Delhi District Court
Mahant Joginder Singh vs Mrs. Gail Demonte & Anr on 27 September, 2011
IN THE COURT OF SH BALWANT RAI BANSAL
ADDITIONAL RENT CONTROLLER (SOUTH),
SAKET COURTS, NEW DELHI.
Eviction Petition No. 15/11
Mahant Joginder Singh
.........Petitioner.
Versus
Mrs. Gail Demonte & Anr.
.........Respondents.
ORDER:
1. Vide this order I shall dispose of an application for leave to defend moved by the respondent no. 1.
2. The brief facts necessary for disposal of application are that the petitioner has filed the present eviction petition u/s 14 (1) (e) r/w Section 25 B of DRC Act against the respondents on the ground of bonafide requirement in respect of entire ground and first floor of the property bearing No. 36, Link Road, Lajpat NagarIII, New Delhi stating that the petitioner is the owner of the aforesaid property which has been let out to Eviction Petition No. E 15/11 Page 1 of 21 late Mrs. S.B. Noronha vide registered lease deed dated 19.09.1966 and after her death the respondents being her legal representatives continue to retain possession of the suit premises unauthorizedly. It is stated that suit premises are required bonafide by the petitioner for himself and for members of his family dependent on him and for whose benefit the premises are held as the petitioner and his family have no other reasonably suitable accommodation. It is further stated that the petitioner is about 80 years old and has two married sons namely Maninder Deep Singh and Pawan Singh and three married daughters namely Smt. Manranjan Gulati, Smt. Anju Modi and Smt. Sheena Babra and the daughters have six children and one child is married. It is further stated that Smt. Manranjan Gulati who has lost her husband is to come to India to live with the petitioner to look after him in his old age, but cannot do so due to paucity of accommodation. The petitioner at present is living in portion of a mezzanine floor room at the mercy of his son Maninder Deep Singh in flat No. E204, Greater Kailash II, New Delhi owned by Maninder Deep Singh and his ailing mother Rajinder Kaur and petitioner is not comfortable and has no peace of mind there due to deferences with them. It is further stated that the petitioner who had arms and ammunition business wants to live in his own house and needs ground floor and first floor of the premises for himself and above said 14 Eviction Petition No. E 15/11 Page 2 of 21 members of his family dependent on him. It is further stated that the petitioner being the religious persons wants a pooja room on the ground floor. It is further stated that the grand daughter of the petitioner namely Ms. Sara Modi who is a student is staying for the last four years as a paying guest in a nearby colony for preparation for NIFT competition. It is also stated that the petitioner needs space for running consultancy of sale and purchase of arms and ammunition of which he holds 60 years experience and petitioner has a servant and a driver and he needs garage for car. The petitioner has no other reasonably suitable accommodation except the suit premises. Hence, the present petition. It has been prayed that an eviction order may be passed in favour of the petitioner and against the respondents in respect of the suit premises.
3. The respondent no. 1 has filed the leave to defend application along with supporting affidavit contending that tenancy in question is single and composite and not two independent and different tenancies and has been let out for residential and nonresidential purposes and the dominant user of the premises was for running of the school since long which has also been held in earlier case by the Ld. ARC, Delhi vide order dated 13.10.1987. It is stated that the entire premises having been put to commercial use from the very beginning and as such the suit premises for all intents and purposes Eviction Petition No. E 15/11 Page 3 of 21 was let out for commercial purposes. It is contended that the present petition is not maintainable as the suit premises was let out exclusively for commercial purposes and as per the judgment reported in Satyawati Sharma (dead) through LRs Vs. Union Of India & Anr. (2008) 5 SCC 287, the premises let for residential purposes can be got vacated for residential use and the premises let for commercial purposes can be got vacated for commercial use and thus this judgment does not authorize vacation of the premises let for residential purposes for commercial use or premises let for commercial purposes for residential use.
4. It is further contended that the present petition is malafide as claim of the petitioner that he is living in a portion of mezzanine floor room in flat No. E204, Greater Kailash, New Delhi at the mercy of his son Maninder Deep Singh is wrong. It is stated that the said property is not a flat but it is a three storeyed house comprising of 13 rooms built on a plot of land measuring 250 sq. yds. It has also a basement and as per the petitioner it has a mezzanine room also. This property has open court yards in front and at back on the ground floor and open balconies on the front and back of the upper floors. It is further stated that the real brother of the petitioner Sh. Pritpal Singh has filed a suit in Ludhiana claiming that he is owner of the aforesaid property No. E204, Greater Kailash, New Delhi to the extent of Eviction Petition No. E 15/11 Page 4 of 21 one half share while the other half share belongs to the petitioner and on filing of an interim application in the said civil suit by the brother of the petitioner, the court granted the status quo regarding the said property as the defendant (petitioner herein) suffered statement that he has no objection in case status quo is granted regarding the suit property and it clearly shows that the partitioner is residing in the said property in his own right and not at the mercy of his son Sh. Maninder Deep Singh. It is further stated that it is also not the case of the petitioner that Sh. Maninder Deep Singh or petitioner's wife Smt. Rajinder Kaur has ever asked him to leave and vacate the house.
5. It is further contended by the respondent no. 1 that both the sons of the petitioner namely Sh. Maninder Deep Singh and Sh. Pawan Singh are NRIs and well settled in Washington DC and have acquired American Citizenship. They are doing their independent businesses and own their own independent residences there and all their children are grown up and they are also settled in Washington DC and they are living with their respective parents in their spacious houses. It is stated that the petitioner has deliberately concealed all the particulars regarding his sons, their families and their businesses which shows his malafide intentions. It is further stated that daughter of the petitioner Smt. Manranjan Gulati is also a NRI and well Eviction Petition No. E 15/11 Page 5 of 21 settled in Chicago and her husband was doing his own business there and he had died about two years ago. She has three children and one son who is NRI and well settled in Chicago and living with their mother in their own house. Moreover even if Smt. Manranjan Gulati also so intended to come to India, there could not have been any difficult in the way of Smt. Manrajan Gulati to come and stay with the petitioner in one of bed rooms lying vacant in the said house but as she along with her family members is well settled in Chicago and doing her business, she would not like to shut down her business and forgo her status of NRI and come to India merely to join her father to serve him in his old age. It is further stated that another daughter of the petitioner Smt. Anju Modi is also married and is living with her family in their own house at Chandigarh and her husband is a real estate builder and is carrying his own business at Chandigarh. Smt. Anju Modi has one daughter who is studying at the National Institute of Fashion Technology near ITO, New Delhi and she is living in a nearby accommodation provided by her father. Similarly, Smt. Sheena Babra, daughter of the petitioner is married and is having two children and she is living in Sadhna Enclave New Delhi with her family in their own house and her husband is also in the trade of real estate building and he is having his business place in Greater Kailash. It is stated that the petitioner has not disclosed all the particulars of Eviction Petition No. E 15/11 Page 6 of 21 his daughters, their family members, their businesses and the properties owned by them which shows malafide of the petitioner.
6. It is further stated that the petitioner has falsely alleged in his petition that he is living in a part of mezzanine room of flat No. E204, Greater Kailash, New Delhi as the said flat is not a flat but a house comprising of three floors in addition to a mezzanine room and basement etc. and the petitioner is comfortably living on the ground floor of this property and is using one bed room on the said floor along with his wife Smt. Rajinder Kaur and no one else is living in this house and except his wife Smt. Rajinder Kaur and no one else is dependent upon him for any purpose. It is further stated that the petitioner who is 80 years old is running three businesses of arms and ammunition under arms and ammunition dealership licenses issued to M/s Singh Brothers, M/s Singh Arms Dealers and M/s Singh Arms House. It is further stated that the above shops/business open for six days in a week and there is no independent business of consultancy as such known in the trade of arms and ammunition and moreover there is no difficulty in the way of the petitioner to render consultancy advice from his residence situated at E204, Greater KailashII, New Delhi which till date he has not done at all. It is stated that there are several triable issue which require trial, and, therefore, the respondent no. 1 Eviction Petition No. E 15/11 Page 7 of 21 has prayed for grant of leave to contest the petition.
7. The petitioner has filed the reply to the leave to defend application in which it is stated that his daughter Manranjan Gulati is not carrying on the business of her late husband in Chicago and in fact she is not doing any business. It is further stated that she is presently living in Baltimore and not at Chicago and she does not have three children. She has no son and has only two daughters who are not well settled in Chicago and are not living with her in her own house. It is further stated that Manranjan Gulati has no house of her own in USA or in India and she along with her unmarried daughter is living with her married daughter and soninlaw in their rented accommodation in Baltimore. It is further stated that Manranjan's husband died 8 years ago and not two years ago. It is further stated that Anju Modi's daughter Saara Modi is not studying at National Institute of Fashion Technology near ITO, New Delhi, but she has been preparing for NIFT competition only and is living as a paying guest accommodation in East of Kailash, New Delhi due to paucity of accommodation with the petitioner. It is further stated that sons of the petitioner do not own independent residences in USA. Maninder Deep along with his family is living in a rented accommodation in Maryland, USA and Pawan Singh is also living in a rented room at California and is not having any independent business and Eviction Petition No. E 15/11 Page 8 of 21 he is doing a job. It is further stated that the petitioner's son and their family members visit India regularly to see, attend and spent time with their old aged father. It has been denied that the petitioner is having a three storyed house with basement and mezzanine at House No. E204, Greater Kailash II, New Delhi at his disposal. It is stated that the property No. E204, Greater KailashII, New Delhi measuring 250 sq. yards comprises of three floors and a basement and each floor is owned by different owners. Basement is owned by Smt. Kavita Batta, the wife and son of the petitioner are owners of ground cum mezzanine floor. The first floor is owned by M/s Hindustan Unilever Ltd and the second floor is owned by Sh. Deepak Shangari and as such the petitioner does not own any portion of the said property. It is further stated that the litigation at Ludiana between the petitioner and his brother Pritpal Singh has nothing to do with the present case in view of the ownership documents qua the ground cum mezzanine floor of the property No. E204, Greater KailashII, New Delhi in favour of Maninder Deep Singh and Rajinder Kaur. It is further averred that the petitioner has no business in the name and style of "Singh Arms Dealer", but the shop at Darya Ganj in the name of Singh Arms House opens 23 days in a week where the petitioner goes only for about 23 hours as per his own convenience due to ill health and the shop at Kashmere Gate has 5 Eviction Petition No. E 15/11 Page 9 of 21 partners. It is further stated that the petitioner due to his old age, health and distance is not able to attend his business regularly at Darya Ganj and, therefore, he intends to utilize his expertise and wants to do consultancy qua arms and ammunition for which he has 60 years experience. It is further stated that the consultancy work does not violate any provision of Arms Act and no license from any authority is required for doing consultancy work of this type. It is further averred by the petitioner that he is living in a portion of the mezzanine floor room in E204, Greater KailashII, New Delhi and is not comfortable and has no peace of mind due to differences with them and wants to live in his own house. It is stated that no triable issue has been raised by the respondent in her leave to defend application and the petitioner has prayed for dismissal of the application.
8. Rejoinder has been filed by the respondent no. 1 in which averments made in leave to defend application have been reiterated and re affirmed and those made in reply to leave to defend application have been controverted.
9. I have heard the Ld. Counsel for the parties. I have also gone through the written submissions filed by both the parties and perused the entire material available on record.
10. There is no dispute so far the ownership of the petitioner over the Eviction Petition No. E 15/11 Page 10 of 21 property in question is concerned. However, the respondent no. 1 has contended in leave to defend application that the suit premises was let out dominantly for commercial purposes and as per the judgment reported in Satyawati Sharma (dead) through LRs Vs. Union Of India & Anr. (2008) 5 SCC 287, the premises let for residential purposes can be got vacated for residential use and the premises let for commercial purposes can be got vacated for commercial use and thus this judgment does not authorize vacation of the premises let for residential purposes for commercial use or premises let for commercial purposes for residential use and thus the present petition is not maintainable. However, I do not find any merit in this contention of the respondent as in view of the pronouncement of Hon'ble Apex Court in Satyawati Sharma Vs. Union of India III (2008) SLT 553, the purpose of letting is no more an issue since the word 'residential' has been deleted from the Section 14 (1) (e) of DRC Act and purpose of letting has lost its significance and is no more a stigma in passing an order of eviction in case of bonafide requirement in respect of commercial premises also and there is no such distinction as made out by respondent no. 1.
11. Now, the main contention of respondent no. 1 is that the claim of the petitioner that he is living in a portion of mezzanine floor room in flat No. E204, Greater Kailash, New Delhi at the mercy of his son Maninder Eviction Petition No. E 15/11 Page 11 of 21 Deep Singh is wrong as the said property is not a flat but it is a three storeyed house comprising of 13 rooms built on a plot of land measuring 250 sq. yds. and it has also a basement . It is also contended by the respondent no. 1 that the real brother of the petitioner Sh. Pritpal Singh has filed a suit in Ludhiana claiming that he is owner of the aforesaid property No. E204, Greater Kailash, New Delhi to the extent of one half share while the other half share belongs to the petitioner and on filing of an interim application in the said civil suit by the brother of the petitioner, the court granted the status quo regarding the said property as the petitioner has suffered a statement that he has no objection in case status quo is granted regarding the said property and it clearly shows that the partitioner is residing in the said property in his own right and not at the mercy of his son Sh. Maninder Deep Singh.
12. The petitioner has denied the aforesaid contention of the respondent no. 1 in the counter affidavit and has contended that property No. E204, Greater KailashII, New Delhi measuring 250 sq. yards comprises of three floors and a basement and each floor is owned by different owners. Basement is owned by Smt. Kavita Batta, the first floor is owned by M/s Hindustan Unilever Ltd. and the second floor is owned by Sh. Deepak Shangari and the petitioner does not own any portion of the said Eviction Petition No. E 15/11 Page 12 of 21 property, however the wife and son of the petitioner are owners of ground cum mezzanine floor. In support of his contention, the petitioner has placed on record the photocopy of sale deed in favour of Smt. Kavita Batta in respect of basement of the property No. E204, Greater KailashII, New Delhi and photocopy of sale deed in favour of Sh. Deepak Shangai in respect of entire second floor of the aforesaid property. The petitioner has also placed on record the the letter issued by M/s Hindustan Unilever Ltd. to the effect that first floor of the said property is owned by the said firm.
13. Though, the petitioner has also placed on record the photocopy of sale deed dated 20.12.1989 in favour of his wife Smt. Rajinder Kaur in respect of ground floor of the property No. E204, Greater KailashII, New Delhi and photocopy of sale deed dated 21.12.1989 in faovur of his son Sh. Maninder Deep Singh in respect of mezzanine floor of the aforesaid property, but the respondent has placed on record photocopies of two letters dated 16.11.1989 and 20.11.1989 written by the petitioner to his brother Sh. Prit Pal Singh to show that the payment for the purchase of property at E204, Greater KailashII, New Delhi was arranged by the petitioner and his brother, though same has been purchased in the name of wife and son of the petitioner. Immediately after the communications made through letters dated 16.11.1989 and 20.11.1989, the payment was arranged for purchase of ground Eviction Petition No. E 15/11 Page 13 of 21 and mezzanine floor of the aforesaid property and ground floor and mezzanine floor was purchased on 21.12.1989 and 20.12.1989 in the name of Smt. Rajinder Kaur, wife of the petitioner and in the name of Maninder Deep Singh, son of the petitioner.
14. Apart from this, the respondent no. 1 has also placed on record the photocopy of order dated 22.03.2005 passed by Civil Judge, Ludhiana. The said order dated 22.03.2005 reveals that Sh. Prit Pal Singh, the brother of the petitioner had filed a civil suit against the petitioner for declaration that he is owner in possession of 4 properties in which property bearing No. E204, Greater KailashII, New Delhi has been shown at Sl. No. (iv). The brother of the petitioner is claiming that he is owner of property bearing No. E204, Greater KailashII, New Delhi to the extent of half share. In the said civil suit, the petitioner herein appeared and stated that he has no objection in case status quo is granted regarding the suit property mentioned in para
(i) to (iv) which includes the property at E204, Greater KailashII, New Delhi and accordingly both the parties were directed to maintain status quo regarding the alienation of the suit property including the aforesaid property at E204, Greater KailashII, New Delhi.
15. In view of above documents, contention of the respondent no. 1 that the petitioner is not residing in the mezzanine floor of aforesaid Eviction Petition No. E 15/11 Page 14 of 21 property at the mercy of his son but he is residing there in his own right and further that had the petitioner not been owner of the ground and mezzanine floor of the said property No. E204, Greater KailashII, New Delhi, he would not have suffered voluntarily status quo order regarding alienation of the said property raises a triable issue.
16. So far the accommodation available with the petitioner at mezzanine floor in the property bearing No. E204, Greater Kailash, New Delhi is concerned, the petitioner has stated that he is living in a portion of a mezzanine floor room of the said property. However, the sale deed placed on record by the petitioner in respect of the ground floor of the aforesaid property No. E204, Greater Kailash, New Delhi shows that the said property is measuring 250 sq. yds and the ground floor consists of two bed rooms, drawingcumdining, verandah, attached two baths, kitchen, one store, lawn in the front and common passage from lobby. Similarly, as per the sale deed, mezzanine floor of the said property consists of two bed rooms with two baths, lobby with toilet, balcony, stairs and with common passage for ground and the mezzanine floor, one servant quarter on the top floor, toilet, verandah and car partaking in the front side.
17. The respondent no. 1 has contended that the accommodation available with the petitioner in the property No. E204, Greater KailashII, Eviction Petition No. E 15/11 Page 15 of 21 New Delhi is sufficient as except the petitioner and his wife no other family member is residing in the aforesaid property and the petitioner is living comfortably there. There is no dispute that except the petitioner and his wife, no other family members of the petitioner is residing in the ground and mezzanine floor of the aforesaid property which as per the petitioner belongs to his wife and son. Therefore, prima facie the contention of the petitioner that he is living in a portion of a mezzanine floor room of the said property does not seem to be tenable and the contention of the respondent no. 1 that accommodation at mezzanine floor of two bed rooms with two baths, lobby with toilet, balcony etc. and similar accommodation at the ground floor cannot be said to be insufficient for the petitioner and his wife raises a triable issue.
18. The respondent no. 1 has also categorically stated in leave to defend application that petitioner's son Sh. Maninder Deep Singh and his wife Smt. Rajinder Kaur has never asked the petitioner to vacate the accommodation at the aforesaid property. The petitioner has not controverted the said fact in the counter affidavit.
19. Though, the petitioner has come up with a plea that he is not comfortable and has no peace of mind in the aforesaid premises which belongs to his wife and son due to differences with them and he wants to Eviction Petition No. E 15/11 Page 16 of 21 live in his own property, but in reply to leave to defend application, the petitioner has categorically stated that his sons and their family members visit India regularly to see, attend and spent time with their old aged father. As such, when the petitioner claims that his son Maninder Deep Singh along with his family regularly visit India to see, attend and spent time with his old aged father i.e. petitioner, the contention of the petitioner that he has no peace of mind in the accommodation at E204, Greater Kailash, New Delhi due to differences does not seem to be believable and again it raises a triable issue.
20. The next contention of the respondent no. 1 is that none of the family member of the petitioner except his wife is dependent upon the petitioner for any purpose. It is contended by the respondent that both the sons of the petitioner namely Sh. Maninder Deep Singh and Sh. Pawan Singh are well settled in Washington DC and also have acquired American Citizenship. They are doing their independent businesses and also own their independent residences. Similarly, all the daughters of the petitioner are well settled in their matrimonial houses.
21. On the other hand, the case of the petitioner is that he has two married sons namely Maninder Deep Singh and Pawan Singh and three married daughters namely Smt. Manranjan Gulati, Smt. Anju Modi and Eviction Petition No. E 15/11 Page 17 of 21 Smt. Sheena Babra and the daughters have six children and one child is married. It is further case of the petitioner that Smt. Manranjan Gulati who has lost her husband is to come to India to live with the petitioner to look after him in his old age, but cannot do so due to paucity of accommodation and, therefore, the petition requires the suit premises bonafide for himself and for above said 14 members of his family dependent on him.
22. Though, in reply to leave to defend application the petitioner has stated that both his sons namely Maninder Deep Singh and Pawan Singh do not own independent residences in USA, but it has not been controverted by the petitioner that they are well settled in USA and his son Sh. Maninder Deep Singh holds American Citizenship. It is also stated by the petitioner that Sh. Maninder Deep Singh is engaged in business while Pawan Singh is doing a job. It is further stated by the petitioner that his daughter Smt. Anju Modi along with her husband is residing with her husband at Chandigarh and she is blessed with a daughter Sarra who is preparing for seeking admission in NIFT. The petitioner has not controverted the fact that husband of Smt. Anju Modi is a real estate builder and is carrying his own business at Chandigarh. It is also stated by the petitioner that his daughter Smt. Sheena Babra along with her husband and two sons live in Sadhna Enclave New Delhi on the barsati floor of the house owned by her fatherin Eviction Petition No. E 15/11 Page 18 of 21 law and her husband assists his father in his business of construction.
23. In view of above, when both the sons of the petitioner are well settled in USA and even one son namely Sh. Maninder Deep Singh holds American Citizenship and similarly daughters of the petitioner namely Smt. Anju Modi and Sheena Babra are also well settled in their matrimonial homes, it cannot be said that the family of the petitioner consists of 14 members who are dependent upon the petitioner for the purpose of residence.
24. So far the claim of the petitioner that his daughter Smt. Manranjan Gulati who has lost her husband is to come to India to live with the petitioner to look after him in his old age is concerned, though the respondent has denied the same contending that she is well settled with her family members. Even for the sake of arguments this plea of the petitioner is accepted that his daughter Smt. Manranjan Gulati who has lost her husband wants to come to India to live with the petitioner to look after him in his old age, still I find substance in the contention of the respondent that she can easily reside with the petitioner in the accommodation available with the petitioner at mezzanine and ground floor of the property bearing No. E204, Greater KailashII, New Delhi having sufficient accommodation and it again raises a triable issue.
Eviction Petition No. E 15/11 Page 19 of 21
25. So far the contention of the petitioner that he needs space for running consultancy of sale and purchase of arms and ammunition of which he holds 60 years experience is concerned, the respondent no. 1 has contended in leave to defend application that the petitioner who is 80 years old is running three businesses of arms and ammunition under arms and ammunition dealership licenses issued to M/s Singh Brothers, M/s Singh Arms Dealers and M/s Singh Arms House. It is further contended that the above shops/business open for six days in a week and there is no independent business of consultancy as such known in the trade of arms and ammunition and moreover there is no difficulty in the way of the petitioner to render consultancy advice from his residence situated at E204, Greater KailashII, New Delhi.
26. In counter affidavit, though the petitioner has denied that he has any business in the name and style of Singh Arms Dealer, but he has not denied that he is running the business under the name and style of M/s Singh Brothers at Kashmere Gate, Delhi and under the name and style of M/s Singh Arms House at Darya Ganj, New Delhi. It is stated by the petitioner that shop at Darya Ganj in the name of Singh Arms House opens 23 days in a week where the petitioner goes only for about 23 hours as per his own convenience due to ill health and the shop at Kashmere Gate has 5 Eviction Petition No. E 15/11 Page 20 of 21 partners.
27. In view of above, when the petitioner has already two businesses of arms and ammunition at Darya Ganj and Kashmere Gate and due to ill health he is able to attend the said shops only for 23 hours only, the requirement of the petitioner to start consultancy business of arms and ammunition at the suit premises again raises a triable issue.
28. In view of aforesaid discussions, in my considered opinion, the respondent no. 1 has raised several triable issues regarding the bonafide requirement of the suit premises by the petitioner which require trial and matter can not be decided at this stage without granting opportunity to the parties to lead evidence in support of their contentions. Hence, leave to defend application moved by the respondent no. 1 is allowed.
Announced in the open court (Balwant Rai Bansal) on 27th September, 2011 ARC(South), New Delhi Eviction Petition No. E 15/11 Page 21 of 21 E. No. 15/11 27.09.2011 Present: Petitioner in person. Sh. Ramji Lal on behalf of respondent no. 1
Vide my separate order dictated and announced in the open court, the leave to defend application filed by the respondent no. 1 is allowed.
Let written statement be filed by respondent no. 1 within 30 days with advance copy to the petitioner's counsel who may file replication to the same.
Case is fixed for PE for 07.12.2011. Evidence by way of affidavit be filed with advance copy to the counsel for the respondent no. 1.
(B.R. Bansal) CCJ/ ARC/ ACJ(South), New Delhi 27.09.2011 Eviction Petition No. E 15/11 Page 22 of 21