the death of Karta of the HUF, it has been proved that the HUF is being carried on by the other members of the family, the said HUF appears to have been abandoned. Even in Commissioner of Wealth Tax Vs. Chander Sen, AIR 1986 SC 1753, it has been held that: "declaration of income from the property as the property belonging to HUF and filing of return as the Karta of the HUF only means conscious Page 19 of 30 E. No. 342/13 20 abandonment of the individual rights in the property in question in favour of Joint Hindu Family."
In the present case, nothing has been placed on record to show that any of the member of the family of the petitioner is filing incometax return in the name of said HUF, thus, showing that the said HUF M/s Roop Rani Mehra Bal Kishan Dass has been abandoned after the death of the husband of the petitioner. Even otherwise, a express conduct of all the members of the family of the petitioner by filing a registered relinquishment deed in favour of the petitioner shows that none of the member of the family have continued with the said HUF M/s Roop Rani Mehra Bal Kishan Dass and that they have surrendered the said HUF and have also surrendered their rights in respect of the property after the death of their father in favour of their mother. Thus, after the death of husband of the petitioner, it cannot be said that the property is a HUF property and the petitioner is not the owner / landlady of the property. By way of implied surrender of HUF through registered relinquishment deed filed by the other member of the family of the petitioner in favour of the petitioner, it has been proved that the petitioner is the owner / landlady of the tenated premises. Even rent receipt were issued in the name of the petitioner only thus proving that the petitioner is the landlady / owner of the tenanted Page 20 of 30 E. No. 342/13 21 premises.
17. The respondent has further stated that the present petition is not maintainable since it has been filed against one of the LRs of deceased Sh. Amar Singh Bhatia and the other LRs have not been impleaded as a party. Per contra, it is averred by the petitioner that the present respondent is in the occupation of the tenanted premises and the other tenants have been surrendered their tenancy rights with respect to the suit premises. In Kanji Manji Vs. Trustees of Port of Bombay, AIR 1963 SC 498 it has been held that : "On the death of a tenant, the legal heirs inherits the tenancy rights as joint tenants and not as tenants in common. In joint tenancy two or more tenants take identical interests simultaneously with each other. The joint tenancy differ from tenancy in common. In joint tenancy, incidents of tenancy are the same as those enjoyed by original tenant and if one of the legal heir is not made a party, the other legal heirs who are joint tenants represents the tenancy".
Thus, the present petition filed against one of the tenant on the death of original tenant is perfectly maintainable. Even otherwise, the Page 21 of 30 E. No. 342/13 22 other joint tenants have impliedly surrendered their tenancy rights with respect to the tenanted premises. Thus the ownership as well as landlord tenant relationship between the petitioner and the respondent is established.
BONAFIDE REQUIREMENT AND ALTERNATIVE SUITABLE ACCOMMODATION
18. The petitioner has sought vacation of the tenanted premises on the ground of bonafide requirement stating that the tenanted premises is required by the petitioner for her sons and grandsons to get them settled in their respective businesses and the petitioner has decided to provide sufficient space in the property to them as per their bonafide requirement. Per contra, it is averred by the respondent that all the children and grand children of the petitioner are very well settled in more space than the requirement of the children of the petitioner for that purpose. The respondent has also averred that the petitioner has alternative suitable accommodation available with the petitioner in order to accommodate her sons and grandsons for their requirement.
(a). Property No. 501, Katra Neel, Chandni Chowk, Delhi:
It is averred by the respondent that the petitioner is already is Page 22 of 30 E. No. 342/13 23 occupation of property no. 501, Katra Neel, Chandni Chowk, Delhi. However, the petitioner has clearly stated that the said shop is used by her grandson Sh. Vinit Mehra for running his business of share and stocks and thus the said shop is not in occupation of the petitioner to make available the said shop to her other sons and grandsons.
(b) Property No 817, Katra Neel, Chandni Chowk, Delhi:
It is averred by the respondent that there are 8 shops on the ground floor of property bearing No. 817, out of which 4 shops are in possession of the petitioner besides the portion in the occupation of Sh. Sunil Mehra. Per contra, the petitioner has denied that there are 8 shops in the property No. 817 stating that the shop No. 817 is divided into 5 shops and two almirah with the depth of around 1 ½ feet which are not regular shops. One of the shop is a toilet turned store with 2.5'x4' of size which is used for storing cloth by Sh. Sunil Mehra son of the petitioner. Out of these 5 shops, 4 shops are in occupation of tenants, i.e., Savita Kapoor Family Trust, Sukhbir Singh and Co., Om Prakash Varinder Kumar and Anil Kapoor and Sahil Kapoor. That the shop No. 817/8 was got vacated from the tenant Vijay Kumar and the petitioner has accommodated her grandson Sh. Rahul Mehra in the said shop. The shops no. 817/2 and 817/3 are the two window / almirah shop and the same are in occupation of Sh. Page 23 of 30 E. No. 342/13 24 Sunil Mehra and the last Shop No. 817/4 is toilet turned store which is being used as store room by Sh. Sunil Mehra. It is further stated by the petitioner that the entire first floor over the shops is under the ownership of the petitioner which is being used as residence by the petitioner and her family members. It is further stated by the petitioner that it is very difficult for her son Sh. Sunil Mehra to run his business from window counter as he is running the business of selling ladies suits but the almirah is having depth of only 1'6" in the side wall of the property No. 817, Katra Neel, Chandni Chowk, Delhi. He faces extreme difficulty as he has no place to sit and has no place to keep his stock of cloth except the small toilet measuring 2'6"x4' which is converted into store by him and the said window counter is in the common passage and the son of the petitioner does not have a proper and convenient place to properly run his business or make any expansion to the same. The setup of the shop is not congenial for lady customers who visit the shop as the shop is in open passage and he and his customers have to rub shoulder with each other to show article from the shop. The respondent has failed to produce any documentary proof that shop No. 817/8, Katra Neel, Chandni Chowk is lying vacant under the possession of the petitioner and thus, the contention of the respondent seems to be a mere bald allegation. That the shop No. 817/8 was got vacated from the tenant Vijay Kumar and the petitioner has Page 24 of 30 E. No. 342/13 25 accommodate her grandson Sh. Rahul Mehra in the said shop is not disputed by the respodent. The shops no. 817/2 and 817/3 are the two window / almirah shop and the same are in occupation of Sh. Sunil Mehra from where he is carrying on his business with great difficulty and thus proper space is required for Sh. Sunil Mehra to run his cloth shop in a proper manner. It cannot be denied that the window shop is not a proper shop for the son of the petitioner to run his business when the petitioner has several suitable shops which can be used by her sons to run their business successfully. The petitioner cannot be denied of her right to make her son independent and start his business from a well situated shop having sufficient space just because at one point of time she decided to let out the said shop. The respondent has averred that the entire first floor over the shops is under the ownership of the petitioner in property no. 812, 813 and 817, Katra Neel, Chandni Chowk. Per contra, it is stated by the petitioner that the first floor is used as residence of the petitioner and her family members and no portion of the first floor is being used by the petitioner as commercial space. Per contra, it is averred by the respondent that there are commercial shop even on the first floor but the respondent has failed to substantiate the fact by way of any documentary or other proof. Even otherwise, the respondent failed to mention as to if the first floor is not used as residence by the petitioner then what is the residential Page 25 of 30 E. No. 342/13 26 address of the petitioner and her family members. Thus, it is proved that first floor over the shops in property no. 812, 813 and 817, Katra Neel, Chandni Chowk is being used by by the petitioner for residential purposes.
(c) Shop No. 812 and 813, Katra Neel, Chandni Chowk, Delhi:
It is averred by the respondent that one shop behind shop No. 812, Katra Neel and one shop behind shop No. 813, Katra Neel are in occupation of the petitioner. Per contra, it is averred by the petitioner that the said shops are not the shop but a wooden Khokha with tin roof and is in the occupation of tenant. The said wooden Khokha is not a shop nor suitable for the petitioner or her sons to run their business or trade. The said Khokha (wooden cabin) was kept as guard's cabin but later on the same was used as tea stall by the tenant. The respondent has failed to file any document to substantiate that shop behind shop No. 812, Katra Neel and one shop behind shop No. 813 is a proper shop and the same is lying vacant which can be used by the petitioner or her family members. In these circumstances, the contention of the respondent is nothing bus a mere bald allegation which cannot be relied upon.
(d) Shop No. 818 and 819, Katra Neel, Chandni Chowk, Delhi:
It is averred by the respondent that alleged sale deed dated Page 26 of 30 E. No. 342/13 27 16.07.2008 executed by the petitioner in favour of her grand daughter in law Smt. Neha Bahal was a forged and fabricated document just to create the false scarcity of accommodation. It is further averred that the said premises is in occupation of the son of the petitioner Sh. Anil Mehra and grandson Sh.Vinit Mehra who are using the said premises for their business purposes. Per contra, it is averred by the petitioner that sale of these two shops to Neha Bahal on 16.07.2008 is valid and binding. Even otherwise the said sale had taken place way back in the year 2008 in respect of the shops which were in the occupation of the tenants and the vacant possession of these shops were never available with the petitioner.
It is further stated that the sale deed of these shops was executed by the petitioner and her husband as coowners of the property and not as HUF property. That the shops bearing No. 818 and 819 were transferred in the name of the grand daughter in law of the petitioner under compelling family circumstances to avoid conflict and disharmony which was brewing up due to the temperamental differences of the petitioner and her family on the one hand and the grandson Sh. Vinit Mehra and his wife, Ms. Neha on the other hand. The contention of the respondent that these two shops were sold malafidely by the petitioner to her granddaughter in law just to create false scarcity of accommodation and these two shops are lying vacant for commercial requirement does not hold any substance. These Page 27 of 30 E. No. 342/13 28 two shops were transferred by the petitioner by way of registered sale deed. Further selling of these two shops by Smt. Neha Bahal by way of registered sale deed in favour of Baldev Raj Kapoor and Sh. Ghanshyam Dass has not been disputed by the respondent. Further these two person to whom these shops were sold by Smt. Neha Bahal were in the occupation / the original tenants of the shops No. 818 and 819, Katra Neel, Chandni Chowk, Delhi. The said shops were sold way back in the year 2008 and that time the petitioner had no bonafide requirement of her family members which was raised in the year 2013. Thus, this averment of the respondent is without any substance.
19. It is further averred by the respondent that the petitioner has got vacated one shop recently from one tenant namely Sh.Hari Ram. However, the said fact has not been substantiated by the respondent by way of any documentary proof and thus the said contention of the respondent remains to be mere bald allegation without any substance. Thus, the respondent has failed to prove that the bonafide requirement of the sons and grandsons of the petitioner is a mere desire. The petitioner has clearly established that her son namely Sh. Sunil Mehra is presently carrying on business of cloth from window counter in the side wall of shop bearing No. 817, Katra Neel, Chandni Chowk, Delhi which is inadequate space to Page 28 of 30 E. No. 342/13 29 run his business smoothly. It is further averred by the petitioner that the son and the grandson of the petitioner Sh. Sunil Mehra are having no shop in their possession to start their business. The respondent has also failed to prove that grandson of the petitioner namely Vinit Mehra is presently carrying on his business from any shop. In these circumstances, bonafide requirement of Sh. Sunil Mehra, Sh. Anil Mehra, grand son Sh. Sumit Mehra and Sh. Sharad Mehra stands duly proved.
20. The respondent has failed to prove availability of alternative suitable to accommodate sons and grandsons of the petitioner to start their own independent business. Even the respondent in his entire leave to defend application as well as rejoinder has nowhere mentioned about alternative suitable accommodation available with the petitioner to settle her sons and grandsons in their own independent business. Further the respondent has disputed the site plan filed by the petitioner stating that the petitioner has intentionally not filed the site plan of the first floor of the suit property and that the said first floor is totally commercial whereas in their turn, the respondent failed to file any site plan in order to contradict the site plan filed by the petitioner and thus the site plan filed by the petitioner is deemed to be admitted. Even, first floor is not suitable to be termed as alternative commercial accommodation as same is used by the Page 29 of 30 E. No. 342/13 30 petitioner and her family members for residential purposes.
21. Thus, from the discussion made above, respondent has failed to raise any triable issue, which requires evidence to be proved. The petitioner, on the other hand, have clearly established her bonafide requirement regarding tenanted premises. Hence, the application for leave to defend filed by respondent is ordered to be dismissed. Consequently, eviction order is liable to be passed against the respondent under Section 25 B (4) of the Act. In view of above, petitioner is held entitled for recovery of the tenanted premises, i.e., one shop measuring 8' x 18' bearing property No. 820, Katra Neel Chandni Chowk, Delhi110006, as shown in red colour in the site plan annexed with the petition. However, the petitioner would not be entitled to initiate execution proceedings for recovery of possession of the tenanted premises before expiration of six months from today in view of provisions given in Section 14 (7) of the Act.
Announced in open Court (Namrita Aggarwal)
rd
on 23 Day of May, 2015 CCJ cum ARC1 (Central)
[This order contains 30 pages.] Tis Hazari Courts, Delhi.
Page 30 of 30 E. No. 342/13