Delhi District Court
M/S. S.S. Investments vs (1) Sh. Yogender Sen Manchanda on 29 November, 2014
IN THE COURT OF SH. PRASHANT SHARMA LD.
ACJ,ARC,CCJ: PATIALA HOUSE COURTS: NEW DELHI
E NO. 26/13
M/s. S.S. Investments .......... Petitioners.
(A Regd. Partnership firm)
180, Jor Bagh,
New Delhi110003
Acting through its partners:
1. Sh. Vikash Soni
S/o. Sh. O.P. Soni,
R/o. 180, Jor Bagh,
New Delhi110003.
2. Sh. Lok Nath Sood,
S/o. Late Sh. Mangat Ram Sood,
R/o. 77, Jor Bagh,
New Delhi110003.
Vs.
(1) Sh. Yogender Sen Manchanda ........... Respondents.
S/o. Late Sh. Makhan Lal Manchanda,
R/o. C471, Defence Colony,
New Delhi110024.
(2) Smt. Kamla Manchanda,
W/o. Sh. Yogender Sen Manchanda,
R/o. C471, Defence Colony,
New Delhi110024.
Both Also at
Flat No. 2B, Shankar Market,
Connaught Circus, New Delhi110001.
E No. 26/13 M/s. S. S. Investment Vs. Yogender Sen Manchanda & Ors. Page No. 1
APPLICATION UNDER SECTION SECTION 25B OF DELHI
RENT CONTROL ACT, 1958.
Date of Institution of the petition : 18.09.2013
Date on which order was reserved : 12.11.2014
Date of Pronouncement of order : 29.11.2014
Cases referred:
1) Ramesh Chand Sharma Vs. R.S. Aggarwal & Ors. 1982 (2) All India Rent Control General
428.
2) Daya Ram Prajapati Vs. Smt. Vidhya Devi.
3) Smt. Shanti Sharma Vs. Smt. Ved Prabha 1987 (2) Rent Control Reporter 300.
4) Jeevan Lal Vs. Gurdayal Singh & Ors. 1985 RLR 162.
ORDER
1. Vide this order I will decide application of respondents U/s. 25B(5) of Delhi Rent Control Act(in short 'DRC Act') seeking permission for grant of leave to contest the present eviction petition.
2. Respondents have filed present application in response to the eviction petition of petitioner. Therefore, before mentioning the application of respondents, it becomes relevant to mention here facts alleged by the petitioner in its eviction petition. Same are mentioned below;
That petitioner is owner/landlord of premises viz. Flat No. 2B, Shankar Market, Connaught Circus, New Delhi110001 which is a non residential property, that the siad premises is fetching monthly rent of Rs. 300/ per month excluding electricity, E No. 26/13 M/s. S. S. Investment Vs. Yogender Sen Manchanda & Ors. Page No. 2 water and house tax charges. That respondents were inducted into the premises in question by the legal heirs of late Sh. P.N. Mehta, who was original allottee of the said premises, vide agreement dated 10.11.1980 at the rate of RS. 300/ per month excluding electricity, water and other charges. That after the death of Sh. P.N. Mehta a partitioned suit was filed by legal heirs and the said legal heirs reached to a settlement in Hon'ble Delhi High Court, which in turn has passed judgement and decree pursuant to the said settlement on 14.07.2005. As a result of said settlement, premises in question fell into the exclusive share of Sh. S.K. Mehta who in turn sold it to petitioner firm by executing registered documents viz. agreement to sale, general and special power of attorney and will all dated 25.05.2007/ That petitioner firm requires the premises in question for making it its permanent office as petitioner firm or its partner does not own any other commercial space/accommodation for running its office except the premises in question, presently occupied by respondent. Hence in the background of aforesaid averments petitioner prayed that an eviction order may be passed by this Court U/s.14(1)(e) DRC Act as petitioner as bonafide E No. 26/13 M/s. S. S. Investment Vs. Yogender Sen Manchanda & Ors. Page No. 3 required to run its business from the premises in question.
3. In response to the aforesaid version of petitioner, respondents filed their replication for leave to contest present eviction petition which was accompanied with necessary affidavits. Respondents prayed that they may be allowed to contest present eviction petition on following grounds;
a) That petitioner firm has also filed Civil Suit for permanent and mandatory injunction bearing Suit No. 36/09, in which the Court has framed an issue with regard to locustandi of petitioner being the owner of premises in question.
b) That respondents denied the relationship of landlord and tenant between them and petitioner.
c) That the documents pertaining to purchase of premises in question filed by the petitioner were false and bogus.
d) That petitioner firm is property brokers and dealers which deal in disputed properties. As such petitioner firm has entered into the alleged agreement with Sh. S.K. Mehta, knowingly that the premises in question were in litigation since last 15 years with the intention to harass respondents.
e) That the agreement to sell pertaining to premises in question entered between petitioner and S.K. Mehta was an illegal act, done to play fraud upon the Court and to evict respondents illegally.
f) That Sh. S.K. Mehta was not having perpetual lease deed in his favour as such estopped from transfering the premises in question on the basis of documents executed by him in favour of petitioner. E No. 26/13 M/s. S. S. Investment Vs. Yogender Sen Manchanda & Ors. Page No. 4
g) Sh. Vikas Soni AR for petitioner had appeared for the petitioner and had deposed in his testimony in a Civil Suit that sale deed of premises in question was not executed as the said premises is lease hold property, though no lease of the said premises ever existed. Thus based on the said version respondents claimed that documents relied by the petitioner were forged and fabricated.
h) That partners of petitioner firm are rich persons having various commercial properties in their name, which they can utilize for running their business.
4. Petitioner in response to aforesaid application filed its reply wherein it refuted the allegation that it had not locustandi to file present petition. It claimed that its title is better than that of respondents and that is what is require in the present proceedings from it. Petitioner relied upon various case laws to submit that it is not required to establish its absolute ownership over the tenanted premises to claim eviction of a tenant. It reiterated its own version mentioned in the petition which is not repeated here for the sake of brevity.
5. The principals requiring considerations for grant of leave to defend application in the eviction petition have been laid down by the Hon'nble Supreme Court wayback in the year 1982 in the case of Charan Dass Duggal v. Brahma Nand, 21 (1982) DLT 378 and which have been reiterated in various judicial pronouncements and can be noted thus:
What should be the approach when leave to E No. 26/13 M/s. S. S. Investment Vs. Yogender Sen Manchanda & Ors. Page No. 5 defend is sought for? There appears to be a mistaken belief that unless the tenant at that stage makes out such a strong case as would nonsuit the landlord, leave to defend is sought for, the tenant must make out such a prima facie case raising such pleas that a triable issue would emerge and that in our opinion should be sufficient to grant leave. The test is the test of a triable issue and not the final success in the action(see Santosh Kumar V. Bhai Mool Singh). At that stage of granting the leave parties rely in support of their rival contentions on affidavits and assertions and counterassertions on affidavits may not afford such incontrovertible evidence to lead to an affirmative conclusion one way or the other. Conceding that when possession is sought for on the ground of personal requirement, an absolute need is not to be satisfied but a mere desire equally is not sufficient. It has to be something more than a mere desire. And being an enabling provision, the burden is on the landlord to establish his case affirmatively."
It is also settled that the at the stage of granting leave to defend, the test that is applied is whether in the facts disclosed in the affidavit, filed seeking leave to defend, prima facie shows that the landlord would be dis entitled to obtain an eviction order and not, where at the end, the defence taken by the tenant may fail. If the application filed under Section 25B disclosed some substantial triable issues, then it would be grave injustice to brush them outrightly, without testing the veracity of the claims made by the tenant/applicant. The law in this regard is well settled in various pronouncements and reference can also be made to Inderjeet Kaur V. Nirpal Singh, VII(2001) SLT 602=(2001) 1 SCC 706, E No. 26/13 M/s. S. S. Investment Vs. Yogender Sen Manchanda & Ors. Page No. 6 wherein it was held as under:
" A landlord, who bona fidely requires a premises for his residence and occupation should not suffer for long waiting for eviction of a tenant. At the same time, a tenant cannot be thrown out from a premises summarily even though prima facie he is able to say that the claim of the lanlord is not bona fide or untenable and as such not entitled to obtain an order of eviction. Hence the approach has to be cautious and judicious in granting or refusing leave to defend to a tenant to contest an eviction petition within the board scheme of Chapter IIIA and in particular having regard to the clear terms and language of Section 25B(5).
Further, there is also no dispute with regard to legal proposition that if the tenant bring up some well fonded and worth considering subsequent events to the notice of the Court, these need to be considered, and not ignored, for the purpose of examining and evaluating the bona fide requirements of the tenanted premises of the landlord. Reference can be made here to the decision of the Supreme Court in the case of Hasmat Rai V. Raghunath Prasad, (1981) 3 SCR 605, wherein it was held that:
If the tenant is in a position to show that the need or requirement no more exists because of subsequent events, it would be open to him to point out such events and th Court including the appellate Court has to examine, evaluate and adjudicate the same. Otherwise the landlord would derive an unfair advantage. An illustration would clarify what we want to convey. A landlord was in a position to show he needed possession of demised premises on the date of the suit as well as on the date of the decree of the trial Court. When E No. 26/13 M/s. S. S. Investment Vs. Yogender Sen Manchanda & Ors. Page No. 7 the matter was pending in appeal at the instance of the tenant, the landlord built a house or bungalow which would fully satisfy his requirement. If this subsequent event is taken into consideration, the landlord would have to be non suited. Can the Court shut its eyes and evict the tenant? Such is neither the spirit nor intendment of Rent Restriction Act which was enacted to fetter the unfettered right of reentry. Therefore when an action is brought by the landlord under Rent Restriction Act for eviction on the ground of personal requirement, his need must not only be shown to exist at the date of the suit, but must exist on the date of the appellate decree, or the date when a higher Court deals with the matter. During the progress and passage of proceeding from Court to Court if subsequent events occur, which if noticed would non suit the plaintiff, the Court has to examine and evaluate the same and mould the decree accordingly.
Though, I am conscious of the fact and to which, there is no dispute that the landlord is the best judge of his affairs and also choices, and the tenant cannot dictate as to how the landlord has to live and utilize his premise; but, at the same time, it is also settled principles of law in such cases that the mere wish or desire of the landlord or his decision to get the tenanted premises vacated is not the decisive factor. It is not that whatever he would say, in every case, would be taken to be s gospel truth. If that was so, then, on the mere asking of every landlord that he needs the premises for setting up an office for his or his family member's business and he is the judge and master of his decisions and choices, the statutory protection afforded to the tenant, would become meaningless. That is not the intent of the E No. 26/13 M/s. S. S. Investment Vs. Yogender Sen Manchanda & Ors. Page No. 8 legislation. The applicability of above proposition is only after the landlord is able to demonstrate that his assertion of requirement of the tenanted premises is authentic and genuine. If he is able to show and demonstrate so, then certainly neither the tenant nor this Court could dictate terms upon him as to how and in what manner he should utilize his premises. The projected requirement of the tenanted premises, based on his subjective decision, is required to be tested by the Court.
6. Coming back to the facts of the present matter, I find that on the strength of issues viz. (a), (c), (f) and (g), respondents have asserted petitioner is not the owner of the premises in question. They have drawn attention of the Court towards Civil Suit bearing No. 36/09 wherein issue pertaining to locustandi of petitioner being owner of premises in question was framed and the said matter is pending adjudication. Thus respondents have challenged the ownership of petitioner pertaining to premises in question. Said argument did not make out a triable issue for the reasons that firstly, that petitioner int his case has not alleged in air that it is the owner of premises in question. It has based its claim on the basis of registered documents, which include agreement to sale, general and special power of attorney, Will dated 25.05.2007, vide which premises in question was sold to it by erstwhile owner i.e. Late Sh. S.K. Mehta. Premise in question were initially allotted to Mr. P.N. Mehta and after his death, a partition decree was executed by his LR's. As a result of said partition decree, premises in question fell in the share of Late Sh. S.K. Mehta and from S.K. Mehta, premises in question were allegedly purchased by petitioner. Respondents did not dispute the fact that premises in question E No. 26/13 M/s. S. S. Investment Vs. Yogender Sen Manchanda & Ors. Page No. 9 were initially allotted to Mr. P.N. Mehta. They did not dispute that by virtue of partition decree, premises in question fell in the share of S.K. Mehta. What they have disputed is the fact that Sh. S.K. Mehta was not having perpetual lease deed in his favour and thereby he was estopped from selling premises in question to the petitioner. The said issue with regard to the right of Late Sh. S.K. Mehta, selling premises in question to the petitioner is pending adjudication in a Civil Suit bearing No. 36/09. Therefore respondents have alleged that as dispute with regard to title of the premises in question is yet to be decided by a competent Civil Court, so petitioner has not right to file present eviction petition and get relief on the strength of said petition. The said argument is not tenable for the reason that admittedly there is not stay on present proceedings and pendency of a Civil Suit relating to the decision of title of the premises in question, does not by itself create bar for deciding the present eviction petition. Reliance in this regard is made on the case law Ramesh Chand Sharma Vs. R.S. Aggarwal & Ors. 1982 (2) All India Rent Control General 428.
7. In Jeevan Lal Vs. Gurdayal Singh & Ors. 1985 RLR 162 it is observed by Hon'ble Delhi High Court that "there is a tenancy on the part of tenants to being ownership in case U/s. 14 (1)(e) to test the substance of such a plea on the part of tenants, the Courts have insisted that they should state who else is the owner of premises if not the petitioner". In the case in hand, respondents have not alleged as to who else is the owner of premises in question which made their plea baseless. Therefore their plea that petitioner is not the owner of premises in question remains a bald plea E No. 26/13 M/s. S. S. Investment Vs. Yogender Sen Manchanda & Ors. Page No. 10 which does not make out any triable issue.
8. Petitioner in its petition has mentioned that vide receipt No. 394992 dated 28.09.2012, it had deposited property tax of premises in question to the NDMC, after it was allotted property ID. The said fact is not disputed by the respondents. The said fact prima facie shows that petitioner has the right and title over the premises in question. "Ownership" contemplated in the provision U/s. 14(1)(e) is viz. a viz. "tenant" which means that ownership is something more than a tenant. Concept of absolute ownership is not required to be determined in rent cases. Reliance in this regard is made on Daya Ram Prajapati Vs. Smt. Vidhya Devi. Keeping the said settled proposition of law, petitioner in this case, on the strength of registered documents has shown that he is the owner/landlord of premises in question. Respondents on the other hand if admitted that they are in possession of the premises in question. In the capacity of being tenants. Title of the petitioner therefore is better than that of respondents. There is no proof, which is filed by respondents, which can show that their title in the premises in question is better/more than that of petitioner. Another related aspect, with the aforesaid proposition is not respondents have not mentioned in their application for leave to defend that the actual owner/landlord of premises in question have filed some case against the claim of petitioner or that such like is pending, as on date. Therefore, the only conclusion which can be drawn at this stage is that petitioner in which capacity of being owner/landlord of premises in question, have the right to not only file present petition but also entitle to get relief based on it. E No. 26/13 M/s. S. S. Investment Vs. Yogender Sen Manchanda & Ors. Page No. 11
9. "Owner" viz. a viz. tenant is held to be something more than that of tenant in case law Smt. Shanti Sharma Vs. Smt. Ved Prabha 1987 (2) Rent Control Reporter 300. Therefore in this case on the strength of registered documents, referred above prima facie show that it is having capacity, which is more than that of respondents.
10. So far as denial of relationship of landlord and tenant by the respondents is concerned, same is a bald plea bereft of any specification whatsoever thats is not denial of the said reason. Apart from that in RCA no. 49/05, vide order dated 26.02.2008, Ld. Additional District Judge had substituted the name of petitioner in place of Late Sh. S.K. Mehta, as the owner of premises in question. Said fact not disputed by the respondents coupled with the order of Ld. District & Session Judge dated 25.04.2013 in RCA No. 3/13 with regard to deposition of rent by the respondents and its withdrawal by the petitioner, also indicated that petitioner has stepped into the shoes of being the owner of premises in question.
11. On the basis of aforesaid appreciation, I found that challenge of respondents with regard to ownership of petitioner qua the premises in question is not tenable. Same is discarded by me.
12. So far as issue pertaining to authority documents being prepared by the petitioner is concerned as mentioned in issue (e), referred above, the said issue again is a bald plea. Respondents did not explain as to how and E No. 26/13 M/s. S. S. Investment Vs. Yogender Sen Manchanda & Ors. Page No. 12 in what manner alleged registered documents, relied by petitioner were forged? Who forged the said documents? When they were forged? Whether any concerned agency has been complained by the respondents regarding the said forgery? Where any criminal matter is pending against the petitioner with respect to the said forgery? In the absence of any answers to the said questions, I failed to appreciate the aforesaid raised by the respondents.
13. In issue (d) and (h), raised by the respondents, it is alleged that petitioner firm is in a habit of dealing with disputed properties and it has breached the premises in question, knowingly the same being involved in dispute for last 15 years. Further respondents alleged that petitioner did so for harassing them, as partners of the said firm are rich persons. Again the said version of respondents did not raise any triable issue for the reason that said argument on one hand indicated that respondents did admit that premises in question was purchased by the petitioner and on the other hand did not point out that there was some bar under any law against the purchase of said premises in question. So far as assignment of ulterior motive harassing respondents by the petitioner is concerned, there is as such nothing on record, which could remotely suggest the same.
14. So far as plea regarding petitioner having other commercial properties in their names is concerned it was again a bald plea as respondents did not specify the said commercial properties owned by the petitioner.
E No. 26/13 M/s. S. S. Investment Vs. Yogender Sen Manchanda & Ors. Page No. 13
15. Respondents have filed two application U/s 151 CPC, one dated 23.09.2014 and another dated 27.11.2014. By virtue of the said applications, respondents sought permission to place on record cross examination of AR of petitioner dated 17.09.2014 in eviction suit no E7/12, pending in the Court of Ms. Kiran Gupta, Ld. SCJcumRC, New Delhi, filed U/s 14 (1)
(a)DRC Act and for placing on record cross examination of petitioner witness in the said matter. On the strength of both the said applications, respondents, want to place on record the testimonies of petitioner witnesses, recorded in another eviction petition, pending adjudication, which were recorded, subsequent to the filing of application for leave to defend, by the respondents. Keeping in mind the fact that said testimonies were recorded after filing of present application for leave to defend, I allowed the said applications and considered the testimonies of the witnesses and its implications on the decision of present application. Same is done by me, in my subsequent paragraphs.
16. On the basis of cross examination of AR of petitioner dated 17.09.2014, respondents argued that said cross examination is necessary as it revealed the conduct of petitioner and will help this court, in coming to proper conclusion, on the present application. At the very outset, eviction petition no. 7/12, where testimony of Vikas Soni, AR of petitioner company, was recorded on 17.09.2014, is based on section 14(1)(a) DRC Act. Therefore fact in issue, in the said petition is different, from that of present one. Further, respondents did not specifically point out in their application and arguments, as to how said testimony is relevant for the adjudication of present application. So I was not clear, as to what aspect, E No. 26/13 M/s. S. S. Investment Vs. Yogender Sen Manchanda & Ors. Page No. 14 respondents wanted to raise, on the basis of filing of said copy of testimony. Be that as may, after going through the said testimony of Vikas Soni I found that he refuted the suggestion that there is no relationship of landlord and tenant between him and respondents. He asserted his ownership on the premises in question, by relying upon documents relating to income tax and house tax. That stand of Vikas Soni, corroborated his version in the present petition. Apart from that, as said matter is pending adjudication, so it will not be proper to appreciate in detail the testimony of the said witnesses, here, where the scope of appreciation of rival contentions is limited. Therefore testimony of Vikas Soni dated 17.09.2014, recorded in aforementioned case, is of no consequence, for the cause of respondents.
17. Respondents further filed application on 28.11.2014, that is one day prior to the adjudication of the present application, to place on record testimony of PW5 recorded in the said matter, referred above, between the litigating parties, before Ms. Kiran Gupta, Ld. SCJ cum RC, New Delhi. Though respondents wrote in their application that they were filing certified copies of cross examination of petitioner witness recorded on 18.11.2014 but did not annex the said certified copy, with their application. Therefore I had to appreciate their contentions, made in the said application only. In the said application, respondents averred that petitioner examined one witness from NDMC on 18.11.2014, in above mentioned connected case, who stated in his examination in chief that suit property is a licensee property and that the said property is neither a lease property nor a free hold property. He further deposed that lease of the suit E No. 26/13 M/s. S. S. Investment Vs. Yogender Sen Manchanda & Ors. Page No. 15 property since its allotment in 1979 has not been executed in favour of anybody by the concerned authority and that as per the allotment letter issued to Late Sh. P.N. Mehta, he had no authority to sell/mortgage/transfer the said property to any person, as per terms of the allotment letter specifically mentioned in Clause F and G. Therefore respondents argued that there arises issue as to whether Sh. S.K. Mehta was having any transferable right, title or interest in the suit premises in question as the record of NDMC reveals that perpetual lease deed in respect of lease hold rights along with other documents have never been executed by the concerned authorities. Therefore legal heirs of the allottee Late Sh. P.N. Mehta, do not get any transferable right in the suit property as the allotment letter itself bars the transfer of property by allottee. So right possessed by Late Sh. P.N. Mehta or Sh. S.K. Mehta was never and is not transferable. Therefore petitioners cannot claim themselves to be the owners of the premises in question. Aforesaid argument of respondents, again fell flat, for the reason that they themselves are claiming to be the tenants in the premises in question and by virtue of section 16 of Indian Evidence Act, they cannot deny the title of petitioners who are claiming themselves to be the landlord of the premises in question. Further respondents have not disclosed, as to who is the owner of premises in question, in the absence of petitioners and in this regard reasoning given by me, as mentioned in paragraph 7, above, not repeated here for the sake of brevity also meet out their argument. Apart from that, again fact in issue in the said connected matter, is different from the present one. The documents relied by the concerned witness of NDMC are not before me, so that I E No. 26/13 M/s. S. S. Investment Vs. Yogender Sen Manchanda & Ors. Page No. 16 could have appreciated the version of said witness. His own testimony, is also not placed before me and the said matter is pending adjudication, as on date. In such circumstances, on one hand respondents could not have raised the aforesaid argument legally and even if they have raised, the same cannot be appreciated at this stage, as the matter in which aforesaid testimonies were recorded, are pending adjudication, before another competent Court. Therefore arguments based on aforesaid testimonies of witnesses, do not raise a triable issue and are discarded by me.
18. Aforesaid appreciation, put at rest all the arguments raised by the respondents.
19. Before coming to the conclusion I must mention here that respondents in their application nowhere disputed the fact that premises in question are required by the petitioner bonafidely for making it its permanent office. Respondents did not deny the fact that petitioner firm since 2004 is finding it difficult to run its office from a particular space as such business of petitioner firm is not denied by the respondents. It is also not denied that petitioner firm is not satisfied with the office space, occupied by them, as on date, which is the residential house of one of its partner namely Vikas Soni. Therefore, besides a bald denial, respondents did not challenge the manner in which bonafide need of petitioner has arisen, over the years and which still exists. So they have tacitly admitted the claim of petitioner.
20. Even if, for a moment, present application of respondents is E No. 26/13 M/s. S. S. Investment Vs. Yogender Sen Manchanda & Ors. Page No. 17 allowed, then also it will be of no consequence, for the reason that in such eventuality, the only evidence, which respondents will try to bring on record, will be with regard to the doubtness over the ownership of petitioner over suit property, as rest of the allegations made by them in their application for leave to defend are vague, bereft of any specification. Again, evidence regarding non ownership of premises in question, will not throw the case of petitioner over board, as legally speaking, their title cannot be disputed by the respondents. So end result will remain against the respondents. That is also a perspective, considered by me, while appreciating present application.
21. Keeping in mind the aforesaid appreciation of rival contentions, application in question stands dismissed. Respondents are given six months time to vacate the premises in question. File be consigned to record room after necessary compliance.
Announced in open Court (PRASHANT SHARMA)
on 29th November, 2014. ARC/ACJ/CCJ: New Delhi
Patiala House Courts/29.11.2014
E No. 26/13 M/s. S. S. Investment Vs. Yogender Sen Manchanda & Ors. Page No. 18