Delhi District Court
Smt. Sita Jain vs Sh. Naresh Suneja on 6 February, 2017
1
In the Court of Ms. Namrita Aggarwal
Pilot Court (Central District)
Tis Hazari Courts, Delhi.
Old Case No. E36/17/13
New Case No. 77840/16
In the matter of :
Smt. Sita Jain
W/o Late Sh. Ishwar Chand Jain
R/o 4701/21, Ansari Road, Darya Ganj,
New Delhi110002. ...........Petitioner
Versus
Sh. Naresh Suneja
S/o Late Sh. Ramji Dass Suneja
R/o D1, Friends Apartments, Patparganj,
Delhi110092.
Also at :
Shop bearing no. 4702/21,
Ground Floor, Ansari Road, Darya Ganj,
New Delhi110002. ...........Respondent
Date of institution: 06.04.2013 Date of reserved for judgment: 27.01.2017 Date of decision: 06.02.2017 Decision: Allowed JUDGMENT : Page 1 of 15 Sita Jain Vs Naresh Suneja E36/17/13 2
1. An eviction petition has been filed by the petitioner Smt. Sita Jain against the tenant/respondent Sh. Naresh Suneja for vacation of the tenanted premises, i.e., Shop No. 4702/21, Ground Floor, Ansari Road, Darya Ganj, New Delhi110002, as shown in red colour in the site plan annexed alongwith the petition, on the ground of bonafide requirement u/s 14 (1) (e) of the Delhi Rent Control Act (hereinafter referred to as 'the DRC Act').
2. The case of the petitioner is that the petitioner is the owner/landlord of the property bearing no. 4702/21, Ground floor, Ansari Road, Darya Ganj, Delhi and the respondent is a tenant with respect to one shop at the rate of rent of Rs. 1,100/ per month, excluding electricity and water charges. That the shop under the tenancy of the respondent is required bonafidely by the petitioner for her own use and also for the use and occupation of her family members, i.e. by her widow daughter inlaw, Smt. Mamta Jain, who is the wife of the deceased son of the petitioner, namely, Sh. Naveen Kumar Jain, for running a ladies garment tailoring shop/boutique. That the petitioner has no other reasonable suitable accommodation under her possession except the shop in question. That the widow daughterinlaw of the petitioner, Smt. Mamta Jain is totally dependent upon the petitioner for the purposes of residence and to earn her livelihood and also to maintain her two minor school going children.
3. It is averred that the deceased son of the petitioner Sh. Naveen Page 2 of 15 Sita Jain Vs Naresh Suneja E36/17/13 3 Kumar Jain was running a halwai shop alongwith his younger brother, namely, Sh. Atul Jain from shop no. 4703/21, Ansari Road, Daryaganj, New Delhi. However, they were having certain disputes in running the shop jointly and hence, after the death of Sh. Naveen Kumar Jain, her widow Smt. Mamta Jain cannot carry on the said halwai shop alongwith Sh. Atul Jain and therefore, she has been left with no earning and no space to do her own business. That the widow daughterinlaw of the petitioner is intending to start her own business of ladies garments/boutique shop for the survival of herself and her minor school going children dependent upon her. That the petitioner is the owner of three shops bearing no. 4704, 4705 and 4706, which are under the tenancy of other tenants and thus, the shop in occupation of the respondent is the only shop which is most suitable for the daughterin law of the petitioner to start her boutique business. That the halwai shop which was earlier run jointly by both the sons of the petitioner is now transferred in the name of Sh. Atul Jain, who is doing the outdoor catering business from the said shop. The business from shop no. 4703 is now being run by Sh. Atul Jain only and various challans have also been issued in the name of Sh. Atul Jain by MCD and other departments from the said property. Even, during the lifetime of Sh. Naveen Kumar Jain, both Sh. Naveen Kumar Jain and Sh. Atul Jain were living separately and having dispute among themselves.
Thus, the present eviction petition has been filed by the petitioner for vacation of the tenanted premises to enable her daughterinlaw to start her own business of boutique from the said shop.
Page 3 of 15 Sita Jain Vs Naresh Suneja E36/17/13 44. Summons were served upon the respondent, who appeared and filed leave to defend application. Vide order dated 05.11.2014, the leave to defend application filed by the respondent was allowed. Subsequently, written statement was filed by the respondent denying all the contentions made by the petitioner in the petition stating that the sole aim of the petitioner is to enhance the rent and when the respondent refused to cater to the demand of the petitioner to enhance the rent to Rs. 30,000/ from Rs. 1,100/, then in order to evict the respondent, the present petition has been filed by the petitioner malafidely. That earlier as well, petitions were filed by the petitioner against the respondent for enhancement of rent and the respondent enhanced the rent a per the demand of the petitioner repeatedly but now when the respondent refused to do so, the present petition has been filed. It is also averred by the respondent that the petitioner has filed the incorrect site plan of the property in question and has not shown the entire accommodation in possession of the petitioner. That the petitioner already has a shop on the Dayanand road side of the building on the ground floor. Further, the petitioner has also not shown one of the room behind the shop no. 4702, which is in her use and occupation. In order to contradict the site plan filed by the petitioner, the respondent filed their own site plan. As per the case of the respondent, the elder son of the petitioner Sh. Naveen Kumar Jain had been running the Bedami Puri and Sweet Shop business from a relatively smaller shop in the same building which is on the Dayanand road side (not shown by the petitioner in the site plan) and Sh. Atul Jain was doing business of outdoor catering since the last more than Page 4 of 15 Sita Jain Vs Naresh Suneja E36/17/13 5 16 years. That after the death of Sh. Naveen Jain, Smt. Mamta Jain has been continuing the said Sweet Shop business. That the allegations that there are strained relationship between the sons of the petitioner are false and it has been falsely stated by the petitioner that Smt. Mamta Jain was not allowed to work from the Sweet Shop run by Sh. Atul Jain. That to prove the same, the respondent has also filed certain photographs showing Smt. Mamta Jain sitting at the Sweet Shop. That no joint business was ever carried out by Sh. Naveen Kumar Jain and Sh. Atul Kumar Jain. It is submitted that Sh. Naveen Kumar Jain was exclusively running Bedami Puri and Sweet Shop business. It was only after the death of Sh. Naveen Kumar Jain that the MCD licence was got transferred in the name of Sh. Atul Jain by obtaining NOC by Smt. Mamta Jain. Even otherwise, the business of Bedami Puri was started by late Sh. Naveen Kumar Jain from a small shop between shop no. 4704 and 4705 about 20 years back and about 3 months before filing of present petition only, this business was shifted to shop no. 4703 in the year 2013 just to create a false ground of scarcity. The shop from where earlier Bedami Puri business was being carried out is now lying locked, which can be used by daughterinlaw of the petitioner for any bonafide requirement. That the whole family of the petitioner is residing under a same roof in cordial atmosphere and the petitioner has more than sufficient accommodation on the ground, first and other floors of the same building. The petitioner has also got vacated an office on the first floor which was being used as a property dealer office, which fact has not been disclosed in the petition.
Page 5 of 15 Sita Jain Vs Naresh Suneja E36/17/13 65. Replication to the written statement filed, wherein the petitioner has denied the averments made by the respondent, reaverring what was averred by her in the original eviction petition.
6. During evidence, the SPA Holder of the petitioner, Sh. Atul Jain, stepped into the witness box as PW1 and deposed on the lines of the petition. Further, he relied upon the following documents :
a) SPA in favour of Sh. Atul Jain : Ex. PW1/1 b) Site plan : Ex. PW1/2
c) Copy of letter of administration dated 25.01.2000 : Ex. PW1/3
d) Copy of Voter Card of the petitioner : Ex. PW1/4
e) Copy of Voter Card of Smt. Mamta Jain : Ex. PW1/5
f) Copy of summon & petition u/s 27 of the DRC Act filed by : Ex. PW1/6 (colly.) the respondent
g) Copy of visiting card of halwai business : Ex. PW1/7
h) Copies of gas slips : Ex. PW1/8 & PW1/9
i) Copy of challan receipt dated 25.06.2013 : Ex. PW1/10
j) Copy of MCD receipt dated 21.05.2011 : Ex. PW1/11
k) Copies of electricity bills dated 01.07.2013 : Ex. PW1/12 & PW1/13
l) Copies of Ration Cards : Ex. PW1/14 & PW1/15
m) Copy of FormG8A of MCD dated 19.02.2002 : Ex. PW1/16
n) Copy of receipt dated 22.04.2006 : Ex. PW1/17
o) Copy of receipt dated 15.09.2006 : Ex. PW1/18
p) Copy of Airtel phone bill dated 09.04.2008 : Ex. PW1/19
7. In his turn, the respondent himself stepped into the witness box as RW1 and deposed on the lines of the written statement. Further, he relied upon the following documents :
a) Certified copy of order dated 14.09.2006 passed by : Ex. RW1/1 Sh. Jitender Mishra in suit no. 1711 of 2006
b) Certified copy of the application for compromise dated : Ex. PW1/R1 31.10.2001, statement of parties dated 31.10.2001 and the order passed by the Ld. ARC in the eviction petition no. 84 of 1988
c) Certified copy of the order rejecting the plaint passed by : Ex. PW1/R2 Ms. Richa Manchanda, CJ, Delhi, in suit no. 15 of 2012 Page 6 of 15 Sita Jain Vs Naresh Suneja E36/17/13 7
d) Site plan : Ex. PW1/R3
e) Photograph : Ex. PW1/R4
f) Amendment document bearing Sr. No. 7576 dated 23.05.14: Ex. PW1/R5 with respect to transfer of business in the name of Atul Jain
g) Photographs : Ex. PW1/R6 (colly.)
8. I have heard the arguments and perused the material available on record.
9. Essential ingredients of Section 14(1)(e) of DRC Act, 1958. i. Petitioner is the owner in respect of the tenanted premises; ii. She requires the premises bonafide for herself or for family members dependent upon her; iii. She has no other reasonably suitable accommodation.
Ownership as well as existence of landlordtenant relationship :
10. In the present case, the ownership of the petitioner over the premises in question as well as existence of landlordtenant relationship between the petitioner and the respondent has not been disputed. However, it is averred by the respondent that the SPA Holder of the petitioner had no right to depose on behalf of the petitioner and that the SPA, which has been allegedly executed is not a valid SPA and therefore, PW1 had no right to depose. Counsel for the respondent has relied upon a judgment titled as "Janki Vashdeo Bhojwani and Anr. Vs. Indusind Bank Ltd. and Ors., (2005) 2 SCC 217 in support of his contention. Perusal of this judgment shows that it has been held that "Power of Attorney holder cannot depose for principal in respect of the matter of which only principal can have personal knowledge and in Page 7 of 15 Sita Jain Vs Naresh Suneja E36/17/13 8 respect of which principal is liable to be crossexamined". In the present case, power of attorney holder of the petitioner is her own son Sh. Atul Jain, who has personal knowledge of the entire case, since the case of the petitioner is that earlier Sh. Atul Jain was running business alongwith her elder son, who is now deceased and now the daugherinlaw, wife of late Sh. Naveen Kumar Jain wants to start her own business since Sh. Atul Kumar Jain is now exclusively running the business from shop no. 4703 of sweets as well as outdoor catering. There is nothing in this case, of which Sh. Atul Kumar Jain has no knowledge and therefore, this principal does not apply to the present case. In this case, Sh. Atul Kumar Jain had deposed only on the facts which are in his personal knowledge, being the family member, i.e. son of the petitioner and nothing has been deposed which could not have been in his knowledge, being the son of the petitioner. As far as execution of SPA is concerned, the said SPA is duly attested by the Notary Public on 06 th July, 2015, i.e., the date when same was executed and PW1 had entered into the witness box to prove the said SPA as Ex. PW1/1 and therefore, authenticity of the same cannot be put into doubt.
Bonafide requirement :
11. It is averred by the petitioners that the tenanted premises is bonafidely required by her for her daughterinlaw, i.e. wife of late Sh. Naveen Kumar Jain, to enable her to start her own business of boutique. That earlier both the sons of the petitioner were running joint business of Page 8 of 15 Sita Jain Vs Naresh Suneja E36/17/13 9 halwai shop from 4703/21, Ansari Road, Darya Ganj, New Delhi but after the death of Sh. Naveen Kumar Jain, Sh. Atul Kumar Jain is exclusively running the said business of Sweets, Bedami Puri and Catering and therefore, Smt. Mamta Jain cannot run the said business alongwith Sh. Atul Jain due to dispute between the two brothers and thus, wants to start her own business of boutique from the premises in question. Per contra, it is averred by the respondent that the business of Bedami Puri was the exclusive business of late Sh. Naveen Kumar Jain, with which Sh. Atul Kumar Jain has nothing to do and Sh. Atul Jain was doing his outdoor catering business since from beginning. That till date, Smt. Mamta Jain is doing the business of Sweets and Bedami Puri from shop no. 4703/21 and Sh. Atul Kumar Jain is only concentrating on his outdoor catering business. In order to prove the same, the respondent has relied upon photographs Ex. PW1/R6, wherein Smt. Mamta Jain is shown to be sitting in the sweets shop. However, none of these photographs bears number of the shop as 4703 or sign board to prove that this is a shop run by Smt. Mamta Jain only or shop bears no. 4703. Further, even if the contention of the respondent is believed to be true, then also mere sitting of Smt. Mamta Jain does not prove that Smt. Mamta Jain is exclusively running the Bedami Puri or Sweets business from the said premises. It is also averred by the respondent that it was averred by the petitioner that Smt. Mamta jain was not allowed to do the said business of sweets but these photographs proves to the contrary. This contention of the respondent is also baseless since mere sitting of Smt. Mamta Jain in the said shop (even if the contention of the respondent is believed to be true) Page 9 of 15 Sita Jain Vs Naresh Suneja E36/17/13 10 does not prove that Smt. Mamta Jain has a stake in the said business being run from premises no. 4703 or that she is actively involved in the said business of Bedami Puri and Sweets. Further, till the time Smt. Mamta Jain starts her own intended business, she is well within her right to sit on the said Sweets and Bedami Puri shop in order to maintain her minor children.
12. Further, the respondent has also relied upon a MCD Certificate Ex. PW1/R5, which shows that the health trade license with respect to the business being run from shop no. 4703/21, Ansari Road, Darya Ganj, Dew Delhi, has now been transferred in the name of Sh. Atul Jain, which was earlier in the name of Sh. Naveen Kumar Jain. The respondent has relied upon this document to prove that earlier Bedami Puri business was exclusively run by Sh. Naveen Kumar Jain and not jointly, since Sh. Atul Jain was already involved in the business of outdoor catering. Had it been the case, the health trade license could not have been transferred in the name of Sh. Atul Jain, as then, Sh. Atul Jain would have been concentrating only on the business of outdoor catering and would have nothing to do with the health trade licence being given to the Sweets and Bedami Puri shop. Further, mere running of outdoor catering business by Sh. Atul Jain does not mean that he has nothing to do with halwai shop since outdoor catering business is just an extension of sweets shop, which is being done only in case of any order for the same. Running of outdoor catering business does not mean that Sh. Atul Kumar Jain has nothing to do with the business being run from premises Page 10 of 15 Sita Jain Vs Naresh Suneja E36/17/13 11 no. 4703. Further, the petitioner has relied upon visiting card of "Arihant Sweets" to show that earlier Sh. Naveen Jain and Sh. Atul Jain, both were carrying on business from the premises bearing no. 4703A/21A, Ansari Road, Darya Ganj, New Delhi. Further, the challans issued in the name of Sh. Atul Jain for shop no. 4703/21, Darya Ganj, New Delhi, are also filed on record by the petitioner as Ex. PW1/10 & Ex. PW1/11 to prove that Sh. Atul Jain is running the business from shop no. 4703 and even challans are being issued in his name only. Further, the petitioner ha placed on record the electricity bills and Ration cards to prove that Smt. Mamta Jain and Sh. Atul Jain are having separate Ration Card, electricity connection as well as LPG connection and therefore, they cannot be said to be a joint family running a joint business from shop no. 4703, Ansari Road, Darya Ganj, New Delhi. Further, it is not the case of the respondent that Smt. Mamta Jain is carrying on any business independently since license as well as challan for shop no. 4703 are till date in the name of Sh. Atul Jain, meaning thereby that Sh. Atul Jain have exclusive control over the business carried on from premises no. 4703, Ansari Road, Darya Ganj, New Delhi. That being the case, Smt. Mamta Jain is well within her right to start her own independent boutique business from the tenanted premises in order to maintain herself and her two minor children.
13. Further, the contention of the respondent that the present petition has been filed by the petitioner merely to enhance the rent is also baseless since only a demand raised by the petitioner to enhance the Page 11 of 15 Sita Jain Vs Naresh Suneja E36/17/13 12 rent to Rs. 30,000/ does not mean that petitioner cannot have any bonafide requirement for the tenanted premises and that the present petition has been filed malafidely for enhancement of rent. Thus, the bonafide requirement of Smt. Mamta Jain to start her own independent business from the tenanted premises stands duly proved.
Availability of alternative suitable accommodation :
14. It is averred by the respondent that the petitioner has one office on the first floor which has been recently got vacated and can be used by the petitioner for the alleged bonafide requirement. However, during crossexamination, RW1 himself admitted that upper portions are used for the residential purposes by the petitioner and her family members and therefore, it cannot be said that any upper floors are alternative suitable accommodation with the petitioner for the bonafide requirement of her daughterinlaw. Even otherwise, shop on the ground floor would definitely attract much more customers as compared to any upper floor and therefore, any premises, if available on the upper floors, cannot be termed as an alternative suitable accommodation in comparison to shop on the ground floor in possession of the respondent. Further, RW1 himself admitted in his crossexamination that Sh. Atul Jain and Smt. Mamta Jain have separate Ration Card and LPG connection, meaning thereby that they are not living jointly and therefore, separately require premises for running their business.
Page 12 of 15 Sita Jain Vs Naresh Suneja E36/17/13 1315. Further, the respondent has relied upon a site plan Ex. PW1/R3 to show that there is a space behind shop no. 4702 & 4703, Ansari Road, Darya Ganj, New Delhi, which can be used by the petitioner for the alleged bonafide requirement. However, during crossexamination, RW1 himself admitted that two portions on the ground floor have been taken by the respondent's brother on rent in the premises in question for godown purposes. Further, it is admitted that premises no. 4704, 4705 & 4706 are under the tenancy of different tenants and the back side premises is being used for the purpose of cooking, etc. for running halwai shop in premises no. 4703. Perusal of the site plan relied upon the respondent shows that the tenanted premises is situated on the main road, whereas, the rooms behind shops no. 4702 & 4703 are at the back side, which does not have any entry from the main road and therefore, cannot be termed as an alternative suitable accommodation as compared to shop situated on the ground floor on the main road which would attract more customers.
16. Further, it is also the case of the respondent that there is a space in between premises no. 4704 and 4705 as Mark 'Z' in the site plan Ex. PW1/R3, which can be used by the petitioner for her alleged bonafide requirement. It is submitted by the respondent that earlier also the said space was being used by the sons of the petitioner for running their halwai shop and merely to show paucity of accommodation, the said business was shifted to shop no. 4703 before filing of the present petition. Per contra, it is submitted by the petitioner that business of Page 13 of 15 Sita Jain Vs Naresh Suneja E36/17/13 14 halwai shop was being carried on from the space Mark 'Z' in 90's and thereafter, the business was shifted to premises no. 4703 since the space Mark 'Z' is very small space having 2" width, 4.6" length and 8.5"
height, which even cannot be considered or termed as a "shop" in any manner. Perusal of the site plan filed by the respondent Ex. PW1/R3 shows that measurement of the space Mark 'Z' is not shown in the site pan Ex. PW1/R3. Further, the space Mark 'Z' has not been given any separate number due to its size. Further, the respondent himself during crossexamination was using the word "space" between shop no. 4704 & 4705 and not the word "shop" to describe this portion, meaning thereby that the size of the said space is too small which cannot be even termed as "shop". That being the case, the petitioner is well within her right to enable her daughterinlaw to start her own independent boutique business from well defined shop, rather than from a space which is so small, in which no business can be carried out properly. Further, no proof has been filed by the respondent to prove that till 2013, the business of Bedami Puri and Sweets was being carried out from the said space Mark 'Z'. Thus, the respondent has miserably failed to disclose any alternative suitable accommodation available with the petitioner to enable her daughterinlaw to start her own business of boutique in comparison to the shop in question.
17. Thus, from the discussion made above, the petitioner is able to prove all the essential ingredients of Section 14 (1) (e) of the DRC Act. Accordingly, eviction petition filed by the petitioner u/s 14 (1) (e) of the Page 14 of 15 Sita Jain Vs Naresh Suneja E36/17/13 15 DRC Act, against the respondent for vacation of the tenanted premises is allowed. Petitioner is held entitled for recovery of the tenanted premises, i.e. Shop No. 4702/21, Ground Floor, Ansari Road, Darya Ganj, New Delhi110002, as shown in colour red in the site plan annexed alongwith petition. However, the petitioner would not be entitled to initiate execution proceedings for recovery of possession of the tenanted premises before expiration of six months from today in view of provisions given in Section 14 (7) of the Act.
Announced in open Court (Namrita Aggarwal)
th
on 06 Day of February, 2017 Pilot Court (Central District)
[This judgment contains 15 pages.] Tis Hazari Courts, Delhi.
Page 15 of 15 Sita Jain Vs Naresh Suneja E36/17/13