Delhi District Court
S. Ravinder Singh vs Sh. Bhupinder Singh on 2 May, 2019
IN THE COURT OF SH. PRASHANT SHARMA
SCJCUMRC (CENTRAL): TIS HAZARI COURTS: DELHI
E. No. 78132/16
S. Ravinder Singh
S/o Late S. Amar Singh Sethi
R/o 2408, Hudson Lane,
Kingsway Camp, Delhi ..... Petitioner
VERSUS
1. Sh. Bhupinder Singh
S/o S. Jag Mohan Singh
At Ground Floor & Basement
Shop No. 863, Old Lajpat Rai Market
Delhi - 110006
Also at : B59, Gali No.11
Krishna Park Extension, New Delhi
2. S. Davinder Singh
S/o Late S. Amar Singh Sethi
42A, 2nd Floor (left)
Radio Colony (opp. Mini Market)
Bhai Parmanand Colony, Delhi9
3. Smt. Inderjeet Kaur
W/o Sh. Gurdeep Singh
D/o Late S. Amar Singh Sethi
R/o 19/4B, G. F. Tilak Nagar,
New Delhi
4. Smt. Inderjeet Kaur @ Indu
W/o Late Sh. Surjeet Singh
D/o Late S. Amar Singh Sethi
R/o 13, Priyadarshani Vihar, PartI
Delhi 110009 ..... Respondents
Page 1 of 21
ORDER
02.05.2019
1. Vide this order I will decide application for leave to defend, filed by respondent no.1 Sh. Bhupinder Singh against eviction petition on bonafide need filed by petitioner namely S. Ravinder Singh u/s. 14(1)(e) read with Sec. 25B of Delhi Rent Control Act (hereinafter DRC Act). Before adverting to the said application for leave to defend, I must mention here the facts in brief as stated in the eviction petition. Same are mentioned below :
"That petitioner is the coowner and colandlord of entire property being shop no. 863, Old Lajpat Rai Market, Delhi - 110006. The suit property was owned by S. Amar Singh Sethi, fther of petitioner and respondents no.2 to 4 as the same was allotted / regularized in his favour by the Ministry of Home Affairs, Rehabilitation Division (Settlement), Jaiselmer House, New Delhi. S. Amar Singh Sethi expired on 09.10.2009 and before his deaeth, he made and published his registered Will on 07.06.2006 in respect of property in question. The last Will dated 07.06.2006 was executed by S. Amar Singh Sethi in supersession of his earlier Will dated 31.03.1998. By virtue of Will dated 07.06.2006, S. Amar Singh Sethi bequeathed the suit property in favour of his wife Smt. Satya Rani, two sons S. Ravinder Singh (petitioner herein) and S. Davinder Singh (respondent no.2 herein) and two daughters Smt. Inderjeet Kaur W/o S. Gurdeep Singh (respondent Page 2 of 21 no.3 herein) and Smt. Inderjeet Kaur W/o Late S. Surjeet Singh (respondent no.4 herein) in equal portions i.e. 1/5th each. After the demise of S. Amar Singh Sethi on 09.10.2009, the suit property devolved upon his 5 legal heirs. Thereafter, Smt. Satya Rani died intestate on 13.10.2010 and on her death, the petitioner and respondent no.2 to 4 inherited her 1/5th share equally and as such all became entitled to inherit the suit property in equal proportions i.e. 1/4th each. The suit property is a four storeyed building consisting of a basement, ground, first and second floors. That tenanted premises consists of basement floor admeasuring 9' x 16' sq. yds and ground floor admeasuring 9' x 16' sq. yds as shown in the site plan annexed with the petition. Rate of rent payable by respondent no.1 is Rs. 2200/ excluding other charges. Said premises were let out by father of petitioner and respondent no. 2 to 4 in 1990 but no written agreement was executed between the parties. The first floor and second floor of the suit property are being used by respondent no.2 for running his business of electrical goods / appliances under the name and style of M/s. Rouble Electronics. Petitioner as well as respondent no.3 and 4 are in joint possession of first floor and second floor of the property in question. Same is being used by respondent no.2 for running his business and as such there is no sufficient space available in the suit property from where petitioner can start his separate business. Petitioner is carrying on his business of repairing television sets from his residential house at 2408, Page 3 of 21 Hudson Lane, Delhi. Said residential house was owned by S. Amar Singh Sethi and he during his lifetime sold its basement and second floor (with roof rights) to some third party. First and second floor were also sold by him to petitioner and respondent no.2 and 3. As such petitioner is a coowner to the extent of 1/3rd in respect of the abovesaid residential property. Petitioner alongwith his family is residing and also carrying on his business from the said premises and as such there is acute paucity of space with petitioner. The property i.e. 2408, Hudson Lane, Delhi is a residential house and no commercial activity is permitted therein. The suit property is commercial in nature and same is situated in Delhi's most popular market of electronics, hence, it is most suitable place for petitioner to carry on his business of TV repairing. Petitioner also wishes to open a showroom of electrical goods / appliances and the basement floor of the same for undertaking the work of repairing T.V. sets and other electrical equipments. The ground floor of suit property is the best suited place for opening the said showroom as the customer always prefers to visit the ground floor and the shop on the ground floor is the most visible. Petitioner stated that he has no other reasonably suitable alternate accommodation for opening the showroom and undertaking the work of repairing TV sets and other electrical equipments. Hence, petitioner filed this petition against respondent."Page 4 of 21
2. Respondent no.1 after receiving summons in prescribed proforma filed application for leave to defend accompanied with his affidavit within statutory period of 15 days from the date of his service. In his affidavit accompanied with application for leave to defend, he deposed following facts based on which he claimed that he has raised triable issues.
(a) That petitioner has not moved the court with clean hands and has filed this petition to harass him. That no document has been filed on record to show that father of petitioner is owner of property in question which could have been inherited by petitioner and respondent no.2 to
4.
(b) That respondent no.1 had obtained information under Right to Information Act from the department of MCD, to the effect that owner of market where property in question is situated is MCD. After transfer of the said property, now department of Ministry of Rehabilitation, Govt. of India is the owner of the same. License fee of shop in question is Rs. 45/ per month. As such petitioner has no right, title or interest over shop in question. He relied upon reply of MCD dated 03.05.2012 in support thereof.
(c) That respondent no.1 applied before department of MCD for getting his name entered / endorse in the record of MCD and in this regard he filed application under RTI.
Page 5 of 21In response to the same, he was replied that endorsement could not be made in the record of MCD due to pending case before Hon'ble Delhi High Court titled Ellar Traders Vs. MCD. Application of respondent no.1 was therefore put under consideration.
(d) That petitioner has not disclosed the accommodation and premises owned and possessed by him in Delhi as a result of which petition is without cause of action.
(e) Petitioner has concealed the fact that suit premises consists of four floors from basement till second floor. Petitioner is in possession of first and second floor of said property. Though petitioner as of run his business from floor in his possession but for several years same is not being used for any purpose. Father of petitioner stopped working from premises in question during his lifetime. Since petitioner is having part of premises in question in his possession for running his business so there is no scope of applicability of Sec. 14(1)(e) DRC Act. As such petitioner has no bonafide need.
(f) That petitioner has concealed the fact that petitioner has filed a civil suit before Hon'ble Delhi High Court bearing CS (OS) No. 2970/11 titled "Ravinder Singh & Anr. Vs. Devender Singh" which is pending decision as on date. Filing of present case amounted to Page 6 of 21 contemptuous act on the part of petitioner as notice of the suit as well as application under Order 39 Rule 1 & 2 CPC has been issued by Hon'ble Delhi High Court.
(g) That present petition must be stayed u/s. 10 CPC as suit for partition with relief of possession is pending before Hon'ble Delhi High Court.
(h) That father of petitioner expired on 09.10.2009 and his mother expired on 13.10.2010. This petition was filed within 5 years of the death of parents of petitioner and therefore it was not maintainable.
(I) That during the lifetime of his parents, petitioner used to reside at some other place. Father of petitioner used to reside at H. No. 2408, Hudson Lane, Delhi9. After the death of father of petitioner, petitioner occupied the said premises which means that petitioner require more accommodation after the death of his parents which would have fulfilled his bonafide requirement.
(j) That petitioner has not filed correct site plan extending the entire real facts. In order to access first and second floor of suit property there is no separate entrance and occupants of those floors have to go through the shop situated at ground floor of property in question which is under the use and occupation of respondent no.1.
Page 7 of 21(k) That petition is bad for mis joinder and non joinder of parties. In present case as such petitioner or any of the legal heir of the deceased Amar Singh are not the owner of premises in question and secondly respondent no.2 with other respondents objected to filing of this petition as they have filed partition suit before Hon'ble Delhi High Court which is pending decision. Further, father of petitioner did not require any ownership rights over premises in question as same are owned by department of MCD vested from Custodian department, Govt of India. As such MCD is the necessary party for the present proceedings.
(l) That till date no business has ever been carried out from other floors of premises in question. In February 2008 and April 2009 respondent no.2 tried to get electricity meter installed at first floor of premises for which he applied but same was cancelled. Respondent no.2 succeeded in getting installed electricity meter in 2011 for the purpose of showing his possession over remaining floors of premises in question. Later on electricity connection was disconnected and same continue to be there as on date.
(m) That petitioner has concealed the fact that father of petitioner alongwith respondent no.2 tried to forcibly take possession of premises by sealing of the belongings of Page 8 of 21 respondent no.2. Regarding this an FIR no. 54/02 in PS concerned was registered and petitioner and his father were arrested. Trial of the said case is still going on.
(n) That petitioner has concealed the fact that his father tried to create hindrance in the work of respondent no.1 and therefore filed suit for permanent injunction in which stay order was passed by the concerned court on 30.01.2002. Defendants in the said case had violated the order of the court and hence contempt petition filed which is still pending adjudication before concerned court.
(o) That respondent no.2 is running the business of selling and repairing of electrical and electronics goods under the name and style of Paras Electronics and used to place order of supply of goods as per the business requirements. The goods were being supplied to the suit premises. Respondent no.2 is in possession of receipts for last many years viz. From 10.08.2011 till 15.03.2012. Same are annexed with the reply. As such premises in question are not locked from last 9 months as alleged in the petition.
(p) That petitioner has not mentioned the fact that respondent no.2 had got sent a legal notice dated 30.01.2010 which was replied by respondent no.2 vide reply dated 02.03.2010. Respondent no.2 is in possession of details of the properties under the Page 9 of 21 possession of petitioner which are concealed by petitioner.
(q) That petition is filed by petitioner with intention to increase his income. Shop in question is the only source of income for the survival of goodwill business of respondent no.1. As such as per law profiting business cannot be raised by throwing out tenant from his shop so petition is highly malafide.
(r) That premises in question has been constructed in the area admeasuring 16' x 9' fully built and petitioner is only member to work in said big place established when premises are locked in his back for last several years of both the floors. Petitioner as per law has to furnish the details of accommodation with its measurements which he did not do. He deliberately not given measurements of the rooms in his possession.
(s) That petitioner does not require premises for his business rather he want to sell out the whole premises after getting respondent no.1 evicted out from the same.
(t) That petitioner has not disclosed the income he is earning.
3. In response to the same petitioner filed reply denying the version of respondent no.1 and reiterated his version as mentioned in the petition which needs no repetition.
Page 10 of 214. Respondent no.1 filed rejoinder to the reply of petitioner denying the version of petitioner and relied upon the contention made by him in his affidavit accompanying application for leave to defend. Same is not repeated here for the sake of brevity.
5. Petitioner relied upon documents viz. Site plan, copy of Will dated 07.06.2006, copy of order dated 27.01.2012, copy of DR no. 51/10 and 511/09, copy of registered agreement to sell dated 15.03.2007, copy of two death certificates. He placed on record documents on 01.06.2013 i.e. copy of letter dated 11.09.2005, copy of provisional receipt dated 20.09.1995, copy of letter dated 22.11.1995, copy of receipt dated 16.11.1995 and certified copy of order dated 06.04.2013.
6. Respondent filed documents with his application for leave to defend viz copy of RTI applicatin adn reply filed by MCD, copy of order dated 29.11.2011, copy of judgment dated 20.11.2004, copy of receipt w.e.f. 10.08.2011 to 15.03.2012. He filed document on 16.10.2017 viz. Copy of written arguments on behalf of respondent no.1, original copy of RTI of MCD dated 03.05.2012, original copy of RTI of Slum Department dated 31.05.2013, certified copy of order dated 11.08.2014, certified copy of plaint titled Davinder Singh Sethi Vs. Bhupinder Singh with site plan of hte property, certified copy of order dated 25.03.2011, certified copy of dismissal order dated 29.05.2015, certified copy of application u/s. 153 CPC r/w Order 6 Rule 17 CPC titled as Ravinder Singh Vs. Bhupinder Singh in acse no. E74/12 and copy of Indian Easement Act, 1882 Section 56.
Page 11 of 217. Before moving further, I must mention here the necessary law, which governs, applications of like nature. The principles requiring considerations for grant of leave to defend application in the eviction petition have been laid down by the Hon'ble Supreme Court wayback in the year 1982 in the case of Charan Dass Duggal v. Brahma Nand, 21 (1982) DLT 378 and which have been reiterated in various judicial pronouncements and can be noted thus:
"What should be the approach when leave to defend is sought for? There appears to be a mistaken belief that unless the tenant at that stage makes out such a strong case as would nonsuit the landlord, leave to defend is sought for, the tenant must make out such a prima facie case raising such pleas that a triable issue would emerge and that in our opinion should be sufficient to grant leave. The test is the test of a triable issue and not the final success in the action. At that stage of granting the leave parties rely in support of their rival contentions on affidavits and assertions and counterassertions on affidavits may not afford such incontrovertible evidence to lead to an affirmative conclusion one way or the other. Conceding that when possession is sought for on the ground of personal requirement, an absolute need is not to be satisfied but a mere desire equally is not sufficient. It has to be something more than a mere desire. And being an enabling provision, the burden is on the landlord to establish his case affirmatively."Page 12 of 21
8. It is also settled that at the stage of granting leave to defend, the test that is applied is whether in the facts disclosed in the affidavit, filed seeking leave to defend, prima facie shows that the landlord would be dis entitled to obtain an eviction order and not, where at the end, the defence taken by the tenant may fail. If the application filed under Section 25B disclosed some substantial triable issues, then it would be grave injustice to brush them outrightly, without testing the veracity of the claims made by the tenant/applicant. The law in this regard is well settled in various pronouncements and reference can also be made to Inderjeet Kaur V. Nirpal Singh, VII(2001) SLT 602=(2001) 1 SCC 706, wherein it was held as under:
"A landlord, who bonafidely requires a premises for his residence and occupation should not suffer for long waiting for eviction of a tenant. At the same time, a tenant cannot be thrown out from a premises summarily even though prima facie he is able to say that the claim of the landlord is not bona fide or untenable and as such not entitled to obtain an order of eviction. Hence the approach has to be cautious and judicious in granting or refusing leave to defend to a tenant to contest an eviction petition within the board scheme of Chapter IIIA and in particular having regard to the clear terms and language of section 25B(5).
9. In Aggarwal Papers Vs. Mukesh Kumar(deceased) through LR's 194 DLT 605, it was observed by Hon'ble Justice M.L. Mehta that ;
Page 13 of 21"Though, I am conscious of the fact and to which, there is no dispute that the landlord is the best judge of his affairs and also choices, and the tenant cannot dictate as to how the landlord has to live and utilize his premise; but, at the same time, it is also settled principles of law in such cases that the mere wish or desire of the landlord or his decision to get the tenanted premises vacated is not the decisive factor. It is not that whatever he would say, in every case, would be taken to be s gospel truth. If that was so, then, on the mere asking of every landlord that he needs the premises for setting up an office for his or his family member's business and he is the judge and master of his decisions and choices, the statutory protection afforded to the tenant, would become meaningless. That is not the intent of the legislation. The applicability of above proposition is only after the landlord is able to demonstrate that his assertion of requirement of the tenanted premises is authentic and genuine. If he is able to show and demonstrate so, then certainly neither the tenant nor this Court could dictate terms upon him as to how and in what manner he should utilize his premises. The projected requirement of the tenanted premises, based on his subjective decision, is required to be tested by the Court..............it is necessary to bear in mind that when leave to defend is refused the party seeking it is denied an opportunity to test the truth of the averments of the opposite party by cross examination and rival affidavits may not furnish reliable evidence for concluding the point one way or the other."Page 14 of 21
10. Therefore, in view of aforesaid observations of higher echelon of judiciary, it is clear that Controller shall give to tenant, leave to contest application, if the affidavit filed by tenant discloses such facts as would disentitle the landlord from recovering possession. If disputed question of facts are raised and their decision is necessary to grant relief to landlord, then those questions should not be decided on affidavits and leave to contest should be granted. At the same time bare denial of facts by tenant will not be sufficient. Tenant must give detailed facts substantiating the grounds taken by him.
11. Reverting back to the facts of present case, I am appreciating the claims of rival parties in my subsequent paragraphs based on record of this case.
Ownership / Landlordship:
12. Respondent no.1 disputed the ownership and landlordship of petitioner over premises in question. He claimed that petitioner has not filed documents showing that his father was the owner of property in question and therefore it cannot be said that petitioner has inherited the property from his father. He further claimed that in response to his application made under Right to Information Act, he has come to know that it is the department which is owner of the property in question. Further, license fees of shop in question is Rs. 45/ per month. He also stated that petitioner had wrongly stated in the petition that tenancy in Page 15 of 21 question was created in 1990. As such said claims were disputed by petitioner.
13. The said claims of respondent no.1 did not make out any triable issue for the reason that he had filed petition for deposition of rent u/s. 27 DRC Act bearing no. 51/10 and 511/09, copies of which were filed by petitioner alongwith petition. In those DR petitions, respondent no.1 had arrayed father of petitioner as landlord. Since petitioner is son of Amar Singh Sethi, who was arrayed as landlord in said DR petitions, so, claim of petitioner regarding him inherited property in question from his father on the basis of Will dated 07.06.2006 indicated that status of petitioner with respect to shop in question is more than that of a tenant. In proceedings of like nature it is not required that absolute ownership has to be proved by petitioner. The said documents relied by petitioner indicated that his status is akin to that of owner.
14. Coupled with the same, respondent no.1 did not specify as to whom he is paying rent as on date if not to petitioner. He did not specify who is owner of premises in question if it is not petitioner. In the wake of case law titled Rajender Kumar Sharma & Ors. Vs. Leela Wati & Ors. 155 (2008) DLT 383. Respondent no.1 should have specify the owner of premises in question in case he is disputing the claims of petitioner.
15. Further, petitioner relied upon copy of Will dated 07.06.2006 executed by his father and record pertaining to suit for partition bearing no. 2970/11 before Hon'ble Delhi High Court which indicated that status Page 16 of 21 of petitioner with respect to premises in question is more than that of a tenant. The Will dated 07.06.2006 indicated that father of petitioner had bequeathed property in question including tenanted premises in question to his legal heirs which included petitioner. So petitioner become coowner of premises in question by virtue of said Will.
16. All in all, in the wake of aforesaid appreciations, I find that there is no triable issue with respect to ownership and landlordship over premises in question.
Alternative Suitable Accommodation :
17. Respondent no.1 did not specify any immovable property which could be seen as alternate accommodation for the purpose of bonafide need of petitioner. Therefore, there is no triable issue with regard to the aspect of alternative suitable accommodation.
Bonafide Need :
18. Respondent no.1 claimed that petitioner had not disclosed the accommodation which is owned by him and which is possessed by him to show his bonafide need. Further, he claimed that floors where petitioner is claiming that he is running his business are not being used by petitioner and that petitioner is already having part of property in question from where he can run his business which indicate as such requirement of petitioner is not proved. Those claims were bald claims Page 17 of 21 which did not make out any triable issue as law does not require petitioner to disclose the accommodation he is having in his possession.
19. Moving further, respondent no.1 claimed that petitioner had concealed certain facts viz details of civil suit CS(OS) 2907/11, that an FIR no. 54/02 was registered by respondent no.2 against father of petitioner before concerned PS, that father of petitioner tried to create hindrance in the work of respondent no.1 and therefore the suit for permanent injunction was filed by respondent no.1 in which stay order was passed in favour of respondent no.1. All the said aspects were not relevant for the purpose of adjudication of this case. Non mentioning of those facts did not create any triable issue as they did not go to the root of the matter. In the absence of those facts, this eviction petition can be decided as per law and therefore even if petitioner has not disclosed those facts, then it would not lead to dismissal of this eviction petition. As such non mentioning of those facts did not make out any triable issue.
Inconsequential Claims:
20. Respondent no.1 also claimed certain facts which were inconsequential in nature viz that present petition must be stayed u/s. 10 CPC in the wake of partition suit before Hon'ble Delhi High Court with respect to property in question, that petitioner had acquired property at 2408, Hudson Lane, Delhi after the death of his parents which indicated that he obtained more accommodation after the death of his father, that respondent no.2 tried to obtain electricity meter installed on first floor of Page 18 of 21 property in question but it was cancelled. Later on he succeeded in getting electricity meter installed in the year 2011 but it was disconnected due to non payment of the dues. He also claimed that he is running the business of electrical and electronic goods under the name and style of M/s. Paras Electronics in the shop in question for last many years. He also claimed that petition is bad for misjoinder and non joinder of parties as MCD was not made party in this case though it is the owner of property in question and that petitioner has not disclosed the income which he is earning. All those said aspects were inconsequential in nature which did not make out any triable issue.
Applicability of Sec.14(6) DRC Act :
21. Respondent no.1 claimed that father of petitioner expired on 09.10.2009 and his mother expired on 13.10.2010. So petitioner allegedly had become owner of premises in question after the death of his parents. If that is so, present petition could not have been filed within 5 years of the death of parents of petitioner. As such respondent no.1 wanted to claim, though he did not specify, that petition was barred u/s. 14(6) DRC Act as said claim was not legally tenable for the reason that during the lifetime of his parents, the status of petition with respect to property in question was not that of a stranger. He had right over said property. After the death of his parents, the said right only crystalized in the shape of petitioner becoming coowner. As such Sec. 14(6) DRC Act was not applicable. Reliance in this regard is placed upon case law titled as V. N. Sarin Vs. Ajit Kumar Polai & Anr. AIR 1966 SC 432.
Page 19 of 21Wrong Site Plan :
22. Respondent no.1 claimed that petitioner has filed wrong site plan of property in question. He did not file any counter site plan in support of his claim and therefore no triable issue is found by me with regard to said aspect.
23. Respondent no.1 also claimed that petitioner wants to increase his income and that is why has filed this petition malafidely. He claimed that petitioner wanted to sell out property in question. The said apprehension of respondent no.1 is not legally tenable as his rights are secured by Sec. 19(2) DRC Act.
24. Respondent no.1 also claimed that shop in question is the only source of income for his survival and therefore he should not be evicted out of the same. Said claim is not legally tenable for the reason that comparative hardship of tenant are not to be seen in proceedings of like nature. Reliance in this case placed upon case law titled as Ajit Singh Vs. Inder Saran 1979 (1) RCR 602.
25. Based on aforesaid appreciation and conclusion, application for leave to defend filed by respondent no.1 stands dismissed.Page 20 of 21
26. Accordingly, eviction order is passed against respondent no.1 with respect to tenanted premises i.e. Basement floor admeasuring 9' x 16' sq. yds and ground floor admeasuring 9' x 16' sq. yds as shown in red colour in the site plan and he is directed to vacate said tenanted premises within six months from now and handover its peaceful and vacant possession to petitioner.
Announced in open court (Prashant Sharma)
Dated 02nd May, 2019 SCJCumRC (Central)
Tis Hazari Courts: Delhi
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