Indian Kanoon - Search engine for Indian Law

Delhi District Court

Satish Kumar Bansal vs Raj Kumar Gogia on 28 January, 2013

In the Court of Sh. Rakesh Kumar­II: Additional Rent Controller 
      of East Delhi District at Karkardooma Courts, Delhi.

Eviction Petition No.12/12
Unique I.D. No:02402C0033622012

In the matter of :­
1. Satish Kumar Bansal
2. Ajay Kumar Bansal 
3. Vijay Kumar Bansal
All S/o late Sh. Sukhbir Singh Bansal,
All R/o C­10/14, Krishna Nagar, 
P.O & P.S. Krishna Nagar,
Delhi­110051.                          ..... Petitioners

      VERSUS

Raj Kumar Gogia
S/o late Sh. Arjun Dass Gogia
Proprietor of M/s Susham Beautry Parlour,
C­10/14, Krishna Nagar, 
P.S. Krishna Nagar, Delhi­110051.

Also at
G.C. Grand, 1­A 054, Vaibhav Khand,
Indirapuram, Ghaziabad               .....Respondent

Date of Institution           : 01.02.2012
Date on which arguments heard : 28.01.2013
Date of Decision              : 28.01.2013

ORDER

1. Vide this order I shall dispose off an application under E­12/12 Satish Kumar Bansal & Anr. v. Raj Kumar Gogia Page 1 of 14 Section 25­B (5) of DRC Act filed on behalf of the respondent for seeking leave to contest the present eviction petition.

2. Brief facts leading to file the petition are that the premises was let out to the respondent in the year 1981 to run the trading business of cloths but after few years, the respondent closed down that business and opened the beauty parlour in the name and style of M/s "Susham Beauty Parlour" in the shop in question but now for the last one year, no business activities have been carried out in the said shop and the shop is lying locked. It is stated that Harsh Bansal, son of the petitioner no.3 is 24 years of age and he has done graduate diploma in textile desigining from NIIFT, Mohali, Punjab and he took some job assignment to earn an experience and at present he is employed with M/s Shahi Exports, Faridabad Haryana and getting a salary of Rs.18,000/­ out of which major portion is spent on transportation and conveyance and it is not a stable job and he wants to start his independent business of textile and Apparels designing boutique to establish himself. It is stated that the son of the petitioner no.3 is totally dependent upon him for residence as well as for shop and the petitioner no.3 does not own any premises where he can start a business for his son and the petitioner no.3 being the co­ owner and landlord is legally entitled to recover the possession of the shop from the respondent to establish the business for his E­12/12 Satish Kumar Bansal & Anr. v. Raj Kumar Gogia Page 2 of 14 son and they prayed for passing an eviction order against the respondent.

3. On notice, the respondent appeared and filed an application for leave to defend alongwith affidavit wherein it is submitted that the respondent has never admitted Satish Kumar Bansal and Ajay Bansal as owner of the said shop as the respondent has never paid any rent to the aforesaid petitioners and there is no relationship of landlord and tenant between the parties. It is submitted that the respondent had been paying the rent to the petitioner no.3 and he lastly paid the rent @ Rs.330/­ per month till 31.07.11 but thereafter the petitioner no.3 refused to receive the rent hence the respondent got deposited the rent in the court.

4. Next contention of the respondent is that the petition has been filed by the petitioners on the basis of a Will dated 04.08.99 without obtaining the probate and same cannot be acted upon and alleged Will of Smt. Ramwati is defective as the same has not been signed by two attesting witnesses and it has been signed by only one witness.

5. Other ground taken by the respondent is that the present petition has been filed just to harass the respondent and to let out the same to some other person at a higher rent and the petitioners do not require the tenanted shop for any bonafide E­12/12 Satish Kumar Bansal & Anr. v. Raj Kumar Gogia Page 3 of 14 and personal use.

6. It is stated by the respondent in his affidavit that the son of the petitioner no.3 is in employment and is earning handsome amount and the petitioner no.1 has permanently shifted his abode to Bangelore, Karnataka where the family of son of the petitioner no.1 is residing and son of the petitioner no.1 is working with some multinational company.

7. The other ground taken by the respondent is that the petitioners have filed the wrong site­plan and have concealed the complete accommodation of the property in question. The portion of the petitioners is constructed upto three storeys and no one is residing in the portion of petitioner no.1 for the last several years and same is lying locked and vacant therefore the claim of the petitioners for bonafide requirement is fake and artificial.

8. The other ground of the respondent is that the petitioners have no right to maintain a joint eviction petition till the alleged portion left by the late mother is not legally partitioned. All other averments are denied by the respondent and he prayed for dismissal of the petition.

9. The petitioners filed counter affidavit wherein they denied the contentions raised by the respondent in the leave to defend application and reiterated the allegations made in the petition.

10. I have heard counsel for the parties and perused the material available on record carefully.

11. Before I come to the contentions of learned counsel appearing for either parties, let us discuss the essential ingredients of Section 14 (1) (e) of the DRC Act on which the petitioners may be entitled to an order of eviction as follows:­ i. The premises in question were let for residential purpose.

ii. That petitioner is a landlord and an owner of the said premises, iii.The premises are required bonafide by him for occupation as a residence for himself or for any member of his family dependent upon him or for any person for whose benefit the premises are held; and iv. That he has no other reasonable suitable residential accommodation.

12. Both commercial and residential accommodation can be got vacated. The controversy has been set at rest by the Hon'ble Apex Court in Satyawati Sharma v. Union of India and Anr. (5) SCC 287 and now the premises let out either for residential or commercial purposes can be got vacated by the landlord for bonafide requirements.

13. The respondent has denied the relationship of landlord and tenant and he stated that he has never attorned the petitioners as his landlords. The respondent has placed on file the copy of E­12/12 Satish Kumar Bansal & Anr. v. Raj Kumar Gogia Page 5 of 14 petition under Section 44 of the DRC Act for the repairs of demise premises, the copy of application for deposit of rent of the premises in question under Section 27 of the DRC Act and the copy of legal notice issued to the petitioner no.3 namely Vijay Kumar Bansal in respect of the property in question and in all these documents, the respondent has categorically admitted the petitioner no.3 as owner and landlord. In para (aa) of affidavit alongwith the application for leave to defend, the respondent has admitted that he had been paying the rent of the tenanted premises regularly to the petitioner no.3 and he lastly paid the rent @ Rs.330/­ per month till 31.07.11. The respondent/tenant while denying the ownership and the relationship does not disclose if the petitioners and their predecessors were not the owners who else is the owner of the demised premises who inducted him as a tenant in the property in dispute. In Bharat Bhusha Vij. v. Arti Tek Chandani, MANU/DE/1092/2008 it is held that:­ "if the premises was let out by a person and after his death, the premises has come in the hands of beneficiary of under a Will, the tenant has no right to challenge the title of such 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 suppose to file an inter pleader suit impleading all the LRs of the deceased and ask the court to decide as to who shall be the landlord/owner after the death of the original owner. Where no inter pleader suit is filed by the tenant and the tenant continues in possession after death of the original owner without demur and without raising the objection E­12/12 Satish Kumar Bansal & Anr. v. Raj Kumar Gogia Page 6 of 14 against the person, who claims to have inherited the property under Will, he later on cannot challenge the ownership of such person. It is not the domain of the tenant to challenge the Will of the deceased landlord if the landlord is able to show that there is a testament in his favour, he is deemed to have discharged his burden of proving the ownership."

14. It was also held in Rajender Kr. Sharma & Ors. v. Leelawati and Ors. 155 2008 DLT 383 that:­ "landlord is not supposed to prove absolute ownership as required under Transfer of Property Act, he is required to show only that he is more than tenant."

15. In Bhagwati v. Vijay Rani 2010 (II) RCR 359 (Delhi) it is held that:­ "the tenant in his leave to defend application disputed landlord tenant relationship. The tenant except making a bald averment disputing the ownership of landlady failed to state if not the landlady then who else is the owner of demised premises, whereas landlady placed on record Will in her favour, mutation letter, tax receipt and copy of complaint written by tenant, wherein the tenant himself admitted being a tenant in demised premises, hence leave to defend was denied to him."

16. The respondent has admitted the petitioner no.3 as landlord in para (aa) of the leave application and in the petition under Section 44 of the DRC Act, the application under Section 27 of the DRC Act and legal notice. Copies of same are placed on file. Now having admitted the petitioner no.3 to be the landlord, the respondent has estopped from denying the title of the E­12/12 Satish Kumar Bansal & Anr. v. Raj Kumar Gogia Page 7 of 14 petitioners to the property in question as per Section 116 of the Evidence Act and reference in this context may be made to the judgment in Amar Kaur v. Dhanesh Kumar 97 (2002) DLT 772 and Rital Lal v. Raj Kumar Singh (2220) VIII AD (SC) 43. In a very recent case of Ramesh Chand v. Ugani Devi 157 (2009) DLT 450, our own Hon'ble High Court has specifically held that:­ "It is settled preposition of law that in order to consider the concept of ownership under Delhi Rent Control Act, the Court has to see the title and right of the landlord qua the tenant. The only thing to be seen by the Court is that the landlord had been receiving rent for his own benefit and not for and on behalf of someone else. If the landlord was receiving rent for himself and not on behalf of someone else, he is to be considered as the owner, howsoever imperfect his title over the premises may be. The imperfectness of the title of the premises cannot stand in the way of an eviction petition under Section 14 (1) (e) of the D.R.C. Act, neither the tenant can be allowed to raise the plea of imperfect title or title not vesting in the landlord and that too when the tenant has been paying rent to the landlord. Section 116 of the Evidence Act creates estoppal against such tenant. A tenant can challenge the title of landlord only after vacating the premises and not when he is occupying the premises. In fact, such a tenant who denies the title of the landlord, qua the premises, to whom he is paying rent, acts dishonestly. I, therefore, find that there was no infirmity in the order of learned ARC in this respect".

17. In case titled as Navneet Lal v. Deepak Swahney 2010 (120) DRJ 346 that :­ "where the landlord got the ownership premises by way of Will and sought eviction on the ground of personal necessity, it is held by Hon'ble High Court of Delhi that it is not open for tenant to dispute the title of the landlord and question the validity of the Will on the grounds that no probate of Will E­12/12 Satish Kumar Bansal & Anr. v. Raj Kumar Gogia Page 8 of 14 has been obtained. Will can only be challenged by LRs of the deceased."

18. In Chander Mukhi Sharma v. Rajesh Sood 2008 (1) RCR 404 it is held that :­ "A tenant cannot object to a partition but he can show that partition was not bonafide as it has been made with an oblique motive to overcome the rigors of rent control laws which protected the eviction of tenant except on the grounds set out in the relevant statute."

19. In Ram Chander v. Ram Pyari 2004 RLR 188 wherein it is held that "the plea of the petitioner to challenge the Will of late Sh. Bhagwan Dass was rejected on the ground that it was not the domain of the tenant to challenge the Will of the landlord." Reference can also be made to Munni Devi v. Man Mohan Verma 2007 (1) RCR 223 Delhi.

20. In Plastichemicals Comp. v. Ashit Chadda & Anr. 2005 (1) RCR (Civil) 5 Delhi: 2004 (2) RCR (Rent) 667 Delhi has been relied upon the preposition that if a landlord is able to show that there is testament in his favour, landlord is deemed to have discharged his burden of ownership vis a vis the Rent Control Act and such a testament can act best be challenged by the heirs of the owner and not by the tenant.

21. In the light of above cited case law authority, I observe that there is no triable issue with regard to the ownership of the E­12/12 Satish Kumar Bansal & Anr. v. Raj Kumar Gogia Page 9 of 14 premises.

22. It is argued by ld. counsel for the respondent that the petitioners want to sell the demise property for illegal monetary gains and to give the same on higher rent after evicting the tenant. This is a bald allegation as the respondent has not filed any document or even mentioned name of any person with whom the petitioners have indulged in negotiation to sell the premises or induct a new tenant at a higher rent. Section 19 of DRC Act protects the right of the tenant if the landlord does not occupy the premises within two months from the date the tenant vacates it or re­lets the premises within three years from the date of getting possession. Hence, this ground cannot be accepted.

23. The other ground taken by the respondent is that the son of the petitioner no.3 is in good employment and as such he does not require the shop in question for bonafide need. So far as the Delhi Rent Control Act is concerned, there is no provision to assess the need of the landlord on the basis of the comparative hardships. In Tarsem Singh v. Gurvinder Singh 2010 (2) RCR 640 Delhi it is held that "if the landlord wants to start his business in the premises owned by him, then by no stretch of imagination, it can be said that the requirement of the landlord is neither bonafide nor genuine. In Amar Nath v. Munish Kumar 2007 (1) RCR 215 P& H it is held that "even if landlord is working he has every right to start E­12/12 Satish Kumar Bansal & Anr. v. Raj Kumar Gogia Page 10 of 14 his own business." In Ram Niwas v. Rashmi Devi 2010 (1) RCR 536 Jharkhand it is held that "even if the person who requires the premises is engaged in some business, it does not mean that he does not start his own independent business."

24. It is argued by Ld. counsel for the respondent that the site­ plan filed by the petitioners is wrong and the accommodation is concealed by the petitioners. The respondent has merely stated in a very vague and ambiguous manner that the site plan is wrong but he has not placed on record counter site­plan to disprove the site­plan of the petitioners. In the absence of any site­plan of the respondent, site­plan filed by the petitioners is deemed to be correct. It is held in R.K. Bhatnagar v. Sushila Bhargav 1986 RLR 232 Delhi that "an opportunity was afforded to the appellant to file a rejoinder, affidavit if he so wish. He has not filed any affidavit in rejoinder controverting the facts sworn by the respondent in her affidavit. He has not filed any site­plan either to show that the site­plan filed by the respondent­landlady is incorrect in any way. Hence I see no reason to doubt the veracity of the facts stated by the respondent in her affidavit. Likewise, I assume that the site­plan filed by her showing the entire accommodation in her occupation is correct."

25. In Ram Kishore v. Savitri Devi MANU/DE/1176/2008 Hon'ble Justice Shiv Narayan Dhingra while dismissing the revision petition of a tenant expressed that "the learned ARC considered the requirement of a landlady and came to E­12/12 Satish Kumar Bansal & Anr. v. Raj Kumar Gogia Page 11 of 14 conclusion that the defence put forward by the petitioner was flimsy and the petitioner had no prima facie case. The details of accommodation were undisputed. The petitioner had not filed any site­plan before the ARC to show that the accommodation available was different from what was stated by the landlady.... I find no infirmity int he order of the Ld. ARC, neither the order is beyond jurisdiction."

26. Reference can also be made to Mukesh Kumar v. Rishi Prakash 2009 (2) RCR 485 Delhi and Ramesh Chand's case (supra).

27. It is argued by Ld. counsel for the respondent that the petitioners have no right to maintain a joint eviction petition till the alleged portion left by their late mother is not legally partitioned. In Mahesh Ahuja v. Savitri Malhotra 2009 (2) RCR 125 a co­owner of the property, so long as the property is not partitioned has a right over the entire property and a co­owner for his own requirement can file an eviction petition against the tenant. It is held by Hon'ble High court of Delhi in K. C. Agarwal v. Hardip Singh 2005 (1) RCR that:­ "A co­owner is owner of premises and deemed to be landlord for purposes of Section 14 (1) (e) of the Act. It is not for the tenant to challenge the inter se arrangement of owners as to how they should manage the property. So long as there is no dispute between the owners themselves, no advantage can be taken by the tenant."

28. If the court is satisfied that though in the pleadings and issues raised is not a triable issue, then the court is justified in refusing the leave to defend. A defence which is practically moonshine, shame or illusively cannot be held to be raising a triable issue. Else the whole purpose behind enacting a provision for granting leave to defend and not permitting to contest unless leave was granted, would stand defeated and reference can be made to Rita Lal v. Raj Kumar Singh MANU/DE/0813/2012.

29. Hon'ble Justice Sh. S.N. Dhingra in Sardar Surjit Singh Arora v. Ramesh Chopra MANU/DE/1259/2008 has held that "the ARC is supposed to analysis the material place before it and come to a conclusion whether the issue raised by the tenant had some basis or it was just being raised for the sake of raising it. The issue of denial of ownership, denial of relationship, denial of purpose of tenancy are very common. If a bare denial can be a ground for grant of leave to defend, then Section 25­B of the DRC Act itself would become redundant."

30. In Mukesh Kumar's case (supra), it is held that a bald statement without anything more is no ground to grant leave to defend to tenant.

31. From the facts it is clear that shop in question is required by the petitioners for their bonafide requirement. In the light of above discussion, I observed that the petitioners have E­12/12 Satish Kumar Bansal & Anr. v. Raj Kumar Gogia Page 13 of 14 successfully explained his bonafide necessities.

32. For the discussions afore­stated, I am of the opinion that the respondent has failed to disclose such facts which would dis­ entitle the landlord from obtaining an order for eviction. The application for grant of leave to defend is declined.

33. For the afore­stated discussion, the petition on the ground mentioned in clause (e) of the proviso of sub­section (1) of Section 14 read with Section 25­B of DRC Act is allowed. An eviction order is passed against the respondents in respect of one shop in the property bearing No. C­10/14, Krishna Nagar, P.S. Krishna Nagar, Delhi­110051, more specifically shown in colour green in the site plan attached. The eviction order shall not be operative for a period of six month.

Announced in the open court (Rakesh Kumar­II) on 28.01.2013 Additional Rent Controller (East) Karkardooma Courts, Delhi.