Delhi District Court
Sh. Rakesh Kumar Jain vs Sh. Rajesh Kumar Jain on 8 July, 2014
IN THE COURT OF SHRI SANDEEP GARG : ADMINISTRATIVE
CIVIL JUDGE CUM ADDITIONAL RENT CONTROLLER
(CENTRAL) : DELHI
E417/2013
Unique ID No : 02401C0531622013
In the matter of:
Sh. Rakesh Kumar Jain,
S/o Sh. Ram Lubhaya Jain,
R/o Kothi No. A2/258, Second Floor,
Paschim Vihar, New Delhi110063.
....Petitioner
Versus
Sh. Rajesh Kumar Jain,
S/o Sh. Ram Lubhaya Jain,
Shop No. 1705/3, G. Floor,
Onkar Bhawan, Bhagirath Place,
Chandni Chowk, Delhi110006
.....Respondent
O R D E R:
1. Vide this order, an application for leave to defend, filed on behalf of the respondent under Section 25B (4) of The Delhi Rent Control Act, 1958 (hereinafter referred to as DRC Act, 1958) seeking leave to contest the present eviction petition is disposed of.
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2. The present eviction petition has been filed by the petitioner namely Sh. Rakesh Kumar Jain against the respondent namely Sh. Rajesh Kumar Jain under Section 14 (1) (e) read with Section 25B of the DRC Act, 1958.
3. The version of the petitioner is that he is owner of the property bearing Shop No. 3, Ground Floor, 1705, Onkar Bhawan, Bhagirath Place, Delhi110006, measuring 7 ft. X 12 ft. as shown in red lines in the site plan, having purchased the same vide sale deed dated 07.10.2008 from Sh. Prem Nath, Vishwanath and Sh. Ajay Kumar. The vendors have also executed a rectification dated 23.03.2012 as the property in question was inherited by them from their father by virtue of registered Will dated 01.07.1974. The respondent is a tenant and he is running a Chemist shop in the tenanted premises i.e. one shop bearing Shop No. 3, Ground Floor, 1705, Onkar Bhawan, Bhagirath Place, Delhi110006, measuring 7 ft. X 12 ft. as shown in red lines in the site plan, which was let out at the rate of Rs. 220/ per month besides electricity consumption charges payable directly to the authorities vide written rent note executed on 26.08.1981. After the purchase of the E417/2013 Page 2/20 property, the petitioner duly informed to the respondent vide notice dated 09.06.2009 about the purchase of tenanted shop. The respondent gave a reply dated 03.07.2009.
4. It is further averred that the petitioner requires the tenanted premises bonafidely for using the same as commercial shop for himself as he has no other place of business in Delhi. The petitioner does not have any reasonable accommodation for his business. The petitioner had earlier filed eviction petition on the grounds for bonafide need which was dismissed by the court of Sh. V.K. Gulia, Ld. ARC, Delhi on 28.08.2012 U/s 14 (6) of DRC Act. The premises is situated in slum area and petitioner has been granted permission to initiate eviction proceedings against the respondent for nonpayment of rent. The petitioner requires bonafidely the present tenanted premises. It is prayed that an eviction order may be passed in respect of the tenanted premises as shown in red lines in the site plan.
5. Summons in the prescribed form under Schedule III of DRC Act, 1958 were served upon the respondent. Thereafter, an application for leave E417/2013 Page 3/20 to defend along with affidavit was filed by the respondent within the stipulated period.
6. It is the version of the respondent that the petitioner is not the owner of the property in dispute. The following legal heirs of Sh. Onkar Nath, owner are the inherited owners of the tenanted shop:
i) Smt. Nirmala Gupta, W/o Sri Ram Kishore Gupta (daughter)
ii) Smt. Abha Bansal, W/o Late Sh. Arun Kumar (daughter)
iii) Smt. Sneh Lata Bangla, W/o Sh. Suresh Banga (daughter)
iv) Sh. Prem Nath Gupta, S/o Late Sh. Onkar Nath Gupta (son)
v) Sh. Vishwa Nath Gupta, S/o Late Sh. Onkar Nath Gupta (son)
vi) Sh. Ajay Kumar Gupta, S/o Late Sh. Onkar Nath Gupta (son) The persons who have sold the property are only sons of the deceased owner. All the legal heirs of deceased owner have not executed the sale deed on the basis of which the petitioner claims title to the tenanted shop. Therefore, the alleged sale deed is not a valid document, but it is bogus and sham transaction. The requirement of petitioner is not bonafide and he is running medicine shops in Amritsar and in Delhi alongwith his son. E417/2013 Page 4/20
7. One son of the petitioner is running medicine shop under the name and style of Mahavir Medico. The other son of the petitioner is doing a job at Nagar Goel Chawla, MBLock, G.K.II, New Delhi. The petitioner and respondent are real brothers and the business of medicine was started by them in partnership with their father. On 20.05.1998, the father of petitioner and respondent retired from the firm and thereafter, he died on 09.10.2013. The petitioner also retired from the business of the firm on 21.05.1998 and started his separate business under the name and style of B.P. Sales Corporation, Amarnath Market, Amritsar, Punjab. Sh. Sachin Jain, one of the son of petitioner is running Mahavir Medico and the drugs license in respect of the said business is in the joint name of both the sons of the petitioner i.e. Sh. Sachin Jain and Sh. Saurabh Jain. The petitioner is not competent to run the same business at two places on the basis of license issued to him by the Punjab Drugs Controller, Chandigarh. Moreover, due to his old age and being heart patient, the petitioner is incapable of running a business.
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8. The petitioner, his wife and sons are all residing in the same house as a joint family having one kitchen. Therefore, the requirement of the petitioner for separate business is not bonafide. The respondent will fall into vagrancy if he is evicted from the tenanted shop because it is sole source of livelihood for him. It has been held by the Hon'ble High Court of Delhi in the case of Khem Chand & Ors. Vs. Arjun Jain & Ors., 2013 (4) CLJ 306 Del. that the court should act cautiously in applying the principle of "landlord is the best judge to decide his residential requirement. The test for evaluating eviction of commercial properties on account of bonafide need is slightly distinct and more stringent than that of one related to residential premises. The court should weight the competing rights of livelihood of both the landlord and tenant and adopt a balanced approach."
9. The relations between the petitioner and respondent are inimical. Criminal proceedings have been pending between the parties. The petitioner has been trying to see that the business of respondent is closed. He has been writing complaints against the respondent with various departments. The petitioner has not disclosed as to what business he proposes to do after E417/2013 Page 6/20 getting the tenanted shop vacated from the respondent which exposes his malafide intentions.
10. The petitioner filed his reply alongwith counter affidavit to the application for leave to defend, filed by the respondent and has denied the allegations leveled by the respondent. He has denied the averments made by the respondent in his application for leave to defend and reaffirmed his stance, as averred in the petition.
11. Respondent filed rejoinder and allegations leveled by the petitioner were controverted and rebutted. The averments made in application for leave to defend have been reiterated and reaffirmed. The Will dated 01.07.1974 is forged and fabricated, which was got registered after the death of the testator on 30.07.1975. The vendors had also prepared another Will dated 23.01.1996 whereby the testator had bequeathed her share in favour of the vendors. Even if for the sake of arguments, it is assumed that Will dated 01.07.1974 is genuine, the property of the testator could not sold or mortgaged during the lifetime of his wife. If Will dated 23.01.1996 E417/2013 Page 7/20 is assumed to be genuine, the property of testator had to devolved upon all the legal heirs. Therefore, the property in question could not have been sold by the vendors without obtaining consent of their sisters, who were other legal heirs. The respondent submitted rent with the petitioner by honouring decision of the competent authority, D.U.S.I.B., Delhi without admitting the title of the petitioner. Moreover, the competent authority had no jurisdiction to adjudicate upon issues pertaining to title of property.
12. The petitioner and all his family members are having independent incomes and they all are having separate PAN Cards. The petitioner and his wife are doing money lending business and having shares in Dignity Dealcom Pvt. Ltd. He is earning profit of Rs. 7,90,000/ p.a. (approximately). It is denied that the petitioner had abandoned the business of B.P. Sales Corporation, Amritsar. The District Drugs Inspector had inspected the shop of the respondent which is evident from letter dated 26.05.2011. It is mandatory to surrender the previous license before applying for issuance of a fresh license. The petitioner has failed to surrender his earlier drugs license. It is prayed that since the respondent has E417/2013 Page 8/20 been able to raise triable issues, the application for leave to contest may be allowed.
13. The court has heard the Ld. Counsels for the parties and perused the record carefully.
14. While deciding the question as to whether leave to defend should be granted or refused, the Court is required to examine the case on the following aspects :
(a) That the petitioner is owner of the suit premises;
(b) Purpose of letting;
(c) That the premises is required bonafide by the petitioner; and
(d) That the petitioner has no other alternative suitable accommodation in Delhi.
15. In Precision Metal & Engg. Works Vs. Prema Deva, Niranjan Deva Tayal, AIR 1982 SC 1518, it has been held that "while deciding the application for leave to contest, the controller has to confine himself to the E417/2013 Page 9/20 affidavit filed by the tenant under Sub Section (4) and the reply if any. On perusing the affidavit filed by the tenant and the reply if any filed by the landlord, the controller has to pose to himself the only question, "Does the affidavit disclose, not prove, facts as would disentitle the landlord from obtaining an order for the recovery of possession on the ground specified in clause of the proviso to Section 14 (1)?". The controller is not to record a finding on disputed questions of facts or his preference of one set of affidavits against the other set of affidavits."
The gist of the various decisions is that if any triable issue is raised in the application which can not be decided unless the parties lead evidence, leave to contest should be granted. In all other cases, the leave has to be refused.
16. In Rita Lal Vs. Raj Kumar Singh (2002) 7 SCC 614, Hon'ble Supreme Court has observed as under : "If the Court is satisfied that though in the pleadings an issue is raised but that is not a triable issue then the Court is justified in refusing the leave to defend. A defence, which is practically moonshine, sham or illusory can not be held to be raising a triable issue. Else the whole purpose behind E417/2013 Page 10/20 enacting a provision for granting leave to defend, and not permitting a contest unless leave was granted, would stand defeated." Ownership
17. The respondent has contended that the petitioner is not owner of the tenanted shop. There is a defect in his title as the Will dated 01.07.1974 is a forged and fabricated document, which was registered after the death of testator. The property of deceased testator could not have been sold or mortgaged during the lifetime of his wife, Shakuntala Devi and it was only after her death that the property had to devolve upon three sons of the testator. Similarly, by virtue of Will dated 23.01.1996, the property of the deceased testator had to devolve upon all her legal heirs including sisters of the vendors. The respondent had submitted rent to the petitioner by honouring the decision of the competent authority, D.U.S.I.B., Delhi and he had not admitted the title of the petitioner.
18. On the other hand, it is contended by the petitioner that the contention of the respondent is totally misconceived. Once the respondent E417/2013 Page 11/20 has attorned in favour of the petitioner by depositing rent with him after decision of the competent authority, D.U.S.I.B., Delhi, he is estopped from challenging the title of the petitioner. Moreover, the respondent is debarred from challenging the title of the petitioner U/s 116 of the Indian Evidence Act, 1872. Reliance is placed upon judgment delivered by the Hon'ble Supreme Court of India in the case of Payal Vision Ltd. Vs. Radhika Chaudhary, VII (2012) SLT 303. Even on merits, from the bare perusal of the Will dated 01.07.1974, it is evident that only life interest was conferred upon Smt. Shakuntala Devi. After the death of Smt. Shakuntala Devi, the tenanted shop had to devolve upon three sons of the testator i.e. all the three vendors from whom the petitioner had purchased the tenanted shop. Smt. Shakuntala Devi died on 09.08.2002 and therefore, the tenanted shop had devolved upon all the three vendors. They sold the tenanted shop to the petitioner on 07.10.2008. Therefore, there is no defect in the title of the vendors or the petitioner. Similarly, by virtue of Will dated 23.01.1996, Smt. Shakuntala Devi had bequeathed her undivided share in favour of her three sons i.e. the vendors from whom the property was purchased by the petitioner. Smt. Shakuntala Devi did not bequeath the tenanted shop in E417/2013 Page 12/20 favour of her daughters. Therefore, the daughters were not coowners of the tenanted shop. The vendors alone were absolute owners of the tenanted shop and they had passed on a valid title, to the tenanted shop, in favour of the petitioner.
19. The court is of the considered opinion that there is no merit in the contentions raised by the respondent. Vide Will dated 01.07.1974, only life interest was conferred upon Smt. Shakuntala Devi. Smt. Shakuntala Devi expired on 09.08.2002 and after her death, the vendors became exclusive owners of the tenanted shop and they were competent to pass on a valid title in favour of the petitioner. Similarly, vide Will dated 23.01.1996 also, Smt. Shakuntala Devi bequeathed her undivided share in the tenanted shop in favour of the vendors. No share was bequeathed by her in favour of her daughters. In any case, the respondent had attorned in favour of the petitioner by submitting rent to him. It is well settled proposition of law that the tenant cannot challenge title of his landlord. In Rajender Kumar Sharma & Others Vs. Leelawati & Others 155 (2008) DLT 383, it has been held by Hon'ble High Court of Delhi that landlord is not supposed to prove E417/2013 Page 13/20 absolute ownership as required under Transfer of Property Act. He is required to show only that he is more than tenant. If the tenant denies ownership of landlord, he is obliged to disclose as to who was owner/landlord and to whom rent was being paid by him. Therefore, the court holds that the petitioner is owner of the tenanted shop and he is landlord in respect of the tenanted shop, qua the respondent. Purpose of Letting
20. Purpose of letting has become redundant as in Satyawati Sharma Vs. Union of India 148 (2008) DLT 705 Supreme Court, it has been held that the premises let out either for residential or for commercial purposes can be got vacated by the landlord for bonafide requirements. Availability or NonAvailability of alternative suitable accommodation in Delhi
21. In his application for leave to defend and rejoinder, filed by the respondent, he has failed to mention that the petitioner is having any other reasonably alternative suitable accommodation for his commercial use in E417/2013 Page 14/20 Delhi/NCR. Therefore, the court holds that the petitioner has been successful in prima facie establishing that he is not having any other reasonably suitable accommodation for his commercial use and the respondent has not been able to raise any triable issue on this aspect. Bonafide requirement
22. It is contended on behalf of the respondent that the professed requirement of the petitioner for using the tenanted shop for commercial purpose for his own use is not bonafide. The petitioner has even failed to disclose as to what business he proposes to carry out from the said shop after getting it vacated from the respondent. He is running a separate medicine business under the name and style of B.P. Sales Corporation, Amarnath Market, Amritsar, Punjab. He is also running Mahavir Medico alongwith his son. The petitioner is not competent to run the same business at two places on the basis of license issued to him by the Punjab Drugs Controller, Chandigarh. Moreover, the petitioner and all his family members are having independent incomes and they all are having separate PAN Cards. The petitioner and his wife are doing money lending business and having shares E417/2013 Page 15/20 in Dignity Dealcom Pvt. Ltd. He is earning profit of Rs. 7,90,000/ p.a. (approximately). The tenanted shop is the only source of earning livelihood for the respondent and his family. He will fall into vagrancy if he is evicted from the tenanted shop.
23. On the other hand, the petitioner has categorically denied that he is running independent medicine business under the name and style of B.P. Sales Corporation, Amritsar. It is stated that the petitioner had abandoned the said business long ago as he could not travel to Amritsar. Moreover, the requirement under the DRC Act is that the landlord should not have any other reasonably suitable alternative accommodation in Delhi. It is also denied that the petitioner is carrying on medicine business alongwith his son under the name and style of Mahavir Medico, Bhagirath Place, Delhi. It is admitted that the petitioner is jointly living with his sons and their families. However, the petitioner and his sons are all maintaining separate kitchens. In any case, the respondent has miserably failed to prima facie establish that the petitioner is having any share in Mahavir Medico. The income of respondent and his wife from other sources is irrelevant. Reliance is placed E417/2013 Page 16/20 upon judgments delivered by the Hon'ble Supreme Court in the case of Sarla Ahuja Vs. United India Insurance Co. Ltd., 1998 (2) RCR 533, wherein it has been held that alternative accommodation at a far of place cannot be said to be reasonably suitable accommodation. Reasonably suitable accommodation must be available in the same city or within reasonable proximity thereof.
24. In Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta VI (1999) SLT 163 = (1999) 6 SCC 222 wherein, it was observed by Hon'ble Supreme Court of India that : "12. A perusal of Section 14 of the Act shows that the law has imposed restrictions on the recovery of possession, of any premises by landlord from a tenant notwithstanding any law or contract to the contrary. However, an order for recovery of possession is permissible on one or more of the specified ground. One such ground is the premises let for residential purposes being required bonafide by the landlord for occupation as residence for himself or for any member of his family dependent on him. What is a bonafide requirement is not defined in the Act. The words 'need' and 'require' both denote a certain degree of E417/2013 Page 17/20 want with a thrust within demanding fulfilment. 'Need' or 'requirement' qualified by word 'bonafide' or 'genuine' preceding as an adjectiveis an expression often used in Rent Control Laws. 'Bonafide or genuine need' of the landlord or that the landlord 'genuinely requires' or "requires bonafide" an accommodation for occupation by or use for himself is an accepted ground for eviction and such expression is often employed by Rent Control legislation draftsman. The two expressions are interchangeable in practice and carry the same meaning."
13. Chambers 20th Century Dictionary defines bonafide to mean "in good faith: genuine". The word 'genuine' means 'natural; not spurious; real" pure: sincere'. In Law Dictionary, Mozley and Whitley defines bonafide to mean 'good faith, without fraud or deceit'. Thus the term bonafide or genuinely refers to a state of mind. 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 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 a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the E417/2013 Page 18/20 family would entitle him to seek ejectment of the tenant."
25. The court is of the considered opinion that non disclosure on the part of the petitioner as to what business he proposes to start after getting the tenanted shop vacated is immaterial, particularly in view of statutory remedy available to respondent U/s 19 of the DRC Act. The existence of business at Amritsar is irrelevant and immaterial for determining the bonafide requirement of the petitioner as under the DRC Act it is postulated that the landlord should not have any other reasonably suitable alternative accommodation in Delhi. The petitioner has stated in his affidavit that he had abandoned the business of B.P. Sales Corporation, Amritsar. The respondent has failed to prima facie establish that the petitioner is carrying on medicine business alongwith his son under the name and style of Mahavir Medico, Bhagirath Place, Delhi. The income of respondent and his wife from other sources is irrelevant. Therefore, there is no merit in the contentions raised on behalf of the respondent and the court holds that the need of the petitioner is prima facie bonafide.
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26. In view of the above discussion, the Court is of the view that the respondent has failed to set up any triable issue which requires inquiry or trial. In other words, prima facie there is nothing on record which would disentitle the petitioner of the right of immediate possession in respect of the tenanted premises.
27. Accordingly, the application under Section 25B (4) of Delhi Rent Control Act, 1958, filed by the respondent is dismissed. The petition is allowed and eviction order is passed in favour of the petitioner and against the respondent in respect of tenanted premises i.e. one shop bearing Shop No. 3, Ground Floor, 1705, Onkar Bhawan, Bhagirath Place, Delhi110006, measuring 7 ft. X 12 ft. as shown in red lines in the site plan attached alongwith the petition. This order shall not be executable before expiry of six months from today. Parties to bear their own costs.
File be consigned to Record Room.
Announced in the open court (SANDEEP GARG)
on 08.07.2014 Administrative Civil Judgecum
Additional Rent Controller (Central)
Delhi
E417/2013 Page 20/20
E417/2013
08.07.2014
Pr: Petitioner in person.
None for respondent.
Vide separate order of even date, application of the respondent for leave to defend is dismissed. The petition is allowed and eviction order is passed in favour of the petitioner and against the respondent in respect of tenanted premises i.e. one shop bearing Shop No. 3, Ground Floor, 1705, Onkar Bhawan, Bhagirath Place, Delhi110006, measuring 7 ft. X 12 ft. as shown in red lines in the site plan attached alongwith the petition. This order shall not be executable before expiry of six months from today. Parties to bear their own costs.
File be consigned to Record Room.
(Sandeep Garg) ACJ/ARC (Central) Delhi/08.07.2014 E417/2013 Page 21/20