Delhi District Court
Smt. Sunita Sethi vs Sh. Mahesh Kumar on 1 June, 2019
IN THE COURT OF SH. AJAY NAGAR,
ADDITIONAL RENT CONTROLLER (WEST), TIS HAZARI
COURTS, DELHI.
ARC No.- 25990/2016
Smt. Sunita Sethi
W/o Sh. Naresh Sethi
R/o 32949, Regents Blved,
Union City,
California (U.S.A.) ...... Petitioner
VERSUS
Sh. Mahesh Kumar
S/o Sh. Hans Raj
Shop/ Private No. 4,
Property bearing No. 11/75,
Subhash Nagar, New Delhi-27.
........ Respondent
Date of Filing : 18.03.2011
Date of Judgment : 01.06.2019
JUDGMENT
1. Present case is a petition U/Sec. 14 (1) (e) of Delhi Rent Control Act, 1958 (hereinafter referred to as 'DRC Act') for eviction of the respondent in respect of One shop/ Private No. 4, situated on the ground floor of premises No. 11/75, Subhash Nagar, New Delhi-27 more particularly shown as red in the site plan attached with the petition (hereinafter referred to as 'tenanted premises').
2. In the present petition, it is averred by the petitioner that the petitioner is the owner and landlady of the tenanted ARC No. 25990/16 Sunita Sethi Vs. Mahesh Kumar -2- premises by operation of law after the death of her mother and the respondent has become a tenant under the petitioner.
That family of the petitioner consists of herself, her husband Sh. Naresh Sethi, one son namely Sh. Arun Sethi, aged about 23 years and daughter namely Ms. Richa Sethi, aged about 20 years. That the petitioner along with her family members has been residing at the address mentioned in the title of the petition.
That the petitioner and her family members used to visit India once or twice in a year and stayed at her near and dear relatives' house. That the petitioner and her family members have decided to reside in India but the tenanted portions occupied by the respondent put hurdle on their ambitions and plans and the said tenanted premises is bonafidely required by the petitioner for herself as well as members of here family to reside and stay in their own house.
That the petitioner's brother, sisters and their family members are permanently residing in Delhi and the petitioner and her family members also used to visit Delhi on account of attending the ceremonies or on account of grief and sorrow.
It is averred by the petitioner that originally Sh. Teja Singh S/o Sh. Jodh Singh was the lessee of the entire property bearing No. 11/75, Subhash Nagar, New Delhi-110027 vide registered lease deed. That the mother of the petitioner had purchased the property bearing No. 11/75, area measuring about 100 square yards situated at Tehar No. 1, Subhash Nagar, New Delhi-27 with its lease hold rights from Sh. Teja Singh vide registered sale deed.
ARC No. 25990/16 Sunita Sethi Vs. Mahesh Kumar -3- That the mother of the petitioner had sold the entire first floor of the said property bearing No. 11/75 without roof rights, along with one shop on the ground floor bearing private No. 1, size measuring 8' X 15', a part of the said propety with his lease hold rights to Sh. Sanjeev Kumar vide registered agreement for sale and whereas the said Sh. Sanjeev Kumar had sold the entire first floor of the said property bearing No. 11/75, area measuirng 100 square yards without roof rights to Smt. Neelam Dhand W/o Sh. Anil Kumar vide registered agreement for sale. That the mother of the petitioner had sold entire second floor of the property No. 11/75 without roof rights along with one shop on the ground floor bearing private No. 3, size measuring 8'X15' with proportionate share in the land beneath to Smt. Deepa Khetrapal vide virtue of registered agreement for sale. That the mother of the petitioner had sold private No. 2, size measuring 8'X15' with proportionate share in the land beneath to Sh. Jasjeet Singh three years ago.
That mother of the petitioner was absolute owner of only four shops private No. 4,5, 6 & 7 in the property bearing No. 11/75, area measuring 100 sq. yards, Subhash Nagar, New Delhi. That the mother of the petitioner has no concern with the remaining building first floor, second floor with roof right and stairs right and three shops private No. 1,2 & 3 on the ground floor in the property No. 11/75.
That mother of petitioner let out the tenanted premises to the respondent and respondent had paid the rent to her.
That mother of petitioner executed a registered Will on 09.12.2010 vide registration No. 10751, in book No. 3, Volume ARC No. 25990/16 Sunita Sethi Vs. Mahesh Kumar -4- No. 7899 on pages No. 57-59 before the office of SR-II, Janakpuri, Delhi in favour of the petitioner in respect of four shops bearing private No. 4,5,6 & 7 situated on the ground floor of property No. 11/75.
That the mother of the petitioner, during her life time, filed an eviction petition on the same ground against the respondent but unfortunately she died on 26.12.2010 and the said eviction petition was withdrawn on 29.01.2011.
That there are four tenanted shops situated on the ground floor let out to the tenants namely Sh. Rajan Monga, Sh. Mahesh Kumar, Sh. Mahesh Chand Jain and Dr. Anil Kumar and these shops are required by the petitioner and her family members bonafidely for their own residential purposes.
That the petitioner wants to convert these four shops into two living rooms, kitchen, bathroom and latrine for her residence.
That the petitioner has no other reasonably suitable residential accommodation in Delhi or anywhere in India. That the tenanted premises is required by the petitioner and her family members for their own residence on the ground floor.
Lastly, it is prayed that an eviction order may be passed in favour of the petitioner and against the respondent.
3. Notice of the eviction petition was sent to the respondent. In response to which, the respondent filed detailed leave to defend application which was allowed and the respondent was given an opportunity to file W.S. ARC No. 25990/16 Sunita Sethi Vs. Mahesh Kumar -5-
4. In the Written Statement, the respondent has inter-alia contended that the tenanted premises is a commercial premises and let out to the respondent for commercial purposes only and the petitioner requires the tenanted premises for residential purposes.
That subsequent to filing of the earlier petition, the mother of the petitioner had died and the cause of action in the said eviction petition, if any at all, accrued in favour of all the legal heirs, including the petitioner herself. That the petitioner and other legal heirs of Smt. Raj Kumari, failed to implead themselves into the shoes of late Smt. Raj kumari. It is also contended that as the alleged Will on the basis of which petitioner is claiming herself has not been yet probated and therefore also, all the legal heirs herein are the necessary parties to the present eviction petition. Hence, the present petition is liable to be dismissed for non-joinder of necessary parties.
That the present petition has been filed with an intention to evict the respondent from the legal and lawful possession of the tenanted premises and then by renting out the same at the much higher rentals.
That the petitioner has not disclosed her citizen status. That as per the copy of passport of the petitioner, it is evident that the petitioner is a U.S. National and not Indian Citizen and that she has permanently settled in USA only. That in the earlier eviction petition filed by late mother of the petitioner, it is clear that petitioner is married with Sh. Naresh Sethi and that she is NRI and very well settled in USA. That in the entire petition it is ARC No. 25990/16 Sunita Sethi Vs. Mahesh Kumar -6- nowhere mentioned that petitioner and her whole family members want to come to India to settle in India permanently.
That the petitioner malafidely did not disclose that her husband or her in laws does not have any immovable propety in Delhi despite the fact that petitioner since marriage is living with her husband and in laws. That the petitioner is not frequent visitor of India and it is wrong that she and her family members used to visit India once or twice in a year, whereas they visited India only 4-5 times in the past 20 years. Even, the petitioner did not visit India to attend last ceremonies of her father and mother. Furthermore, the petitioner did not visit India at the time of death of her brother.
That the petitioner with malafide intention has not disclosed the fact that Sh. Sanjeev Kumar to whom the first floor was allegedly sold is none other than son and the transaction is a sham. That Smt. Neelam Dhand, to whom the first floor was subsequently sold by Sh. Sanjeev Kumar, is none other than the real sister of Sh. Sanjeev Kumar and that alleged sale is made in order to create scarcity of accommodation.
That Smt. Deepa Khetrapal to whom the second floor and private shop no. 3 in the property in question was allegedly sold is nobody but the daughter in law (i.e. the wife of real son, late Sh. Sunil Kumar). As such, it is claimed that the petitioner intentionally did not disclose the relationship with the alleged purchaser of the second floor as well as private shop No. 3 of the property with malafide intention. That sale transaction is totally false and illegal. In this regard, it is further stated by the respondent that in earlier petition filed by late mother of the petitioner, it was stated that late mother of the petitioner was ARC No. 25990/16 Sunita Sethi Vs. Mahesh Kumar -7- residing on such second floor of the property in question. As such, it is stated that such alleged sale is also made in order to create scarcity of accommodation.
That even at the time of filing of the petition, the petitioner was owner of entire first and second floor and thus was having sufficient space of around 1800 sqare feet. It is further stated that the entire first floor is lying vacant and was in possession of the petitioner and now the same is in possession of the LRs of the mother of the petitioner. Moreover, the tenanted premises is measured 8'X15' which is very small and by no stretch of imagination it can be used for the purpose of residence. As such, entire case of petitioner for alleged requirements of the petitioner for residential purposes is false and bogus.
That LRs of the decased Smt. Raj Kumari, had leased out one shop on the ground floor to bank for running its ATM instead of using the same for her personal requirement. This fact also shows that requirement of the petitioner is malafide by showing scarcity of accommodation.
That the respondent has always paid rent to the mother of the petitioner herself and has never ever defaulted in making payments. Mother of the petitioner was not regular in issuing rent receipts. She used to receive the rent for six months together. That even after the death of Smt. Raj Kumari, the respondent asked all the legal heirs to accept the rent but nobody was willing to accept the rent and therefore, the respondent was compelled to file a petition against all the L.Rs of Smt. Raj Kumari.
ARC No. 25990/16 Sunita Sethi Vs. Mahesh Kumar -8-
5. Replication was filed by the petitioner to the written statement of the respondent wherein the petitioner has refuted the stand of the respondent and reaffirmed her orignal stand as well as the petitioner has clarified the stand taken by her. In her replication, the petitioner has reasserted her bonafide requirement of the tenanted premises.
6. Thereafter, after completion of pleadings, matter was fixed for Petitioner Evidence/P.E and PW-1 Ms. Sunita Sethi was examined on behalf of the petitioner. Petitioner also examined Sh. Bhure Lal, ASO, Land and Development Office, Nirwan Bhawan, New Delhi as PW-2, Sh. Vivek Yadav, Jr. Assitant, Sub-Registrar-II, Basai Darapur, New Delhi as PW-3, Ms. Deepa Khetrapal as PW-4 and Sh. Sanjeev Kumar as PW-5. All the witnesses were cross examined at length and thereafter petitioner's evidence was closed.
Evidence was also led by the respondent who examined himself as RW-1, ASI Sh. B.R. Kambe as RW-2, Sh. Mukesh Kumar, JJA as RW-3 and Sh. Raj Kumar, JJA as RW-4. The witnesses were cross examined at length by Ld. Counsel for petitioner. Thereafter, Respondent's evidence was closed and the matter was fixed for final arguments.
7. I have heard the arguments at length advanced by Ld. Counsels for both the parties and also gone through the entire record and case law relied upon.
8. It is expedient to reproduce the Section 14 (1)(e) of DRC Act which is as under:
ARC No. 25990/16 Sunita Sethi Vs. Mahesh Kumar -9- "Section-14. Protection of tenant against eviction- (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by court or any controller in favour of the landlord against a tenant:
Provided that the controller may, on an application made to him in the prescribed manner, make an order for recovery of possession of the premises on one or more of the following grounds only, namely:-
"That the premises are required bonafide by the landlord for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation."
As such, followings are the ingredients of Section 14 (1)
(e) of D.R.C. Act:-
(i)There should be relationship of landlord and tenant between the petitioner and respondent.
(ii)Landlord should be the owner of the tenanted premises.
(iii)That the premises are required bonafide by the ARC No. 25990/16 Sunita Sethi Vs. Mahesh Kumar -10- landlord for himself/herself or for any member of his/her family dependent upon him/her.
(iv)Landlord should not have other reasonable suitable accommodation.
9. Let us discuss the ingredients of Sec. 14(1)(e) of D.R.C. Act:-
i) & ii) LANDLORDSHIP/OWNERSHIP:-
10. Perusal of record shows that in the present case petitioner has claimed to be landlord and owner of the tenanted premises on the ground of Will executed by her mother Smt. Raj Kumari.
On the other hand, respondent has disputed the landlordship and ownership of the petitioner on the ground that alleged Will is false and fabricated and further contended that the alleged Will is not probated and all the legal heirs herein are the necessary parties to the present eviction petition.
Perusal of record shows that in his written statement itself, respondent has admitted to have paid the rent to the mother of the petitioner and also admitted to be a tenant under the tenancy of Smt. Raj Kumari i.e. mother of petitioner.
Hence, it is undisputed fact that the respondent is a tenant in the tenanted premises under the tenancy of Smt. Raj Kumari but the respondent has disputed the landlordship as well as ownership of petitioner on the ground that Will is not probated and it is false and fabricated.
ARC No. 25990/16 Sunita Sethi Vs. Mahesh Kumar 11 In case titled as Jiwan Lal Vs. Gurdial Kaur & Ors. 1995 RLR 162 a Bench of Hon'ble High Court of Delhi while dealing with the concept of ownership in a pending eviction petition under Section 14(1)(e) of the DRC Act had noted as follows:
"There is a tendency on the part of tenants to deny ownership in cases under Section 14(1)(e). To test the substance of such a plea on the part of the tenants the Courts have insisted that they should state who else is the owner of the premises if not the petitioner. In the present case it is not said as to who else is the owner. Further these cases under Section 14(1)(e) are not title cases involving disputes of title to the property. Ownership is not to be proved in absolute terms. The respondent does not claim the owner of the premises."
Further, in the case titled as Smt. Shanti Sharma & Ors. Vs Smt Ved Prabha & ors 1987 AIR 2028, the Hon'ble Supreme Court observed: -
"That the meaning of term 'owner' is vis a vis the tenant i.e. the owner should be something more than the tenant."
In the case titled as Bharat Bhushan Vij Vs. Arti Teckchandani 153(2008)DLT 247 the Hon'ble Supreme Court inter-alia observed as under:-
4. The concept of ownership in a landlord-tenant litigation governed by the Delhi Rent Control Act, has to be distinguished from the one in a title suit.
If the premises was let out by a person and after his death, the premises has come in the hands of beneficiary under a Will, the tenant has no right to challenge the title of such a beneficiary. If on the death of the original owner the tenant has any doubt as to who was the owner of the premises, he is supposed to file an interpleader suit impleading all the legal heirs of the deceased and ask the Court to decide as to who shall be the ARC No. 25990/16 Sunita Sethi Vs. Mahesh Kumar -12- landlord/owner after the death of the original owner. Where no interpleader suit is filed by the tenant and the tenant continues in possession after death of the original owner without demur and without raising an objection against the person, who claims to have inherited the property under the Will, he later on cannot challenge the ownership of such a person. It is not the domain of the tenant to challenge the Will of the deceased landlord. If a landlord is able to show that there is a testament in his/her favour, he/she is deemed to have discharged his/her burden of proving the ownership under the Act. If the tenant takes a frivolous objection about ownership, such an objection cannot be entertained unless the tenant comes forward as to who was the landlord/owner of the premises and to whom he has been paying rent after the death of the original owner.
5. This Court in Ram Chander v. Ram Pyari 109 (2004) DLT 388 and Plashchemicals Company v. Ashit Chadha & Anr. : 114(2004)DLT408 have laid down the law that it was not for the tenant to challenge the Will of the landlord and any such challenge made by the tenant is a baseless and frivolous challenge. I, therefore, consider that even if the learned Additional Rent Controller did not dwell upon this point, such a challenge made by the tenant would not result into non suiting the landlord. Moreover, the evidence led by the landlady in this case makes it clear that she inherited the property, in question, on the basis of Will left by her father in law. There is no other person who has claimed ownership over the property and this objection was raised just for the sake of raising objection."
In the case titled as Plastic Chemicals Company Vs Ashit Chadha & Ors. 114 (2004) DLT 408, the Hon'ble High Court of Delhi inter-alia observed as under:-
"4. I have heard counsel for the parties and carefully examined the judgment under challenge as also the material on record. As regards the contentions raised by counsel for the petitioner challenging the Will, the law has since been crystalised by the Supreme Court in Smt. Shanti Sharma vs. Smt.Ved Prabha, as also in Sheela and others vs. Firm Prahlad Rai Prem Prakash.
ARC No. 25990/16 Sunita Sethi Vs. Mahesh Kumar 13 Once the landlord has been able to show that there is a testament in his favor, the landlord is deemed to have discharged his burden of ownership, vis-a-vis, the Rent Control Act. In the present case, the landlord has been able to prove that a testament has been made in his favor by the previous owner which, at best, could be challenged by the heirs of Smt. Saroj Mohan and certainly not by the tenant. In this view of the matter I hold that the objection of the petitioner herein to the maintainability of the eviction petition by the landlord is frivolous."
11. It is well settled that the petitioner should be something more than the tenant and the petitioner need not prove his ownership in absolute terms. It is sufficient for the petitioner to prove or to show that he is something more than a tenant.
12. I have carefully gone through the material on record which reveals that the respondent/tenant has challenged the Will Deed Ex. PW-3/1 (OSR) on the ground that it has not been proved as per law and procedure. As such, in view of afore- mentioned case law, the respondent/tenant does not have any right to challenge the Will Deed Ex. PW-3/1 (OSR).
Further, whenever ownership of the petitioner/landlord is disputed by the tenant, it is incumbent upon the tenant to disclose who else the owner of the tenanted premises, if not the petitioner.
Perusal of record shows that petitioner has been able to prove that she is something more than the tenant. On the other hand, respondent has not been able to prove who else is the owner.
13. As such, in view of settled proposition of law, landlordship ARC No. 25990/16 Sunita Sethi Vs. Mahesh Kumar 14 as well as ownership of both the petitioners are proved and ingredients in respect of landlordship and ownership U/S 14(1)
(e) of DRC Act are satisfied.
(iii) & (iv) BONAFIDE REQUIREMENT/ALTERNATIVE ACCOMMODATION:
14. Perusal of record shows that petitioner has claimed that her family consists of herself, her husband Sh. Naresh Sethi, one son namely Sh. Arun Sethi, aged about 23 years and daughter namely Ms. Richa Sethi , aged about 20 years. That the petitioner along with her family members has been residing at the address mentioned in the title of the petition.
It is further stated by the petitioner that she and her family members used to visit in India once or twice in a year and stayed at her near and dear relatives' house. That the petitioner and her family members have decided to reside in India but the tenanted portions occupied by the respondent put hurdle on their ambitions and plans and the said tenanted premises is bonafidely required by the petitioner for herself as well as family members of the petitioner to reside and stay in their own house.
It is further stated by the petitioner that the petitioner's brother, sisters and their family members are permanently residing in Delhi and the petitioner and her family members also used to visit Delhi on account of attending the ceremonies or on account of grief and sorrow.
On the other hand, the respondent has contended that the petitioner has not disclosed her citizen status. That as per the copy of passport of the petitioner, it is evident that the ARC No. 25990/16 Sunita Sethi Vs. Mahesh Kumar -15- petitioner is a U.S. National and not Indian Citizen and that she has permanently settled in USA only. That in the earlier eviction petition filed by late mother of the petiitoner, it is clear that petitioner is married with Sh. Naresh Sethi and that she is NRI and very well settled in USA. That in the entire petition it is nowhere mentioned that petitioner and her whole family members want to come to India to settle in India permanently.
It is further stated by the respondent that the petitioner malafidely did not disclose that her husband or her in laws does not have any immovable propety in Delhi despite the fact that petitioner since marriage is living with her husband and in laws. That the petitioner is not frequent visitor of India and it is wrong that she and her family members used to visit India once or twice in a year as they visited India only 4-5 times in the past 20 years. Even, the petitioner did not visit India to attend last ceremonies of her father and mother. Furthermore, the petitioner did not visit India at the time of death of her brother.
It is further stated by the respondent that the petitioner with malafide intention has not disclosed the fact that Sh. Sanjeev Kumar to whom the first floor was allegedly sold is none other than son and the transaction is a sham. That Smt. Neelam Dhand, to whom the first floor was subsequently sold by Sh. Sanjeev Kumar, is none other than the real sister of Sh. Sanjeev Kumar and that alleged sale is made in order to create scarcity of accommodation.
It is further stated by the respondent that Smt. Deepa Khetrapal to whom the second floor and private shop no. 3 in the property in question was allegedly sold is nobody but the daughter in law (i.e. the wife of real son, late Sh. Sunil Kumar).
ARC No. 25990/16 Sunita Sethi Vs. Mahesh Kumar -16- As such, it is claimed by the respondent that the petitioner intentionally did not disclose the relationship with the alleged purchaser of the second floor as well as private shop No. 3 of the property with malafide intention. That sale transaction is totally false and illegal. In this regard, it is further stated by the respondent that in earlier petition filed by late mother of the petitioner, it was stated that late mother of the petitoner was residing on such second floor of the property in question. As such, it is stated that such alleged sale is also made in order to create scarcity of accommodation.
It is further stated by the respondent that even at the time of filing of the petition, the petitioner was owner of entire first and second floor and thus was having sufficient space of aroung 1800 sqare feet. It is further stated that the entire first floor is lying vacant and was in possession of the petitoner and now the same is in possession of the LRs of the mother of the petitioner. Moreover, the tenanted premises is measured 8'X15' which is very small and by no stretch of imagination it can be used for the purpose of residence. As such, entire case of petitioner for alleged requirements of the petitioner for residential purposes is false and bogus.
It is further stated by the respondent that LRs of the deceased Smt. Raj Kumari, had leased out one shop on the ground floor to bank for running its ATM instead of using the same for her personal requirement. This fact also shows that requirement of the petitioner is malafide by showing scarcity of accommodation.
15. I have perused the testimonies of all the witnesses ARC No. 25990/16 Sunita Sethi Vs. Mahesh Kumar -17- including PW-1/ petitioner. It is relevant to reproduce the relevant portion of her evidence which is as under:-
"it is correct that I am a citizen of United States of America. It is also correct that I am not a citizen of Republic of India. It is correct that I hold USA Passport and I do not hold an Indian Passport. I have not got the original passport of mine today. (Vol. I have already placed a copy of the passport on record).
It is correct that copy of pages of my passport at pages 443 to 451 on the court record which has already been exhibited as PW-1/3, are not the complete copy of all the pages of my original passport. I can bring and show my original passport on the N.D.O.H. I came to India on 01.10.2015. I have come on a Tourist Visa. I agree that during my visit under tourist visa, I cannot get employed or worked for gain in India. (Vol. Since I am American disabled person, I cannot work anywhere whether it is USA or India). I do not agree that I cannot visit India unless I have tourist visa. (Vol. I can apply for dual citizenship). I do not have dual citizenship right now. I have although applied for the same. Again said, I cannot produce papers/application relating to the same as I have not yet applied. (Vol. I would apply for the same after the decision of this case).
It is correct that since I have not applied for dual citizenship as of now, I agree that I cannot visit unless I have a valid visa. My present Indian visa expires in the year 2017. This was a ten years visa which was granted to me in the year 2007......"
PW-1 further deposed that :-
"Q. I put it to you that you had no visa to come to India between the period 10.12.2005 to 22.02.2007. What have you to say ?
Ans. I cannot recall until I see my passport. I left India for USA sometime in the year Feb. 1987. I went under Indian Passport. I cannot recall exact date for relinquishing Indian Passport and acquiring US Passport.
I got married in November 1986 in India. My husband Sh. Naresh Kr. Sethi was as U.S. citizen at the time of our marriage. It is correct that I have one son named Arun Kr. Sethi and one daughter named Richa Sethi. My son Arun Kr. Sethi born in the year 1988 and my daughter born in the year 1990. My son and and daughter are U.S. citizen. My son is working.
ARC No. 25990/16 Sunita Sethi Vs. Mahesh Kumar -18- He is doctor or Pharmacist in California, USA. I am not aware of the money my son earns as I have never asked him. My son is not yet married but he is likely to get married next year. I cannot recall social security number of my son.
Yes, my son does own property in USA. Again said, he owns two properties in USA. Both the two properties owns by my son are residential. One property is rented out whereas the other property is being used by him for his residential purpose. I do not have cordial relationship with my son since my divorce with my husband. My divorce happened sometime in the year 2013. (Vol. I have placed the copy of divorced order in court's record).
My daughter is also doing a part time job. She might be earing 2000/- US dollars. She, however, is a student. My daughter does not live with me. She lives in Washington, D.C....
16. I have carefully gone through the testimonies of all the witnesses.
Perusal of record shows that the petitioner herein is a permanent citizen of U.S.A. and she herself has stated the address of California, USA in the present eviction petition.
It is well settled that even an Indian who has left the country and settled in the Foreign Country permanently, can file the petition U/Sec. 14(1)(e) of D.R.C.Act for getting his own property vacated in case he/she is able to prove the bonafide requirement.
As such, this court has to determine whether the petitioner has bonafide requirement for use of the tenanted premises as residence or not.
Perusal of record further shows that petitioner herself has stated in her eviction petition that her family consists of herself, her husband Sh. Naresh Sethi and two children namely Sh. Arun Sethi, aged 23 years and Ms. Richa Sethi, aged 20 years.
ARC No. 25990/16 Sunita Sethi Vs. Mahesh Kumar -19- As such, as per the submission of the petitioner, family of the petitioner consists of 04 persons including herself. It is undisputed fact that all of above 04 persons are permanently settled in USA.
Perusal of record shows that the petitioner has sought this tenanted premises for use as residence. Perusal of record further shows that divorce had already taken place between petitioner and her husband in the year 2003 and it was admitted by the petitioner herself during her cross examination.
As such, there is no likelihood of returning of her husband to reside in the tenanted premises along with petitioner. As such, bonafide requirement for residence use of her husband is ruled out.
17. As far as son of the petitioner is concerned, it is undisputed fact that the son of the petitioner Sh. Arun Sethi is a major and not a minor and was of the age of about 23 years at the time of filing of petition. As such, the actual age of Sh. Arun Sethi at the time of disposal of this petition is supposed to be 31 years.
Testimony of petitioner/PW-1 manifestly shows that the son of the petitioner was born in the year 1988 and the petitioner herself has admitted that her son as well as daughter are U.S. citizen and her son is working in California, USA as a doctor of Pharmacist. As such, testimony and material on record clearly shows that the son of the petitioner is permanently well settled in USA. Moreover, during the cross examination petitioner PW-1 has admitted that she does not have the cordial relationship with her son since her divorce from her husband, ARC No. 25990/16 Sunita Sethi Vs. Mahesh Kumar -20- which took place in the year 2003. Furthermore, it is also on record that during the cross examination, petitioner could not give the details of visits of India by her son. During the cross examination she deposed that "he visited India when he was at the age of 14-16. As such, it is clear from record that the son of the petitioner is not frequent visitor of India. Furthermore, record shows that the cross examination of the petitioner took place on 27.11.2015 and on other dates also and this petition was filed in the year 2011. As such, record shows that petitioner herself impliedly admitted during the cross examination that her son did not visit India for the last more than 12 years. Moreover, her son Sh. Arun Sethi has not been examined by the petitioner to show her bonafide for the reason best known to her.
As such in my considered view keeping in view the material on record, there is no likelihood of returning to India to use the tenanted premises for residential use by her son Sh. Arun Sethi.
18. The next point to be determined by this court is that whether there is likelihood of return of the daughter of petitioner Ms. Richa Sethi to India to reside in the tenanted premises or not.
I have gone through the entire testimonies of all the witnesses including PW-1/petitioner and material on record. During the cross examination, PW-1/petitioner herself admitted that her daughter is doing a job and earning U.S. dollars. However, petitioner admitted that she is not living with her daughter and living in Washington D.C. As such, record clearly shows that the daughter of the petitioner is not sharing the ARC No. 25990/16 Sunita Sethi Vs. Mahesh Kumar -21- residence with her mother in California, USA as stated in the Eviction Petition but residing in another city i.e. Washington, D.C. Moreover, petitioner has also admitted that her daughter owns residential property in Washington, D.C and also admitted that neither her son or her daughter owns any property in India.
As such, in my considered view there is very bleak chances of returning of her daughter Ms. Richa Sethi to India merely to reside in the small tenanted premises. Moreover, petitioner has also admitted during the cross examination that her daughter visited last time in the year 2011. Moreover, petitioner has not examined her daughter to prove her bonafide requirement for tenanted premises for the reason best known to her.
As such, record clearly shows that her daughter is not frequent flier to India and she has not visited India for the last eight years and there is no chances or bleak chances of returning to India.
As far as bonafide requirement of the petitioner is concerned, petitioner herself has admitted that she has come on a tourist visa and she cannot get employed or work in India during such visa and also admitted voluntarily that she is American disabled person and she cannot work anywhere whether it is USA or India. During the cross examination, she deposed voluntarily that she can apply for dual citizenship as she is not having dual citizenship right now. She also claimed to have applied for the same but instantly deposed that she cannot produce paper/application relating to same as she has not applied and claimed that she would apply for the same after decision of the case. She also agreed that she cannot visit India ARC No. 25990/16 Sunita Sethi Vs. Mahesh Kumar -22- without valid visa.
I have carefully gone through further testimony of PW-1/petitioner which shows that during the cross examination, PW-1 deposed that she does not want to relinquish her US citizenship but wants to apply for dual citizenship and while doing so she wants to keep getting her disability allowance from the USA Government.
As far as dual citizenship is concerned, in my considered view, there is no such concept of dual citizenship in India and an Indian is entitled to only single citizenship. As such, the claim of the petitioner is without merit and she cannot avail of both the facilities simultaneously and if she wants to avail the facility of disability allowance, she has to be there in USA and in case she wants to reside in India, she has to leave the citizenship of USA. Moreover, even it is presumed for the sake of arguments that dual citizenship may be allowed in India to the Indians permanently settled as citizen of foreign country, in my view, the petitioner has not placed on record any reliable and convincing document which shows that she has applied for such dual citizenship. On the contrary, the petitioner has herself admitted during the cross examination that she still has to apply for the dual citizenship but record shows that the petitioner has not taken even a single step towards it even after the lapse of more than 05 years and has merely shown her desire to acquire it.
It is well settled that there should not be a desire but a bonafide on the part of petitioner/landlord and desire is not equivalent to bonafide.
Moreover, during the cross examination, petitioner has inter-alia deposed that:-
ARC No. 25990/16 Sunita Sethi Vs. Mahesh Kumar -23- "I do not want to relinquish my U.S. citizenship, but wish to apply for dual citizenship. By doing so, I will still keep getting my disability allowance for the USA.
Que: Are you aware if you become Indian citizen, you may not be entitled for any social security benefits of disability allowance of the nature you claim to be getting in USA ?
Ans: I am aware that after acquiring dual citizenship, I shall not get any disability allowance from the Indian government.
Court Question: Would you getting the disability allowance from the US Government ?
Ans: Yes.
Que. I put it to you that you cannot remit out your earnings in U.S.A. to India and vise-versa. Are you aware of the same ?
Ans: I am not aware if any such provision exists."
As such, perusal of testimony of PW-1/petitioner manifestly shows that she does not want to relinquish her U.S. citizenship and also wants to keep getting her disability allowance from U.S.A. and she is also aware of the fact that she will not get any disability allowance from the Indian government.
As such, in my considered view, there is very bleak chances of returning of petitioner to India merely to reside in tenanted premises by renouncing the citizenship of the USA and the disability allowance being given by U.S.A. government. Moreover, the case of the petitioner is that she wants to reside along with her children in the tenanted premises by reconstructing the tenanted premises and the bonafide requirement is not for commercial use by her or her family members but it is for residential use. As such, the petitioner has not shown the source of income while residing in India after getting the tenanted premises vacated.
In my considered view, a person is not supposed to give ARC No. 25990/16 Sunita Sethi Vs. Mahesh Kumar -24- up an allowance which is already being given and property in foreign and to shift a place where there is no income at all. Although, during the cross examination she has stated that her son and daughter also have intention to apply for dual citizenship and want to settle in India and reside with her in the tenanted premises but as discussed earlier, there is no likelihood of returning of India to reside in tenanted premises by her both children. Moreover, both the children have not been examined by the petitioner to show their bonafide requirement.
Furthermore, petitioner has herself admitted during the cross examination that her son is getting married to a girl who is also a U.S. citizen. As such, this point also indicates that there is bleak chances of returning of her son to India.
In my considered view, all these points manifestly show that there are very bleak chances of petitioner or her family members to return to India merely to reside in a small tenanted premises by renouncing the U.S. Citizenship where all the family members including petitioner are well settled and permanent citizens of U.S.A.
19. As far as alternative accommodation is concerned, record shows that this eviction petition was filed in the month of March, 2011 and the Will concerned was executed by the mother of the petitioner on 09.12.2010 and the mother of the petitioner passed away on 26.12.2010.
Record also shows that the suit property is having ground floor, first floor and second floor. As per the claim of the petitioner, the ground floor is having tenanted premises along with other shops and the ground floor is not having the ARC No. 25990/16 Sunita Sethi Vs. Mahesh Kumar -25- residential space.
As per the claim of respondent, Sh. Sanjeev Kumar to whom the first floor was sold is son of Smt. Raj Kumari (brother of petitioner) and thereafter Sh. Sanjeev Kumar sold the first floor to Smt. Neelam Dhand, who is real sister of Sh. Sanjeev Kumar.
I have perused the record on this point which shows that such transaction between Sh. Sanjeev Kumar and Smt. Neelam Dhand of selling out the first floor took place on 18.07.2007.
20. Record also shows that the petitioner has claimed that she is not in possession of second floor as Smt. Deepa Khetrapal is in possession thereof but the claim of the respondent is that such second floor in the suit property was given to Smt. Deepa Khetrapal merely to show the scarcity of accommodation available with the petitioner.
I have perused the record which shows that although the petitioner has mentioned the fact of selling out and possession of the first floor and second floor in the possession of other persons but they have not disclosed in her eviction petition that Sh. Sanjeev Kumar, Smt. Neelam Dhand and Smt. Deepa Khetrapal are real brother, real sister and real sister in law of the petitioner respectively. These facts also reflect the malafide on the part of petitioner to show the paucity of alternative residential accommodation. Furthermore, record shows that the petitioner wants to reside in the tenanted premises as well as other three shops of almost same size after getting it vacated from all the tenants. Record shows that the tenanted premises is measuring 8'X15' and other shops are also of almost same ARC No. 25990/16 Sunita Sethi Vs. Mahesh Kumar -26- size.
21. The claim of the respondent is that the petitioner wants to convert the tenanted premises including three other shops into two living rooms, kitchen, bathroom and latrine for her residence.
Perusal of record shows that the petitioner has also stated that she wants to reside therein along with her family which includes her husband, two young children but as discussed earlier, divorce has already been taken place between petitioner and her husband and it has already been observed that there is no likelihood of returning of two young children to reside in the tenanted premises. Even if it is assumed for the sake of arguments that her two children, who are aged about 31 and 28 years and are of marriageable age will return to India, it is not possible or very difficult for the children, who are already residing in U.S. and having good space and house in the foreign country to reside in the small premises, which are going to be vacated by the present respondent and by three other respondents having other three shops.
In a judgment of Hon'ble High Court of Delhi titled as Harsh Vardhan Nayyar vs. Shanti Mathur & Ors. Passed in R.C. Revision No. 529/2012 wherein the Hon'ble High Court of Delhi inter-alia observed as under:-
"7. This Court finds the case set up by the petitioner unbelievable because there is no reason why the petitioner who neither has the necessary qualifications in India for opening of a drama school nor is having an area for opening of a drama school and is not so hugely famous that people would pay him for sharing his alleged experience. Also besides ARC No. 25990/16 Sunita Sethi Vs. Mahesh Kumar 27 the fact that the petitioner did not shift to India within 4-5 years as he stated in the eviction petition, and in fact sold his only residential flat at Tara Apartments, New Delhi, it is very much clear that at his advance age the petitioner would not have any intention to move away from his settled life in U.S.A. and come to a far away place at New Delhi allegedly for "sharing his experience" and "teaching acting/drama".
8. It has been consistently held by this Court as also by the Supreme Court that bonafide need is different than the expression "desire". Also, bonafide need is not a mantra to be uttered for eviction of the tenants in the facts of the present case where petitioner and his family are well settled in U.S.A., and, the petitioner at his advance age of 66 years would really not be interested in shifting to India much less for opening of a so called school of acting and drama. As already stated above, the alleged bona fide need to shift to Delhi stood demolished when the petitioner sold his only residential flat at Delhi because if the petitioner intended to live in Delhi then where can he live if he has sold his only residential flat at New Delhi."
22. It is well settled that the Presiding Officer of the Trial Court should place himself in the place of landlord to determine whether in the given facts on record, the need to occupy the premises by the landlord can be said to be natural, real, sincere and honest. And the concept of bonafide need or genuine requirement needs a practical approach instructed by the realities of life.
It is well settled that the need/requirement of a landlord/petitioner should be bonafide, genuine, honest and conceived in good faith.
Though the choice and the proclaimed need cannot be whimsical or merely fanciful yet a certain amount of discretion has to be allowed in favour of the landlord also and the courts should not impose their own wisdom forcibly upon the ARC No. 25990/16 Sunita Sethi Vs. Mahesh Kumar -28- landlord/petitioner to arrange his/ her own affairs according to their perception carried away by the interest or hardship of the tenants and the inconvenience that may result to him in passing an order of eviction.
23. I have placed myself in the place of landlord to determine whether in the given facts on record, the need to occupy the premises by the landlord can be said to be natural, real, sincere and honest. And I have also applied a practical approach instructed by the realities of life on the concept of bonafide need or genuine requirement. But, in view of discussions as earlier and well settled proposition of law, I am of the considered view that the need/requirement of a landlord/petitioner in the present case is not bonafide, genuine, honest and conceived in good faith.
In my view, the choice and the proclaimed need is whimsical and merely fanciful. As such, it is clear that the purpose of petitioner is merely to get the tenanted premises vacated and not to use it residentially.
24. In view of the facts and circumstances of the present case, I am of the considered view that there is very bleak chances of petitioner or members of her family to leave the foreign country to settle in India merely to reside in the tenanted premises.
CONCLUSION:-
25. Keeping in view all the facts and circumstances of the present case, material on record, settled proposition of law and ARC No. 25990/16 Sunita Sethi Vs. Mahesh Kumar -29- the reasons as discussed earlier, I am of the considered view that the petitioner has not proved all the ingredients of Sec. 14(1)(e) of D.R.C. Act. As such, the present eviction petition is dismissed.
26. File be consigned to Record Room after due compliance.
Digitally signedAnnounced in the open Court AJAY by AJAY NAGAR on 1st June, 2019. Date:
NAGAR 2019.06.01
16:51:57 +0530
(This judgment contains 29 pages)
(Ajay Nagar)
Additional Rent Controller,
West District, THC, Delhi.
ARC No. 25990/16 Sunita Sethi Vs. Mahesh Kumar