Delhi District Court
Sh. Sanjay Gupta vs Sh. S.C. Jain on 27 July, 2016
IN THE COURT OF MS. GOMATI MANOCHA, COMMERCIAL
CIVIL JUDGE-CUM-ADDITIONAL RENT CONTROLLER (WEST),
TIS HAZARI COURTS, DELHI.
ARC No. 25751 of 16
Sh. Sanjay Gupta
S/o Late Sh. Ved Prakash Gupta
R/o WZ-272, Near Shiv Mandir,
Madipur Village,
New Delhi-110063.
..........Petitioner
VERSUS
Sh. S.C. Jain
S/o Sh. Din Dayal Jain
At Shop No. 1, Ground floor,
C-114, Fateh Nagar,
New Delhi-110018.
Also at:
117, Bahubali Enclave,
New Delhi-110092. ......... Respondent
Date of institution : 23.04.2013
Date of order : 27.07.2016
ORDER
FACTS:
1. The present petition has been filed U/Sec. 14(1)(e) of the D.R.C. Act by Sh. Sanjay Gupta seeking eviction of the tenant Sh.
S.C. Jain from the premises bearing no. 1, ground floor, C-114, ARC. No. 25751 of 16 Sanjay Gupta vs. S.C. Jain Page 1/17 Fateh Nagar, New Delhi as shown in red colour in the site plan attached with the plaint.
The petitioner has stated that he is the owner and landlord of the aforesaid premises by virtue of a mutual settlement between the LRs of his deceased mother Smt. Anjana Devi. It is stated that the shop was let out to the respondent who was making the payment of rent of Rs. 800/- per month exclusive of electricity and other charges which are being deposited directly to the concerned authorities as per the actual consumption.
The petitioner has sought the eviction of the tenant on the ground of bonafide requirement. He has stated that he wishes to start a business of sale-purchase and repairing of water pumps and that he has no other alternative accommodation other than the suit property. In these circumstances, eviction of the tenant from the suit property has been sought.
2. The respondent has filed an application seeking leave to defend stating that there are certain triable issues, which shall disentitle the petitioner from seeking the relief claimed by him in the present petition.
In the application for leave to defend, the respondent has stated that the present eviction petition is false and frivolous and has ARC. No. 25751 of 16 Sanjay Gupta vs. S.C. Jain Page 2/17 been filed with the malafide and ulterior motive and that the petitioner has no bonafide requirement as alleged by him.
It is stated that the premises in question consists of three floors. The shop in question is situated at the corner of the ground floor. There in all 06 shops on the ground floor, 07 shops on the first floor and one shop at the second floor of the building.
The building in which the tenanted premises was located was purchased by Sh. Pratap Singh from Sh. Munshi Ram and Chaudhary Net Ram by virtue of a Sale Deed dated 07.05.1954. Sh. Pratap Singh expired on 07.08.1978 leaving behind his legal heirs namely Smt. Durlabh Kaur, Sh. V.P. Duggal, Sh. Sant Singh, Sh. Joginder Singh, Smt. Jasbir Kaur, who executed a Special Power of Attorney dated 22.07.1982 in favour of Smt. Anjana Devi, who also expired on 22.01.2006 and in view of the same, Special Power of Attorney dated 22.07.1982 in her favour has lost any significance, and Smt. Anjana Devi does not now remain the owner of the premises in question. In these circumstances, it is stated that the petitioner has no title to the suit property.
It is also stated that the petitioner had alternative accommodation available with him at the time of filing of the present petition. The tenanted shop i.e. shop no. 1 is situated at the ground floor of the building, and the shop no. 2,4 & 5 have been sold by the ARC. No. 25751 of 16 Sanjay Gupta vs. S.C. Jain Page 3/17 mother of the petitioner in or around the year 2001 to various persons as mentioned in the site plan, Annexure-A. Also, recently on 04.05.2013, the petitioner has sold a big shop at the ground floor of the premises in question to Sh. Sunil Kumar. It is submitted that if the petitioner's need was bonafide, he would not have sold the shop to Sh. Sunil Kr. before filing the present petition. It is stated that the said sale deed was registered vide registration No. 9396, book no. 1, Volume No. 20888 at page no. 153 to 158.
It is also stated that the petitioner is in possession and occupation of shop no. 1 at the first floor and a shop on the second floor of the premises in question and that these facts have been specifically suppressed/concealed by the petitioner.
It is also stated that the petitioner is residing in a building having two floors in an area of approximately 150 sq. yds. The ground floor of that building has been rented out and the rest of the floors are in possession and occupation of the petitioner and that they are very much available to the petitioner for his bonafide need.
Without admitting the alleged family arrangement, it is stated that the same has been arrived at between the petitioner and his sisters with the sole motive of getting the respondent evicted from the suit property.
ARC. No. 25751 of 16 Sanjay Gupta vs. S.C. Jain Page 4/17It is further stated that the petitioner is still running his business from shop no. 7 at Mangol Pur Khurd, Delhi and he in collusion with Smt. Anita Shokeen, forged and fabricated documents in order to show his alleged bonafide need. It is also stated that the petitioner is running his factory at Nangloi.
It has been alleged that the rent receipt dated 01.03.2013 filed by the petitioner is forged and fabricated by the petitioner in collusion with Sh. Trilok, who is tenant of shop no. 3 at the ground floor of the premises in question.
It has been contended that Smt. Sushila Gupta was also a landlord of the respondent along with the mother of the petitioner and this fact has been intentionally concealed by the petitioner. It is also stated that the mother of the petitioner and Smt. Sushila Gupta had agreed that they would never seek eviction of the respondent as the respondent had given a huge amount of Rs. 2,00,000/- as "Pugree" to the mother of the petitioner and Smt. Sushila Gupta at the time of execution of the rent agreement on 01.03.1989. In these circumstances, it has been prayed that leave to defend the present eviction petition may be granted to the respondent.
3. In the reply filed by the petitioner to the application seeking leave to defend filed by the respondent, the petitioner has stated that the respondent is trying to rake up false, frivolous and baseless ARC. No. 25751 of 16 Sanjay Gupta vs. S.C. Jain Page 5/17 grounds to unnecessarily delay the proceedings.
The petitioner has stated that the respondent is a man of means and has a construction company and also owns two shops at Gali no. 3, Chuna Mandi, Pahar Ganj and two plywood manufacturing units at Sampla Haryana and a big plywood godown at Mundka and many other movable and immovable properties.
It has been submitted that the mother of the petitioner had purchased the property in question vide agreement to sell, Special Power of attorney, General Power of attorney, receipts, affidavit, Wills etc. on 22.07.1982. It is also stated that the tenant can not deny the title of the landlord in view of Sec. 116 of the Evidence Act.
It is further submitted that on 15.02.2013, the petitioner had entered into an agreement to sell for shop no. 6 of property No. C-114, Fateh Nagar, Jail Road, New Delhi with Sh. Sunil Kumar and to this effect a bayana receipt/agreement to sell was executed. Thereafter, Smt. Anita Shokeen (Landlord of the petitioner) in respect of shop no. 7, Main Road, Mangol Pur Khurd, New Delhi demanded the vacant possession of the tenanted shop in occupation of the petitioner and served a legal notice dated 07.03.2013 and on her request, the landlord had to hand over the possession of the tenanted shop. Thus, after the vacation of the shop, the bonafide need of the petitioner has arisen as now the petitioner has no ARC. No. 25751 of 16 Sanjay Gupta vs. S.C. Jain Page 6/17 accommodation to carry on his business. The petitioner has reiterated that he does not have any other alternative accommodation and that the shop no. 1 on the first floor is occupied by Sh. Vijay, who is a tenant in occupation of the said shop. It has also been stated that Sh. Vijay has also taken the shop at second floor of the property, which is being used as a godown by him. It has been pleaded that the said tenancy was oral and so no written documents were executed to this effect. Besides this, it is stated that the shop in occupation of the respondent is only suitable for the business of the petitioner.
The petitioner has also denied that the building in which he is residing is constructed till second floor and is of area of approximately 150 sq. yds. The petitioner has stated that the said building is a four storey building, the ground floor of which has been rented out and the first, second and third floors are being used for residential purpose by the petitioner and his family members.
The petitioner has submitted that his mother Smt. Anjana Devi had purchased the suit property from Smt. Sushila Devi vide agreement to sell, receipts, affidavit, possession letter and Will on 14.03.2001. He has stated that no 'pugree' was ever given by the respondent to the mother of the petitioner. Rest of the contents of the leave to defend application have also been denied by the petitioner, who has sought the eviction of the tenant from the suit property.
ARC. No. 25751 of 16 Sanjay Gupta vs. S.C. Jain Page 7/174. Thereafter the respondent has even filed the rejoinder reaffirming the stand taken by him in the leave to defend application.
5. The petitioner has relied upon the documents namely the site plan, copy of rent receipt, copy of rent agreement, copy of death certificate, copy of relinquishment deed, copy of notice, copy of envelope, copy of rent agreement, copy of visiting card and copy of possession letter.
On the other hand, the respondent has also relied upon the documents namely the site plan of ground floor and site plan of the first floor.
CONTENTIONS AND ANALYSIS:
6. I have heard the rival submissions and perused the record.
The submissions made by the parties have been summed up and discussed as under:-
(a). Ownership of property/landlord tenant relationship:-
The petitioner has placed on record certain documents to prove ownership. He has stated that the property in question was earlier owned by his mother Smt. Anjana Devi. He has placed on record the death certificate of Smt. Anjana Devi and has stated that ARC. No. 25751 of 16 Sanjay Gupta vs. S.C. Jain Page 8/17 after the death of Smt. Anjana Devi, he along with his brother and sisters became the owners of the property. He has placed on record a Relinquishment Deed whereby the sisters of the petitioner had relinquished their shares in favour of the petitioner and his brother Sh. Deep Chand Gupta. He has also relied upon a family settlement between him and Sh. Deep Chand Gupta (Copy of which has been placed on record) vide which the shop in question has fallen into his share.
Thus, in these circumstances, the petitioner has prima-facie proved his ownership in respect of the suit property. The petitioner has also placed on record a copy of rent receipt regarding the rent paid by the respondent to the petitioner.
In view of the aforesaid documents as well as in view of Section 116 of Indian Evidence Act, the tenant is estopped from questioning the title of the landlord especially when he has tendered or paid rent to the landlord. Furthermore, it has been held in Dr. Jain Clinic Pvt. Ltd. Vs. Sudesh Kumar Dass in RCR No. 136/12 that "it is settled law that in the context of Delhi Rent Control Act, what appears to be the meaning of the term 'owner' is that vis-a-vis the tenant i.e. the owner should be something more than the tenant." The position in law is that "The ownership" of the landlord for the purpose of maintaining a petition U/Sec. 14(1)(e) of the D.R.C. Act is not required to be a absolute ownership of the property and it is ARC. No. 25751 of 16 Sanjay Gupta vs. S.C. Jain Page 9/17 sufficient if the landlord is a person who is collecting the rent on his own behalf. The imperfectness of the title of the premises can neither stand in the way of an eviction petition U/Sec. 14(1)(e) of the Act, nor can the tenant 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."
Furthermore, in M/s Indian Umbrella Manufacturing Co. & Ors. vs. Bhagabandei Agarwalla (Dead) by LRs Smt. Savitri Agarwalla & Ors., AIR 2004 1321; it was held that:
"The consent of other co-owners is assumed to be taken unless it is shown that the other co-owners were not agreeable to the ejectment of the tenant and suit/petition for their eviction was filed despite their dis-agreement."
It has also been held in a catena of judgments of the Hon'ble Supreme Court and more specifically in Sri Ram Pasricha vs. Jagannath 1976 RCR (Rent) 832, (1976) 4 Supreme Court cases 184, Kanta Goel vs. D.P. Pathak, 1979 (1) RCR (Rent) 485; (1977) 2 Supreme Court cases 814 and Pal Singh vs. Sunder Singh 1989 (2) RCR (Rent) 331; : (1989) 1 Supreme Court cases 444;
that "one of the co-owners can alone and in his own right file a suit for ejectment of the tenant and it is no defence open to the tenant to ARC. No. 25751 of 16 Sanjay Gupta vs. S.C. Jain Page 10/17 question the maintainability of the suit on the ground that the other co-owners were not joined as parties to the suit. When the property forming the subject matter of the eviction proceedings is owned by several owners every co-owner owns every part and every bit of the joint property along with others and it can not be said that he is only a part-owner or a fractional owner of the property so long as the property has not been partitioned. He can alone maintain a suit for eviction of the tenant without joining the other co-owners if such other co-owners do not object......"
The respondent has submitted that the mother of the petitioner, namely Smt. Anjana Devi and Smt. Sushila Devi had vide rent agreement dated 01.03.1989 agreed that the respondent shall not be evicted from the suit property as a huge amount of Rs. 2,00,000/- had been given to them as a premium or pugree.
Sec. 5(2) of the D.R.C. Act reads as under:
No person shall, in consideration of the grant, renewal or continuance of a tenancy or sub-tenancy of any premises-
(a) claim or receive the payment of any sum as premium or pugree or claim or receive any consideration whatsoever, in cash or in kind, in addition to the rent.
Thus, in view of Section 5(2)(a), even if there is a voluntary agreement between the landlord and the tenant, for payment of any ARC. No. 25751 of 16 Sanjay Gupta vs. S.C. Jain Page 11/17 rent in excess of the standard rent, it can not be enforced in law. The well known legal maxim "Ex turpi causa non oritur actio", which means, that "No right of action can spring out of an illegal contract"
would at this stage apply to such a case and the court can not enforce any such stipulation or condition which is contrary to law.
(b). Now coming to the aspect whether the landlord has any other alternative accommodation available to him.
The respondent has submitted that the premises bearing no. C-144, Fateh Nagar, New Delhi consists of three floors having 6-7 shops on each floor as specifically shown in the site plan filed by him. He has stated that the tenanted shop no. 1 is situated at the ground floor of the premises and shops no. 2,4 & 5 have been sold by the mother of the petitioner in or around the year 2001 to various persons. Further, on 04.05.2013, the petitioner has sold a big shop at the ground floor of the premises in question to Sh. Sunil Kumar. It is stated that if the petitioner's need was bonafide, he would not have sold the same to Sh. Sunil Kumar vide sale deed, vide registration No. 9396, book no. 1, Volume No. 20888 at page no. 153 to 158, before filing the present petition.
He has further submitted that the petitioner is also in possession of the shop no. 1 at the first floor of the premises in question and that the petitioner is residing in a building constructed ARC. No. 25751 of 16 Sanjay Gupta vs. S.C. Jain Page 12/17 upto two floors in an area of 150 sq. yds. The ground floor of the same has been rented out and the rest of the floors are in possession and occupation of the petitioner.
To counter this, the petitioner has stated that as per the site plan filed by the respondent himself, the various shops in the premises bearing no. C-114, Fateh Nagar, New Delhi have either been already sold off or have been let out. He has stated that shop no. 1 on the first floor has been let out to Sh. Vijay, who is carrying on the business in the said shop. He has also placed on record the rent agreement and the visiting card in support of his contention.
The petitioner has submitted that there is no shop lying vacant on the first floor. The petitioner has further stated that the shop at second floor of the property has also been let out to Sh. Vijay, who is using the same as a godown. Further, the petitioner has stated that he is living in a four storey building, the ground floor of which has been let out to a tenant and the first, second and third floor of the said building are being used for residential purpose by him as well as his family members. He has stated that in these circumstances, he has no alternative accommodation available with him.
He has also pleaded that on 15.02.2013, he had entered into an agreement to sell in respect of shop no. 6 of property no. C-114, Fateh Nagar, Jail Road, New Delhi with Sh. Sunil Kumar and for this ARC. No. 25751 of 16 Sanjay Gupta vs. S.C. Jain Page 13/17 earnest money was paid to him. At that point of time, he was carrying on business in a tenanted shop bearing no. 7, main road, Mangol Pur Khurd, but as the landlord of the said shop later on demanded vacant possession of the same from him, he was constrained to vacate it. He has stated that he had to sell off the shop on the ground floor of the premises to Sh. Sunil Kumar on 04.05.2013 only as he had already executed agreement to sell and had received the earnest money from him.
Thus, the contention raised by the respondent that the petitioner has alternative accommodation has been completely refuted by the petitioner and he has given a satisfactory explanation as to why he has sold off the property on 04.05.2013 before institution of the present petition. And also, as the site plan filed by the respondent itself demonstrates that almost all the shops in the said premises have either been sold off earlier or have been let out by the petitioner. Hence, it can safely be concluded that the petitioner does not have any reasonably suitable alternative accommodation available to him.
(c). The other contention raised by the respondent is that the petitioner does not have any bonafide requirement of the premises in question as he was already carrying on business from shop no. 7 at ARC. No. 25751 of 16 Sanjay Gupta vs. S.C. Jain Page 14/17 Mangol Pur Khurd, New Delhi and that he has recently vacated the said property.
To this, the petitioner has stated that Smt. Anita Shaukeen was the landlord in respect of the shop no. 7, Main Road, Mangol Pur Khurd, New Delhi and that the petitioner was carrying on the business from the said shop. But on 07.03.2013, Smt. Anita Shaukeen (Landlord of the petitioner) served a legal notice upon him asking him to vacate the said property. He has stated that in view of the same, he had to vacate the shop earlier occupied by him and thus, his bonafide need of a shop to carry out his business has arisen. The petitioner has also placed on record copy of possession letter as well as copy of legal notice.
In Precision Steel & Engineering Works & Anr. Vs. Prem Devi Niranjan Deva Tayal (1982) 3 SCC 270, the Apex Court has held that "the prayer for leave to contest should be granted to the tenant only where a prima facie case has been disclosed by him. In the absence of the tenant having disclosed a prima facie case i.e. such facts as would disentitle the landlord from obtaining an order of eviction, the Court should not mechanically and in a routine manner grant leave to defend."
In the present case, the petitioner has been able to establish his bonafide requirement of the premises. On the other hand, the ARC. No. 25751 of 16 Sanjay Gupta vs. S.C. Jain Page 15/17 respondent has not been able to raise any triable issues.
7. As a consequence thereof, an eviction order is passed U/s. 14 (1) (e) of DRC Act in favour of petitioner and against the respondent in respect of the premises bearing no. 1, ground floor, C-114, Fateh Nagar, New Delhi, as shown in red colour in the site plan filed with the petition which is now marked as Mark-P-1 (put by the court for the purpose of identification).
8. However, in light of Section 14 (7) DRC Act, the aforesaid eviction order shall not be executable for a period of six months from the date of this order. The parties are left to bear their own costs. File be consigned to Record Room.
Announced in the open Court on 27th July, 2016.
(This order contains 17 pages) (GOMATI MANOCHA) Commercial Civil Judge-Cum Additional Rent Controller, West District, THC, Delhi.
ARC. No. 25751 of 16 Sanjay Gupta vs. S.C. Jain Page 16/17 ARC No. 25751 of 16 Sanjay Gupta vs. S.C. Jain 27.07.2016 Present: None.
Vide separate order of even date pronounced in the open court, leave to defend application filed by the respondent is dismissed and an eviction order is passed U/s. 14(1)(e) of the DRC Act in favour of the petitioner and against the respondent in respect of the premises i.e. shop bearing no. 1, ground floor, C-114, Fateh Nagar, New Delhi, as shown in red colour in the site plan filed with the petition which is now marked as Mark-P-1 (put by the court for the purpose of identification).
However, in light of Section 14 (7) DRC Act, the aforesaid eviction order shall not be executable for a period of six months from the date of this order. The parties are left to bear their own costs. File be consigned to the Record Room.
(Gomati Manocha) CCJ-Cum-ARC-(W) THC/Delhi- 27.07.2016.
ARC. No. 25751 of 16 Sanjay Gupta vs. S.C. Jain Page 17/17