Delhi District Court
Sh. Harsh Pratap Seonie vs Sh Narendra Kumar Jain on 27 May, 2019
:IN THE COURT OF SACHIN SANGWAN
ADDITIONAL CIVIL JUDGE CUM COMMERCIAL CIVIL JUDGE CUM
ADDITIONAL RENT CONTROLLER (SOUTH):
COURT ROOM NO. 204, SAKET COURTS: NEW DELHI
EVICTION PETITION NO. 6289/2016
1. Sh. Harsh Pratap Seonie,
S/o late Shiv Pratap Seonie
2. Sh. Varun Pratap Seonie,
S/o Sh. Harsh Pratap Seonie
3. Sh Dev Pratap Seonie,
S/o late Sh Shiv Pratap Seonie,
All resident of :
37, Hanuman Road, New Delhi
......... Petitioners
Vs.
Sh Narendra Kumar Jain,
S/o late Sh. Ajit Prasad Jain,
R/o 22, Shri Ram Road, Civil Lines, Delhi54
Also at:
Shop No.9A, Sunder Nagar Market,
New Delhi03
............Respondent
Eviction Petition against the respondent under Section 14 (1) (e) of the Delhi
Rent Control Act, 1958
DATE OF INSTITUTION : 25.04.2012
DATE OF RESERVING ORDER : 17.05.2019
DATE OF PRONOUNCEMENT : 27.05.2019
Evi. Ptn No. 6289/16 Harsh Pratap Seonie & Ors Vs Narendra Kumar Jain Page 1/27
JUDGMENT
1. By this judgment, I will dispose off the present eviction petition filed by the petitioners Mr Harsh Pratap Seonie, Mr Varun Pratap Seonie and Mr. Dev Pratap Seonie against the respondent under section 14 (1) (e) of Delhi Rent Control Act 1958 (as amended up to date), thereby praying that an order of eviction be passed in their favour and against the respondent in respect of Shop no.9A measuring about 11 feet X 44 feet at plot no.9, Block no.171, Sunder Nagar Market, New Delhi along with common verandah, specifically shown in red color in the site plan (hereinafter referred to as the "suit shop/premises") on the ground of bonafide requirement of the petitioner no.2.
2. Brief case of the petitioner as per eviction petition is that respondent is tenant in Shop No.9A, Sunder Nagar Market, New Delhi vide lease deed dated 09.08.1987 at monthly rent of Rs.973.62/ for nonresidential purpose. It is stated that shop premises alongwith shop no.9 are situated on the land granted by government vide agreement for lease and perpetual lease executed in favour of late Shiv Pratap Seonie. As per petitioners, Shiv Pratap Seonie was the owner and landlord of tenanted premises and he died on 03.02.2003. Prior to his death, he gifted the property in question vide a registered Gift Deed dated 10.01.2003 to petitioner no.1 (son, 25%), petitioner no.2 (grandson, 25%) and petitioner no.3 (son, 50%) and therefore, petitioners herein are the present owners/landlords of the premises.
3. It is stated that premises is required bonafide by petitioner no.2 for his personal use and occupation for his business purposes and petitioner no.1 & 3 have no objection if the suit premises is exclusively used and occupied by petitioner no.2. It is stated that petitioner no.2 is son of petitioner no.1 and Evi. Ptn No. 6289/16 Harsh Pratap Seonie & Ors Vs Narendra Kumar Jain Page 2/27 petitioner no.2 is self employed and is working independently. It is stated that petitioner no.2 has no other reasonably suitable commercial accommodation for his business.
4. As per petitioners, following accommodations are available with them :
a) House No.37, Hanuman Road, New Delhi (residential) (in the name of petitioner no.1 & 3)
b) Office at G58, Connaught Place, New Delhi (commercial premises on rent) (petitioner no.1 & 3 are joint statutory tenants and they are in occupation and possession of half portion each)
c) Shop No.9, Plot No.9, Block No.171, Sunder Nagar Market, New Delhi (under tenancy of Karan Mehra and Manju Mehra) (eviction petition has already been filed by petitioner no.1 & 3)
d) Shop No.9A, Plot No.9, Block No.171, Sunder Nagar Market, New Delhi (under tenancy of respondent herein) (suit shop)
e) First floor of Shop No.9, Plot No.9, Block No. 171, Sunder Nagar Market, New Delhi (under tenancy of Surinder Kumar Jain) (nature of tenancy and occupancy of this portion is residential)
5. As per petitioners, petitioner no.2 has been conferred upon a degree of Bachelor of Business Administration on 14.12.2011 and he has already started doing real estate business being family business in the name and style of 'Varunco' which is a proprietorship concern. It is stated that petitioner no.2 has given address of his firm as that of his residence at 37, Hanuman Road, New Delhi and in fact no commercial activities can be carried out properly and effectively in any portion of the said property. It is further stated that said property belongs to petitioner no.1 and therefore petitioner no.2 cannot exercise his own rights in the said property and as such, suit premises is required on an urgent basis by petitioner no.2 for expanding his business activities. It is stated that petitioner no.2 is regular tax payer and is facing acute shortage of suitable commercial accommodation for his growing needs and requirements.
Evi. Ptn No. 6289/16 Harsh Pratap Seonie & Ors Vs Narendra Kumar Jain Page 3/276. It is further stated that late Shiv Pratap Seonie was forced to file a suit against the respondent u/s 14 (1) (k) of DRC Act and after his death, present petitioners were substituted in his place in the said suit which is pending before the court. Hence, the present eviction petition under section 14 (1) (e) of the DRC Act against the respondent inter alia praying that eviction order be passed against the respondent in respect of premises being a shop measuring about 11ft x 44ft i.e. 484 Sq ft. bearing No.9A, Sunder Nagar Market, New Delhi alongwith common verandah.
7. Written statement was filed on behalf of respondent alleging that petitioner has not come with clean hands and petitioner is guilty of suppression, concealment and misrepresentations of true and material facts and that petitioner is not entitled to any relief and that present petition is wrong and misconceived. It is alleged that petitioners are not the owners of tenanted premises. It is alleged that present petition does not disclose any cause of action and is liable to be dismissed.
8. It is stated that subject to various terms and conditions stipulated in the registered agreement for lease dated 24.09.1951, the leasehold rights in immovable property bearing Plot No.9, Block 171, Sunder Nagar Market, New Delhi were granted to landlord Sh Shiv Pratap Seonie by the government. It is alleged that aforesaid landlord violated the terms and conditions of said agreement for lease by various unlawful acts including raising of unauthorized constructions in the aforesaid premises. It is further alleged that in view of unlawful acts of the erstwhile landlord, the lessor i.e. the Chief Commissioner (Lieutenant Governor) of Delhi terminated the leasehold rights of erstwhile landlord and that property was reentered on account of violations of the terms of the lease deed and eviction proceedings are pending against erstwhile landlord before the Estate Officer where late Shiv Pratap Seonie has been termed as exlessee and unauthorized occupant.
Evi. Ptn No. 6289/16 Harsh Pratap Seonie & Ors Vs Narendra Kumar Jain Page 4/27It is further alleged that erstwhile landlord in collusion with present petitioners, with intention to prevent the disputed premises and / or the alleged interest therein from being taken by the predominant lessor pursuant to the orders, which petitioner and the erstwhile landlord knew was likely to be passed by Estate Officer in eviction proceedings, created sham, bogus and spurious document, the alleged gift deed dated 10.06.2003. It is denied that any gift deed was even executed by late Shiv Pratap Seonie in favour of petitioners or that petitioners have acquired any right, title or interest in respect of suit premises. The genuineness and authenticity of alleged gift deed is denied. It is alleged that gift deed dated 10.01.2003 was created, fabricated and got executed fraudulently.
9. It is further alleged that petitioners deliberately with malafide intentions concealed the material fact that the disputed premises of which the shop no.9A, Sunder Nagar Market, New Delhi forms a part, was leasehold property and that the reentry order in respect of disputed premises was issued on 16.05.1969 by the lessor/Lieutenant Governor of Delhi on account of violations of lease deed and finally property was re entered on 28.04.1999 and even government dues demanded vide letter dated 15.02.2002, were not paid and eviction proceedings were initiated against the alleged erstwhile landlord late Shiv Pratap Seonie. It is alleged that in view of aforesaid cancellation of lease and reentry, the erstwhile landlord ceased to have any right, title or interest whatsoever in the tenanted premises and as such, the gift deed dated 10.01.2003 on the basis of which, the petitioners claim to have acquired ownership, is voidabinitio as it was executed fraudulently by concealment of true and material facts deliberately and with malafide intentions, long after cancellation of lease and reentry of tenanted premises, knowing fully well that late Shiv Pratap Seonie could not have legally or lawfully executed any such gift deed in favour of present Evi. Ptn No. 6289/16 Harsh Pratap Seonie & Ors Vs Narendra Kumar Jain Page 5/27 petitioners. It is stated that in view of above, petitioners do not possess any locus standi to institute the present eviction petition in respect of tenanted premises.
10. It is stated that petitioners are part of a very close knit family and have been living jointly and they are engaged in joint family business of sale and purchase of prime immovable properties in Delhi with a view to earn profits. It is alleged that petitioners have been selling and purchasing properties involved in litigation and / or occupied by the tenants with a view to earn capital gains and then to invest further in purchasing other immovable properties occupied by tenants and / or involved in litigation at a throw away prices.
11. It is alleged that petitioners with ulterior motives have not even disclosed the various properties purchased, sold and / or owned by them and / or their other family members. The details of some other properties owned by petitioners and their family members are as under :
a) Flat No.811, Tolstoy House, India Connaught Lane, New Delhi (owned by petitioner no.1 & 2) (commercial)
b) Flat No.B32A, Himalaya House, Kasturba Gandhi Marg, Connaught Place, New Delhi (owned by petitioner no.1 & 2) (commercial)
c) Flat No.506, Mohan Dev Building, Tolstoy Marg, Connaught Place, New Delhi (owned by petitioners) (commercial)
d) Properties bearing no.212 & 2/121, Nangal Raya, New Delhi (owned by petitioners) (commercialcumresidential)
e) 104, Arunachal Building, Barakhamba Road, New Delhi (owned by petitioner no.1) (commercial)
f) 104A, Arunachal Building, Barakhamba Road, New Delhi (owned by Kiran Seonie, Neha Seonie and Ms Rakhee Malhotra, close knit family members of petitioners) (commercial) Evi. Ptn No. 6289/16 Harsh Pratap Seonie & Ors Vs Narendra Kumar Jain Page 6/27
g) Lower basement, 31, Tolstoy House, India Connaught Lane, New Delhi (owned by petitioners) (commercial)
h) a premises situated in main Daryaganj Road, Delhi (occupation of a tenant M/s Capital Surgical) (owned by petitioners)
i) Property no.37, Hanuman Road, New Delhi, as admitted by petitioners and this property is both commercial and residential, comprises of basement having an area of 1320 Sq ft and petitioners are using the said basement for commercial purposes.
12. It is stated that above said properties can be used for any commercial purpose and all of them are reasonably suitable commercial accommodation for adjusting petitioner no.2 in his alleged business activity. It is alleged that petitioners have not placed on record any documents in support of averments that property no.G58, Connaught Place is divided into two portions and that petitioner no.1 & 3 are in possession of half portion each. It is stated that Sh Arjun Jain has been running his business in the tenanted premises much prior to 1989 under the name and style of M/s Padma Gems as its sole proprietor and with above knowledge, erstwhile landlord Shiv Pratap Seonie confirmed the said facts and issued a letter dated 16.01.1989 to the effect, inter alia that respondent has the right to sub let the tenanted premises to any other person and that Shiv Pratap Seonie had no objection if Sh Arjun Jain continues to carry on said business from the tenanted premises as a subtenant. It is stated that Arjun Jain continued to do business from the tenanted premises as lawful subtenant in accordance with law and erstwhile landlord during his lifetime and after his death, present petitioners have been accepting rent from said Sh Arjun Jain, as a lawful subtenant in respect of tenanted premises. It is alleged that present petition is not maintainable for nonjoinder of all necessary and/or proper parties. It is further alleged that neither the essential and mandatory requirements and Evi. Ptn No. 6289/16 Harsh Pratap Seonie & Ors Vs Narendra Kumar Jain Page 7/27 ingredients of section 14 (1) (e) of the DRC Act are satisfied nor have the same been pleaded in the petition for the eviction. It is claimed that present petition is deserves to be dismissed on the ground that petitioners have intentionally and deliberately not filed the lease deed dated 09.08.1987 which was executed by late Shiv Pratap Seonie in favour of respondent as well as a letter dated 16.01.1989 conferring rights on the respondent besides a general power of attorney dated 10.08.1987 and other documents acknowledging the existence of relationship amongst erstwhile landlord Shiv Pratap Seonie, Sh Arjun Jain and respondent. It is alleged that many estate agents including prospective buyers are visiting the tenanted premises to check the condition and to enquire about the ownership of same for the purpose of purchasing the same. It is further alleged that tenanted premises is not bonafide required by any of petitioners and is just tactics to pressurize the respondent to succumb to their illegal demands of increasing rent exorbitantly. It is alleged that petitioners are hell bent upon getting the tenanted premises evicted from respondent by raising mendacious, frivolous, concocted and baseless averments and allegations and by harassing the respondent in one way or other. It is stated that late Shiv Pratap Seonie during his lifetime, in order to create a false defence in eviction proceedings before the Estate Officer pursuant to reentry dated 28.04.1999, had also filed a frivolous and baseless eviction petition under section 14 (1) (k) of DRC Act against the respondent in respect of tenanted premises, which is also pending. It is stated that tenanted premises is not bonafide required by petitioners either for office purpose of petitioner no.2 or otherwise or at all and if at all petitioner no.2 has any requirement, he is well equipped with alternate reasonably suitable commercial accommodation for any of his business activity. It is further stated that respondent has only tenanted premises to operate his business activity and if Evi. Ptn No. 6289/16 Harsh Pratap Seonie & Ors Vs Narendra Kumar Jain Page 8/27 he is evicted, his business will be ruined which is the only source of income for him and for his family and as such, it would cause extreme hardships, harassment and humiliation to respondent and family. It is alleged that petitioners have deliberately and malafide not even disclosed the extent of accommodation available in any of the properties so disclosed. It is alleged that petitioners and their sons are in the old habit of harassing and torturing the tenants on one pretext or other.
13. It is denied that measurement of shop is only 11' x 44' or that area of shop is only 484 sq ft rather the respondent is in occupation of entire shop and the petition is for eviction from part only of the premises in occupation/tenancy of respondent. It is admitted that rent of the premises is Rs.973.62 per month besides electricity and water charges. It is stated that the reteable value of property is not in the knowledge of respondent. It is admitted that premises were let out on 09.08.1987 and a lease deed dated 09.08.1987 was executed. It is denied that there are no subtenants in the tenanted premises. It is denied that late Shiv Pratap Seonie was the owner of tenanted premises. It is stated that erstwhile landlord has been termed as ex lessee and unauthorized occupant by L&DO. It is stated that erstwhile landlord was the lessee of tenanted premises and was not the owner. It is further stated that it is well settled principle of law that one who does have good title, cannot convey the same, here also the erstwhile landlord had no title of ownership on the tenanted premises and therefore the petitioners cannot be said to be the owner. It is denied that petitioner no.1 and 3 have no objections if the suit premises is exclusively used and occupied by petitioner no.2 for his own business. It is denied that petitioner no.2 is independent, self employed and working independently. It is denied that property no.37, Hanuman Road, New Delhi is a residential property and that said property is in the name of petitioner no.1 & 3. It is further denied that Evi. Ptn No. 6289/16 Harsh Pratap Seonie & Ors Vs Narendra Kumar Jain Page 9/27 no portion of said property can be used for any business activities by any person. It is further denied that office at G58, Connaught place is a commercial premises on rent and that petitioner no.1 & 3 are joint owners thereof. It is reiterated that erstwhile landlord late Shiv Pratap Seonie confirmed that the respondent has the right to sub let the tenanted premises to any other person. It is denied that petitioner no.2 has been conferred upon a degree of bachelor of business administration on 14.12.2011 by Amit University. It is denied that suit premises is suitable for petitioner no.2 and that he was doing his property dealing business in name and style of Varunco. All other averments are denied. It is prayed that the present petition may be dismissed.
14. Replication was not filed by the petitioner to the WS of respondent.
15. Thereafter, petitioner led evidence and examined Varun Pratap Seonie as PW1. He tendered his evidence by way of affidavit Ex.PW1/A and relied upon following documents :
1) site plan as Ex. PW1/1
2) certified copy of registered gift deed dated 10.01.2003 as Ex. PW1/2.
3) letter dated 06.11.2009 of MCD bearing no.Tax/CZ/09/693 as Ex. PW 1/3.
4) rent receipt for the period 01.10.2002 to 31.12.2002 as Ex.PW1/4
5) rent receipt for the period 01.01.2003 to 31.03.2003 as Ex.PW1/5
6) rent receipt for the period 01.04.2003 to 31.03.2004 as Ex.PW1/6
7) rent receipt for the period 01.04.2004 to 31.03.2005 as Ex.PW1/7
8) rent receipt for the period 01.04.2005 to 31.03.2006 as Ex.PW1/8
9) rent receipt for the period 01.04.2006 to 31.03.2007 as Ex.PW1/9
10) rent receipt for the period 01.04.2007 to 31.03.2008 as Ex.PW1/10
11) rent receipt for the period 01.04.2008 to 31.03.2009 as Ex.PW1/11
12) rent receipt for the period 01.04.2009 to 31.03.2010 as Ex.PW1/12 Evi. Ptn No. 6289/16 Harsh Pratap Seonie & Ors Vs Narendra Kumar Jain Page 10/27
13) rent receipt for the period 01.04.2010 to 31.03.2011 as Ex.PW1/13
14) rent receipt for the period 01.04.2011 to 31.03.2012 as Ex.PW1/14
15) copies of income tax return as Ex.PW1/15 to Ex.PW1/17 (OSR)
16) copy of degree in bachelor of business administration as Ex.PW1/18 (OSR)
17) certified copy of conveyance deed dated 06.07.2009 as Ex.PW1/19
16. PW1 was duly cross examined by counsel for respondent. During his cross examination, he identified the document i.e. list of documents dated 20.04.2012 as Ex.PW1/R1 which bears his signatures at point X. Document Mark D1 (signature at point B on agreement for lease) and Mark D2 (copy of perpetual lease) were also marked during his cross examination. Documents as Ex.D3 to Ex.D16 (copies of 14 cheques), Ex.D17 (general power of attorney), Ex.D18 (letter dated 16.01.1989), Ex.D19 (letter dated 10.04.1989) were also exhibited during his cross examination.
17. Thereafter, respondent led evidence and examined himself as RW1 and tendered his evidence by way of affidavit Ex.RW1/A and relied upon documents already Ex.D17, D18, D19 (letter dated 10.04.1989 is Ex.D20 on judicial file but the same has been mentioned as Ex.D19 in evidence affidavit of RW1), D3 to D16. This witness was duly cross examined by counsel for petitioner.
18. Thereafter, respondent examined Mr. Kapil Chandra Jain as RW2. He deposed that he is the son of late Mahesh Chand Jain who was the power of attorney holder in regard to suit property and used to deal with the tenants in such capacity. He deposed that said POA was executed by Sh Shiv Pratap Seonie. He deposed that document Ex.D20 was prepared at the shop in question and have been signed by Arjun Jain (who was in possession of shop in question) and his father. He deposed that his father had talks with Evi. Ptn No. 6289/16 Harsh Pratap Seonie & Ors Vs Narendra Kumar Jain Page 11/27 Shiv Pratap Seonie on phone regarding the said document as Shiv Pratap Seonie was giving permission to Arjun Jain to conduct his business from the suit shop. He deposed that his father used to collect rent from Arjun Jain and he used to accompany his father at all times for collection of rent.
19. Thereafter, final arguments were addressed.
20. I have considered the arguments advanced on behalf of parties and have carefully perused the evidence on record.
As per section 14(1)(e) of DRC Act, three essential ingredients have to be proved by the petitioner which are as follows:
I) that petitioner is the owner and landlord in respect of the tenanted premises;
II) that he requires the premises bonafide for himself or for any member of his family dependent upon him;
III) that he has no other reasonably suitable accommodation.
TENANCY BETWEEN THE PARTIES AND OWNERSHIP OF PETITIONER The leave to defend application of respondent was allowed by Ld. Predecessor of this Court on 11.09.2013 and liberty was given to contest the petition. However, in regard to the issue of landlord tenant relationship and the ownership of the petitioners a categorical finding was given that petitioners are the landlord/owners of the suit property for the purpose of present petition and no triable issue is raised in this regard necessitating leading of any evidence. Said order/finding has not been challenged by the respondent and, therefore, by the principle of res judicata said finding has become final against the respondent qua the Evi. Ptn No. 6289/16 Harsh Pratap Seonie & Ors Vs Narendra Kumar Jain Page 12/27 present petition. Nonetheless, the arguments of Counsel for respondent are still being dealt with herein after.
The respondent has not disputed the relationship of landlord tenant with Shiv Pratap Seonie i.e. father of petitioner no. 1 and 3 and grandfather of petitioner no.2. Further, the petitioners have proved the registered gift deed Ex.PW1/2 wherein different undivided shares were given to the petitioners. However, the Counsel for respondent has put forth two fold arguments. Firstly that the super lease in favour of the Shiv Pratatp Seonie have been cancelled by the L&DO and thus he (and consequently his successors in interest) have lost any right/title/interest in the property. The second leg of argument is that there is a bar in the original agreement for lease between the government and Shiv Pratap Seonie against transferring of interest of the lessee to a third person without the permission of the government/concerned authority. Consequently, the gift deed could not have been executed and thus, it transfers nothing to the petitioner. I have considered said submissions. As far as the cancellation of the original agreement to lease in favour of Shiv Pratap Seonie is concerned, it is admitted position that possession has not been taken by the government/L&DO. In Smt. Shanti Sharma & Ors. v. Smt. Ved Prabha and Ors. 1987 (2) RCR 300; Shyam Lal v. Murti Devi and Ors. 2015 Law Suit (DEL) 2499; Sheela Jawaharlal Nagori and Anr. v. Kanti Lal Nath Mal Baldota and Ors. AIR 2014 S.C. 1689 it has been held that till the possession of the land is not vested in the government the original owner is free to deal with the tenant and the tenant is not entitled to resist the landlord's prayer for decree of possession. Even otherwise, as per Ramesh Chand v. Uganti Devi 2009 Evi. Ptn No. 6289/16 Harsh Pratap Seonie & Ors Vs Narendra Kumar Jain Page 13/27 157 DLT 450 the only thing to be seen by the court is that the landlord has been receiving rent for his own benefit and not for and on behalf of someone else and in such case he has to be considered as the owner howsoever imperfect his title over the premises may be. In regard to the second argument, it is to be noted that even if there is a breach of any clause of the original agreement the subsequent lessee i.e. the respondent cannot take the benefit of the same. However, the Counsel for respondent had fine tuned his argument on this aspect and has argued that the agreement between Shiv Pratap Seonie and the government was in a standard form lease under a statute and therefore the terms of the same are equivalent to a statute and violation of the same is equivalent to violation of a statute. In support of said arguments, he has relied on the judgment of Hon'ble High Court of Delhi i.e. Ghanshyam and Ors. v. Union of India and Ors. (1982) ILR 2 Delhi 807 wherein a writ petition was held to be maintainable as the lease deed executed by President of India was held to be not a contractual document but a statutory lease as same was in statutory form by virtue of appendix 11 to the Displaced Persons (Compensation and Rehabilitation) Rules 1955. I have considered said submission also. Firstly, aforesaid case was a writ petition and the question was limited to maintainability of a writ. Hence, said judgment has to be read in that context only. Secondly, the respondent has neither pleaded nor proved that the lease deed in favour of Shiv Pratap Seonie was also in any statutory form as in the aforesaid case. Thirdly, breach of a condition of lease i.e. creation of third party interest without seeking permission of super lessor is only a forfeiture clause and gives a right to super lessor to terminate the lease but the Evi. Ptn No. 6289/16 Harsh Pratap Seonie & Ors Vs Narendra Kumar Jain Page 14/27 transfer itself cannot be said to be ipso facto void as it is discretion of super lessor to act upon such breach or waive off the same. Rather, forfeiture of lease has to be done by giving notice in writing mentioning the particular breach and if breach is capable of remedy, require the lessee to remedy the breach. However, there is neither any averment nor any evidence to show that super lessor has acted on alleged breach or not. Accordingly, there is no substance in the aforesaid arguments of Counsel for respondent. Hence, the first ingredient of section 14(1)(e) DRC Act stands proved in the present case.
BONAFIDE REQUIREMENT The petitioner no.2 has claimed that he needs the suit premises as he is facing difficulty in running his property consultancy business (being run under name & style of Varun Co.) from his residence. Further, during the evidence the petitioner has deposed that after filing of the petition he has even entered into a limited liability partnership agreement in the name of Rapid Offix Solutions with one Tarun Aggarwal but said partnership is yet to start its business and temporarily the registered office of the same has been shown at 37, Hanuman Road, Delhi. On the other hand, the Counsel for respondent has argued that the alleged requirement is bogus, sham and merely a ploy to evict the respondent from the premises. He has argued that petitioner has failed to file any document regarding the business being done in the name of Varun Co. and Rapid Offix. It is submitted that in fact the petitioner no.2 is neither running such business nor intends to do so. It is submitted that PW1 has deposed in his cross examination that he had never visited the suit property. The Evi. Ptn No. 6289/16 Harsh Pratap Seonie & Ors Vs Narendra Kumar Jain Page 15/27 Counsel has submitted that had petitioner no.2 been genuinely interested in starting his business from the premises, he would have visited the same to see its suitability or otherwise. PW1 has also deposed that he has not prepared any business plan for running his business under the name and style of M/s. Varun Co. The Counsel for respondent has argued that same shows that petitioner no.2 is not even serious about alleged business and same is only a front to get the premises vacated. The Counsel has further submitted that in his cross examination PW1 has deposed that he told his father in 2009 that he intends to start his independent business of real estate and that in year 2009 his father had vacant commercial properties. Counsel for respondent has submitted that the same shows that petitioner no.2 is deposing falsely about his alleged need as he could have availed such commercial properties if he genuinely intended to start any such business.
I have considered said arguments.
The term bonafide requirement does not mean "absolute" requirement of landlord without which it is impossible for the landlord to get on. It means "reasonable requirement". Further the requirement of tenant may be greater than that of the landlord but being the owner the requirement of landlord would be supreme so long as it is reasonable and is not visited by any oblique motive intended to harass tenant to extract more rent or otherwise to let out to some other tenant, etc. The words "bonafide" connotes good faith which is suggestive of honesty of purpose, without fraud or deceit. However, the bonafide requirement is not synonymous with a mere wish, fanciful desire or whim of a landlord to occupy a certain premises. Thus, the court has to see whether the need put forth by the landlord is not fanciful or fraudulent. Though the petitioner no.2 has Evi. Ptn No. 6289/16 Harsh Pratap Seonie & Ors Vs Narendra Kumar Jain Page 16/27 not filed any documents regarding conducting of any business in the name of Varun Co. in the business of property consulting, however, the court cannot doubt the bonafides of the petitioner on the said count alone. He has deposed on oath regarding said fact and it was never put to the petitioner as to whether he can produce any such documents so there was no question of any failure to do so on such request. Rather, petitioner has filed his income tax returns showing the income from property business of M/s.Varun Co. for the financial years of 20082009, 20092010 and 20102011. No serious doubt has come forth in regard to said ITRs during the entire cross examination of PW1. On the other hand, during his cross examination on 02.04.2018, it was specifically put forth to the respondent as to how can he say that petitioner no.2 does not require the suit property for any purpose and he replied that since petitioner no.2 owns other properties, therefore, he has stated that he does not require the suit property. However, he did not claim that petitioner no.2 does not do any property consultancy business or does not intend to use the suit property for said purpose. Further, he claimed that prospective buyers have been visiting the tenanted premises but he failed to tell the names and details of said persons. Though he volunteered that many people came so he cannot recall their names but it is noteworthy that he did not tell the name of a single person who had visited to buy the tenanted premises or have told that the petitioners were intending to sell the property to them. The respondent was also questioned that on what basis he has claimed that petitioners want to sell the suit property at throw away prices and he has only responded that it is business of the petitioners to buy and sell the properties but no further fact has been stated to corroborate such assertion. However, the mere fact that Evi. Ptn No. 6289/16 Harsh Pratap Seonie & Ors Vs Narendra Kumar Jain Page 17/27 petitioners are in business of property dealing cannot lead to an inference that they want to sell their property. It is also to be noted that respondent has deposed that petitioners never asked him to increase the rent of the suit property. Accordingly, from the overall circumstances it does not appear that the petitioners want to sell out the property or let it out on a higher rate of rent. Therefore, no oblique motive could be proved to doubt the bonafides of petitioners. Even otherwise, the respondent has a remedy provided under section 19 of DRC Act for claiming the repossession of the suit property if the petitioner sells the property or puts the property to some other use. As far as other arguments of Counsel for respondent are concerned, it was not required of petitioner no.1 to visit the premises when he knew the location, nature and size of the property. Further, it is irrelevant whether petitioner no.2 did not start his business from the commercial properties of his father because petitioner no.2 can chose his place of business and more so when the place of choice belongs to him and the other premises do not. Accordingly, from the aforesaid discussion, the petitioner has proved the second ingredient of section 14(1)(e) of DRC Act.
SUITABLE ALTERNATIVE ACCOMMODATION The respondents have claimed that various alternative/suitable properties are available to petitioners. It is to be noted that bonafide requirement has been raised qua petitioner no.2 only. Accordingly, only the properties stated to be owned by petitioner no.2 shall be relevant for the present discussion. The respondent has referred to nine properties in the WS. However, property no.104, Arunachal Building, Barakhamba Evi. Ptn No. 6289/16 Harsh Pratap Seonie & Ors Vs Narendra Kumar Jain Page 18/27 Road, New Delhi is stated to be owned by petitioner no.1. Likewise, property no. 104A, Arunachal Building, Barakhambha Road, New Delhi is stated to be owned by the other family members of petitioners namely Kiran Seonie, Neha Seonie and Rakhi Malhotra. Accordingly, the same are not relevant as the property of other family members cannot be considered as to be the properties available to petitioner no.2 having no right to possess the same. The Counsel for respondent has argued that PW1 has deposed that his father has been purchasing properties in the name of female members of family and, therefore, aforesaid property shall be considered to be owned by petitioners. I have considered said argument. However, aforesaid answers were given by PW1 in a generic sense and it was never put to him specifically as to whether property no. 104A has been purchased by his father. Secondly, even if it was purchased by petitioner's father by his own money, petitioner no.2 has no right to possess the same.
Proceeding further, the remaining seven properties/referred by respondent are:
1. Flat no.811, Tolstoy house, India Connaught Lane, New Delhi stated to be owned by petitioner no.1 and 2
2. Flat No.B32A, Himalaya House, Kasturba Gandhi Marg, Connaught Place, New Delhi stated to be owned by petitioner no.1 and 2.
3. Flat No.506, Mohan Dev Building, Tolstoy Marg, Connaught Place, New Delhi stated to be owned by petitioners.
4. Properties no.212 and 2/121, Nangal Rai, New Delhi stated to be owned and possessed by petitioners.
5. Lower basement 31, Tolstoy House, India Connaught Lane, New Delhi stated to be owned by petitioners.
Evi. Ptn No. 6289/16 Harsh Pratap Seonie & Ors Vs Narendra Kumar Jain Page 19/276. A premises situated in main Daryaganj Road under occupation of a tenant Ms. Capital Surgical.
7. Property No.37, Hanuman Road, New Delhi stated to be owned by petitioners and also admitted by them in para 5A of the petition.
Interestingly, respondent has not filed a single document to show that how the aforesaid properties are stated to be owned by the petitioners/particular petitioners as mentioned in WS. Rather during his cross examination on 02.04.2018 respondent has deposed that he has not seen any ownership document of any of the properties mentioned in para 12 of his affidavit (i.e. aforementioned nine properties). It was further put to the respondent during his cross examination on 05.04.2018 that whether he has verified the ownership of said properties and he has deposed that he verified the same after engaging the services of some agent who told him that said properties belong to petitioners. Thereafter, he visited said properties and from the inquiry counters/offices of respective building he confirmed the ownership. However, he failed to tell the names of such agents. On scrutiny of said cross examination, various facts are revealed. Firstly, the claim of respondent is admittedly based on hearsay facts told by some "agents". As far as verification from the inquiry offices of the buildings is concerned, same is also a hearsay evidence as the inquiry counters are not public offices supposed to maintain the record of the title of each portion of a building. Accordingly, the respondent has miserably failed to prove the availability of any of the alternative accommodations mentioned in the WS.
However, Counsel for respondent has vehemently argued that in the present case in reply to leave to defend application, the petitioner has taken a stand that flat no. 811 is owned by Sanjay Seonie and Dev Pratap Evi. Ptn No. 6289/16 Harsh Pratap Seonie & Ors Vs Narendra Kumar Jain Page 20/27 Seonie; flat No.B32A is owned by Kavita Seonie; flat No.506 is owned by Kavita Seonie and Bharat Seonie, property No.202; Second Floor, (wrongly mentioned by respondent as number 212) is owned by Sanjay Seonie and Bharat Seonie, lower Basement of 31; Tolstoy house was owned by Neha Seonie and Vikas Seonie and said property has been sold in 2010 to one Siddharth Singh Property at Darya Ganj was admitted to be in possession of tenant, M/s. Capital Surgical and said property was stated to be purchased by H. P. Seonie along with one Vijay Kumar Lakra. It was further mentioned that said property now stand sold vide registered sale deeds dt. 05.10.2011. The basement of property no.37, Hanuman Road was stated to be sanctioned for domestic storage and not for commercial activities. Further, said basement was stated to be owned by petitioner no.1. The Counsel has submitted that once the petitioners have taken a stand that said properties were owned by the other family members and as disclosed in the cross examination dt. 27.04.2017 of PW1 i.e. petitioner no.2 he was in possession of original documents of all the properties, the petitioners had the onus to produce the said title documents to show that petitioner no.2 has no concern with said properties. Ld. Counsel has argued that by withholding such documents the petitioners have failed to discharge the onus of proof which was cast on them after the leave to defend was allowed on the ground of non filing of such documents along with the reply to the leave to defend application. The Counsel has even relied upon the judgment of Hon'ble Supreme Court of India titled Tomaso Gruno v. State of U.P. (2015) 7 SCC 178 wherein it was held that as per section 114(g) of Evidence Act, if a party in possession of best evidence which will throw light on controversy withholds it the court can draw an adverse inference against him Evi. Ptn No. 6289/16 Harsh Pratap Seonie & Ors Vs Narendra Kumar Jain Page 21/27 notwithstanding that the onus of proving does not lie on him. I have considered the arguments of the Counsel and the said judgment. Firstly, the pleadings of parties are the petition, W.S., replication etc. The affidavit seeking leave to defend and counter affidavit thereto are only affidavits and not pleading and serve limited purpose i.e. to decide whether matter has to be put to trial or not. Thus, for the trial the court has to go by the contents of petition, W.S., replication, rejoinder and not the leave to defend affidavit/counter affidavit. Secondly, a party has to prove positive facts only and, therefore, once the petitioner pleads that he has no alternative suitable accommodation available to him the onus is on the respondent to prove otherwise. Thirdly, the observations made by Ld. Predecessor at the time of granting the leave to defend while considering non filing of the documents was one of the facts coupled with the fact that the veracity of the claims of the petitioners have to be tested by cross examining the petitioners. However, when the petitioner no.2 i.e. PW1 was cross examined at length over various dates, not a single time it was put to the witness whether he can produce the documents in regard to said title documents. Had such query been put to him and he had refused to produce such documents despite having access to the same an adverse presumption could have been raised against the petitioner. However, the respondent cannot take advantage of section 114 (g) when he merely puts questions and suggestions to the petitioner about the title documents of the alternative properties but stops short of asking for production of such documents. It is also to be noted that petitioner have given details of various sale transactions in their reply to leave to defend application by giving reference to the registration details/dates but respondent still failed to produce any record from registering authority to show that no such Evi. Ptn No. 6289/16 Harsh Pratap Seonie & Ors Vs Narendra Kumar Jain Page 22/27 transaction existed. As far as the judgment of Hon'ble Supreme Court of India referred by Counsel for respondent is concerned, the same was rendered in a criminal trial where the burden of proof is very high compared to a civil case. In criminal trial even if burden of proof regarding a particular fact is on the accused the same may be discharged even if a doubt is raised in favour of accused regarding possibility of such defence. Therefore, the principles of said judgment cannot be applied in a civil case much less in the facts and circumstances of the present case. The Counsel for respondent has also put forth another arguments in written argument that no replication was filed by the petitioner to the WS and therefore specific averments of respondent about alternative properties are deemed to be admitted. I have considered said argument. However, said argument is totally fallacious and devoid of any legal basis. As per order VIII of CPC the defendant is duty bound to file a written statement and give specific denials or face consequences of deemed admission. However, petitioner has no duty to file replication and rather he has so seek permission from Court to do so as per order VIII Rule 9 CPC. Hence, the rule of deemed admission is not applicable on nonfiling of replication. Accordingly, in view of aforesaid discussion, the petitioners have proved even the third ingredient of section 14(1)(e) of DRC Act.
Lastly, the Counsel for respondent has argued that the respondent has proved that a lawful sub tenant had been inducted into the property with prior consent of original landlord and even notice of sub tenancy was served on his attorney. Ld. Counsel has argued that in such scenario the petition is not maintainable and is liable to be dismissed as the lawful sub tenant despite being a necessary party was never impleaded.
Evi. Ptn No. 6289/16 Harsh Pratap Seonie & Ors Vs Narendra Kumar Jain Page 23/27I have considered said submissions. It is settled law that an unlawful sub tenant goes with the tenant once an eviction order is passed against the tenant. As far as the lawful sub tenant is concerned, his rights are protected u/s 25 of the DRC Act. Same provides that "Notwithstanding anything contained in any other law, where the interest of a tenant in any premises is determined for any reason whatsoever and any order is made by the Controller under this Act for the recovery of possession of such premises the order shall, subject to the provisions of section 18, be binding on all persons who may be in occupation of the premises and vacant possession thereof shall be given to the landlord by evicting all such person therefrom: provided that nothing in this section shall apply to any persons who has an independent title to such premises"
Section 18(1) of DRC Act provides "Where an order for eviction in respect of any premises is made under section 14 against a tenant but not against a subtenant referred to in section 17 and a notice of the sub tenancy has been given to the landlord, the subtenant shall, with effect from the date of the order, be deemed to become a tenant holding directly under the landlord in respect of the premises in his occupation on the same terms and conditions on which the tenant would have held from the landlord, if the tenancy had continued." Moreover the picture gets abundantly clear from the language of section 14(3) DRC Act which provides that "No order for the recovery of possession in any proceeding under sub section (1) shall be binding on any subtenant referred to in section 17 who has given notice of his subtenancy to the landlord under the provisions of that section, unless the subtenant is made a party to the proceeding and the order for eviction is made binding on him".
Accordingly, if the petitioner seeks eviction of a lawful sub tenant also, Evi. Ptn No. 6289/16 Harsh Pratap Seonie & Ors Vs Narendra Kumar Jain Page 24/27 only then he has to implead him as a party. If the petitioner fails to do so the only consequence that will follow is as provided u/s 18 of DRC Act i.e. on passing of such order of eviction against the tenant the lawful sub tenant as provided in section 17 shall become a tenant directly under the landlord. However, from the entire scheme of section 14(3) r/w section 16, 17, 18 and 25 it cannot be inferred that a lawful sub tenant is also a necessary party in a petition u/s 14(1)(e) of DRC Act. He shall be a necessary party only if petitioner seeks the eviction of such lawful sub tenant also as otherwise he shall be hitting against the wall at the stage of execution as the lawful sub tenant will have right to protect his possession u/s 25 of the DRC Act. The Counsel for respondent has further relied on the judgment of Hon'ble Supreme Court of India titled South Asia Industries Private Limited v. S. Swaroop Singh & Ors. AIR 1966 SC 346 to press his point that lawful sub tenant is a necessary party. I have considered said judgment. Firstly, in said case there was no specific issue before Hon'ble Supreme Court as to whether a lawful sub tenant is a necessary party as envisaged under order I rule 10 CPC. Secondly, the said case was under 14(1)(b) and not under 14(1)(e) of DRC Act. Thirdly, the sub tenant was a party in the said case and the issue was whether proceedings can continue against sub tenant u/s 14(1)
(b) of DRC Act if a tenant (company in said case) became non existent as it went into liquidation and its name was subsequently struck off from the record of the proceeding. Thus, the issue was entirely different in the said case. Fourthly, the judgment has been rendered by three Hon'ble Judges of Supreme Court of India who have given different judgments/reasoning but concurring in regard to the final decision i.e. the dismissal of the appeal of sub tenant. Moreover, the observations referred by the Counsel Evi. Ptn No. 6289/16 Harsh Pratap Seonie & Ors Vs Narendra Kumar Jain Page 25/27 for respondent are merely an obiter. Further, even in said obiter it is mentioned by Justice A. K. Sarkar "it seems to me that an application under clause b of the proviso to sub section 1 of section 14 an assignee or sub tenant, as the case may be, should be a proper party". Thus, there is no categorical finding that a sub tenant is a necessary party. The further observations relied upon by the Counsel for respondent wherein it is mentioned that a tenant being interested in showing that sub letting was with consent should be entitled to be made parties to the proceeding have to be read in the context that the entitlement is being referred to the sub tenant being a proper party. Lastly, the judgments cannot be interpreted like a statute and have to be read in the context of facts and circumstances under which the same was delivered. Therefore, from the aforesaid discussion, it can be safely concluded that the respondent cannot claim that petition is not maintainable against him for want of impleading the sub tenant even if he is a lawful sub tenant. In the given context, the Court is not even required to give a finding as to whether the alleged sub tenant was lawful or unlawful as the same does not affect the present proceeding as petitioner has claimed eviction of respondent only.
In view of my aforesaid observations and findings, the petitioner has proved all the ingredients of section 14(1)(e) of DRC Act and the petition is accordingly allowed and respondent is directed to vacate the premises i.e. Shop no.9A measuring about 11 feet X 44 feet at plot no.9, Block no.171, Sunder Nagar Market, New Delhi along with common verandah, specifically shown in red color in the site plan Ex.PW1/1 . However, petitioner shall not be entitled to obtain possession of the premises before expiry of six months as provided in the order u/s 14(1)(e) of DRC Act.
Evi. Ptn No. 6289/16 Harsh Pratap Seonie & Ors Vs Narendra Kumar Jain Page 26/27File be consigned to Record Room after completion of necessary formalities.
SACHIN Digitally signed by SACHIN
SANGWAN
SANGWAN Date: 2019.05.28 16:43:10
+0530
Announced in the open court (Sachin Sangwan)
on 27.05.2019 Administrative Civil Judgecum
Additional Rent Controllercum
Commercial Civil Judge: (South):
Saket District Courts: New Delhi
Evi. Ptn No. 6289/16 Harsh Pratap Seonie & Ors Vs Narendra Kumar Jain Page 27/27