Delhi District Court
Bibi Dhira Bala Malhotra vs Sh. S.K. Prakash on 16 December, 2013
IN THE COURT OF SH. TARUN YOGESH: ADDITIONAL RENT
CONTROLLER : PATIALA HOUSE COURTS: NEW DELHI
E. No.15/12
Bibi Dhira Bala Malhotra,
D/o late Smt. Swaraj Kumari Malhotra,
R/o C9, Friends Colony,
New Delhi 110 065. ........... Petitioner
Vs.
Sh. S.K. Prakash,
S/o Late Sh. Atam Prakash,
R/o C66, Sector14,
Noida, Uttar Pradesh.
Also at :
Sh. S.K. Prakash,
S/o Late Sh. Atam Prakash,
Shop No. 133,
Bhagat Singh Market,
New Delhi110 001. ............ Respondent
PETITION UNDER SECTION 14(1) (e) READ WITH SECTION
25(B) OF DELHI RENT CONTROL ACT, 1958.
Date of Institution of the petition : 06.09.2012
Date on which Judgment was reserved : 25.11.2013
Date of Pronouncement of Judgment : 16.12.2013
No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 1/40
JUDGMENT
1. Vide this order I propose to decide the leave to defend application under section 25B (4) of the Delhi Rent Control Act, 1958 (hereinafter referred as DRC Act) filed by respondent Sh. S. K. Prakash for contesting the eviction petition filed by petitioner on the ground of bonafide requirement. Facts of the case necessary for deciding his leave to defend application are discussed below.
2. Petitioner Bibi Dhira Bala Malhotra has filed her eviction petition under section 14 (1) (e) read with section 25B of DRC Act for seeking eviction of respondent from shop no. 133, Bhagat Singh Market, New Delhi110001. The premises is stated to be nonresidential, comprising of a shop, a store and a verandah in front as shown in red colour in the site plan attached with her petition. Respondent is a Chartered Accountant by profession and is stated to be using the tenanted premises as his office, though to her knowledge the premises has not been put to use for last more than six months.
3. The grounds for eviction of respondent from suit property are mentioned in para no. 18(a) subparas i to ix of the petition and petitioner claims herself to be the owner and landlord of shop bearing no. 133, No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 2/40 measuring 398 sq.ft., situated on the ground floor in Bhagat Singh Market, New Delhi110001, having inherited the property from her mother late Smt. Swaraj Kumari through Will dated 16.08.1971. She further claims that property stands mutated in her name. Respondent is stated to be a statutory tenant in the suit premises on monthly rent of Rs. 200/, excluding water and electricity charges who has attorned to her as owner and landlord of premises and has been paying rent accordingly.
4. Eviction of respondent Sh. S.K. Prakash from suit premises has been sought on the ground that petitioner requires the suit premises for her own bonafide need and requirement which was informed to respondent, but, he failed to handover vacant possession of tenanted shop to petitioner. Petitioner claims of having no other property either residential or commercial in her name and seeks eviction order against respondent by stating her bonafide requirement of property for personal use to gainfully engage herself in business / commercial activity and to use her property to its full potential.
5. Petitioner claims of being a graduate from Lady Shri Ram College New Delhi and being a single lady to state that she always wanted to start her own business as she is well versed in fashion and retail trade, including marketing and related advisory services. She further states of No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 3/40 having always wanted to utilize her knowledge and experience for her own use, but, in the absence of availability of commercial space she could not start her business and has remained dependent upon others, having no regular work and no regular source of income for herself. She goes on to state that cost of living has increased day by day and her resources have dwindled with each passing day for claiming her requirement for regular work and sufficient regular income which she can earn by giving shape to her plans by utilizing her knowledge and skill to enable her to maintain her life style and standard of living and earn sufficient regular income. Petitioner claims that being the owner of suit property, it is her right to use her commercial property for becoming selfreliant and having regular and sufficient source of income. She further submits of aspiring and being capable of starting her business / commercial activity from suit premises besides stating that suit premises is ideal for her requirement, being a centrally located commercial area, barely half km from Connaught Place and alleges of having been deprived of its use and beneficial engagement for last several years as her genuine need and requirement for premises were ignored by respondent.
6. In para no. 19 of her petition, petitioner has mentioned about the pendency of civil suit for 'specific performance of agreement to sell' filed by respondent's wife in November 1978 contending that her mother late No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 4/40 Smt. Swaraj Kumari had executed an agreement to sell on 01.01.1971 in respect of suit premises. Petitioner claims that the civil suit filed by respondent's wife is not maintainable in law or on facts and is liable to be dismissed by the concerned civil court. She has also mentioned about the previous eviction petition filed under section 14 (1) (a) of DRC Act for stating that respondent had raised those frivolous plea / defence in the previous eviction petition which were dealt and negated by Ms. Neena Bansal Krishna, the then learned ARC Delhi in her judgment dated 03.01.2000.
7. Respondent Sh. S.K. Prakash has been served the notice of eviction petition in the form specified in the Third Schedule and has filed his application under section 25B (4) of DRC Act along with his affidavit for seeking leave to contest the eviction petition. He claims of being entitled to leave to contest the eviction petition upon the facts / grounds which require adjudication, to establish his contention that petitioner has no bona fide requirement of the suit premises and her eviction petition is not maintainable. The gist of these grounds for seeking leave to contest the eviction petition for bonafide requirement are listed below.
(i) That petition is not maintainable as suit property had been agreed to be sold by petitioner's mother late Smt. No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 5/40 Swaraj Kumari in favour of his wife Smt. Sanyogta Prakash way back in the year 1971, but, unfortunately petitioner's mother died before the agreement could be concluded. As petitioner was minor at that time, so, her guardians filed one petition under section 8 of the Hindu Minority and Guardianship Act for seeking permission to sell the premises, but, later on their intention turned dishonest and finally they refused to perform their part of contract and his wife was left with no option but to file her 'suit for specific performance' which is pending in the court of Learned Civil Judge Sh. Virender Pratap Singh. (The averment in respect of the agreement to sell executed in favour of his wife has been mentioned in detail in subparas no. a to i)
(ii) That petitioner has concealed material facts from the court which would show that she is not entitled to file the present eviction petition against him and the petition is liable to be dismissed.
(iii) That petition is based on grossly incorrect facts and petitioner has deliberately concealed about the appeal filed before Learned Rent Control Tribunal against the order No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 6/40 dated 03.01.2000 passed by Learned Additional Rent Controller, in her attempt to mislead the court.
(iv) That petitioner has concocted a false and fabricated story for ulterior purposes by stating that he is not using the premises for last more than six months, whereas, it is well within her knowledge that he is carrying out his professional activities of Chartered Accountant from suit premises under the name and style of M/s S. K. Prakash and Co. Chartered Accountants which is a full fledged regular running office, continuously put to use since 1965 and has not been closed even for a single working day.
(v) That petitioner has not filed the correct site plan of suit premises and her petition is liable to be dismissed.
(vi) That no addition and / or alteration has been made by him in the premises and petitioner's averments in this regard are figment of her futile imagination.
(vii) That petitioner does not require the suit premises for her bonafide need and her claim is nonexistent and is a ruse No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 7/40 to evict him and to deter him from pursuing the 'suit for specific performance' filed by his wife which is likely to be decreed and the present petition is only a crude ploy to avoid the outcome of the civil suit.
(viii) That petitioner has no experience in fashion and retail, including marketing and retail advisory services and in fact the terminology of business / avocation mentioned by her is vague and incapable of any interpretation and it is apparent that she does not wish to carry any business but wants to oust him from the premises for settling scores against him.
(ix) That the sole purpose projected by petitioner for starting her business is that her present income from other sources is not sufficient enough to maintain her lifestyle. However, she has not given any detail of her income and source thereof despite having sizeable income from business which must be reflected in her income tax return and bank account statements but has not been filed deliberately for concealing those facts from the court and an adverse inference may be drawn against her.
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(x) That petitioner is living in a very posh locality and considering her qualification and the nature of business being sought to be run, she should run her business from her premises situated at National Park, New Delhi or at New Friends Colony, New Delhi which are commercially successful places having lot of business potential and an aware paying clientele as compared to the suit premises which is not suitable for carrying out such business as the premises is located in a run down, shabby, unclean building where even basic facility of urinal has not been provided, specially for females.
(xi) That petitioner does not require the suit premises for her personal commercial use and the petition is just a ruse to evict him from suit premises as shop no. 133, Bhagat Singh Market, popularly known as Refugee Market is not suitable for any activity spelled out by her and the area is not occupied by affluent traders, but, is being run by petty shopkeepers and is not a regular shopping center. There is absolutely no customer's foot fall and the area is sleepy, dingy, badly maintained market having no proper urinal and couple of open urinals which are not maintained and stink No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 9/40 all the time.
(xii) That suit premises is way inside and not on the main road and the carpet area of less than 300 sq.ft. is too small and cramped up and it is inconceivable that petitioner landlord would want to start her 'own business' (details not disclosed) in a narrow and cramped small shop in a Refugee Market, several kilometers away from her posh residential colony.
(xiii) That petitioner being aged 55 years of age and being an affluent lady does not require the premises at this advanced age and her claim is unnatural as she has not explained how and why the sudden urge to have premises to run a business despite the fact that she has no experience.
(xiv) That there is absolutely no scope for the sort of retail and other activities vaguely spelt out by petitioner and the petition is a desperate effort to obtain possession of tenanted premises by hook or crook on the basis of judgment passed by Hon'ble Apex Court, whose vires to his knowledge are under question before a larger bench.
No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 10/40
(xv) That petitioner has deliberately misstated the fact of having approached him for vacating the premises and there has been no such communication, rather petitioner has been approaching him for settlement and for giving her a part of market value of premises towards proposed settlement. (xvi) That petitioner owns certain other property besides the suit premises but those details are presently not available with him and could not be gathered due to paucity of time in filing leave to defend application and he would file those details as soon as information is available. (xvii) That petitioner does not require the premises for her bonafide need but intends to relet the premises at higher rate of rent and for charging huge pugree after getting it vacated.
8. Petitioner has filed her reply and affidavit to respondent's application for submitting that the affidavit filed by respondent has not been verified properly and cannot be considered for deciding his leave to defend application. She further claims that respondent has failed to raise No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 11/40 any ground for seeking leave to contest the eviction petition and has only made some vague averments in his affidavit which have no relevance to the subject matter and are frivolous and baseless. The grounds raised by respondent in his affidavit are stated to be trivial in nature which do not require any trial as respondent has not denied the landlordtenant relationship and has been regularly tendering the rent to her. Petitioner has replied those grounds by stating that the civil suit filed by respondent's wife is not maintainable and is liable to be dismissed by civil court where it is pending for the last 34 years. She further claims that the said suit has no bearing upon the present case and respondent cannot take any benefit of the civil suit in the present eviction petition seeking his eviction from tenanted shop on the ground of bonafide requirement. Petitioner has also pointed towards the malafide of respondent by stating that though respondent is claiming that suit premises is not suitable for her to start her business, but, he himself is running his office from the same premises for last more than three decade and is not willing to vacate the same.
9. In her affidavit dated 31.10.2012 filed on record on 01.11.2012 to counter respondent's case, petitioner has given parawise reply to the averments raised by respondent in his affidavit for claiming herself as owner and landlord of suit premises and to deny those averments and No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 12/40 reiterate her bonafide requirement of premises. She has reiterated her stand that the civil suit filed by respondent's wife in the year 1978 has no bearing or relevance in the present eviction proceeding and has been mischievously and intentionally raised by respondent to avoid his eviction from suit premises. Petitioner claims that for seeking eviction order against respondent on the ground of bonafide requirement of premises, she is required to show herself as owner / landlord and points out that the aspect of her being the owner / landlord of suit premises has not been disputed by respondent who has been regularly tendering rent to her and being a tenant, he cannot draw any benefit from the civil suit.
10. Petitioner has also denied the contents / averments of para no. 11 of respondent's affidavit to deny his contention that she does not require the premises for her bonafide need or that her claim for bonafide personal requirement is nonexistent and is a ruse to evict him and deter him from pursuing the 'suit for specific performance' filed by his wife for avoiding the outcome of the civil suit. She has also disputed respondent's assertion that she has no experience in trade of fashion and retail and the terminology of business / vocation mentioned in her petition is vague and empty phraseology used by her to oust him from premises for settling scores. She submits that pastexperience is not a prerequisite for starting business and goes on to state that she has experience but has no space / No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 13/40 place of work, and availability of commercial space would enable her to give shape to her plans. Petitioner further submits that suit premises is the only commercial space available to her which respondent is not willing to vacate despite acknowledging her requirement and in the absence of commercial space she could not give shape to her plans and has virtually remained dependent on others which has affected her future prospects. She has also denied respondent's averment of having sizeable income from business as frivolous plea for contending that she has no other source of income and though in between she has worked as interior designer, but for that also office space is required. Petitioner has also replied in her affidavit by affirming that residential accommodation C9, New Friends Colony, New Delhi belongs to her cousin brother and she has been living with the family of her cousin brother as she has no residential accommodation of her own and denied respondent's contention of having any premises situated at National Park, New Delhi. Petitioner has also disputed respondent's contention regarding feasibility of suit premises for starting her business by claiming that suit premises are ideally located as raw material required for lady garments are available at Shankar Market which is barely a kilometer away form suit premises and the premises itself is situated in the heart of the capital and near the commercial hub of the capital, i.e. Cannought Place and is also very near to Karolbagh and Shankar Market which are known for ladies No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 14/40 garments.
11. Respondent has filed his rejoinder along with another affidavit on record on 07.12.2012 (wrongly mentioned as "Rejoinder on behalf of the petitioner to the reply filed by the respondent to the application under section 25B (4) on behalf of respondent for grant of leave to defend") for denying petitioner's averments and for reiterating his own averments to claim that section 14 (1) (e) cannot be invoked by a landlord who has entered into an agreement to sell the premises because "bonafide requirement for own occupation" and an "agreement to sell" cannot coexist. Respondent claims that petitioner has inherited the suit property from her mother late Smt. Swaraj Kumari subject to the rights and disabilities attached to her mother and her mother had forfeited her right to invoke section 14 (1) (e) of Delhi Rent Control Act by entering into an 'agreement to sell' dated 01.01.1971 with respondent's wife. Respondent has referred to the legal principle that " No one can convey a better title than what it had" enshrined in Broom's Legal Maxims, New Eleventh Edition at page 273 as " Nemo dat quod non habet". He has referred to various judgments of the Hon'ble Supreme Court of India to claim that a person whose case is based on falsehood has no right to approach the court by referring to another legal principle that " No one can take No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 15/40 advantage of his own wrong" enshrined in Brooms Legal Maxims, New Eleventh Edition at Page 131 and 132 as " Nullus commodum capere protest de injuria". Respondent claims that had the petitioner honoured the 'agreement to sell' dated 01.01.1971 which she was duty bound to do, she would not have continued to remain owner which status she continues to enjoy because of her wrong act of illegally repudiating her solemn obligation under the 'agreement to sell' dated 01.01.1971. Respondent further contends that in order to assert her right under section 14 (1) (e) of DRC Act, petitioner is not only required to be the landlord but is also required to be the owner, which status she continues to hold because of her wrong act of willfully repudiating the 'agreement to sell' dated 01.01.1971 and law, justice and equity requires that she is not permitted to take advantage of her wrong act to scuttle the case of 'specific performance' filed by his wife which is pending in the civil court by dispossessing him through the present eviction petition. He goes on to state that the claim of bonafide requirement is nonexistent and is a ruse / ploy to evict the tenant aged 74 years who has been practicing as Chartered Accountant for last 47 years since 1965 from the suit premises and to deter his wife from pursuing her suit for 'specific performance of agreement to sell' which is likely to be decreed and the eviction petition is an attempt to preempt the same. Respondent has also challenged the filing of eviction petition by pointing out the time lag of four and a half years No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 16/40 between the judgment delivered by Hon'ble Supreme Court of India in Satywati Sharma's case on 16.04.2008 and filing of the present eviction petition in October 2012 to challenge petitioner's contention of bonafide requirement of suit premises for her own occupation. He has denied the assertion that there had been no compromise talks between them besides disputing petitioner's allegation with respect to the pendency of civil suit, for claiming that it is false and slanderous to allege that original 'agreement to sell' has been intentionally and mischievously not produced by his wife as it is a forged, fabricated and false document. Respondent has referred to the judgment of Hon'ble Supreme Court of India in case titled Inderjeet Kaur vs. Nirpal Singh for submitting that pendency of other cases between parties is required to be considered as a relevant factor to be reckoned at the stage of granting leave to contest under section 25B of DRC Act and denied petitioner's claim of being the owner and landlord of suit premises by stating that ownership / title of petitioner is an issue which is subjudice in the 'suit for specific performance' and the fact cannot be overlooked for treating her as an absolute owner as sub section 14(1) (e) of DRC Act can be invoked by the owner / landlord only and not by the landlord whose right to cling on to title is subjudice in preexisting suit.
12. Petitioner Bibi Dhira Bala Malhotra has thereafter filed another No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 17/40 affidavit dated 10.01.2013 to depose and confirm that she has no other immovable property except suit premises i.e. shop no. 133, Bhagat Singh Market, New Delhi. She has deposed to have specifically and categorically stated the same in para no. 18 (a) (iii) of her eviction petition and in response to reference to property situated at National Park made by respondent in his affidavit and rejoinder affidavit, she has refuted such claim for affirming that no such property existed in her name at the time of filing of eviction petition and as a matter of fact the said residential property had been disposed of by her in 199596. Petitioner has narrated by deposing that her mother had bequeathed two immovable properties in her favour out of which one was a residential two and a half storey property bearing no. 60, National Park, Lajpat NagarIV, New Delhi and the other was a commercial property being the suit premises. She further deposed that the residential property has been sold to Smt. Santosh Chaudhary wife of Sh. K.B. Chaudhary, proprietor M/s. Kamal Enterprises and Sh. Kamal Chaudhary s/o Sh. K.B. Chaudhary against valuable consideration of Rs. 60,00,000/ in the year 199596 to reaffirm and reiterate that she has no other immovable property other than suit premises i.e. shop bearing no. 133, Bhagat Singh Market, New Delhi.
13. Submissions upon the leave to defend application filed by respondent has been addressed by advocate Sh. Nitin Soni for petitioner No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 18/40 and advocate Sh. Vikrant Arora for respondent. Besides addressing their oral submissions, both learned counsels have filed their brief synopsis / written arguments upon the leave to defend application and have relied upon case laws / judgments in support of their respective contention.
14. Petitioner's counsel advocate Sh. Nitin Soni has argued for dismissing the leave to defend application by stating that the landlord tenant relationship has not been denied or disputed by respondent who has attorned to the petitioner as landlord / owner and has been paying Rs. 200/ per month as rent to the petitioner. He has further argued for dismissal of leave to defend application by stating that except for the suit premises i.e. shop no. 133, Bhagat Singh Market, New Delhi110001, petitioner Bibi Dhira Bala Makhotra has no other property either residential or commercial in Delhi and she has been staying with her cousin brother at C9, New Friends Colony, New Delhi. He has also referred to petitioner's affidavit dated 10.01.2013 (mentioned above) to state that property bearing no. 60, National Park, Lajpat Nagar, New Delhi was a residential property situated in residential colony which was disposed of way back in the year 199596 for reinforcing his contention that petitioner is left with no other property except suit property shop no. 133, Bhagat Singh Market, New Delhi110001 and praying for passing eviction order against respondent by contending that petitioner has proved No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 19/40 her bonafide requirement for suit premises as she wants to start her own business in fashion and retail trade including marketing related advisory services to earn sufficient and regular income for herself.
15. Advocate Sh. Vikrant Arora for respondent on the other hand has filed his written arguments and referred to the 'agreement to sell' dated 01.01.1971 to contend and demonstrate the falsehood of petitioner in approaching the court with unclean hands and for contending that section 14 (1) (e) of DRC Act is not applicable and cannot be invoked by petitioner / landlord as her right to cling on to title is subjudice in a pre existing 'suit for specific performance' and she cannot take advantage of her own wrong as 'bonafide requirement for own occupation' and 'agreement to sell' cannot coexist. Respondent's counsel has also challenged petitioner's contention of bonafide requirement of premises by pointing to the nonsuitability of premises for the so called requirement by petitioner. He has referred to the judgments reported in 2001 (5) SCC 705 and in 1999 (6) SCC 222 and various other judgments mentioned in his written submissions and filed along with certified copy of proceedings of petition filed under section 8 of Hindu Minority and Guardianship Act, 1956 and relied upon those judgments for distinguishing the judgments cited by petitioner's counsel and for stating the triable issues raised by respondent in his application and affidavit for No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 20/40 seeking leave to contest the eviction petition. These judgments relied upon by respondent's counsel are listed below :
1. 2007(10)SCC 448;
2. 2007(11)SCC 447 at page 452 refers to an earlier judgment of Supreme Court in 1996(4)SCC 127 and states that "This Court (at SCC p.142, para
28) referred to Broom's Legal Maxims (10th Edn.) p.191;
3. 2001 (1) SCC 706 in Inderjeet Kaur Vs Nirpal Singh;
4. Deena Nath Vs. Pooram Lal reported in 2001 (5) SCC 705;
5. S.S. Gupta vs. Dr. M.C. Gupta 1999 (6) SCC 222;
6. Satyapal Vs. Parsani Devi 1974 RCJ 256;
7. Kempaiah Vs. Lingaiah (2001) 8 SCC 718;
8. Dattatraya Laxman Kamble Vs. Abdul Rasul Moulai(1999) 4 SCC 1;
9. Precision Steel and Engineering Works Vs. Prem Deva Niranjan Deva Tayal, (1982) 2 (SC) RCR 544;
10. BR Anand Vs. Premsagar 2002 (1) RCR 234;
11. O.P. Gupta Vs. R.K. Sharma (2001(2) RCR 240);
12. M/s Gopal Dass & Sons Vs. Dineshwar Nath Kedar Delhi High Court - decided on 21.12.2012 by Hon'ble Mr. Justice M.L. Mehta;
13. Aggarwal Papers Vs. Mukesh Kumar Delhi High Court - decided on 17.10.2012 by Hon'ble Mr. Justice M.L. Mehta.
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16. As regards the first two judgments cited by learned counsel for respondent these judgments are not related to the provisions of Delhi Rent Control Act, 1958 and have been cited by learned counsel to refer to the legal principles of 'nemo dat quod non habet' and 'commodum ex injuria sua nemo habere debet'. The remaining judgment listed at serial nos. 3 to 13 have been cited by learned counsel for seeking leave to contest the eviction petition upon his contention of having raised triable grounds.
17. Advocate Sh. Nitin Soni, learned counsel for petitioner on his part has relied upon judgments reported in cases titled Sh. Sukhbir Singh vs. Dr. I.P. Singh in RC Rev. 261/2010 ; Pradeep Kumar Tyagi vs. Smt. Bimla Tyagi in RC Rev. 105/2012; S. Harbans Singh Sahni vs. Smt. Vinod Sikari in RC Rev. 27/2010; Mohinder Prasad Jain vs. Manohar Lal Jain in Appeal (civil) 1263 of 2006; Ram Babu Aggarwal vs. Jai Kishan Das, AIR 2010 SC 721 = (2010) 1 SCC 164 and Abdul Kadir vs. Smt. Prakash Rani Bhalla in RC Rev. 116/2012 in support of his contention for seeking eviction order against respondent Sh. S.K. Prakash. Later on he has also filed and relied upon the copy of judgment delivered in case titled K. V. Narayan Murthi vs. Thankamma No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 22/40 Sebastian pronounced by the Division Bench of Kerala High Court comprising Hon'ble Mr. Justice R. Bhaskaran and Hon'ble Mr. Justice K. T. Shankaran in RC Rev No. 48 of 2005.
18. Having perused the eviction petition, leave to defend application, affidavits and counteraffidavits filed on judicial record and having heard their rival submissions and read the judgments / case laws cited by respective counsels for the parties, I am of the considered opinion that as regards respondent's objection to petitioner's title as owner and landlord of suit premises is concerned, section 116 of the Evidence Act, 1872 is a compete answer to the plea raised by him. Hon'ble Supreme Court of India in the judgment titled Bansraj Lalta Prasad Mishra v. Stanley Parker Jones reported as (2006) 3 SCC 91 has held :
"The underlying policy of section 116 is that where a person has been brought into possession as a tenant by the landlord and if that tenant is permitted to question the title of the landlord at the time of the settlement, then that will give rise to extreme confusion in the matter of relationship of the landlord and tenant and so the equitable principle of estoppel has been incorporated by the legislature in the said No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 23/40 section."
"The principle of estoppel arising from the contract of tenancy is based upon a healthy and salutary principle of law and justice that a tenant who could not have got possession but for his contract of tenancy admitting the right of the landlord should not be allowed to launch his landlord in some inequitable situation taking undue advantage of the possession that he got and any probable defect in the title of his landlord. It is on account of such a contract of tenancy and as a result of the tenant's entry into possession on the admission of the landlord's title that the principle of estoppel is attracted."
"Section 116 enumerates the principle of estoppel which is merely an extension of the principle that no person is allowed to approbate and reprobate at the same time."
19. In its earlier judgment titled as Atyam Veerraju v. Pechetti Venkanna reported as (1966) 1 SCR 831 Hon'ble Supreme Court of India has quoted with approval the judgement of the Privy Council in No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 24/40 Bilas Kunwar v. Desraj Ranjit Singh, wherein it was observed:
"A tenant who has been let into possession cannot deny his landlord's title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord."
20. Subsequently in the later reported judgments titled Vinod Kumar Verma Vs. Manmohan Verma & Anr., 148 (2008) Delhi Law Times 580 and A.K. Nayar Vs. Mahesh Prasad, 143 (2008) Delhi Law Times 423, Hon'ble Mr. Justice Vipin Sanghi and Hon'ble Mr. Justice Shiv Narayan Dhingra of High Court of Delhi have recorded their finding that the word "owner" has not been defined in the Act and relied upon the judgment of the Hon'ble Supreme Court of India in Smt. Shanti Sharma & Ors. Vs. Smt. Ved Prabha & Ors. AIR 1987 SC 2028 for holding:
"In this context what appears to be the meaning of the term 'owner', is visavis the tenant, the owner should be something more than the tenant" and that the word 'owner' has been inspired by the definition of the word 'landlord' as No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 25/40 contained in Section 2 (e) of the Act which is wide enough to include a person receiving or entitled to receive the rent of any premises on account of or on behalf of or for the benefit of any other person". The idea of ownership in cases being one of the better rights to be in possession and to obtain it.
21. In the context of dispute between the parties in the present eviction proceeding, the issue of landlordtenant relationship existing between them has been decided vide order dated 03.01.2000 passed by the then learned Additional Rent Controller Ms. Neena Bansal Krishna in the previous eviction petition filed under section 14 (1) (a) (b) (j) & (k) of DRC Act for holding Even otherwise, mere agreement to sell does not confer any right, title in favour of prospective purchaser Smt. Sanyogata Prakash, and as such the relationship of landlord and tenant continues to be existing between the petitioner and respondent.
22. In the present eviction petition, petitioner's averment to the effect that respondent is a statutory tenant on a monthly rent of Rs. 200/ and has attorned to her as the owner and landlord of the suit premises and is paying regular rent to her has not been denied or disputed by respondent Sh. S. K. Prakash. In the case tilted K. V. Narayan Murti's (supra) Hon'ble Kerala High Court has held "In the present case, it is admitted No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 26/40 that the rent is being regularly paid to the landlord. Therefore, the possession of the tenant could not be attributed to one gained as per the agreement to sell." Hence, on the basis of above said discussions, I am of the considered opinion that respondent's objection to petitioner's title as owner and landlord of suit premises is unsustainable in law and does not constitute any triable ground for seeking leave to contest the eviction petition filed under section 14 (1) (e) read with section 25B of DRC Act.
23. The next objection to the eviction petition raised by respondent Sh. S.K. Prakash is in respect of his contention that 'bonafide requirement of premises' and 'agreement to sell' cannot coexist. Respondent has challenged the maintainability of the present eviction petition by claiming that section 14 (1) (e) of DRC Act is not applicable and cannot be invoked by petitioner as her right to cling on to title is subjudice in a preexisting 'suit for specific performance'. Once again the judgment cited by petitioner's counsel in case titled K.V. Narayan Murthi (supra) is a complete answer to his objection. In para no. 14 of its judgment, the Division Bench of Hon'ble Kerala High Court has referred to the fact of the case which are similar to the present case for observing:
"The further question is when the tenant raises a contention that there was an agreement between the landlord and the No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 27/40 tenant to sell the building to the tenant, whether it would constitute denial of title of the landlord within the meaning of section 11(1) of the Act. When the landlordtenant relationship is admitted or proved, the question whether there was an agreement to sell the building to the tenant becomes irrelevant. An agreement to sell does not invest any title in the tenant; nor does it divest the title of the landlord. The title would pass to the proposed transferee only on execution of the sale deed. The agreement to sell by itself would not terminate the landlord - tenant relationship. Even if a suit for specific performance filed by the tenant transferee is pending, that by itself would not be a ground to oust the jurisdiction of the Rent Control Court. So long as the tenant has not shed his character as a tenant, he cannot take shelter under the agreement for sale and contend that the Rent Control Court has no jurisdiction. Of course, in a case where Section 53A of the Transfer of Property Act applies, the position may be different."
24. Division Bench of Hon'ble Kerala High Court has also referred to the judgment delivered in case titled Dr. N. P Tripathy Vs. Dayamanti No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 28/40 Devi and Anr. AIR 1988 Patna 123 to the effect:
"So far the suit for specific performance of the contract is concerned it has got nothing to do with the question with regard to the relationship of landlord and tenant between the parties or even with regard to the ownership claimed under the deed of agreement of specific performance of contract for sale. Merely filing a suit for specific performance of contract does not confer or is founded upon a fact that a title has accrued in the property in question under the deed of agreement or contract for sale."
25. Hon'ble Mr. Justice Rajiv Sahai Endlaw of High Court of Delhi in a similar case titled Sanjay Singh vs. M/s Corporate Warranties Pvt. Ltd. in RFA No. 395/2013 has recorded his observation in para no 17 of the judgment:
"Thus the status of the appellant / defendant even if the execution of agreement to sell were to be believed, remained as that of a tenant and did not change to as that of a purchaser. The only rights of an agreement purchaser are of No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 29/40 specific performance of the said agreement.......... A tenant in the property, even if he enters into an agreement for purchase thereof, cannot avoid his / her ejectment therefrom as a tenant and only has a remedy of specific performance of the agreement to sell in his favour."
26. Hon'ble Mr. Justice Rajiv Sahai Endlaw has laid the ratio of his judgment for holding that in the case of agreement to sell an immovable property where possession in part performance is not handed, the possession of the appellant / defendant did not change from that of a tenant to that of a purchaser. He also referred to the settled position in law that in a suit between landlord and tenant, it is only the title as landlord which is relevant and not the title as owner and the question of title to the leased property is irrelevent.
27. It is again relevant to note that this issue had been controverted in the previous eviction petition between same parties filed under section 14 (1) (a) (b) (j) & (k) of DRC Act and has been decided vide order dated 03.01.2000 passed by the then learned Additional Rent Controller Ms. Neena Bansal Krishna by holding, However, as per the submission of the respondent himself, the said agreement to sell has not been ripened upto the sale of the property in favour of Sanyogata Prakash....Even otherwise, No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 30/40 mere agreement to sell does not confer any right, title in favour of prospective purchaser Smt. Sanyogata Prakash, and as such the relationship of landlord and tenant continues to be existing between the petitioner and respondent. Hence, on the basis of the discussions and rulings of the Courts of Record, I am of the considered opinion that the second objection raised by respondent Sh. S.K. Prakash to the maintainability of the eviction petition also lacks legal support and does not constitute any triable ground for granting leave to contest the eviction petition.
28. The other objections raised by respondent Sh. S. K. Prakash to the present eviction petition which are left to be considered are in respect to petitioner's averment of bonafide requirement of suit premises for starting her own business in fashion and retail trade. The gist of these objections has been recorded above in para no 7 of the order and have been duly replied by petitioner in her reply and affidavit dated 31.10.2012 and her next affidavit dated 10.01.2013 filed on judicial record. Suffice is to state that these objections to the extent that petitioner's claim of bonafide requirement of premises is nonexistent and is a ruse to evict him from suit premises for deterring him from pursuing the civil suit filed by his wife for 'specific performance of agreement to sell' and that petitioner does not require the premises for her bonafide need, but, with intention to No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 31/40 relet the premises at higher rate of rent and for charging huge pugree are mere bald allegations and do not constitute any triable ground for granting leave to contest the eviction petition.
29. Similarly as regards his objection / contention that petitioner owns certain other properties besides the suit premises, petitioner Bibi Dhira Bala Malhotra has filed her additional affidavit dated 10.01.2013 on judicial record to depose and confirm that she has no other immovable property except suit premises i.e. shop no. 133, Bhagat Singh Market, New Delhi, for refuting his objection and affirming that no such property existed in her name at the time of filing of eviction petition. She has affirmed through her affidavit that residential property bearing no. 60, National Park, Lajpat NagarIV, New Delhi has been sold against valuable consideration of Rs. 60,00,000/ in the year 199596. Respondent on the other hand has not furnished the particulars / details of the other properties purportedly owned by petitioner. In the case titled Rajinder Kumar Sharma & Ors Vs. Leelawati and Ors reported in 155 (2008) Delhi Law Times 383, Hon'ble Mr. Justice Shiv Narain Dhingra has observed:
"If the tenant in its leave to defend pleads that landlord was owner of another premises with which landlord had nothing No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 32/40 to do, mere filing of affidavit is not sufficient. The tenant has to place before the Ld. ARC such documents which show that the landlord was owner of that premises. If no such document is placed on record by the tenant, the Ld. ARC is not required to consider the ownership of the landlord of such a premises. If the leave is granted on mere assertions that landlord was owner of the premises, of which he is not, then in every case the tenant would get leave by just naming any premises with which landlord has no concern".
30. In para no. 11 of the above said judgment, Hon'ble Mr. Justice Shiv Narayan Dhingra has laid the ratio by holding:
"No Rent Controller is supposed to grant leave to defend to the tenant on the basis of a false affidavit and false averments and assertions. Such affidavit should be outrightly rejected by the Rent Controller. Only those averments in the affidavit are to be considered by the Rent Controller which have some substance in it and are supported by some material."
31. Thus, on the basis of the averments made in the eviction petition, No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 33/40 application for leave to defend and their affidavits filed on record and the ruling of Hon'ble High Court of Delhi, the objection raised by respondent with respect to petitioner owning certain other properties also fails to constitute any triable ground.
32. As regards respondent's objection to the effect that petitioner has no experience in fashion and retail, including marketing and retail advisory and the terminology of business used in the petition are vague and incapable of interpretation and she does not wish to carry any business but wants to oust him from the premises for settling scores against him, petitioner has refuted his objection and relied upon the judgments of Hon'ble Supreme Court of India delivered in case titled Mohinder Prasad Jain vs. Manohar Lal Jain and another case titled Ram Babu Agarwal Vs. Jay Kishan Das to argue that pastexperience is not a prerequisite for starting a new venture. The findings given by the Hon'ble Apex Court in these two judgments cited by petitioner's counsel do not require any discussion and the objection raised by respondent does not constitute any ground which would require adjudication. The relevant portion of the rulings are recorded below:
" The submission of the learned counsel for the appellant to the effect that before initiating the proceedings, the appellant No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 34/40 was required to show that he had experience in running the business in Ayurvedic medicine has to be stated to be rejected. There is no law which provides for such a pre condition. It may be so where a licence is required for running a business, a statue may prescribe certain qualifications or preconditions without fulfillment whereof the landlord may not be able to start a business, but for running a wholesale business in Ayurvedic medicine, no qualification is prescribed. Experience in the business is not a precondition under any statute. Even no experience therefor may be necessary. If the respondent has proved his bonafide requirement to evict the appellant herein for his own purpose, this Court may not, unless an appropriate case is made out, disturb the finding of fact arrived at by the Appellate Authority and affirmed by the High Court". (See Mohinder Prasad Jain vs. Manohar Lal Jain) "However, as regards the question of bonafide need, we find that the main ground for rejecting the landlord's petition for eviction was that in the petition the landlord had alleged that he required the premises for his son Giriraj who wanted to No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 35/40 do footwear business in the premises in question. The High Court has held that since Giriraj has no exerience in the footwear business and was only helping his father in the cloth business, hence there was no bonafide need. We are of the opinion that a person can start a new business even if he has no experience in the new business. That does not mean that his claim for starting the new business must be rejected on the ground that it is a false claim. Many people start new business even if they do not have experience in the new business, and sometimes they are successful in the new business also." (See Ram Babu Agarwal Vs. Jay Kishan Das)
33. Finally, respondent has also raised objections to the suitability of premises for petitioner to start her business by claiming that suit property is not suitable for carrying her business as the premises is located in a run down, shabby, unclean building where even basic facility of urinal has not been provided for females and is situated in 'Refugee Market', being occupied by petty shopkeepers and is not a regular shopping center, having no customer's foot fall and is also not situated on the main road besides being too small and cramped up with carpet area of less than 300 sq.ft. He goes on to state that it is inconceivable that petitioner would No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 36/40 want to start her business in such narrow and cramped small shop, several kilometers away from her posh residential colony. However, petitioner Bibi Dhira Bala Malhotra has refuted his objections claiming that suit premises is ideally located for starting her business besides stating that raw material required for lady garments are available at Shankar Market which is barely a kilometer away form suit premises and suit premises itself is situated in the heart of the capital, near the commercial hub of the capital at Cannought Place and is also very near to Karolbagh and Shankar Market which are known for ladies garments.
34. In my considered opinion, the objections and apprehension raised by respondent are figments of his futile imagination and do not constitute any ground upon which leave to contest could be granted to him. Petitioner being the owner of the suit premises and requiring the premises for starting her business for earning sufficient regular income by utilizing her knowledge and skill to maintain her lifestyle and standard of living, is entitled to use her property the way she wishes to use and respondent should refrain from offering his suggestions regarding suitability of premises for running her business. Petitioner's averments to the effect that she is residing with the family of her cousin brother at C9, New Friends Colony, New Delhi and has no residential accommodation of her own and her averment that except for the suit property i.e. shop no. 133, Bhagat No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 37/40 Singh Market, New Delhi, she has no other immovable property, either residential or commercial and could not start her own business by giving shape to her plans in the absence of commercial space and has virtually remained dependent on others which has affected her future prospects are sufficient to conclude that her need for suit premises is bonafide and not unreasonable by applying objective standards with regard to her bonafide need for premises as held by the Division bench of Hon'ble Supreme Court of India in case titled as Shiv Sarup Gupta vs. Dr. Mahesh Chand Gupta (1999) 6 Supreme Court Cases 222.
35. In the case titled Prativa Devi (Smt.) Vs. T. V. Krishnan reported in MANU/SC/0811/1987: (1996) 5 SCC 353, the Hon'ble Supreme Court of India has given its finding to the effect:
"The Landlord is the best judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own."
36. In yet another case titled Viran Wali vs. Kuldeep Rai Kochar No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 38/40 reported in 174/2010 Delhi Law Times 328, Hon'ble Mr. Justice V. B. Gupta in para no. 36 of the judgment has observed:
"It is settled law, that a tenant cannot dictate the landlord as to how and in what manner the landlord should use his own property."
37. In a more recent judgment delivered in case titled Smt. Urmil Joshi & Ors Vs. Smt. Raj Batra in RC. Rev. 100 /2012;
MANU/DE/1028/2012, Hon'ble Ms. Justice Indermeet Kaur has observed:
"The landlady is the best judge of her requirement; it is not for the tenant or the court to dictate terms as to how and in what manner she has to meet her needs for an accommodation".
38. Hence on the basis of my detailed discussion and rulings of Hon'ble Courts of Record recorded above, I am of the considered opinion that respondent Sh. S. K. Prakash has failed to raise any triable ground which would entitle granting him leave to contest the eviction petition No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 39/40 under section 14 (1) (e) read with section 25B of DRC Act filed by petitioner Bibi Dhira Bala Malhotra for seeking recovery of suit / demised property for her bonafide need and requirement to start her business for regular work and sufficient regular income by utilizing her knowledge and skill to enable her to maintain her lifestyle and standard of living.
39. Petitioner Bibi Dhira Bala Malhotra is held entitled to seek recovery of demised premises (suit property) i.e. shop bearing no. 133, Bhagat Singh Market, New Delhi110001, specifically shown in red colour in site plan filed along with her petition and accordingly eviction order is passed against respondent Sh. S.K. Prakash in respect of suit premises. However as provided under section 14 (7) of DRC Act, petitioner shall not be entitled to obtain possession of the suit premises before expiry of period of six months from today. Case file be consigned to record room.
Announced in the open court on 16.12.2013.
(Tarun Yogesh) ACJARCCCJ :
Patiala House Courts New Delhi : 16.12.2013 No. E-15/12 Bibi Dhira Bala Malhotra Vs. Sh. S.K. Prakash Page no. 40/40