Delhi District Court
Mrs. Anita Garg vs )Sh. Kanshi Ram on 31 January, 2023
IN THE COURT OF MS. SWATI GUPTA
ARC-CUM-ACJ-CUM-CCJ, PHC, NEW DELHI
RC ARC No. 5551/16
Mrs. Anita Garg
W/o Sh. Arvind Kumar Garg
R/o B-37, Swasthya Vihar
Delhi-110092. .......... Petitioner
Vs.
1.)Sh. Kanshi Ram
S/o Late Sh. Prahlad
Shop No.69B, Khan Market
New Delhi-110003.
2.)Smt. Bimla Devi
Wd/o Late Sh. Murari Lal
3.)Sh. Sanjay Kumar
S/o Late Sh. Murari Lal
4.)Smt. Meena Kumari
Daughter-in-law of Late Sh. Murari Lal
5.)Baby Laxmi (Minor)
Grand daughter of Late Sh. Murari Lal
6.)Baby Pooja (Minor)
Grand daughter of Late Sh. Murari Lal
7.)Baby Aarti (Minor)
Grand daughter of Late Sh. Murari Lal
8.)Master Rohit (Minor)
Grand son of Late Sh. Murari Lal
RC ARC No. 5551/16 Page No. 1 of 26
Mrs. Anita Garg vs Sh. Kanshi Ram & Ors.
(Respondents No.5 to 8 being minors
through their mother and natural guardian
Smt. Meena Kumari)
All R/o J-I/3, 2nd Floor, Sujan Singh Park
New Delhi-110003.
9.)Smt. Kiran
D/o Late Sh. Murari Lal
R/o H. No.3299, Gali No.26, Beadonpura
Karol Bagh, New Delhi-110005. ........... Respondents
PETITION UNDER SECTION 14(1)(e) READ WITH
SECTION 25-B OF DELHI RENT CONTROL ACT, 1958.
Date of Institution of the petition : 30.07.2012 (Ten years old)
Date on which Judgment was reserved : 16.01.2023
Date of Pronouncement of Judgment : 31.01.2023
Decision : Allowed
JUDGMENT
1. Petitioner has filed the present petition u/S 14(1)(e) r/w Section 25-B of Delhi Rent Control Act 1958 (in short "DRC Act") against the respondents in respect of property bearing Shop No.69-B, Khan Market, New Delhi-110003 (hereinafter referred to as the "tenanted premises").
CASE OF PETITIONER
2. Briefly stated the case of the petitioner as stated in the amended petition is that she is the owner/landlord of the tenanted premises, which was let out for commercial purposes to Late Sh. Prahlad, father of respondent no.1 on oral tenancy by the predecessor -in- interest of the petitioner. As per the petitioner, one Dr. P.S. Nangia ( predecessor -in- interest of the petitioner) let out the property on oral tenancy to Late Sh. Prahlad, father of RC ARC No. 5551/16 Page No. 2 of 26 Mrs. Anita Garg vs Sh. Kanshi Ram & Ors.
respondent no.1. The petitioner purchased the tenanted premises on the basis of Registered Agreement to Sell, Power of Attorney, Receipt, Affdavit etc. on 30.03.2007. Further, as per the petitioner, the rent of the tenanted premises is Rs.110/-pm. It is also the case of the petitioner that the tenanted premises is required bonafide by her for occupation as a shop and running her business of fabric and tailoring. As per the petitioner, she is currently running the business of tailoring only as a licensee from the back portion of Shop No.66-B, Khan Market, New Delhi which is occupied by her husband and which is not sufficient for running her business of fabric as she is hardly occupying 100 sq. ft. in the same. It is also averred by her that she has to vacate the same as her husband wants to expand his business of fabric and the petitioner has no other reasonably suitable accommodation for running her business in Delhi. It is also the case of the petitioner that her son Sh. Aditya Vardhan Garg, has also completed his graduation and wishes to join her business of fabric and tailoring. Thus, the petitioner urgently requires the tenanted premises. Apart from the above, it is also averred in the petition that three other petitions bearing E. No.73/09/08, E. No.74/09/07 and E.No.75/09/07 u/S 14 (1) (a),14 (1) (c) & 14 (1)
(j) of DRC Act were also filed by the petitioner and the same are stated to have been disposed of vide order dated 05.11.2014, 20.12.2012 and 20.12.2012 respectively.
3. It is pertinent to note at this stage itself that previously the present petition was filed stating that the tenanted premises are required bonafide by the petitioner for running a business of fabric and tailoring for herself. Subsequently, during the RC ARC No. 5551/16 Page No. 3 of 26 Mrs. Anita Garg vs Sh. Kanshi Ram & Ors.
pendency of the petition, an application was filed by petitioner u/O 6 Rule 17 CPC interalia seeking to amend the petition to add averments qua requirement of tenanted premises bonafide by the son of the petitioner who also wished to join the business of the petitioner. The said application was allowed vide order dated 31.01.2019. The appeal filed by the respondents against order dated 31.01.2019 was dismissed by the Ld. Appellate Court on 18.07.2019. The petition filed by the respondents against the order dated 18.07.2019 of Ld. RCT was dismissed by the Hon'ble High Court of Delhi in CM(M) No.1376/19 vide order dated 18.09.2019. Amended petition as well as written statement to amended petition was filed.
CASE OF RESPONDENT
4. In response to the aforesaid petition, the respondents were given notice and consequently, they filed an application for leave to defend which was allowed vide order dated 02.09.2013. Subsequently, written statement to the amended petition was filed by the respondents. In the said written statement, respondents have challenged the ownership of the petitioner and have denied the landlord-tenant relationship. Further, as per the respondents one Sh. K. L. Bhandola and thereafter, Sh. Harbans Singh were receiving the rent from the father of respondent no.1. As per the written statement, Dr. P. S. Nangia started receiving the rent from respondent from 1972 onwards and the tenanted premises was taken on rent by father of respondent no.1 more than six decades back.
5. As per the written statement, petitioner has also not disclosed all the immovable properties owned by her or that there RC ARC No. 5551/16 Page No. 4 of 26 Mrs. Anita Garg vs Sh. Kanshi Ram & Ors.
is insufficiency of accommodation available with her. It is also the case of the respondents that the petitioner is not running the business of fabric and tailoring as claimed by her and the business as alleged by the petitioner was being run by Late Sh. Uttam Chand and the same is currently being run by his son namely Sh. Sanjay Katoch. As per the respondents, the petitioner has made false averments regarding her bonafide need and regarding her business and she has suppressed facts regarding alternate accommodation available to her. Thus, in effect, the respondents have denied the landlord - tenant relationship between petitioner and respondents, bonafide need of petitioner as well as non availability of suitable alternate accommodation to the petitioner.
COURSE OF TRIAL & EVIDENCE
6. Rejoinder was filed by the petitioner initially reiterating the contents of the petition and denying the contents of the written statement. However, no rejoinder was filed to the written statement to amended petition.
7. After completion of pleadings, matter was fixed for petitioner's evidence.
8. Petitioner examined three witnesses in support of her case viz. Petitioner herself as PW1, her husband as PW2 and her son as PW3. Sh. Arvind Kumar Garg who was examined as PW2 was dropped from the list of witnesses vide order dated 28.11.2019, on the basis of statement of Ld. Counsel for petitioner.
9. Petitioner examined herself as PW1 and tendered her affidavit by way of evidence as Ex. PW1/A, reiterating her case, as mentioned above. In addition to that, PW1 also relied upon RC ARC No. 5551/16 Page No. 5 of 26 Mrs. Anita Garg vs Sh. Kanshi Ram & Ors.
the following documents:-
(i) Photocopy of affidavit of Dr. P. S. Nangia dated 30.03.2007 as Mark A (Original of the said document was taken on record as Mark A1 on 23.12.2014 when allegation of fabrication qua said document was also made by Ld. Counsel for respondents);
(ii) Registered agreement to sell dated 30.03.2007 as Ex.PW1/2 (The same was objected to on the ground that it was 'copy to copy' and some overleaf pages were missing. Subsequently on 23.12.2014, original of the said document was taken on record as Ex.PW1/2A. Submission qua forgery of said document was made by Ld. Counsel for respondents);
(iii) Registered general power of attorney dated 30.03.2007 as Ex.PW1/3 (The same was objected to on the ground that it was 'copy to copy' and some overleaf pages were missing. Subsequently on 23.12.2014, original of the said document was taken on record as Ex.PW1/3A. Submission qua forgery of said document was made by Ld. Counsel for respondents);
(iv) Certified copy of notice dated 09.04.2007 as Ex.PW1/4;
(v) Certified copy of the reply of the said notice dated 23.04.2007 by the respondent's counsel as Ex.PW1/5 (Objection qua mode of proof was raised by Ld. Counsel for respondents);
(vi) Certified copy of the statement of Dr. P. S. Nangia dated 26.08.2010 in the Court of Ms. Chhavi Kapoor, Ld. Civil Judge, Delhi as Mark B (Certified copy was subsequently tendered in evidence on 11.11.2014 as Ex.PW1/6);
(vii) Certified copy of the joint statement of Sh. Murari Lal and Sh. Kanshi Ram before the Court of Ms. Chhavi Kapoor, Ld. RC ARC No. 5551/16 Page No. 6 of 26 Mrs. Anita Garg vs Sh. Kanshi Ram & Ors.
Civil Judge, Delhi dated 20.01.2011 as Mark C (Certified copy was subsequently tendered in evidence on 11.11.2014 as Ex.PW1/7);
(viii) Certified copy of order dated 20.01.2011 as Mark D (Certified copy was subsequently tendered in evidence on 11.11.2014 as Ex.PW1/8);
(ix) Income tax return for the assessment year 2012-2013 Ex.PW1/9;
(x) Income tax return for the assessment year 2011-2012 Ex.PW1/10,
(xi) Income tax returns for the assessment year 2010-2011 Ex.PW1/11(OSR).
10. Thereafter, petitioner examined Sh. Aditya Vardhan Garg as PW3 who tendered his affidavit Ex. PW3/A. During the course of his cross examination, he also produced copies of electricity bill & his ITRs for last three years, which were marked as Mark X, Y1, Y2 & Y3 respectively. PW1 & PW3 were duly cross examined by counsel for respondents and discharged. No other witness was examined and PE was closed.
11. Respondents examined Sh. Kanshi Ram as RW1 who tendered his affidavit Ex. R1W1/A and relied upon business card of petitioner Ex.R1W1/1 and photocopy of another business card of petitioner mark R1W1/A1. During his cross examination, certified copy of joint statement given in Suit No.805/10 dated 20.01.2011 was marked as Ex.RW1/D1. Respondents examined Sh. Sanjay Kumar/ respondent no.3 as RW2 who tendered his affidavit Ex. RW2/A. Respondents examined Ms. Anchana Arora, DGM, BSES, Nehru Place Division, East of Kailash, RC ARC No. 5551/16 Page No. 7 of 26 Mrs. Anita Garg vs Sh. Kanshi Ram & Ors.
Delhi as RW3. RW3 stated that non-domestic connection of shop no.G-2, Property No.86, Padma Place, Nehru Place, New Delhi is in the name of Ms. Anita Garg and proved the said record as Ex.RW3/1(Colly.).
12. Respondents examined Mr. Amit Kumar Pandey, Data Operator from the O/o Sub-Registrar-V, Kalkaji, Delhi as RW4 who proved the registered sale agreement of shop no.G-2, Property No.86, Padma Place, Nehru Place, New Delhi as Ex. RW4/1(Colly).
13. Respondents examined Sh. Sanjay Katoch as RW5 who proved the following documents:
i) Copies of telephone bills installed at shop No. 66B, Khan Market, in the name of his father Sh. Uttam Chand- Ex. RW5/1 (colly) (OSR);
ii) Copies of Commission Receipt/Certificate- Ex. RW5/2 (colly) (OSR);
iii) Copies of ITR of his father Sh. Uttam Chand of A.Y. 1992- 93 and 1971-72- Ex. RW5/3 (colly) (OSR);
iv) Certified copy of bank statement of his bank account maintained with Indian Overseas Bank, Golf Links, New Delhi, which is Ex. RW5/4 (colly).
During his cross examination, his evidence by way of affidavit dated 03.12.2013 was marked as Ex.RW5/P1. All the respondent's witnesses were duly cross examined by counsel for petitioner and discharged. No other witness was examined and RE was closed.
ARGUMENTS & FINDINGS
14. I have heard Ld. Counsel for parties and have perused the RC ARC No. 5551/16 Page No. 8 of 26 Mrs. Anita Garg vs Sh. Kanshi Ram & Ors.
record.
15. In order to succeed in a petition for eviction filed u/S 14(1)
(e) DRC Act, the petitioner must establish that :-
(a) He is the owner/ landlord in respect of the tenanted premises;
(b) The premises are required bonafide by him for himself or for any member of his family dependent upon him and
(c) He has no other reasonably suitable accommodation. The said three requirements are dealt with as hereunder.
(a) Petitioner is the owner/ landlord in respect of the tenanted premises.
16. In this regard, it is the case of the respondents that the petitioner is not the owner of the tenanted premises. Following arguments are put forth in this regard:-
(i) There was no sale deed in favour of the petitioner as on the date of filing of the petition;
(ii) Petitioner has not been given any right to file the present petition under the Agreement to Sell dated 30.03.2007 or power to receive rent under the General Power of Attorney dated 30.03.2007;
(iii) As per the Agreement to Sell dated 30.03.2007, total sale consideration was Rs. Thirty Lacs, out of which only Rs. Twenty Nine Lacs was paid by the petitioner and a sum of Rs. One Lac still remained to be paid. Thus, the Agreement to Sell dated 30.03.2007 could not have come into operation till the balance sale consideration was paid by the petitioner and Dr. P. S. Nangia still has a right in the tenanted premises as the balance sale consideration of Rs. One Lac was not paid by the petitioner;
RC ARC No. 5551/16 Page No. 9 of 26Mrs. Anita Garg vs Sh. Kanshi Ram & Ors.
(iv) A conveyance deed in respect of the tenanted premises was executed in favour of petitioner only on 21/27.08.2018, as the same was filed by petitioner in another civil suit between the same parties but the same has not been placed on record in this case by the petitioner. During the course of arguments, a copy of said conveyance deed was also placed on record by Ld. Counsel for respondent;
(v) Even in the records of L&DO, the property did not stand in the name of the petitioner till the date of filing of the present petition.
17. In view of the aforesaid, it is argued by the Ld. Counsel for respondents that present petition is clearly not maintainable as the petitioner was not the absolute owner of the tenanted premises on the date of filing of the petition.
18. Further, as per the respondents, neither they were inducted as tenants by petitioner or by Dr. P. S. Nangia nor have they paid any rent to the petitioner. Rather, they have previously paid rent to Sh. K. L. Bhandola, Sh. Harbans Singh and Dr. P. S. Nangia and thereafter, they have been depositing the rent in the Court.
19. To summarise, the submissions on the basis of which respondents have denied the landlord - tenant relationship with the petitioner are that there was no sale deed in favour of the petitioner on the date of filing of petition and balance sale consideration of Rs. One Lac was unpaid and that the respondents were not inducted as tenants by the petitioner and that no rent has ever been paid by respondents to the petitioner. In support of the arguments, Ld. Counsel for respondent relied upon the case of Gurbachan Singh Awla vs Rajinder Singh & RC ARC No. 5551/16 Page No. 10 of 26 Mrs. Anita Garg vs Sh. Kanshi Ram & Ors.
Anr. passed by Hon'ble High Court of Delhi reported in 85 (2000) DLT 334.
20. On the other hand, it is the case of the petitioner that the petitioner purchased the property on 30.03.2007 vide registered agreement to sell and registered power of attorney from Dr. P.S. Nangia. The said original registered agreement to sell and original power of attorney are Ex.PW1/2A & Ex.PW1/3A respectively. It is further the case of the petitioner that RW1 in his cross examination has admitted the ownership of tenanted premises by the petitioner. Relevant part of cross examination of RW1 is reproduced hereunder:
"Question :I put it to you that you just stated before the Court that Ms. Anita Garg is the 4 th owner of the suit property. So is it true that are aware that Ms. Anita Garg is the owner of the suit property. What you have to say ? Answer : Yes. She is the owner."
It is also the case of the petitioner that a previous suit filed by the respondents against Dr. P. S. Nangia was withdrawn on the basis that the petitioner herein purchased the property from Dr. P. S. Nangia. The statement of the parties and the order of the Court in this regard are Ex.PW1/6, Ex.PW1/7 & Ex./PW1/8. Further, the said joint statement of respondents herein in previous case is also admitted by the respondent/RW1 in his cross examination and marked as Ex.RW1/D1. Relevant portion of cross examination of RW1 is reproduced hereunder:-
"At this stage, certified copy of joint statement given in Suit No.805/10 dated 20.01.2011 has been shown to the witness and the same is now Ex.RW1/D1.
Question : Does it bear your signatures at point A ? Answer : Yes."RC ARC No. 5551/16 Page No. 11 of 26
Mrs. Anita Garg vs Sh. Kanshi Ram & Ors.
Thus, it is contended that the petitioner is the rightful owner of the tenanted premises. Further, it is argued that the respondents have not denied their status as tenant in the tenanted premises and that they had been paying rent to previous owner Dr. P. S. Nangia till 2007. Thus, it does not lie in the mouth of respondents to deny the ownership of the petitioner as he being the tenant cannot dispute the title of the landlord. It is also argued by Ld. Counsel for petitioner that eviction petition is not a title suit and even if, there was no conveyance deed in favour of petitioner on the date of filing of the petition, it is sufficient that even on that date she was a better title holder than the tenant/ respondents. In support of his arguments, Ld. Counsel for petitioner has relied upon following judgments:-
(i) Maya Devi vs Lalta Prasad, (2015) 5 SCC 588;
(ii) Pawan Kumar Jain vs Munshi Lal Sharma, R.C. Rev. No.329/2016, DOD 11.07.2016;
(iii) Sushil Kanta Chakravarty vs Rajeshwar Kumar, Civil Revision No.886 of 1996. DOD 24.03.1999; and
(iv) Satya Narain Bansal vs Rajesh Kumar Gupta and Ors., R. C. Rev. 17/2017 and CM No.1943/2017, DOD 13.02.2017.
v.) J. C. Mehra vs Kusum Gupta, passed by Hon'ble High Court of Delhi reported in 117 (2005) DLT 506.
21. Before proceeding to discuss the facts of the case, let us examine briefly the legal position in this regard. In the case of Sushil Kanta Chakravarty vs Rajeshwar Kumar (Supra), the petitioner filed an eviction petition u/S 14 (1) (e) of the DRC Act against the respondents on 26.08.1993 claiming to be the RC ARC No. 5551/16 Page No. 12 of 26 Mrs. Anita Garg vs Sh. Kanshi Ram & Ors.
owner of the property by virtue of agreement to sell and general power of attorney. The sale deed was executed and registered on 08.08.1997 ( i.e. after the filing of the petition). The respondent / tenant argued that the petitioner could not be treated as owner as there was no transfer of the property in the hands of the petitioner till the sale deed was executed and registered. The Hon'ble High Court framed the question for determination as to whether " for the purposes of Rent Control Act wherein person in whose favour an agreement to sell- cum-power of attorney has been executed and has assumed possession after making substantial payment in terms of the agreement of the sale price, would be owner within the meaning of Section 14(1) (e) of the DRC Act". The question was answered in favour of the petitioner. It was held that to maintain a petition u/S 14(1) (e) of the DRC Act, the petitioner need not be an absolute owner. It has been explained that the word 'owner' in Section 14(1) (e) of the DRC Act is not to use the same in the sense of absolute owner but in contra-distinction with a 'landlord'. The word 'owner' occurring in Section 14(1) (e) of the DRC Act has been held to mean 'something more than a tenant'.
22. Coming now to the facts of the present case, as per the petitioner she purchased the property on 30.03.2007 from Dr. P. S. Nangia. Respondents have admitted that Dr. P. S. Nangia started receiving the rent from respondents from 1972 onwards. Thus, the landlord-tenant relationship between Dr. P. S. Nangia and respondents is admitted.
23. It is seen from the record that on 03.01.2014, registered agreement to sell and registered power of attorney both dated RC ARC No. 5551/16 Page No. 13 of 26 Mrs. Anita Garg vs Sh. Kanshi Ram & Ors.
30.03.2007 were tendered by PW1/petitioner and the same were exhibited as Ex.PW1/2 & Ex.PW1/3 respectively. Both the said documents were objected to by Ld. Counsel for respondents on the ground that these were 'copy to copy' and the overleaf of certain pages were not filed on record. Thereafter, on 23.12.2014 originals of Ex.PW1/2 & Ex.PW1/3 were taken on record as Ex.PW1/2A & Ex.PW1/3A respectively and it was submitted by Ld. Counsel for respondents that the said documents were forged and conclusion with regard to forgery could be made by this Court only after comparing the copies with the original. Now, it must be noted that apart from bare submission of Ld. Counsel for respondents that the original documents Ex.PW1/2A and Ex.PW1/3A are forged, there is no material on record to support the said submission of the Ld. Counsel for the respondents. No question or suggestion has been put to the witness/ PW1 regarding the alleged forgery, no evidence has been led by respondents to prove any forgery in the said documents and even during the stage of arguments, no argument whatsoever was raised regarding Ex.PW1/2A and Ex.PW1/3A being forged documents. Thus, the submission of the Ld. Counsel regarding Ex.PW1/2A and Ex.PW1/3A being forged documents raised during the course of evidence is dismissed. Ex.PW1/2A & Ex.PW1/3A which are original agreement to sell and original GPA, both dated 30.03.2007 are thus proved and can be read in evidence.
24. Now, perusal of Ex.PW1/2A which is agreement to sell dated 30.03.2007 executed between Dr. P. S. Nangia and petitioner, no doubt shows that out of the total sale consideration RC ARC No. 5551/16 Page No. 14 of 26 Mrs. Anita Garg vs Sh. Kanshi Ram & Ors.
of Rs. Thirty Lacs, Rs. Twenty Nine Lacs had been paid by the petitioner and a sum of Rs. One Lac was to be paid at the time of registration of sale deed. However, it has been clearly recorded in the said agreement to sell as follows:-
"That the first party has disclosed to the second party that the said Shop is under the tenancy of Shri Prahlad Ram (since deceased, his sons Shri Murari Lal and Shri Kashi Ram occupied the Shop), therefore the first party have delivered the symbolic possession of the said Shop to the second party, at the time of signing of this Agreement to Sell, alongwith the right to receive the rent from the tenant, to get the said Shop vacated from the tenant and to takeover the vacant and physical possession of the said shop from the said tenant."
25. Similarly, it is recorded in Ex.PW1/3A which is general power of attorney dated 30.03.2007 executed by Dr. P. S. Nangia in favour of the petitioner, as follows:-
" To let out the said Shop, in full or in parts, to any intending tenant(s), to receive rents, advances and security deposits, to issue receipts, to deal with the tenant(s) in any lawful manner, and to get the tenants evicted from the said Shop".
26. From the aforesaid stipulations in Ex.PW1/2A and Ex.PW1/3A, it is clear that despite Rs. One Lac remaining to be paid as sale consideration by petitioner, Dr. P. S. Nangia had delivered the symbolic possession of the tenanted premises to the petitioner at the time of signing of agreement to sell and had also given the right to receive the rent from the tenant to the petitioner and had also given the right to get the tenanted premises vacated from the tenant and to take over the vacant physical possession of the tenanted premises. There is no merit in the argument of Ld. Counsel for respondents that by way of RC ARC No. 5551/16 Page No. 15 of 26 Mrs. Anita Garg vs Sh. Kanshi Ram & Ors.
general power of attorney Ex.PW1/3A, no power was given to the petitioner to receive rent from the present tenant/ respondents or to get the shop evicted from them, as the aforesaid clause of GPA does not, in any way, distinguish between the present or the future tenants and the same has to be read alongwith the terms of agreement to sell Ex.PW1/2A.
27. It may further be noted that even though, it is the case of the respondents that they have not paid any rent to the petitioner and they have been depositing the rent in Court, they have not led any evidence to show the period till when the rent has been deposited in Court and who has been impleaded as landlord in their petitions for depositing the rent in Court. Rather, it has come in the cross examination of petitioner/ PW1 that she had received the rent from the respondents through Court and that too 1-2 years back from the date of evidence i.e. 23.12.2014 and since then she has not received any rent from the Court. No further questions were put to PW1/ petitioner to show that she had not received any rent from the respondents through Court. When a question was put to RW1/ respondent regarding when, where & how much last rent was paid by him, he evasively answered that, "I was depositing the rent in the Court but I was told by the Court not to deposit the rent. My lawyer has papers of the said proceedings." Thus, there is nothing on record to show that the respondents have continuously paid the rent to Dr. P. S. Nangia till date by depositing the same in Court or that Dr. P. S. Nangia ever received the rent deposited in Court by respondents. Respondents are neither paying rent to the petitioner nor to Dr. P. S. Nangia and they can not take benefit of this by contending that RC ARC No. 5551/16 Page No. 16 of 26 Mrs. Anita Garg vs Sh. Kanshi Ram & Ors.
no rent is ever paid to petitioner by them. Rather, the record shows that the respondents have deposited the rent in the Court which has been received by the petitioner and no objection in this regard has been raised by the respondents.
28. Another important point to be noted is that previously a suit was filed by the respondent no.1 against Dr. P. S. Nangia. In the said suit, the latter made a statement before the Court that he had sold the tenanted premises to the petitioner herein on 30.03.2007 on the basis of GPA, agreement to sell, receipt etc. and he had no concern in the said shop after 30.03.2007. The said statement is Ex.PW1/6. On the basis of the said statement of Dr. P. S. Nangia, the said suit was withdrawn by the respondent no.1 herein alongwith other plaintiff. The said statement of respondent no.1 herein is Ex.PW1/7. On the basis of the statement of the parties, the said suit was dismissed as withdrawn on 20.01.2011. The order in this regard is Ex.PW1/8. It shows that as on the date of filing of the present petition, the respondents had sufficient notice that the erstwhile owner Dr. P.S. Nangia had sold the tenanted premises to the petitioner herein. It is not the case of the respondents that Dr. P. S. Nangia ever asserted any right either in the present case or in any other case which is adverse to the interest of the petitioner in the tenanted premises.
29. Thus, on the basis of aforesaid discussion and material on record, it can be concluded as follows:-
(i) Registered agreement to sell and registered power of attorney executed in favour of petitioner by Dr. P. S. Nangia on
30.03.2007 are proved, showing that the petitioner has been clearly given the right to receive rent and to evict tenant.
RC ARC No. 5551/16 Page No. 17 of 26Mrs. Anita Garg vs Sh. Kanshi Ram & Ors.
(ii) Dr. P.S. Nangia himself made a statement in the court stating that he had sold the property to petitioner herein on 30.03.2007.
(iii) Respondent no.1 had due notice of the said sale in favour of the petitioner even prior to the filing of the present case.
(iv) Petitioner herein has received the rent from respondents through court.
(v) Only a sum of Rs. One Lac out of Rs. Thirty Lacs remained to be paid by the petitioner to Dr. P. S. Nangia at the time of execution of agreement to sell. Yet, Dr. P. S. Nangia has not asserted any ownership rights in the tenanted premises till date after 30.03.2007.
30. As already noted above, petitioner is not required to prove absolute ownership in respect of the tenanted premises and she is only required to prove a better title than the respondents, which she has proved. Thus, it can be safely concluded that there was a sale transaction between petitioner and Dr. P. S. Nangia on 30.03.2007, and in terms of that symbolic possession was given to petitioner. Thus, the petitioner entered into the shoes of previous owner i.e. Dr. P. S. Nangia on 30.03.2007 and landlord- tenant relationship between the petitioner and the respondents stands established. Hence, in my opinion, first requirement of Section 14 (1) (e) DRC Act stands proved. Before proceeding to next requirement, I deem it appropriate to deal with certain other arguments of respondents as follows:-
(i) It is inconsequential for the purpose of Section 14 (1) (e) DRC Act as to whether the property was mutated in favour of petitioner as on the date of filing of the petition or not.RC ARC No. 5551/16 Page No. 18 of 26
Mrs. Anita Garg vs Sh. Kanshi Ram & Ors.
(ii) Non filing of conveyance deed dated 21/27.08.2018 executed in the favour of petitioner in the present case is not fatal to the case of the petitioner. Rather, it aids the case of the petitioner in as much as it can be said that as the conveyance deed has been executed in her favour in 2018 by Dr. P.S. Nangia on the basis of previous agreement to sell and general power of attorney in favour of petitioner, it means that even on the date of the filing of the petition, petitioner can well be regarded as 'owner' for the limited purpose of maintainability of a petition under Section 14 (1) (e) of DRC Act.
(iii) Reliance placed by the Ld. Counsel for respondents on the judgment of Gurbachan Singh Awla's case (Supra), is misplaced as the same is passed at the stage of granting leave to defend to the tenants and not at the stage of final judgment.
(iv) An argument was also raised by Ld. Counsel for respondents that as the conveyance deed in the present case was executed on 27.08.2018, Section 14 (6) DRC Act would bar the present petition as pre-mature. In this regard, reliance was placed by the Ld. Counsel for petitioner on the case of J. C. Mehra vs Kusum Gupta (Supra). In the said case, property was sold by virtue of power of attorney in 1993 and conveyance deed was executed in 1995. An eviction petition was filed in the year 1999.
It was argued on behalf of the tenant that the five years period which is prescribed in Section 14 (6) DRC Act is to be calculated from the date of conveyance deed and not from the date of power of attorney. It was held by Hon'ble High Court of Delhi that the buyer became a landlord on the date when agreement to sell was executed and he got symbolic possession of the suit premises. It RC ARC No. 5551/16 Page No. 19 of 26 Mrs. Anita Garg vs Sh. Kanshi Ram & Ors.
was further held that Section 14 (6) DRC Act would not stand in the way of the landlord in asking for recovery of possession on the basis of power of attorney sale because the period has to be reckoned not from the date of conveyance but from the date of power of attorney sale. Thus, in view of the said judgment, the argument of Ld. Counsel for respondents that Section 14 (6) DRC Act bars the present petition as pre-mature, is not tenable.
(b) The premises are required bonafide by the petitioner for himself or for any member of his family dependent upon him.
31. In this regard, it is the case of the respondents that the petitioner does not require the tenanted premises as she is not running any tailoring business from the back portion of shop no.66B, Khan Market, New Delhi as alleged by her. It is the case of the respondents that the tailoring business in the back portion of aforesaid shop is being run by one Sh. Sanjay Katoch at present and previously the same was being run by his father Late Sh. Uttam Chand. The respondents have also examined Sh. Sanjay Katoch as RW5 in the present case who has filed telephone bills in the name of his father, commission receipts, ITRs of his father and his bank account statement. The said witness deposed that he has been doing the business of tailoring in the name of M/s Garg Brothers since 1990 at shop no.66B,Khan Market, Delhi and prior to him, his mother was doing the said business and even prior to that his father was doing the business from 1957 to 1958. It is the case of the respondents that the electricity bill and telephone bill are in the name of Sh. Sanjay Katoch in the said premises and he is merely RC ARC No. 5551/16 Page No. 20 of 26 Mrs. Anita Garg vs Sh. Kanshi Ram & Ors.
paying some commission to the petitioner. Merely because commission is being paid to the petitioner, she cannot call herself as the owner of the business being run by Sh. Sanjay Katoch.
32. On the other hand, it is the case of the Ld. Counsel for petitioner that the business of M/s Garg Brothers is being run from the back portion of shop no.66B, Khan Market, New Delhi and the said business is owned by the petitioner. It is further argued by Ld. Counsel for petitioner that clearly Sh. Sanjay 'Katoch' could not be running the business in the name of M/s 'Garg' Brothers and it is the petitioner namely 'Ms. Anita Garg' who is running the business in the name of M/s Garg Brothers. Further, Sh. Sanjay Katoch in his cross examination has admitted the document Ex.RW5/P1, which is an affidavit previously executed by him. In the said affidavit, he has stated that he was looking after the tailoring work of Smt. Anita Garg on commission basis which is run by her in the name and style of M/s Garg Brothers since 2004 in property no. 66B, Khan Market, New Delhi. In view of the said Ex.RW5/P1, it is argued by Ld. Counsel for petitioner that the petitioner's business is being run from back portion of property no.66B, Khan Market, New Delhi and it is not the business of Sh. Sanjay Katoch.
33. It may be noted in this regard that as per Ex.RW5/P1 i.e. the affidavit dated 03.12.2013 on which the signatures are admitted by Sh. Sanjay Katoch/ RW5, he had affirmed in the affidavit that he was looking after the tailoring work of Smt. Anita Garg on commission basis which was being run by her in the name and style of M/s Garg Brothers in the property no.66B, Khan Market, New Delhi. He also affirmed that he was neither RC ARC No. 5551/16 Page No. 21 of 26 Mrs. Anita Garg vs Sh. Kanshi Ram & Ors.
the partner in the said business nor had any interest in the said business. The said affidavit of the witness is contrary to his deposition in court that he had been doing the business of tailoring under the name of M/s Garg Brothers since 1990. In view of the contradictory stands, the said witness cannot be considered as a reliable witness and no reliance can be made on his testimony. Be that as it may, it has not been denied by the petitioner that she is receiving commission from Sh. Sanjay Katoch.
34. Both the sides in the present case have argued as regards who is running the business of 'M/s Garg Brothers' and who is the owner of business of tailoring in shop no.66B, Khan Market. In my opinion, the said arguments are immaterial in as much as it is admitted by both the sides that Sh. Sanjay Katoch is paying commission to the petitioner in respect of the tailoring business being run in the said shop no.66B, Khan Market. It is immaterial that whose business it is i.e. whether Sh. Sanjay Katoch is running the business as an owner or just as an agent of petitioner. A business may be run in many forms. In the present case, RW5/ Sh. Sanjay Katoch is in occupation of premises being back side of Shop No.66B, Khan Market & dealing with customers. He may be working as tailor himself or may have kept one/ more tailors to do the tailoring work. In respect of earning of Sh. Sanjay Katoch, the petitioner is receiving a commission & also filing ITR. So, both Sh. Sanjay Katoch and the petitioner are doing businesses. For the purpose of present petition, we are not required to find out the nature & extent of ownership of business, rather we are only concerned with the aspect that whether the RC ARC No. 5551/16 Page No. 22 of 26 Mrs. Anita Garg vs Sh. Kanshi Ram & Ors.
need for tenanted premises projected by petitioner is plausible or not. It is established on record that the petitioner is receiving commission in respect of tailoring business being run in shop no.66B, Khan Market. It shows that she has some interest in the tailoring business. From the documents Ex.PW1/9 to Ex.PW1/11 which are ITRs of the petitioner, it can also be seen that the petitioner has declared income for the Assessment Years 2010- 2011, 2011-2012 and 2012-2013. If the petitioner had no interest in the business being run from the back side of Shop No.66B, Khan Market, there is no reason for Sh. Sanjay Katoch to pay commission to the petitioner to the extent of 15% to 20% (as seen from Ex.RW5/2). In such a situation, petitioner is very much entitled to run or expand the tailoring business irrespective whether she runs it to receive the entire earnings or only a commission.
35. Merely because the husband of petitioner is doing the business of fabrics from Shop No.66B, Khan Market and he may be earning crores of rupees, it does not mean that the petitioner's requirement for opening her business of tailoring in her own shop is not bonafide. Further, it is also proved on record that even the son of the petitioner i.e. PW2 also requires the tenanted premises for running the business of tailoring. It may also be noted that it is common in Indian households that financial & legal affairs are looked after by the husband. However, that does not mean that the wife cannot be an owner of the business or cannot run the business though she may run the business under the guidance of her husband. In such circumstances, it is possible that the wife is not completely aware about the financial aspect/ or balance RC ARC No. 5551/16 Page No. 23 of 26 Mrs. Anita Garg vs Sh. Kanshi Ram & Ors.
sheets/ tax etc. of the business. Nonetheless, if she is otherwise, managing its affairs & receiving income & paying tax, the business is her business. In my opinion, even though the petitioner/PW1 failed to answer certain questions, with respect to Ex.PW1/4 to Ex.PW1/8 or failed to give the account details or ITR details of her business, it is still proved on record that she is paying income tax on her income and she is receiving commission from Sh. Sanjay Katoch for the tailoring business being run in the back side of Shop No.66B, Khan Market. Thus, in my opinion merely because the petitioner is only receiving the commission in respect of the business being run in shop no.66B, Khan Market, it does not mean that her need for the tenanted premises to run the tailoring business herself and her son's requirement for the same is not bonafide. Hence, 2 nd requirement u/S 14 (1) (e) DRC Act also stands proved.
(c) He has no other reasonably suitable accommodation.
36. Onus to prove the same is on the respondents. In this regard, it is the case of the respondents that the petitioner is the owner of another shop in Nehru Place from which she can run her business, if there is any. In this regard, Ld.Counsel for respondents has also examined RW3 Ms. Anchana Arora from BSES, Nehru Place who has placed on record Ex.RW3/1 which is documents pertaining to electricity connection in respect of Shop No.G-2, Property No.86, Padma Place, Nehru Place, New Delhi. The same is stated to be in the name of Ms. Anita Garg.
37. On the other hand, in this regard, it is the case of the Ld. Counsel for the petitioner that the said shop in Nehru Place does not belong to the petitioner but belongs to the husband of the RC ARC No. 5551/16 Page No. 24 of 26 Mrs. Anita Garg vs Sh. Kanshi Ram & Ors.
petitioner. As per the Ld. Counsel for petitioner, the petitioner cannot be compelled to use the property of her husband for her business despite having a property of her own. It is further the case of Ld. Counsel for the petitioner that the said property was acquired only during the pendency of the present petition. Ld. Counsel for the petitioner has relied upon the following judgments:-
(i) Anil Bajaj vs Vinod Ahuja, (2014) 15 SCC 610 para 6;
(ii) Dr. Sanjiv Gupta vs Sh. S. S. Verma, 2022 LAWPACK(Del) 88280 para 15;
(iii) Anil Jain vs Bhagwan Shankar Khanna, 2014 SCC OnLine Del 3855 para 11 (c);
(iv)Mahesh vs Chander Prakash Rishi, 2022 LAWPACK (Del) 88379 para 12;
(v) Joginder Pal vs Naval Kishore Behal, (2022) 5 SCC
38. A careful look at the document Ex.RW3/1 shows that there is a general power of attorney in favour of Sh. Arvind Kumar Garg in respect of the said property in Nehru Place and there is 'No Objection Certificate' for new connection given by Sh. Arvind Kumar Garg in favour of the petitioner. Even RW4 has proved in his evidence registered agreement to sell in respect of the said property in Nehru Place and from the same it can be same that it is the husband of the petitioner who is the buyer of the said property and not the petitioner. Thus, it is clear that the petitioner is not the owner of the said property in Nehru Place. As the petitioner is not the owner of the property in Nehru Place, it cannot be said that she has any alternative accommodation RC ARC No. 5551/16 Page No. 25 of 26 Mrs. Anita Garg vs Sh. Kanshi Ram & Ors.
available to her for running the business of tailoring, even if the property belongs to her husband.
39. Respondents have also relied upon a visiting card of M/s Yarn to Yardage as Ex.R1W1/1 and mark R1W1/A1 to show that a business in the name of Yarn to Yardage is being run by the petitioner and her son from a premises in Nehru Place. In this regard, it may be noted that the said visiting card was not put to either PW1 or PW3. Merely because PW3 admitted one of the phone numbers mentioned on the said visiting card as his phone number, it does not mean that the said business of 'Yarn to Yardage' is being run at the said shop at Nehru Place by petitioner or her son. Respondents have neither filed any photographs to show that such a business is being run at the said shop nor examined any witness to prove the same. Thus, the 3 rd requirement of Section 14 (1) (e) DRC Act is also proved. CONCLUSION
40. Based on aforesaid appreciation of evidence led by the parties, I conclude that petitioner has been able to prove her case of bonafide requirement u/S 14(1)(e) of Delhi Rent Control Act. Present eviction petition stands allowed. Respondents are given six months time to vacate the premises in question.
41. File be consigned to record room after necessary compliance.
Announced in open Court (SWATI GUPTA)
on 31.01.2023. ARC/ACJ/CCJ: New Delhi
PHC/31.01.2023
RC ARC No. 5551/16 Page No. 26 of 26
Mrs. Anita Garg vs Sh. Kanshi Ram & Ors.