Delhi District Court
! {Nadra Begum vs . Suraj Prakash & Ors. (E-83/12)} on 17 April, 2013
! {Nadra Begum Vs. Suraj Prakash & Ors. (E-83/12)}
IN THE COURT OF SH. SIDHARTH MATHUR, ARC-02 (Central),
TIS HAZARI COURTS, DELHI
E-83/12
Unique Identification No. 02401C0191852012.
Mst. Nadra Begum,
W/o Sh. Tajuddin,
R/o K-116, Hauz Khas Enclave,
New Delhi-110 016. ........... Petitioner
Through
Sh. Mohd. Yasin,
Advocate.
Versus
1) Sh. Suraj Prakash,
Prop. of M/s Emar Son Chemist,
Shop No. 1522,
Church Road, Kashmere Gate,
Delhi-110006.
2) Sh. Om Prakash,
Prop. of M/s Om Prakash & Co.
Shop no. 1522,
Church Road, Kashmere Gate,
Delhi-110006.
3) M/s Data Centre,
through Partner Sh. Ved Prakash,
Shop no. 1522,
Church Road, Kashmere Gate,
Delhi-110006.
4) M/s Emar Son,
through partner Sh. Ved Prakash,
Godown/Shop no. 1536,
Church Road,
Kashmere Gate,
Delhi-110006. ......... Respondents
Through
Sh. Alok Kumar,
Advocate.
! (Page No. 1 of 10)
! {Nadra Begum Vs. Suraj Prakash & Ors. (E-83/12)}
JUDGMENT
1. Under Section : 14(1)(e), DRCA
2. Date of institution : 27.04.2012
3. Date of Final Order : 17.04.2013
4. Final Order : Eviction Ordered.
BRIEF FACTS
A) Petition
1. The ancestors of the petitioner were the owners of the shop no. 1522 and godown No. 1536, Ground Floor, Ward no. 1, Church Gate, Kashmere Gate, Delhi-110006 (hereinafter "tenanted properties"). She became the absolute owner of these properties via Family settlement dated 29.12.1997.
2. During his lifetime, the petitioner's father inducted Mulak Raj as a commercial tenant in the tenanted properties wherefrom he ran the business of "M/s Emar Sons Chemist" .
Tenant Mulak Raj on his demise was survived by respondents no. 1, 2 and another son Ved Prakash, who then automatically became the partners of "M/s Emar Sons Chemist". All of them however have now floated different firms and are running their respective businesses from the tenanted properties in the names of respondent no. 3 & 4.
3. The family of the petitioner comprises of her husband and three sons. Her husband was earlier running a partnership business with his son Zuhaib Athar in the name of "M/s Sterling Polymers". They operated the said firm from 669, Shish Mahal, Kishanganj, Teliwara, Delhi. The petitioner's husband disbanded himself from the said partnership around 5/6 years back due to indifferent attitude of his said son and thus has no employment since then. Now he intends to start his own Super Store for earning livelihood. But neither the petitioner, nor her husband have any alternate reasonable sufficient commercial premises so as to enable him to start his Super Store.
Now because the petitioner bonafidely requires the tenanted properties to enable her husband to start his Super Store, the present petition came into being on 27.04.2012.
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! {Nadra Begum Vs. Suraj Prakash & Ors. (E-83/12)}
B) Leave to Defend
4. The respondents were served with the notice of this petition on 09.05.2012 whereafter they filed their common leave to defend within time on 19.05.2012.
5. In their leave to defend, they have raised the following plea's to establish the existence of triable issues :-
a) That the petitioner has concealed the factum of her alternate property at Flat no. 407, 4th Floor, Sahyog Building, 58, Nehru Palace, New Delhi 110019 (hereinafter "Flat No. 407") ;
b) That the petitioner has also concealed the factum of her alternate commercial accommodations at Shop no. 9 and 10, B-7/A, Vishal Market, Bhai Parmanand Colony, Kingsway Camp, Delhi 110009 (hereinafter "Shop no. 9 & 10") ;
c) That the Kashmere Gate area which houses the tenanted properties is not suitable for the kind of Super Store sought to be started by the petitioner's husband ;
d) That the husband of the petitioner is still running the partnership business of "M/s Sterling Polymers" with his son Zuhaib Athar of which he had even signed and filed the sale tax returns on dated 14.07.2008 ; and
e) That the relations between the petitioner's husband and his son Zuhaib Athar are not hostile as claimed by the petitioner since both of them along with the petitioner resides in the same house and shares the same kitchen.
C) Reply to Leave to Defend
6. In her reply, the petitioner has stated that the shops no. 9 and 10 were purchased in her name on 09.07.1982 by her father whereafter she leased these shops to the partnership firm named "M/s Harsons" for commercial purposes at a monthly rent of Rs. 140/-. This firm was owned by her father & two brothers and it had its registered office at 4791-4792, Chandni Chowk, Delhi. The composition of this firm changed from time to time ! (Page No. 3 of 10) ! {Nadra Begum Vs. Suraj Prakash & Ors. (E-83/12)} and presently it is owned by her brother Shahid Atiq and his son Md. Mazid. This firm is still is a tenant at the said shops and is using the same as its godown.
She has further stated that the Flat no. 407 is not her exclusive property but it is jointly owned by her with three other co-owners. Moreover this flat is leased out to "M/s Consulting Engineering Services (India) Pvt. Ltd." via Rent Deed dated 08.08.2006.
She has further reiterated that her husband left the partnership of "M/s Sterling Polymers" via dissolution deed executed in March 2008 due to the indifferent attitude of his son Zuhaib Athar.
Lastly she has admitted that her son Zuhaib Athar is residing in the same house belonging to his grandmother wherein she with her husband is also living. However she denied sharing kitchen with her son Zuhaib Athar or anyone else.
The remaining reply is a mere reiteration of the contents of her petition whereby she has denied the contrary allegations of the respondent.
D) REJOINDER
7. This rejoinder is a mere reiteration of the contents of their leave to defend whereby the respondents have denied the contrary allegations of the petitioner.
8. After the completion of the aforesaid pleadings, arguments on leave to defend were heard on 11.04.2013.
FINDINGS
9. The facts which are not disputed between the parties needs to be revisited.
The relationship of landlord and tenant is not disputed between the parties. Likewise the respondents have also not challenged the ownership of the petitioner qua the tenanted properties.
10. The respondents have contended that the petitioner has concealed the factum of her alternate property situated at Flat no. 407.
The petitioner has refuted this allegation by alleging that neither she is the exclusive owner of this flat as it has three more co owners, nor she has its possession as the same is presently occupied by their tenant "M/s Consulting Engineering Services (India) Pvt. Ltd".
! (Page No. 4 of 10)
! {Nadra Begum Vs. Suraj Prakash & Ors. (E-83/12)}
The petitioner has placed on record the lease deed dated 08.08.2006 executed between all the four co owners including herself and their tenant "M/s Consulting Engineering Services (India) Pvt. Ltd.". The execution, authenticity, veracity or legality of this lease deed has not been challenged by the respondents. Its perusal prima facie shows that the said flat is currently under the tenancy of "M/s Consulting Engineering Services (India) Pvt. Ltd." since 08.08.2006 and that the petitioner is only one of its co- owner/joint landlord.
Now when the said flat is not readily available for the exclusive use of the petitioner, it can not be termed as an alternate or reasonable accommodation from her point of view whereby she was not required to disclose its factum in her petition.
Moreover this flat admittedly is situated on the 4th Floor. The petitioner requires the tenanted properties so as to enable her husband to start a Super Store. Such kind of business can not be conveniently, viably or plausibly run from the 4th floor. It possibly can be carried out only from a ground floor premises. This way as well this flat cannot be considered as an alternate or reasonable accommodation.
Hence this plea of the respondents falls flat on the ground.
11. The respondents have alleged that the petitioner has concealed the factum of her alternate commercial accommodations at Shop no. 9 and 10. According to them, these shops are lying vacant and hence are suitable for the need of the petitioner's husband. They have further claimed that these shops are "self occupied" by the petitioner and have been so assessed with the property tax department.
The petitioner has refuted these assertions by stating that though these shops are owned by her being purchased in her name by her deceased father, but, they are not readily available being occupied by her tenant firm named "M/s Harsons", which firm earlier belonged to her father & two brothers and is presently owned by her brother Shahid Atiq & his son Md. Mazid Atiq. She claims that this firm is now using these shops as a godown for storing artificial plastic flowers being sold at Chandni Chowk.
The petitioner has placed on record various documents pertaining to the occupation of her tenant "M/s Harsons" at these shops. She has placed on record a letter dated 01.06.1995 written on behalf of this firm to the Drug Controller seeking license for storing medicines at shop no. 9. This letter pertained to the period when the said firm was involved in medicine business. Likewise "Form 21C" issued by the GNCT on dated 27.06.1995 in favour of this firm has also been placed on record whereby license was granted to this firm to conduct its medicine business from the shop no. 9.
! (Page No. 5 of 10)
! {Nadra Begum Vs. Suraj Prakash & Ors. (E-83/12)}
She has also placed on record the property tax assessment order dated 04.10.1988 and rectified property tax assessment order dated 15.11.1988 of these shops issued by the MCD. The perusal of these orders shows that the petitioner has throughout maintained that these shops had been under the occupation of her tenant "M/s Harsons", which was a firm constituted by her father and two brothers.
The respondent has alleged that it has been held in these orders that these shops were self occupied by the petitioner and hence the property tax assessed thereupon was on the basis of her self occupation. On the strength of this argument, the respondents alleges that these shops be considered to be under the exclusive occupation of the petitioner. This argument advanced on behalf of the respondents is totally meritless. Firstly, these assessment orders are merely tax documents whereby they cannot be relied for determining as to who is in the exclusive possession of these shops, particularly, when the property tax can be deposited either by the owner or the tenant even in the case of a leased out property. Secondly, the perusal of the assessment order dated 04.10.1988 shows that the property tax was levied on these shops by treating them as the self occupancy of the petitioner. The in depth reading of this assessment order shows that these shops were so treated not because they were self or exclusively occupied by the petitioner but because they were occupied by her close relatives and their firm "M/s Harsons" leading to an assumption that the rental income disclosed by her seemed to be concessional. Accordingly property tax on the basis of the prevailing rental value was levied thereupon. Similar observations were also made in the rectified assessment order dated 15.11.1988. In this rectified assessment order, it was categorically observed that these shops were treated as self occupancy of the petitioner since they were occupied by "M/s Harsons", which belonged to her father and brothers. Hence on the meaningful reading of these two orders, the levy of property tax over these shops on the basis of the self occupancy of the petitioner cannot be understood either as the exclusive possession of the petitioner or that "M/s Harsons" is not a tenant therein. Rather both these orders shows that these shops were in fact occupied by the petitioner's tenant ""M/s Harsons".
The respondents have placed no other documentary proof either in the nature of photographs or otherwise suggesting that these shops are either lying vacant or are exclusively occupied by the petitioner or are not under the occupation of the tenant firm "M/s Harsons". The electricity bills dated 07.07.2005 and 29.03.2011 of these shops filed by the respondents though undoubtedly shows that the electricity consumption there is minimal. However this by itself cannot be determinative of the fact that these shops are lying totally vacant particularly when the petitioner has explained in her reply to leave to ! (Page No. 6 of 10) ! {Nadra Begum Vs. Suraj Prakash & Ors. (E-83/12)} defend that these shops are being used as godown by "M/s Harsons" for storing artificial plastic flowers. This storage of artificial plastic flowers justifies the low consumption of electricity at these shops, As a matter of common knowledge, it is known that the storage of artificial plastic flowers does not require any electricity since they are not perishable.
Thus the record prima facie establishes that these shops are occupied by the petitioner's tenant "M/s Harsons", whereby they are neither lying vacant, nor exclusively occupied by the petitioner. Now when these shops are not readily available for the exclusive use of the petitioner, they can not be termed as an alternate or reasonable accommodation from her point of view whereby she was not required to disclose their factum in her petition.
Accordingly, the aforesaid plea of the respondents fails to impress this Court.
12. The respondents have alleged that the shop no. 9 and 10 are more suitable for the kind of Super Store sought to be started by the petitioner 's husband. They have further asserted that the Kashmere Gate area where the tenanted properties are situated is not suitable for running such kind of a Super Store.
As already been observed herein above that the shops no. 9 and 10 are not readily available to the petitioner being occupied by her tenant "M/s Harsons" whereby the same cannot be considered either as a suitable or alternate or reasonable accommodation qua her needs.
Moreover the respondents/tenants cannot dictate terms to their landlord/petitioner telling her as to from where her husband should be starting his prospective business or as to from where he ought not start his business. This discretion lies only with the petitioner or her husband and none else. Now when the opening of the Super Store in Kashmere Gate area is not legally barred, the respondents have no right to suggest that the petitioner and her husband instead of starting their business from Kashmere Gate should start the same from elsewhere. Furthermore when the respondents themselves are using the tenanted properties for commercial activities, then they cannot desist the petitioner or her husband from using the same for commercial activities.
Accordingly, the aforesaid pleas of the respondents fails to gather any strength.
13. The respondents have asserted that the plea's of the petitioner that her husband has severed his relations with his partner cum son Zuhaib Athar around 5-6 years back and is unemployed since then are all false. They have contended that the petitioner's husband is still running the joint partnership business of "M/s Sterling Polymers" along with ! (Page No. 7 of 10) ! {Nadra Begum Vs. Suraj Prakash & Ors. (E-83/12)} his son Zuhaib Athar whose sales tax returns were filed by him under his signatures on 14.07.2008. They have also asserted that the petitioner's son Zuhaib Athar is sharing the same house & kitchen with the petitioner and her husband.
It is admitted between the parties that the petitioner's husband and his son Zuhaib Athar were once jointly running the business of "M/s Sterling Polymers". The petitioner has alleged that her husband withdrew himself from the said partnership in 2008 whereafter he is unemployed having no concern whatsoever with the said firm. She has placed on record the certificate of Importer Exporter Code issued by Govt. of India in favour of "M/s Sterling Polymers" on dated 04.05.2010 and the bank statement of "M/s Sterling Polymers", which clearly shows that the said firm at present is the sole proprietorship concern of her son Zuhaib Athar wherein her husband has no right or interest whatsoever. The respondents despite claiming that the petitioner's husband is still involved in the joint running of the said firm and that he had filed its sales tax returns for the year 2008 under his signatures has placed nothing on record to substantiate these bald assertions. The respondents could have easily filed the sales tax returns of the said firm for the year 2008 allegedly signed by the petitioner's husband after obtaining their certified copy. However for the reasons best known to them, it was not done. This omission on their part creates doubt on their assertion that the petitioner's husband is still jointly running the business of "M/s Sterling Polymers".
Further the respondents have also asserted that the relations of the petitioner, her husband and her son Zuhaib Athar are cordial as all of them are living in the same house and sharing the same kitchen. Despite admitting that she, her husband and her Zuhaib Athar are living in the same house belonging to her mother in law, the petitioner has denied sharing kitchen with her son Zuhaib Athar or having cordial relations with him. Merely because all of them are residing in the same house belonging to the ancestors of the family does not mean that the personal and business relations between the petitioner or her husband and their son Zuhaib Athar are cordial. Petitioner's son Zuhaib Athar has a legal right to reside in that house as it belongs to his grand mother. Moreover assuming for the sake of the arguments that the relations between the petitioner's husband and her son Zuhaib Athar are cordial. Even then it does not mean that the petitioner or her husband are forever barred from starting their own separate business for their livelihood. It also does not mean that they should forever remain dependent on their children for their livelihood. Like every citizen of this country, the petitioner and her husband are also fully entitled to start any business of their choice at any stage of their life from anywhere, either in partnership with their children or without the assistance of their children. The respondents ! (Page No. 8 of 10) ! {Nadra Begum Vs. Suraj Prakash & Ors. (E-83/12)} have got no right to dictate to the petitioner's husband that he should always remain involved in the joint business of "M/s Sterling Polymers" with his son Zuhaib Athar or that he can never start his own separate business.
Hence, the aforesaid pleas of the respondents likewise fails to hold any water.
14. The respondents have relied upon "Vijay Nayyar Vs. Om Prakash Malik" RCR No. 120/2011 decided by the High Court of Delhi on 11/07/2011 and "Prahlad Singh Mittal. Vs. Smt. Rita Devi" RCR No. 102/2012 decided by the High Court of Delhi on 21/12/2011 to contend that their leave to defend raises triable issues.
These citations relied by the respondents basically lays certain principles which needs to be kept in mind by the Court while deciding the leave to defend. That if the tenant is able to show that the need of his landlord is for additional accommodation, then he is entitled to unconditional leave to defend. That if the tenant is able to show the existence of triable issues which could eventually non suit the landlord, then also he is entitled to unconditional leave to defend. That the landlord must come to the Court with clean hands by disclosing all the alternate and relevant accommodations available with him otherwise the tenant would be entitled to unconditional leave to defend. That if the landlord possesses reasonable & sufficient vacant accommodation, then also the tenant is entitled for unconditional leave to defend.
There is no doubt to these legal principles. However the respondents cannot draw any benefit from these legal principles once my aforesaid discussion clearly spells out that they have squarely failed to prima facie establish that either the petitioner's need is in the nature of any additional requirement or is a mere desire lacking bona fides or that their case involves any triable issues capable of non suiting her.
15. The petitioner is claiming the tenanted properties to enable her unemployed husband to start his Super Store to earn their livelihood.
The petitioner and her husband being a married couple are under moral obligation to look after the personal and professional well being of each other. She has prima facie established that none of them have any alternate reasonable sufficient commercial accommodation to cater to her requirement.
In light of the respondent's failure to raise any triable issues, the need of the petitioner is to be assumed as genuine, honest and bona fide.
! (Page No. 9 of 10)
! {Nadra Begum Vs. Suraj Prakash & Ors. (E-83/12)}
CONCLUSION
16. It is well settled that leave to defend is granted to the tenant in case of any triable issue has been raised by him, which can be adjudicated by consideration of additional evidence. The mere existence of any triable issue is not sufficient. The nature of the triable issue raised by the tenant must be such that it will disentitle the landlord from obtaining the eviction order. The whole purpose and import of summary procedure under Section 25B of the Act would otherwise be defeated. The prayer for leave to contest should be granted to the tenant only where a prima facie case has been disclosed by him. In the absence of the tenant having disclosed a prima facie case i.e. such facts which disentitles the landlord from obtaining an order of eviction, the Court should not mechanically & in routine manner grant leave to defend.
In the light of the aforesaid legal ratio, all the pleas taken by the respondents seems to be sham and moonshine, which have failed to raise any requisite triable issues. The contents of their application for leave to defend have failed to rebut the presumption of bona fide as regards the need of the petitioner. The application for leave to defend filed by the respondents is thus rejected.
Consequently an eviction order is passed U/s. 14 (1) (e), DRCA against the respondents regarding the tenanted properties at shop no. 1522 and godown No. 1536, Ground Floor, Ward no. 1, Church Gate, Kashmere Gate, Delhi-110006 as shown in the site plan of the petitioner.
However in light of Section 14 (7) DRCA, the aforesaid eviction order shall not be executable for a period of six months from today.
The parties are left to bear their own costs.
File be consigned to Record Room after due compliance.
Announced in the open Court. (Sidharth Mathur)
ARC -02(Central)/Delhi/17.04.2013
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