Delhi District Court
Satender Kumar vs Chander Lal on 31 March, 2015
IN THE COURT OF MS. BHAWANI SHARMA: ACJ/CCJ/ARC
SHAHDARA: KARKARDOOMA COURTS: DELHI
E 79/2014
Unique Identification No. 02402C0230182014
Satender Kumar
S/o late Sh. Ram Avtar Jaiswal,
R/o H.No. 2834, 1st Floor, Gali No.2,
Bihari Colony, Shahdara,
Delhi110032. .....Petitioner
Versus
Chander Lal
S/o late Sh. Tan Sukh,
R/o H.No. 2834, Ground Floor, Gali No.2,
Bihari Colony, Shahdara,
Delhi110032. .....Respondent
Application for Eviction of tenant under Section 14 (1) (e) of Delhi
Rent Control Act, 1958.
Petition filed on : 02.08.2014
Order reserved on : 31.03.2015
Date of Order : 31.03.2015
Decision : Leave to defend application of the
respondents - dismissed and
eviction order passed.
ORDER
1. This is a petition for eviction of tenant under Section 14 (1) (e) E - 79/14 Satender Kumar vs. Chander Lal Page 1 of 20 of the Delhi Rent Control Act, 1958 (herein after referred to as 'DRC Act').
2. The petitioner filed a petition under Section 14 (1) (e) of the DRC Act. Summons under prescribed format were served upon the respondent on 20.08.2014. An application seeking leave to defend the petition was filed on 30.08.2014. Petitioner filed reply to the same.
3. (a) The petitioner has sought an eviction against the respondent stating that the petitioner is the landlord and owner of the suit shop measuring 8' x 9' in the portion of the premises bearing municipal no.2834, situated at Ground Floor, Gali No.2, Bihari Colony, Shahdara, Delhi110032 as shown in red colour in the site plan annexed to the petition. It is submitted that on 12.08.2004 initially the father of the petitioner Sh. Ram Avtar S/o late Sh. Ram Phal had let out the suit shop to the respondent with the written agreement for commercial purposes for running his tailoring shop for a period of 11 months at a monthly rent of Rs.2000/. It is submitted that after the demise of Sh. Ram Avtar, the suit shop devolved upon his wife Smt. Sunita Devi, who has also died and after her demise, the suit shop devolved upon the petitioner and he became the owner/landlord of the suit property.
(b) It is submitted that the petitioner has no source of income E - 79/14 Satender Kumar vs. Chander Lal Page 2 of 20 and funds for the livelihood of his family members. The petitioner runs a shop of television repairing under the name and style of "Avtar Electronics" in shop no.123/2, Bhola Nath Nagar, Shahdara, Delhi110032 but the said shop is at the behind of the road and he is not getting sufficient money and sources for the livelihood of his wife and minor children. It is submitted that the suit shop is now required bonafidely by the petitioner for his wife Smt. Simran and a minor daughter Baby Shradha and the petitioner wants to set up a general merchant shop in it for their livelihood. It is submitted that the daughter of the petitioner is 10 years old and reads in Children Welfare School at Bhola Nath Nagar, Shahdara, Delhi in Vth class. It is submitted that after the death of parents of the petitioner, it became difficult for him even to meet the necessary expenses of daily life of his family members.
(c) It is submitted that the petitioner resides on the first floor with the family members and the second floor of the premises is occupied by other residential tenants and the other two shops situated on the ground floor in the premises are also occupied by the other tenants. It is submitted that the petitioner has no other reasonable suitable commercial accommodation in which he can set up a general merchant shop for running his livelihood. It is submitted that the E - 79/14 Satender Kumar vs. Chander Lal Page 3 of 20 petitioner can comfortably and conveniently can set up a general merchant shop for the livelihood of his wife and minor daughter. It is, therefore, prayed to pass an eviction order in favour of the petitioner and against the respondent.
4. (a) On the other hand, ld. counsel for the respondent has argued through his leave to defend application that with regard to the document filed and relied upon by the petitioner to claim that after the death of her mother Smt. Sunita Devi, he became the owner, he himself admitted that her mother had filed a petition under Section 14 (1) (e) of the DRC Act in which she mentioned that in the month of February 2010, the property in question was divided amongst the legal heirs of late Sh. Ram Avtar and in the event of that partition, one shop and the room under occupation of her mother late Smt. Sunita Devi had come to the share of her. The question is if the property had already divided amongst the petitioner and his mother and the suit shop was entrusted to the mother of the petitioner then after her death, how the petitioner has become the absolute owner of the present suit property because it must be divided amongst all legal heirs i.e. 3 sisters in the present suit property and either they have relinquished their shares to the petitioner or transfer the same. It is submitted that the petitioner has filed the document of ownership in which he is E - 79/14 Satender Kumar vs. Chander Lal Page 4 of 20 owner of 50 sq. yds. however the entire property is having measuring area 100 sq. yds. and since the petitioner has not filed any supporting document i.e. relinquishment deed or alleged other agreement or any partition deed or the other relevant legal documents to prove the ownership over the portion of divided property in question therefore the petitioner is not entitled to file the present petition.
(b) It is argued that the respondent is a tenant in respect of a shop and a room on the ground floor situated in the suit property @ Rs.300/ per month each excluding electricity and water charges under the ownership of late Sh. Ram Avtar since 1997 and also gave a amount of Rs.50,000/ as a pagri amount for the each portion of the tenanted premises to the father of the petitioner at the time of occupying the tenanted premises but no receipt of pagri payment issued.
(c) It is further argued that the respondent is running a tailoring shop and also residing separately under the tenancy of Sh. Ram Avtar i.e. the father of the petitioner since 1997 and said Sh. Ram Avtar used to issue the rent receipt and after his death his wife Smt. Sunita Devi, who is mother of the petitioner was issuing the rent receipt for the one room and the suit shop. It is further submitted that in the year 2004, just to enhance the work, the respondent has taken E - 79/14 Satender Kumar vs. Chander Lal Page 5 of 20 another shop on rent in the suit property for which the alleged rent agreement was executed but due to some financial crises, after few months, this shop has been vacated by me but I was continuously paying the rent of his previous tenancy i.e. one room and one shop and when the petitioner's mother did not accept the rent, the respondent started depositing the rent before the competent courts at Karkardooma Courts, Delhi even after the death of petitioner's mother, the petitioner told him that he has become the landlord, he tried to pay the rent to the petitioner but he refused to accept the same since then I still continuously depositing the rent. It is further submitted that both the parties had previous litigations against each other and the previous litigations initiated at the behest of the petitioner is only for the purpose of compelling and harassing the applicant so as to forcibly evict him from the suit property.
(d) It is submitted that the respondent is the only bread earner person in his family and a very poor person having dependent unmarried daughter and wife and I am running a tailoring shop for the last 17 year. It is further submitted that the respondent has deposited the rent for the period from December, 2009 to March, 2010 in the court. It is submitted that since another one shop has already been vacated in the year 2004 itself, so the question to pay the rent for the E - 79/14 Satender Kumar vs. Chander Lal Page 6 of 20 same is not arise. It is submitted that the petitioner wants to get the shop from me at any cost so that the same be rented out to some other person at a higher rent. It is argued that there is no bonafide need of petitioner for his wife and daughter and the entire petition is based on concealments of true facts and suppressions of truth and just to mislead the court. It is submitted that the petitioner alongwith his family members reside at only two rooms at the first floor and other two rooms at the first floor and there are four shops including the tenanted shop and the petitioner has concealed the fact that third shop is also occupied by the tenant who is running his business in the name and style of CCN Cable. It is submitted that the petitioner himself admitted that second floor rooms are occupied by the other tenants hence it is clear that the petitioner has very handsome income of source and getting smart amount by 3 shops, 7 rooms besides 2 rooms in which he resides.
Thus, it is argued that the respondent has raised triable issues and the respondent is entitled to leave to defend.
5. Before adverting to the submissions of the parties, it would be apposite to encapsulate the legal provision under Section 14 (1) (e) of the Delhi Rent Control Act, 1958, which governs the current litigation. Section 14 (1) (e) provides that: E - 79/14 Satender Kumar vs. Chander Lal Page 7 of 20
14. Protection of tenant against eviction. (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 any court or Controller in favour of 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 ore more of the following grounds only, namely:
(e) that the premises are required bona fide by the landlord 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 person has no other reasonably suitable accommodation.
6. In Shambhoo Singh vs. Triloki Nath Sharma 2012 (2) Rent LR 52, it was held that the essential ingredients to establish a case under Section 14 (1) (e) of the DRC Act are :
(a) The applicant has to be the landlord/owner.
(b) The premises should have been let out for residential or commercial purposes or both.
(c) The said premises are required bona fide by the landlord for occupation for himself or for his family member dependent upon him.
(d) The said landlord or family member dependent upon him has no other reasonably suitable residential accommodation.
E - 79/14 Satender Kumar vs. Chander Lal Page 8 of 20
7. In the present case the petitioner has filed the eviction petition stating that he is the landlord/owner of the tenant/respondent in respect of a tenanted shop measuring 8' x 9' in the portion of the premises bearing municipal no.2834, situated at Ground Floor, Gali No.2, Bihari Colony, Shahdara, Delhi110032. The petitioner has also claimed that the reason for eviction is a bonafide claim for commercial purpose for himself. He has no other property except the present property in the vicinity of Delhi.
8. What has to be seen now is whether the leave to defend application moved by the respondent has raised any triable issues or not for which evidence is to be led? I shall deal with all the defences raised in the leave to defend application of the respondent in a sequential manner:
9. The first ground on which leave to defend is sought is that the mother of the petitioner had filed a petition under Section 14 (1) (e) of the DRC Act in which she has mentioned that in the month of February 2010, the property in question was divided amongst the legal heirs of late Sh. Ram Avtar and in the event of that partition, one shop and the room under occupation of her mother late Smt. Sunita Devi had come to the share of her. The question is if the property had E - 79/14 Satender Kumar vs. Chander Lal Page 9 of 20 already divided amongst the petitioner and his mother and the suit shop was entrusted to the mother of the petitioner then after her death, how the petitioner has become the absolute owner of the present suit property because it must be divided amongst all legal heirs i.e. 3 sisters in the present suit property and either they have relinquished their shares to the petitioner or transfer the same. It is submitted that the petitioner has filed the document of ownership in which he is owner of 50 sq. yds. however the entire property is having measuring area 100 sq. yds. and since the petitioner has not filed any supporting document i.e. relinquishment deed or alleged other agreement or any partition deed or the other relevant legal documents to prove the ownership over the portion of divided property in question therefore the petitioner is not entitled to file the present petition.
10. Admittedly, the petitioner is one of the class I legal heirs of the previous owner of the suit property alongwith his other three married sisters and is filing present in the capacity of coowner. It is settled principle of law that the petition under Section 14 (1) (e) of the DRC Act is very much maintainable by one of the coowner and a petition filed under 14 (1) (e) DRC Act cannot be said to be bad only because it is filed by one of the owner. As regards objection/ground of want of landlordtenant relationship between the petitioner and the E - 79/14 Satender Kumar vs. Chander Lal Page 10 of 20 respondents, the same is not tenable in the light of the fact for the purposes of proceedings under Section 14 (1) (e) of the DRC Act, it is not necessary that the petitioner should be owner in its absolute terms, rather the petitioner being more than owner would suffice the case. Further it is the tendency of the tenants to deny ownership of petitioner. In 1995 RLR 162 Jiwan Lal vs. Gurdial Kaur & Ors., it was held by Hon'ble High Court of Delhi while dealing with concept of ownership in a pending eviction petition under Section 14 (1) (e) of the DRC Act as under: "There is tendency on the part of the tenants to deny ownership in cases U/s 14 (1) (e). To test the substance of such pleas on the part of the tenants the court 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 that who else is owner. Further these cases U/s 14 (1) (e) are not title cases involving disputes of title to the property.
"Ownership is not to be proved in absolute terms."
11. Hence, this leg of the argument that the petitioner is not the owner of tenanted premises, is not tenable as the applicant has not denied the landlord tenant relationship with the petitioner (as per para 5 of the affidavit of the applicant, it is contended that when petitioner told the respondent that he has become the landlord applicant tried to pay the rent to him). It is pertinent to mention here E - 79/14 Satender Kumar vs. Chander Lal Page 11 of 20 for getting the order of eviction, it is sufficient if the petitioner is more than a tenant. Therefore, the respondent cannot at this stage, deny the ownership of the petitioner. Secondly, under the DRC Act, the landlord is not supposed to prove absolute ownership as required under Transfer of Property Act. He is required to show that he is more than tenant. The petitioner does not have to prove absolute ownership under Transfer of Property Act, but for the purpose of Delhi Rent Control Act. It was held in Rajender Kumar Sharma & Ors. vs. Leela Wati & Ors., 155 (2008) Delhi Law Times 383 that "A landlord is not required to prove absolute ownership as required under the Transfer of Property Act. He is required that he is more than a tenant". It was also held in Ramesh Chand vs. Uganti Devi, 157 (2009) DLT 450 by the Hon'ble High Court of Delhi that "It is settled preposition of law that in order to consider the concept of ownership under Delhi Rent Control Act, the Court has to see the title and right of the landlord qua the tenant." Even otherwise, under Section 116 of the Indian Evidence Act, the tenant is precluded from denying the title of the landlord and for the purpose of DRC Act as held in Sushil Kanta vs. Rajeshwar Kumar, cited as 1999 Rajdhani Law Reporter 289, "an owner U/s. 14 (1) (e) need not be an absolute owner requiring registered Sale Deed in his favour contemplated by E - 79/14 Satender Kumar vs. Chander Lal Page 12 of 20 the general law in S. 54, TPA. It is enough if he has paid for and built tenancy premises". The contention that the petitioner is owner of only 50 sq. yds. whereas the entire property is measuring a area 100 sq. yds. is rejected as long as the ownership of the tenanted premises devolving upon the petitioner after the death of his parents, is not rejected.
12. Next ground taken by the respondent is that he is a tenant in respect of a shop and a room on the ground floor situated in the suit property @ Rs.300/ per month each excluding electricity and water charges under the ownership of late Sh. Ram Avtar since 1997 and also gave a amount of Rs.50,000/ as a pagri amount for the each portion of the tenanted premises to the father of the petitioner at the time of occupying the tenanted premises but no receipt of pagri payment issued.
13. As regards the amount of 'Pagri', even if paid, would entitle the respondent to seek its refund, however, payment of this amount is not a triable issue entitling the respondent to leave to defend the petition.
14. Another ground taken by the respondent is that he is running a tailoring shop and also residing separately under the tenancy of Sh. Ram Avtar i.e. the father of the petitioner since 1997 and said Sh. Ram Avtar used to issue the rent receipt and after his death his wife Smt. E - 79/14 Satender Kumar vs. Chander Lal Page 13 of 20 Sunita Devi, who is mother of the petitioner was issuing the rent receipt for the one room and the suit shop. It is further submitted that in the year 2004, just to enhance the work, the respondent has taken another shop on rent in the suit property for which the alleged rent agreement was executed but due to some financial crises, after few months, this shop has been vacated by me but I was continuously paying the rent of his previous tenancy i.e. one room and one shop and when the petitioner's mother did not accept the rent, the respondent started depositing the rent before the competent courts at Karkardooma Courts, Delhi even after the death of petitioner's mother, the petitioner told him that he has become the landlord, he tried to pay the rent to the petitioner but he refused to accept the same since then I still continuously depositing the rent. It is further submitted that both the parties had previous litigations against each other and the previous litigations initiated at the behest of the petitioner is only for the purpose of compelling and harassing the applicant so as to forcibly evict him from the suit property.
15. Further, payment or nonpayment of rent is not fact in issue for the purpose of proceeding further in trial as the present petition pertains to the bonafide requirement of the petitioner filed under Section 14(1) (e) of the DRC Act. The pendency/disposal of previous E - 79/14 Satender Kumar vs. Chander Lal Page 14 of 20 litigation between the parties are of no avail in as much as the petitioner is following the due process of law in evicting the applicant from the suit premises for his bonafide requirement for expansion of business.
16. Next ground/objection taken on behalf of the respondent is that he is the only bread earner person in his family and a very poor person having dependent unmarried daughter and wife and I am running a tailoring shop for the last 17 year. It is further submitted that there is no bonafide need of petitioner for his wife and daughter and the entire petition is based on concealments of true facts and suppressions of truth and just to mislead the court. It is submitted that the petitioner wants to get the shop from me at any cost so that the same be rented out to some other person at a higher rent. It is submitted that the petitioner alongwith his family members reside at only two rooms at the first floor and other two rooms at the first floor and there are four shops including the tenanted shop and the petitioner has concealed the fact that third shop is also occupied by the tenant who is running his business in the name and style of CCN Cable. It is submitted that the petitioner himself admitted that second floor rooms are occupied by the other tenants hence it is clear that the petitioner has very handsome income of source and getting smart amount by 3 shops, 7 E - 79/14 Satender Kumar vs. Chander Lal Page 15 of 20 rooms besides 2 rooms in which he resides.
17. The arguments as advanced on behalf of the respondent to contend the bonafide requirement of the petitioner by stating that respondent is earning livelihood from the tenanted shop and he is having the tenanted shop, only source of income, does not raise any triable issue for the purpose of adjudication of the present petition. Firstly, the financial status of the respondent or for that matter of the petitioner is not relevant for the purpose of determining whether a triable issue raised or not. Secondly, inconvenience or hardship to be faced by the applicant/respondent are of no avail for the purpose of proceedings with present petition in trial. Thirdly, the bonafide requirement of the petitioner has been generally challenged. In Gurcharan Lal Kumar vs. Smt. Satyawati & Ors. 2013 (2) CLJ 28 (NOC) Del., the court observed as under: "it is not necessary for landlord to indicate nature of business intended to start - sons and grandsons of the landlord have no other suitable alternate accommodation to carry out business - application for leave to defend dismissed with cost."
18. As regards the arguments that after getting the premises vacated, the petitioner may sold it to third person as higher rate of rent. In this regard reference can also be made to the judgment of E - 79/14 Satender Kumar vs. Chander Lal Page 16 of 20 Hon'ble High Court of Delhi in Shafiqqudin vs. Mohd. Ibrahim, in R.C.Rev 502/2012, wherein it was held that: "It is important for the tenant, in any leave to defend application to submit relevant documents on record to support any triable issue raised by him. In absence of any material, the ARC cannot come to a conclusion as to the weight of the issue raised by the tenant. Thus impairing his power to decide whether an issue raised is triable or not."
It is also a settled law that it is for the landlord to decide how and what accommodation to use for meeting his bonafide requirement and tenant cannot dictate the same to the landlord.
19. In Krishan Lal Vs. R.N. Bakshi, cited as 169 (2010) Delhi Law Times 769, it was held by the Hon'ble High Court of Delhi that: "8. It is settled law that it is not for a tenant to dictate the terms to the landlord as to how and in what manner he should adjust himself, without calling upon the tenant to vacate a tenanted premises. While deciding the question of bonafides of requirement of landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted. When the landlord shows a prima facie case, a presumption that the requirement of the landlord is bonafide, is available to be drawn. It is also settled position of law that the landlord is the best judge of E - 79/14 Satender Kumar vs. Chander Lal Page 17 of 20 his requirement for residential or business purpose and he has got complete freedom in the matter and 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. The tenant cannot compel a landlord to live in a particular fashion and method until and unless the requirement shown is tatally mala fide or not genuine."
20. In Gulab Chand Pukhraj vs. R.B. Jinender Raj & Anr., 2009 (4) Civil Court Cases 748 (SC), it was held that "once it is not disputed that landlord is in bonafide need of premises, court cannot dictate to landlord which floor he should use for his business. Moreover, it is well settled law that it is the landlord's prerogative as to in which location he prefers to run business and law should not and cannot prevent such preference by a landlord in order to meet his bonafide requirement."
21. In Sudesh Kumar Soni & Anr. Vs. Prabha Khanna & Anr., 153 (2008) Delhi Law Times 652, the court observed that "It is not for tenant to dictate terms to landlord as to who else he can adjust himself without getting possession of tenanted premisessuitability has to be seen for convenience of landlord and his family members and on the basis of circumstances including their profession, vocation, style of living, habit and background."
E - 79/14 Satender Kumar vs. Chander Lal Page 18 of 20 Conclusion:
22. It is well settled law that leave to defend can be granted to the tenant in case of any triable issue has been raised by him, which can be adjudicated by consideration of additional evidence. The mere existence or averment of any triable issue is not sufficient. The nature of the triable issue raised by the tenant must be such that it would disentitle the landlord from obtaining the eviction order. The whole purpose and import of summary procedure under Section 25 B of the Act would otherwise be defeated. 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 i.e. such facts which disentitles the landlord from obtaining an order of eviction, the Court should not mechanically & in routine manner grant leave to defend.
23. In the light of the aforesaid legal ratio, all the pleas taken by the respondent seems to be sham and moonshine, which have failed to raise any requisite triable issues. The contents of the application for leave to defend have failed to rebut the presumption of bonafide qua the need of the petitioner. The application for leave to defend filed by the respondent is thus rejected.
24. Consequently, an eviction order is passed under Section 14 (1) E - 79/14 Satender Kumar vs. Chander Lal Page 19 of 20
(e) of the DRC Act against the respondents regarding the tenanted shop measuring 8' x 9' in the portion of the premises bearing municipal no.2834, situated at Ground Floor, Gali No.2, Bihari Colony, Shahdara, Delhi110032 as shown with red colour in the site plan as shown in red colour in the site plan filed by the petitioner in this case.
25. However in light of Section 14 (7) DRCA, the aforesaid eviction order shall not be executable for a period of six months from today.
26. The parties are left to bear their own costs.
27. After compliance, file be consigned to Record Room.
(Announced in the open (Bhawani Sharma)
Court on 31.03.2015 ACJ/CCJ/ARC (Shahdara)
(Order contains 20 pages.) Karkardooma Courts, Delhi.
E - 79/14
Satender Kumar vs. Chander Lal Page 20 of 20