Delhi District Court
Also At vs Usha International Ltd on 30 August, 2012
IN THE COURT OF SH. DEVENDER KUMAR, CCJ-CUM-ARC (WEST),
TIS HAZARI COURTS, DELHI.
E-177/11
Sh. Sushil Kumar Chauhan
S/o Late Sh. Gurbachan Lal
R/o 9 Pantomine BLVD
Brampton, ON, L6Y 5M2
Also At
C/O Samrat Jewellers
Shop no. 23-E, New Market,
Tilak Nagar, New Delhi - 110018 .......Petitioner
Vs.
Usha International Ltd.
Through Head of Department of
Sales Administration
H-3A, Mohan Co-operative Industrial Estate,
Mathura Road, New Delhi -44
M/s. Ajanta Enterprises
Through Mr. Jitendra Gupta,
Shop no. 23, New Market,
Tilak Nagar, New Delhi -18 .....Respondents
Date of institution : 21.07.2010 Date on which reserved for judgment : 30.08.2012 Date of decision : 30.08.2012 Order:
Vide this order, I shall dispose off a leave to defend application filed by the respondent in the petition for bonafide requirement under Section 14 (1) (e) of DRC Act.
1. Arguments on application heard. It is submitted by Counsel for the respondent that the petitioner is not the owner of the tenanted premises E177/11 1/7 and there is no relationship of landlord and tenant between the parties. It is further submitted that even a Will on the basis of which the petitioner is claiming his ownership is under sub-judice in a probate petition and till the decision of the probate petition, the petitioner cannot claim any ownership of the tenanted premises against the respondent. It is further submitted that even the payment of rent by the respondent is being made against furnishing an indemnity bond by the petitioner, subject to out come of probate petition. It is further submitted that the other LRs of the deceased Smt. Raj Rani have not been impleaded and this petition is bad for non- joinder of the necessary parties. It is further submitted that even it is assumed for the shake of arguments that the petitioner has become the owner of the suit property, then a bar under Section 14 (6) of DRC Act shall apply and the petitioner cannot file this petition prior to the period of five years after the change of title of the suit property. It is further submitted that there is no title deed in favour of the petitioner, due to the petitioner is not entitled for an eviction order. It is further submitted that the petitioner has not got mutated the suit property in his name before any authority and this petition is not maintainable and request of the petitioner is artificial. It is further submitted that the petitioner is already settled in Toronto, Canada, but he wish to start his business in India and merely wish of the petitioner cannot be a ground of an eviction and it is a triable issue. It is further submitted that another shop in the same premises has been sold out by the petitioner in the year 2007 and there is no change of circumstances during this period and even other shop of similar description is available to the petitioner which may be utilized for the satisfaction of the needs of the E177/11 2/7 petitioner. It is further submitted that even no business has been started by the petitioner, but he is seeking recovery of the possession in advance and it is a triable issue. It is further submitted that the respondent has raised many triable issues in leave to defend application and this application be allowed and unconditional leave to defend be granted to the respondent.
2. On the other hand, counsel for the petitioner has opposed the submissions and has submitted that the premises was let out by the parents of the petitioner and they have executed a Will in favour of the petitioner thereby bequeathing of the properties to all the LRs and this shop has come into the share of the petitioner. It is further submitted that the respondent being tenant cannot challenge the title of the petitioner and it not a triable issue. It is further submitted that the other LRs have no interest in the suit property, due to they have not been impleaded as the property was separately demarcated by a Will of the parents of the petitioner and other LRs have no concerned with the suit property. It is further submitted that the petitioner is not required to prove his title before this court as the capacity of the petitioner should be more than tenant and being the co- owner, he has every right to file this petition. It is further submitted that the petitioner has no job in Toranto and petitioner wants to start his business and the respondent cannot stop him to shift in his country and to start a business. It is further submitted that the petitioner has retired of his all responsibilities in Toronto, Canada and his remaining family is well settled there and now he wants to come back to his motherland and to settle here and the respondent cannot dictate him as to whether he should settle there E177/11 3/7 or not. It is further submitted that the respondent has failed to raise any triable issues in his leave to defend application and same is liable to be dismissed and an eviction order be passed.
3. I have heard the arguments and perused the record. Respondent has raised many issues in the leave to defend application which have been stated to be triable issues. The first issue raised by the respondent is with regard to the ownership of the petitioner which has been disputed by the respondent. It has been held by Hon'ble High Court of Delhi in Smt. Munni Devi Vs. Manmohan Verma & Ors. 2007 (1) RCR 223 that the ownership by the way of a Will cannot be challenged by the tenant. It is further held in Sushil Kanta Chakravarty Vs. Rajeshwar Kumar, (79) 1999 DLT 210 and 2010 (i) CCC 014 (SC) titled FGP Ltd. Vs. Salah Hooseini Doctor & Anr. that the rent petition may be filed by the co-owner without impleading other co-owners and the respondent being tenant cannot get the benefit of non impleadment of other co owners and tenant cannot challenge the title of the landlord. The rent petition is maintainable at the instance of co owner. It has been held by Hon'ble High Court of Delhi Parbati Poddar Vs. Joginder Singh 2004 (113) DLT 300 that the property inherited though Will and such devolution is not bar under Section 14 (6) of DRC Act and petition may be filed prior to five years. In view of these judgments, the objections raised by the respondent that the ownership shall be disputed till the decision of the probate petition is not a triable issue. It is settled law laid down by Hon'ble High Court of Delhi in Rajendra Kumar Sharma & Ors. Vs. Leela Wati & Ors. 155 92008) LDT 383 that the landlord should be E177/11 4/7 more than a tenant to file a petition under Section 14 (1) (e) of DRC Act and as per this judgment, the plea taken by the respondent that the petitioner is not a title holder of the suit property is not a triable issue.
4. The other issue raised by the respondent is that the petitioner has not obtained any permission from any competent authority / lessor and even no mutation has been done in the revenue record of the authorities in his name. Again it is not a triable issue in view of the law laid down by the Hon'ble High Court in T. C. Rekhi Vs. smt. Usha Gujral; RCJ 322. In fact, mutations in the revenue record is not mandatory to file a rent petition. Further in case of pendency of probate petition the same only may take place after the decision of the probate petition. In fact it is not a triable issue.
5. The main issue raised by the respondent is that the petitioner has already settled in Torranto, Canada and he wants to start his business in Delhi and it just a wish of petitioner. It has been held by the Hon'ble high Court of Delhi in T.D. Dhingra V. Pritam Rai Khanna, 48 (1992) DLT 208 that there is no provision of law whereby an Indian who had acquired foreign citizenship is disentitled to enjoy residence in his own property in India when he chooses to return to India. It is further held in Saroj Khemka V. Indu Sharma, 79 (1999) DLT 120 that a landlord had been a resident abroad intent to shift to India is entitled for recovery of possession of the tenanted premises. Similar facts have been dealt with by the Hon'ble High Court in Sarwan Dass Bange Vs. Ram Parkash 167 (2010) DLT 80. In this case, E177/11 5/7 the petitioner was born in India, but migrated to U.K. and employed there till his retirement. The petitioner in that case in his old age wanted to permanently settled in India and house was only accommodation owned by him. The Hon'ble high Court held that if the petitioner wanted to return to his home land, then he has every right to settle himself here. It is further held in Mohan Lal Vs. Tirth Ram Chopra 22 (1982) DLT 1 (FB) that it is a natural aspiration for a landlord in his old age to stay in his own house in the evening of his life and desire to spend the last few years of the life in his own house cannot be regarded as fanciful. In view of abovesaid decisions, it is clear that the requirement of the petitioner is not fanciful. Even otherwise, it has been held by Hon'ble High Court of Delhi in Mohd. Usman V. Siraj Ahmed 154 (2008) DLT 342 that the landlord is best judge of his residential requirement and place where he has to live and court or tenant cannot dictate in what manner he should live, where he should live. In view of these judgments, it is clear that the respondent cannot dictate the petitioner as to which premises he should used for his business purpose and even merely on this ground that he is residing abroad cannot be a ground to deny the requirement of the petitioner. As such it is not a triable issue.
6. Respondent has alleged that the petitioner has sold another shop in the year 2007 and there is no change of circumstances thereafter. Again, it is not a triable issue as availability of the petitioner is to be seen on the date of filing of this petition and not prior to it. Availability of any similar accommodation has been specifically denied by the petitioner and if the petitioner has no other accommodation then it is not a triable issue. Besides it, no other specific triable issue has been raised by the respondent. E177/11 6/7
7. So far the judgments relied upon the respondent are concerned, the judgment titled as Shri Gurmeet Singh Chopra V. Taruna Chopra & Ors. is dealing with entirely a different aspect and the other judgments are also not applicable. As such, the respondent has failed to raise any triable issue in this case and leave to defend application of the respondent is hereby dismissed.
8. The leave to defend application of the respondent has been dismissed, accordingly I hereby pass an eviction order in respect of the tenanted shop no. 23, New Market, Tilak Nagar, New Delhi -18 as shown red in the site plan (Exh. C1 for identification) in favour of the petitioner and against the respondent. However, the order should not be executable prior to the period of six months. File be consigned to Record Room after necessary compliance.
Dated:- 30.08.2012 (Devender Kumar)
Announced in the open Court. CCJ-cum-ARC (West)
Tis Hazari Courts, Delhi.
E177/11 7/7