Delhi District Court
Courts vs Shri Vishnu Kumar on 11 September, 2012
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IN THE COURT OF SH. PRITAM SINGH, ARC (CENTRAL) TIS HAZARI
COURTS, DELHI.
E-617/09
11.09.2012
Shri Jamil Ahmed
s/o Late Sh. Abdul Aziz
permanent resident of :-
B-33, Nizamuddin East,
New Delhi-110013
at present residing at
1792, First Floor, Katra Sheikh Chand
Bazar Lal Kuan,
Delhi-110006. ...Petitioner
VERSUS
Shri Vishnu Kumar
s/o Late Sh. Narain Prasad,
Shop No. 1863, Bazar Lal Kuan,
New Delhi-110006. ...Respondent
Petition u/s 14 (1) (e) r/w section 25 (B) of DRC Act
1. Date of institution of the case : 09.11.2009
2. Date of Judgment reserved : 04.09.2012
3. Date of Judgment pronounced : 11.09.2012
JUDGMENT
By this order I shall dispose of the application u/s 25-B (4) of DRC Act filed on behalf of the respondent. The brief facts are that the present petition was filed by the petitioner u/s 14 (1) (e) r/w section 25-B of DRC Act on the ground of bonafide requirements. It is stated in petition that the petitioner is owner/landlord of the premises no. 1863/VII, Ground floor, Bazar Lal Kuan, E-617/09 Jamil Ahmed Vs. Vishnu Kumar Page 1 of 14 //2// Delhi-110006 having acquired the same vide two sale deeds dated 29.06.2002 and 29.03.2003 from the previous owner. The suit premises i.e one shop on the ground floor in property bearing no. 1863/VII, Ground floor, Bazar Lal Kuan, Delhi-110006 was initially let out to Sh. Narayan Prasad who died on 26.04.2005. Respondent is son of Late Sh. Narayan Prasad and claimed to be the sole tenant in the suit premises and nobody else has come forward to assert any tenancy rights. The rent of the suit premises is Rs. 153/- per month. It is further stated that the suit premises are bona fide required by the petitioner for use and occupation for his business to stablize as well as to expand his business and carry on sale/purchase of the items i.e fibre goods as the suit premises is situated in Main Bazar, Lal Kuan and are ideally located for the business for which the petitioner intends to use and occupy the same. The petitioner does not possess any other reasonably suitable accommodation for carrying on/expand his abovesaid business. It is further stated that petitioner had filed a civil suit for ejectment of the respondent but the respondent claimed to be a tenant in the suit premises at a meager rate of Rs. 153/- per month and according to respondent the said civil suit was barred u/s 50 of DRC Act. The petitioner has withdrawn the said civil suit. It is further stated that petitioner is in actual physical possession and occupation of portion shown in blue color in the site plan and carrying on his business of manufacturing fibre components/parts under the name and style of M/s India Industries. The extent of the accommodation in possession of the petitioner is grossly scarce, therefore, he has no space for office purposes and petitioner is constrained to attend to his customers and clients in adjacent buildings which are not suitable for the said purposes. The suit premises are adjacent to the factory premises of the petitioner from where the petitioner can manage E-617/09 Jamil Ahmed Vs. Vishnu Kumar Page 2 of 14 //3// and supervise his workers into the factory. It is further stated that first floor above the suit premises is in actual possession of the petitioner but not fit for office cum shop purposes as the entrance is very congested and narrow. First floor is used as a store for smaller/small semi finished goods. The second floor is in the use and occupation of the petitioner for storing his finished goods. The petitioner is 61 years old and cannot run up and down the stair case time and again. It is further stated that adjacent to the suit premises on the other side of Katra Sheikh Chand, Bazar Lal Kuan, the petitioner has shop belonging to Wakf relating to the Masjid at Katra Sheikh Chand, Bazar Lal Kuan, Delhi-110006, in which petitioner is tenant at a rental of Rs. 40/- per month. This shop bearing no. 1778, Bazar Lal Kuan, Delhi-110006 is being used by M/s Fibre Products, a partnership firm comprising wife and younger son of the petitioner. The elder son of the petitioner carries on his business in the same locality at the address 1812, Katra Sheikh Chand, Bazar Lal Kuan, Delhi-110006 and petitioner has no nexus with the said business. The petitioner resides at B-33, Nizamuddin East, New Delhi-110013 but the said building was old and dilapidated, therefore, petitioner vacated the said house. The younger son of the petitioner and his married daughter jointly own and possess a residential property bearing no. 1792, Katra Sheikh Chand, Bazar Lal Kuan, Delhi-110006. It is further stated that two shops bearing municipal no. 1859 and 1860 being situated inside the gali known as Katra Sheikh Chand, besides being small shops inside the gali are not suitable for office purposes and petitioner cannot keep watch on the movement of his employees. It is prayed than an eviction order may kindly be passed in favour of the petitioner and against the respondent.
2. Leave to defend application alongwith affidavit filed on behalf of the E-617/09 Jamil Ahmed Vs. Vishnu Kumar Page 3 of 14 //4// respondent wherein it is stated that petitioner had filed a suit for ejectment, possession and for recovery of arrears of rent as well as for damages alleging that the rent of the suit premises was more than Rs. 15,000/- per month as the tenancy was terminated vide notice. The respondent had filed an application u/o 7 rule 11 CPC in said civil suit making objections that the said civil suit was barred u/s 50 of DRC Act as well as section 19 of the Slum Areas (Improvement & Clearance) Act. It is further stated that in the present petition, petitioner nowhere stated that the said civil suit was misconceived and was not maintainable, therefore, he could not file the present petition. It is further stated that there is no relationship of landlord and tenant between the petitioner and respondent. It is admitted that the suit premises were taken on rent by Sh. Narain Prasad and rent receipts being issued in the name of Sh. Narain Prasad till he died but Sh. Narain Prasad died living behind two sons namely Vishnu Kumar and Vinod Kumar and two daughters namely Nirmala Devi and Manju Devi and one grand daughter from his predeceased daughter namely Visakha. By operation of law all the above heirs of Late Sh. Narain Prasad became tenant in the suit premises but the petitioner not impleaded them, therefore, petition is bad for non joinder of necessary parties. The suit premises are being used for business of M/s Vishnu Timber Pvt. Ltd. in which Vinod Kumar is one of the Directors alongwith respondent.
3. It is further stated that the petitioner after getting the possession from the tenants of first and second floor of the suit property, let out the same recently to the manufacturer of wooden heals of ladies sandals on higher rent. The petitioner was also in possession of entire property bearing no. 1855 to 1860 which was got vacated from the several tenants by the petitioner. Petitioner has let out one shop bearing no. 1860, Katra Sheikh Chand, Lal E-617/09 Jamil Ahmed Vs. Vishnu Kumar Page 4 of 14 //5// Kuan, Delhi to Dr. Fahim Alam and Dr. Mehjabeen Fahim on higher rent. The petitioner also let out the shop bearing no. 1859, Katra Sheikh Chand, Lal Kuan, Delhi to a barber about eight months back. The petitioner is having sufficient accommodation on the ground floor in property bearing no. 1855 to 1860 and the petitioner has let out the first and second floor of the said property to several other tenants. It is further stated that the property bearing no. 1792, Katra Sheikh Chand, Lal Kuan, Delhi is entirely used for commercial purposes. Infact, the petitioner is residing at Nizamuddin alongwith his family and not in property bearing no. 1792. The portion of property bearing no. 1792 has been let out by the petitioner/his son continuously every year for temporary user for cotton spinning during winter season and during the summer season for storage of kite and maanja etc. The son of the petitioner is having sufficient accommodation in property bearing no. 1792, Katra Sheikh Chand, Lal Kuan, Delhi-6, where son of the petitioner is doing his own business. In fact, the business though in the name of the wife and son of the petitioner, the same belongs to the petitioner. The property bearing no. 1859 to 1860, Katra Sheikh Chand, Lal Kuan, Delhi which is more suitable for the petitioner to keep watching on his laborers. It is further stated that the petitioner has made offer to give accommodation of the first floor and second floor to the respondent but the said accommodation cannot be used by the respondent for the purposes of business because storage of wooden plank etc. cannot be made on the first floor. All other averments made in the petition were denied.
4. Reply to the leave to defend application alongwith affidavit filed on behalf of the petitioner. It is stated in the affidavit of the petitioner that after death of Sh. Narain Prasad only respondent came forward to propound that E-617/09 Jamil Ahmed Vs. Vishnu Kumar Page 5 of 14 //6// he was the sole tenant in the suit premises. He even opted to deposit the rent in the court u/s 27 of DRC Act. No one ever claimed any right, title or interest in the suit premises. It is further stated that the respondent himself claiming protection as a tenant under the DRC Act in Civil Suit, therefore, he is prohibited by estoppel from contending that this action is barred by law. It is denied that petitioner had obtained the vacant possession of first and second floor of the property from the erstwhile tenant. The first and second floor of the suit property are used by the petitioner for his own business purposes. It is admitted that petitioner is owner/landlord of property bearing no. 1855 to 1860 Katra Sheikh Chand, Bazar Lal Kuan, Delhi and shop no. 1860 was let out to a medical practitioner and shop no. 1859 was let out to a barber. The property bearing no. 1856, 1857 and 1858 on the ground floor are in the use and occupation of the petitioner in which he is storing his goods. The petitioner has shown his willingness to exchange the accommodation on ground floor in property bearing no. 1856, 1857 and 1858 with the suit premises. The premises bearing no. 1854-55 are located on the first floor and are used by tenant of the petitioner. The said premises are inside the gali and not on main road. The property bearing no. 1860, Katra Sheikh Chand, Bazar Lal Kuan, Delhi is inside the gali and not suitable for the business of the petitioner. It is denied that petitioner resides at Nizamuddin. All other averments made in the leave to defend application were denied.
5. Rejoinder was filed on behalf of the respondent wherein the averments made in the leave to defend application were reiterated and reaffirmed and those made in the reply were controverted.
6. Arguments heard. Record perused and considered.
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7. Ld. Counsel for the petitioner relied upon the following rulings :-
(i) Amar Chand Jain Vs. Dewan Sales Corporation, R.C. Rev. 525 of 2011. DOD 06.08.2012.
(ii) Avinash Chander Vs. Sohini Devi, 1982 RLR 604. (iii) Smt. Sarla Mittal Vs. Sh. K.C.Jain, 1982 (1) RCJ 795. (iv) H.S.Treohan Vs. M/s Hindustan Kokoku Wire Limited, 1989 (16) DRJ, 150. (v) Smt. Narender Kaur Vs. Mahesh Chand And Sons (HUF) R.C. Rev. 29 of 2012 decided on 17.08.2012. (vi) Pradeep Kumar Tyagi & Ors. Vs. Smt. Bimla Tyagi, R.C.Rev. 105 of 2012. (vii) Bantam Enterprises Pvt. Ltd. Vs. Jaspal Singh Kapoor, 189 (2012) DLT 59.
(viii) Satish Kumar Vs. Subhash Chand Aggarwal, R.C.Rev. 479 of 2011 decided on 28.08.2012.
8. Ld. Counsel for the respondent relied upon the following rulings :-
(i) Rajbir Pal & Anr. Vs. Kanwar Pratap Singh, R.C. Rev. No. 209/2010 decided on 12.10.2011.
(ii) Rajesh Kumar Vs. Naresh Kumar Goel & Ors., R.C.Rev. No. 67/2011 decided on 18.10.2011.
(iii) Ganga Dass Vs. D.N.Singhal & Anr., R.C.Rev. No. 276/2012, decided on 09.07.2012.
(iv) Mohd. Jafar & Ors. Vs. Nasra Begum, R.C.Rev. No. 279/2011 & CM 7832/2012 decided on 09.07.2012.
(v) Nitin Garg Vs. Naresh Kumar Arora & Anr., C.M. (Main) No. 1164, 2009, High Court of Delhi decided on 09.10.2009.E-617/09 Jamil Ahmed Vs. Vishnu Kumar Page 7 of 14
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9. The present petition has been filed u/s 14 (1) (e) r/w section 25-B of DRC Act and in order to succeed in such a petition, petitioners have to prove
(i) Ownership of the suit premises ; (ii) Purpose of letting; (iii) Alternative accommodation; and (iv) bonafide requirement;. Let the same be discussed in detail.
10. Ownership & Purpose of letting.
The respondent contended that petitioner is neither owner nor landlord of the suit premises but respondent has admitted that the suit premises were taken on rent by his father Sh. Narain Prasad. Respondent further contended that Late Sh. Narain Prasad was survived by his two sons and two daughters and one grand daughter from his predeceased daughter. The respondent further contended that the petitioner had filed earlier a suit for ejectment, possession and for recovery of arrears of rent as well as for damages in which the respondent took the objection that the said civil suit was barred by section 50 of DRC Act as well as by section 19 of the Slum Areas (Improvement & Clearance) Act. On the other hand the petitioner stated that he had purchased the suit premises from the erstwhile owner by two registered sale deeds dated 29.06.2002 and 29.03.2003. The petitioner has also filed the copy of sale deed on record. The petitioner has stated that he has withdrawn civil suit as the suit premises was situated in slum area and the respondent claimed the rate of rent is Rs. 153/- only. The respondent has merely denied that petitioner is neither owner/nor landlord of the suit premises but not disclosed if petitioner is not owner than who else is owner and to whom he is paying rent. The respondent has also not disputed that he has deposited the rent in the court u/s 27 of DRC Act. From these facts and the documents produced by the petitioner, it is established that petitioner is owner/landlord of the suit E-617/09 Jamil Ahmed Vs. Vishnu Kumar Page 8 of 14 //9// premises. It is well settled law that landlord is not required to prove absolute ownership as required under the Transfer of Property 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 has also been 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. The only thing to be seen by the Court is that the landlord had been receiving rent for his own benefit and not for and on behalf of someone else. If the landlord was receiving rent for himself and not on behalf of someone else, he is to be considered as the owner howsoever imperfect his title over the premises cannot stand in the way of an eviction petition under Section 14 (1) (e) of the DRC Act, neither the tenant can be allowed to raise the plea of imperfect title or title not vesting in the landlord and that too when the tenant has been paying rent to the landlord. Section 116 of the Evidence Act creates estoppels against such a tenant. A tenant can challenge the title of landlord only after vacating the premises and not when he is occupying the premises. In fact, such a tenant who denies the title of the landlord, qua the premises, to whom he is paying rent, acts dishonestly".
11. It is well settled law that after death of a tenant, his legal heirs became only joint tenant and not co-tenant. It was held in Inderpal Khanna Vs. Commander Bhupinder Singh Rekhi, 2008 VIII AD (Delhi) 328 that "It is E-617/09 Jamil Ahmed Vs. Vishnu Kumar Page 9 of 14 //10// settled law that on death of tenant, tenancy devolves upon legal heirs as a joint tenancy. LRs are joint tenants and not tenants in common. Where out of many, only one or two LR of deceased tenant are in occupation of premises, an eviction petition by landlord against those who are in occupation of the premises is a valid petition. It is not necessary for landlord to implead all the legal heirs of the deceased tenant or to implead even those who are not in occupation and possession of the premises".
12. It is not in dispute that petitioner has filed a civil suit for ejectment, possession and for recovery of arrears of rent as well as for damages against the respondent. The said suit was withdraw by the petitioner on the ground that the suit premises falls in slum area. As the respondent has taken a plea in the civil suit that the said civil suit was barred u/s 50 of DRC Act and the rate of rent is also Rs. 153/- per month, therefore, now, respondent cannot take a plea that petitioner cannot file the petition u/s 14 (1) (e) of DRC Act. So far as the purpose of letting is concerned, after the judgment of Hon'ble Apex Court in Satyawati Sharma Vs. Union Of India III (2008) SLT 553, an eviction petition is maintainable on the ground of bonafide requirement in respect of the property which were let out for commercial purposes. Hence both the ingredients are decided in favour of the petitioner and against the respondent.
13. Alternative accommodation & Bonafide requirement The respondent contended that petitioner was in possession of entire property bearing no. 1855 to 1860 which was got vacated from the several tenants by the petitioner. The shop bearing no. 1860, Katra Sheikh Chand, Lal Kuan, Delhi was let out to Doctors and shop bearing no. 1859, Katra Sheikh Chand, Lal Kuan, Delhi let out to a barber. The shop bearing no. 1855 to 1858 E-617/09 Jamil Ahmed Vs. Vishnu Kumar Page 10 of 14 //11// on the ground floor are with the petitioner. The petitioner has also let out the first and second floor of property bearing no. 1855 to 1860. The respondent further contended that the petitioner does not reside at property bearing no. 1792, Katra Sheikh Chand, Lal Kuan, Delhi and infact, the petitioner is residing at Nizamuddin alongwith his family. It is further contended by the respondent that the portion of property bearing no. 1792 has been let out by the petitioner/his son continuously every year for temporary user for cotton spinning during winter season and during the summer season for storage of kite and maanja etc. It is further contended that the petitioner is having a shop bearing no. 1792, Katra Sheikh Chand, Lal Kuan, Delhi-6, where son of the petitioner is doing his own business. In fact, the business though in the name of the wife and son of the petitioner, the same belongs to the petitioner.
14. The petitioner admitted that shop bearing no. 1860 and 1859 are with Doctors and barber as tenant respectively. The property bearing no. 1856, 1857 and 1858 on the ground floor are in the use and occupation of the petitioner and the petitioner has even offered to the respondent to exchange the suit premises with the accommodation in property bearing no. 1856, 1857 and 1858. The premises bearing no. 1854 and 1855 are located on the first floor and are in the use and occupation of the tenants of the petitioner. The petitioner further stated that he is residing in property bearing no. 1792, Katra Sheikh Chand, Bazar Lal Kuan, Delhi-6. The property bearing no. 1792 are situated in deep inside the gali and the same cannot be used for carrying business by the petitioner. The petitioner denied that property bearing no. 1778 is in use and occupation of his wife and son who are carrying on their business under the name and style of M/s India Industries. The property bearing no. 1854-1860, Katra Sheikh Chand, Bazar Lal Kuan, Delhi are inside E-617/09 Jamil Ahmed Vs. Vishnu Kumar Page 11 of 14 //12// the gali and even the petitioner has offered in his reply to the respondent to exchange the suit premises with premises bearing no. 1855 to 1858 on the ground floor but the respondent refused. From this, it is established that the property bearing no. 1855 to 1860 are not suitable for carrying on the business activities in comparison to the suit premises. The property bearing no. 1792 is also inside the gali and not on the main road as compared to the suit premises. Therefore, the said properties are cannot be considered suitable alternative accommodation with the petitioner. The shop bearing no. 1778 is a tenanted shop but the same is in the use and occupation of wife and son of the petitioner who are carrying on the business under the name and style of M/s India Industries. For the sake of tenant a landlord cannot be expected to ask his wife and son to vacate the premises in their use and occupation. Thus, it is established that petitioner has no alternative suitable accommodation.
15. The petitioner is running a factory behind the shop in question. He needs the suit premises to open his office on the ground floor as well as to expand his business of fibre goods as the suit premises is on the main road and according to the petitioner, it is the best suitable accommodation which he needs for the said purposes as well as to keep watch on his workers, therefore, I am of the considered view that neither tenant nor court can dictate terms to the petitioner. It was held by Hon'ble Supreme Court in M/s John Impacts Pvt. Ltd. Vs. Surender Singh, 2007 (1), RCR 509 that "The landlord is best judge of his requirement and a tenant cannot dictate terms on which the landlord should live"
16. It has been recently held by the Hon'ble High Court in Amar Chand Jain Vs. M/s Dewan Sales Corporation (supra) that "In the present case, the E-617/09 Jamil Ahmed Vs. Vishnu Kumar Page 12 of 14 //13// respondent had not denied the bona fide need of the petitioner to settle his sons and expansion of his business. The respondent raised bald pleas with respect to sufficient space available to the petitioner. It is, however, not denied that the tenanted shop is situated in the commercial hub. Therefore, to expand the business and to settle his sons the landlord has all his right and the choices". It is further held in Vairan Wali Vs. Kuldeep Rai Kochhar, 2010 (2) RCR (Rent) 571 that landlord has all right and choice to start his business in premises more suitable and convenient to him. Tenant cannot dictate landlord as to how and in what manner he should use his property. 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 an cannot prevent such preference by a landlord in order to meet his bona fide requirement. The rulings relied upon by the Ld. Counsel for the respondent are not applicable to the facts of the present case.
17. In view of the above discussions, the respondent has failed to raise any triable issue. On the other hand, the petitioner has successfully established that petitioner bona fidely needs the suit premises for himself for use and occupation for his business to stablize as well as to expand his business and carry on sale/purchase of the items i.e manufactures namely fibre goods and he has no other suitable alternative accommodation available with him except the suit premises. Hence the petitioner is entitled for an eviction order u/s 14 (1) (e) r/w section 25-B of DRC Act.
18. Accordingly, the application of the respondent seeking leave to defend is dismissed and the petitioner is entitled for an eviction order and therefore an eviction order u/s 14 (1) (e) r/w section 25-B of D.R.C. Act is passed in E-617/09 Jamil Ahmed Vs. Vishnu Kumar Page 13 of 14 //14// favour of the petitioner and against the respondent in respect of the tenanted premises i.e one shop on the ground floor in property bearing no. 1863/VII, Ground floor, Bazar Lal Kuan, Delhi-110006, more specifically shown in red color in site plan Ex. C-1 (exhibited today while passing the order). However, it is made clear that the petitioner shall not be entitled to get the eviction order executed before expiry of six months running from today. No order as to cost.
File be consigned to Record Room.
(Announced in the open court
on 11.09.2012) (Pritam Singh)
ARC/Central/Delhi
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