Delhi High Court
Prem Chand Sharma (Now Deceased) & Anr vs Ram Gopal on 18 February, 2016
Author: Indermeet Kaur
Bench: Indermeet Kaur
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 09.02.2016
Judgment delivered on : 18.02.2016
+ RC.REV. 363/2014
PREM CHAND SHARMA (NOW DECEASED) & ANR
..... Petitioners
Through Petitioners with their counsel Mr.
Satish Sahai, Adv.
versus
RAM GOPAL
..... Respondent
Through Respondent with his counsel
Mr. J.P. Sengh, Sr. Adv. with
Mr.A.C. Bhasin and Ms. Sana
Ansari, Advs.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J.
1 The petitioner before this Court is the landlord in the Trial Court. He is aggrieved by the order dated 04.07.2014 vide which leave to defend had been granted in the pending eviction petition filed by the landlord under Section 14 (1)(e) of the Delhi Rent Control Act (DRCA) to the tenant. Contention before this Court is that besides the fact that the order is cryptic, even otherwise no triable issue having arisen, leave to defend should not have been granted to the tenant.
RCR No. 363/2014. Page 1 of 21 2 Needless to state that these argument have been refuted. 3 Record shows that the present eviction had been filed by Prem Chand Sharma. He was an 84 years old citizen at the time when he had filed this petition. During the pendency of this eviction petition, Prem Chand Sharma expired. He was survived by his daughter-in-law, widow of his predeceased son (Ishwar Chand Sharma) and Yogeshwar Chand Sharma, his second son. The legal heirs namely Pushpa Rani Sharma and Yogeshwar Chand Sharma were impleaded in his place on 03.02.2012.
4 The tenant is Ram Gopal, son of Mohan Lal. The tenanted premises has been described as property No. 42-43, U.B. Jawahar Nagar, Delhi. Contention in the eviction petition is that the premises are non-residential and were being used for business purpose by the tenant. The monthly rent was Rs.1,250/- excluding other charges. It was a single tenancy. The tenancy was created long back but a rent agreement was reduced into writing on 14.07.2008. The bonafide need of the landlord was contained in para 18 (a) wherein it was stated that the petitioner is the owner and landlord of the premises. The site plan has RCR No. 363/2014. Page 2 of 21 depicted the portion tenanted out to the tenant in red colour. The premises were required bonafide for starting the business of the daughter-in-law namely Pushpa Rani Sharma as also for their son Navneet Kaushik aged 32 years. Pushpa Sharma has no source of income and she wanted to start the business of sale of readymade garments from the suit premises which is in a viable commercial area. Her son had also completed a hotel management course from Bangalore. He was earlier residing in Hong Kong and now he has returned to Delhi and he would also assist his mother in this business. They have no other suitable accommodation to carry out this venture. The son and the daughter-in-law of Pushpa Sharma have sufficient resources to help their mother in the business. The requirement is bonafide. 5 An application seeking leave to defend was filed by the tenant. His contention was that triable issues have arisen. His first averment is that the premises in question had been sold by the petitioner to the tenant for a total consideration of Rs. 54.70 lacs. The tenant had agreed to purchase this property and as a consideration he had agreed to pay a sum of Rs.36,70,000/- to Sardar Surender Singh (who was another RCR No. 363/2014. Page 3 of 21 tenant in the suit property) and Rs.5 lacs to M/s Hindustan Book Agency through its partner Jainender Kumar Jain (who was yet another tenant in the suit property); balance of Rs.13 lacs was agreed to be paid to the landlord. A sum of Rs.36.70 lacs on different dates was paid to Sardar Surender Singh and an agreement was entered into between Sardar Surender Singh and the deponent/tenant on 28.05.1992. The petitioner was aware of this deal. The portion in occupation of M/s Hindustan Book Agency through its partner Jainender Kumar Jain was also purchased by the tenant for a sum of Rs.5 lacs on different dates for which payment of Rs.25,000/- on 02.06.1992, Rs.75,000/- on 04.06.1992 and Rs.4 lacs on 18.08.1992 to Jainender Kumar Jain was made and this was on a consent given by the petitioner. On 19.10.1992, an oral agreement to sell the suit premises was made pursuant to which Rs. 13 lacs was agreed to be paid to the landlord which was paid on four different dates. A sum of Rs.3.25 lacs was paid to the landlord on 19.10.1992 and the part payment of Rs.4.75 lacs on four different dates i.e. Rs.1.5 lacs on 07.03.1993, Rs. 50,000/- on 09.11.1993, Rs.2 lacs on 30.01.1994 and Rs.75,000/- on 02.04.1994. The tenant has thus become the owner of the suit premises. Eviction petition is not maintainable as RCR No. 363/2014. Page 4 of 21 there is no landlord-tenant relationship between the parties. In fact, the house tax is being paid by the tenant to the MCD. Premises had been re- built by the tenant and no objection was also raised by the petitioner on this count. The tenant had also approached the landlord for entering into a sale deed on 09.04.1994 but the landlord has failed to do so. Further averment is that Pushpa Sharma is already carrying on the business left behind by her husband which is under the name and style of Ishwar Chand Sharma; her son Navneet Kaushik is still working in Hong Kong. He is a citizen of Hong Kong; he has no plans to return to India. The bonafide need is in fact malafide. The details of the property have not been correctly described by the landlord. There are three floors including a mezzanine floor in property No. 42; in property No. 43, there is ground, first and second floor. The portions which are in use and occupation of the petitioner have been depicted in black colour; he has enough rooms; the submission of the landlord that there is no alternate accommodation available with him is false. In property No. 42 on the mezzanine floor, there are two rooms which are lying vacant. In the same breath, it is submitted that one room on the mezzanine floor has been sold by the landlord in the year 2009-2010; two rooms on the RCR No. 363/2014. Page 5 of 21 backside are lying vacant and is in use and occupation of the petitioner (now deceased); one room and one myani has been tenanted out by Pushpa Rani on the first floor to another tenant namely Dharmesh; the three room set on the second floor is the residence of Yogeshwar Chand Sharma; that on the third floor also, five rooms have been let out from which Pushpa Rani Sharma is enjoying a monthly rent. Qua property No. 43, it is stated that the shops on the ground floor are fetching huge rent to the landlord; on the first floor, the property has been let out to a tenant; on the second floor, a three room set has been tenanted out from which the landlord (now deceased) is enjoying a rental income. There are in fact 24 rooms in property No. 42 and 18 rooms in property No.43 making a total of 42 rooms which are available to the petitioner and the same are sufficient to fulfill the requirement of Pushpa Rani Sharma. All these submissions raise triable issues and the tenant was thus rightly granted leave to defend the eviction petition. 6 Reply had been filed to the pending application. It was denied that the landlord had sold this property to the tenant. It was reiterated that an oral document cannot create a transfer of title and an immoveable RCR No. 363/2014. Page 6 of 21 property cannot be transferred orally; submission of the tenant that the sale consideration of Rs.54.70 lacs has been paid was absolutely wrong; even as per the tenant, most of these amounts had been paid to Sardar Surender Singh and Hindustan Book Agency; only a sum of Rs.13 lacs was allegedly paid to the landlord but the documents in support of this submission themselves show that the landlord had agreed to change the tenancy in favour of the present tenant; earlier it was in the name of another tenant; these documents even as per the petitioner's own showing are not documents of transfer. The rent agreement dated 14.07.2008 executed between the parties has not been denied; it is deemed to be admitted. It was denied that the need of Pushpa Rani Sharma to run a garment business is not genuine or that Navneet Kaushik has not come back to India from Hong Kong. It was denied that Navneet Kaushik had a Hong Kong citizenship. It was admitted that Pushpa Rani Sharma was living on the first floor of property No.42 but it was the premises which are on the ground floor which were required for a commercial purpose; i.e. for running a garment business for Pushpa Rani Sharma. The property No. 43 has no concern with the petitioner as it had fallen to the share of other brothers of Prem Chand RCR No. 363/2014. Page 7 of 21 Sharma namely Parkash Chand and Mohan Partap Chand who were the sons of late Mool Chand. This partition had been effected way back in the year 1964 and this property had been sold by them in the year 1996 except the back portion on the first floor which is in possession of legal heirs of Parkash Chand for which the petitioner has nothing to do and that is why the site plan depicting only the property in question has been placed on record.
7 Learned counsel for the petitioner vehemently submits that the intent of the Legislature would be given a go-bye if such like petitions are permitted to be allowed; the summary procedure contained in Section 25B of the DRCA in fact envisages a situation that where no triable issue has arisen, trial should not be permitted. The eviction petition had been filed in the year 2007 and till date it has not progressed on one pretext or the other. The tenant is delaying the proceedings. The whole idea is to buy time. The landlord Prem Chand Sharma who had filed this petition has also passed away; the need of the landlord Pushpa Rani Sharma is genuine and she is also progressing in age over the years; she is entitled to her property which is owned by her and over RCR No. 363/2014. Page 8 of 21 which she has a right to carry out the business of her choice. Learned counsel for the petitioner in support of his submission has placed reliance upon 204 (2013) DLT 12 Sanjay Singh Vs. Corporate Warranties Pvt. Ltd. to support his submission that in a suit between the a landlord and a tenant, it is the title as a landlord which is relevant and not ownership and even if there was an oral agreement as has been set up by the tenant, it would not confer title upon the tenant and his status would still remain the same as immoveable property cannot be transferred by way of an oral agreement to sell. Learned counsel for the petitioner has also brought to the notice of the Court a fact i.e. that a suit for specific performance had which been filed by the tenant which stood dismissed on 01.03.2012. The appeal filed against that order also stood dismissed vide judgment dated 25.07.23012. Reliance has been placed upon 2005 (8) SCC 252 Sait Nagjee Purushotam and Co. Ltd. Vs. Vimalabai Prabhulal and Others to support a submission that it is the prerogative of the landlord to decide for what purpose the premises is required by him. It is for him to decide his bonafide need. A party cannot be expected to sit idle. The test to determine whether a triable RCR No. 363/2014. Page 9 of 21 issue has arisen or not has to be gathered from the pleadings of the parties in the present factual matrix; no triable issue has arisen. 8 Arguments have been refuted. Learned senior counsel for the tenant submits that triable issues have arisen. Submission is that the even in the reply filed by the landlord to the application seeking leave to defend, the broad issues raised by the tenant have not been denied. Impugned order calls for no interference.
9 Record has been perused. Arguments have been heard. 10 The eviction petition was filed by deceased Prem Chand Sharma. The fact that that the predecessor-in-interest of the respondent was paying rent to Prem Chand Sharma is not disputed. After the predecessor-in-interest of the respondent, the respondent Ram Gopal also continued to pay rent to Prem Chand Sharma during his lifetime. The legal heirs of Prem Chand Sharma after his demise are Pushpa Rani Sharma and Yogeshwar Chand Sharma. The tenant/respondent does not dispute that there was no relationship of landlord-tenant between the parties; the defence set up by him is that he had purchased this property in the year 1992. This defence will be considered later. RCR No. 363/2014. Page 10 of 21 11 There is also no gainsaying to the settled proposition of law that the ownership of a suit property is not relevant in dealing with a eviction petition under Section 14 (1)(e) of the DRCA, it is a landlord-tenant relationship which is relevant. Under Section 14 (1)(e) of the DRCA, there are two twin requirements which have to be satisfied and the onus is upon the landlord to prima-facie show that (i) he has a bonafide need for the suit premises (they may be residential or commercial) and (ii) he has no other alternate suitable accommodation to fulfill this bonafide need.
12 The eviction petition in para 18 (a) discloses that the need of the suit premises (which is one shop in municipal Premises No. 42-43, U.B. Jawahar Nagar suit shop (encircled in red colour) being located in premises No. 42 as is evident from the site plan annexed) was the need of Pushpa Rani Sharma to start her garment business with the assistance of her son Navneet Kaushik and her daughter-in-law. Relevant averment being that her son had done a hotel management course and he had gone to Hong Kong for a job but he wished to return to India with his wife and he had sufficient finance to assist his mother in this business of RCR No. 363/2014. Page 11 of 21 garments which his mother proposes to carry out from the shop. Her further averment is that this shop is located in a viable commercial area being close to Kamla Nagar market which is well known to be a hub of garment business.
13 The first most vehement submission for the tenant is that he had purchased this property. As per the tenant, this purchase had been effected by him sometime in the year 1992 for which he had paid a sum of Rs.54.70 lacs of which admittedly (even as per his own showing) a sum of Rs.36,70,000/- was paid to one Sardar Surender Singh (another tenant in the premises); Rs. 5 lacs to M/s Hindustan Book Agency through its partner Jainender Kumar Jain (another tenant in the suit premises) and Rs.13 lacs was paid to the petitioner. Further contention was that out of this sum of Rs.13 lacs, Rs.3.75 lacs was paid on 19.10.1992 i.e. on the date of the oral agreement and subsequent amounts of Rs.4.75 lacs was paid on four different dates i.e. on 07.03.1993, 09.11.1993, 30.01.1994 and 02.04.1994 in split amounts of Rs.1,50,000/-, Rs.50,000/-, Rs. 2 lacs and Rs.75,000/-. The candid RCR No. 363/2014. Page 12 of 21 averment also being that there was admittedly no written document to this effect but it was only an oral agreement.
14 In the reply filed to this averment, these narrations are vehemently denied.
15 This Court finds it difficult to believe this plea set up by the tenant. It is impossible to believe that a buyer has paid Rs.54.70 lacs of which Rs.36,70,000/- has been paid to another tenant (admittedly not the landlord), Rs. 5 lacs to yet another tenant (admittedly not the landlord); all these are payments are not documented; they are payments presumably by cash as no detail of any negotiable instrument by which these payments were made has been given. All this happened in the year 1992. How these payments even if paid are binding upon the petitioner/landlord is not answered. A sum of Rs.13 lacs was also allegedly paid to the petitioner in 1992 for which an oral agreement (19.10.1992) was entered into but the payment chart shows that these payments were made not in 1992 but up to April, 1994. Besides the fact that an oral agreement without any documentation of payment would have no sanctity in the eyes of law for the transfer of title of an RCR No. 363/2014. Page 13 of 21 immovable property; even if the version set up by the tenant is accepted in its entirety and leave to defend is granted to the tenant, how he would be able to prove this issue of ownership is wholly un-understandable and even on a specific query put to the learned senior counsel for the tenant on this count, he has no answer. Interest in an immoveable property cannot be created through an oral document; it has to be by a registered document in writing duly stamped. This is clear from the provisions of Section 54 the Transfer of Property Act.
16 The whole story set up by the tenant that he had purchased this property is humbug and is nothing but a ploy to derail the proceedings. This is apparent for the reason that this eviction petition was filed in the year 2011 but even in the year 2016, there has hardly been any progress in the case.
17 Another relevant point in this context is that the averment of the landlord in his eviction petition (wherein he had stated that although the tenancy was originally created orally but thereafter a written document was signed by the parties on 14.07.2008) and which finds mention in para 14 of the eviction petition is an agreement nowhere denied by the RCR No. 363/2014. Page 14 of 21 tenant. There is not a whisper about this agreement dated 14.07.2008; the tenant has not denied that he has not executed this agreement with the landlord. This amounts to an admission and again reflects upon the dishonest intent of the tenant. If the defense of the tenant was anywhere near the truth and he had actually purchased this property in the year 1992, he would not have entered into a written document on 14.07.2008. The fact that there is no mention of this document in the application seeking leave to defend in spite of the specific averment to this effect in para 14 of the eviction petition clearly leads to the inevitable conclusion that this document is admitted meaning thereby that the relationship of landlord-tenant inter se the parties stands even as on date. There is also no evidence of the tenant having paid any house tax as is his averment. This is only a bald averment; payment of house tax even otherwise would not confer title.
18 Thus this defence set up by the tenant that there is no relationship of landlord and tenant being without merit is rejected. It does not raise any triable issue and the finding of the Trial Court which is contrary on this score being an illegality is set aside.
RCR No. 363/2014. Page 15 of 21 19 The second submission of the learned senior counsel for the tenant is that the property has not been described correctly; the property is a common property comprising of municipal Nos. 42-43, U.B. Jawahar Nagar. It is not clear as to in which property the suit premises is located.
20 This submission is also incorrect as the site plan which is an integral part of the eviction petition has depicted the site plan of properties No. 42-43 but the encircled portion red on the ground floor clearly shows that this property is located in U.B. 42, Jawahar Nagar. There is no mis-description of the property.
21 The third submission of the learned senior counsel for the tenant that there is enough alternate accommodation with the petitioner and she does not require this accommodation is also an argument which is bereft of force. Besides the fact that the bonafide need is of the landlady Pushpa Rani Sharma (widow of late Ishwar Chand Sharma and daughter-in-law of Prem Chand Sharma) and her bonafide need being to start a garment business in the suit premises which is located on the ground floor and the main road of Jawahar Nagar in which she would be RCR No. 363/2014. Page 16 of 21 assisted by hers son who had done a course in hotel management and who presently (because of lack of business in India) are working in Hong Kong, has been explained. The fact that the suit premises is located in a viable commercial area is an admitted fact. The suit shop is on the ground floor and facing the main road of Jawahar Nagar which is in close proximity to Kamla Nagar which is a huge market for all kinds of wares including garments.
22 The submission of the tenant that there are 42 rooms which are available with the petitioner is also incorrect. This is clear from his pleadings itself as detailed in his application seeking leave to defend. Even as per the tenant, all the portions in property No. 42 (owned by the petitioner) are on rent except the back portion of the mezzanine floor where petitioner No.2 is residing and which is a residential area. The other room on the mezzanine floor has admittedly been sold in the year 2009-2010. One room and one myani on the first floor has been tenanted out to one Dharmesh and the second floor is the residence of petitioner no.2 namely Yogeshwar Chand Sharma and the other room has been tenanted out. The third floor is also tenanted out to another RCR No. 363/2014. Page 17 of 21 tenant. The reply filed by the landlord has categorically stated that property No. 43 has no concern with the petitioner as this property had fallen to the share of Prakash Chand Sharma and Mohan Partap Chand, the other two brothers of Prem Chand Sharma (father-in-law of petitioner No.2) and this partition had been effected way back in the year 1964. The site plan in fact clearly shows that the suit property is located in property No. 42; since the property has a common municipal number, the site plan of the entire property has been filed along with the eviction petition.
23 Pleadings which are filed on the affidavit of the parties thus clearly decipher that the landlady has no other reasonably suitable alternate accommodation from where she can carry out her garment business. It is not the case of the tenant that there is any other property with the petitioner which can be used by her. His submission that two rooms on the backside of the mezzanine floor are lying vacant has been denied; even presuming that this position is correct, the mezzanine floor cannot be used for the purpose of business; it would be impossible to imagine that prospective purchasers and clients would climb a flight of RCR No. 363/2014. Page 18 of 21 stairs to access the shop. This proposition raised by the tenant is wholly absurd.
24 In this context, the following observations of the Apex Court in Prativa Devi versus T.V. Krishnan, 1996 (5) SCC 353 are relevant:-
The Supreme Court in Prativa Devi v. T.V. Krishnan MANU/SC/0811/1987:
1996 (5) SCC 353 reiterated that the landlord is the best judge of his residential requirement and has a complete freedom in the matter and it is no concern of the courts to dictate to the landlord how, and in what manners he should live.
25 Time and again, the Courts have reiterated that the need of the landlord has to be decided by himself. It is the prerogative of the landlord to decide how he/she wishes to use the property. For an eviction petition to succeed under Section 14 (1)(e) of the DRCA, the landlord must satisfy the twin requirements (noted supra) which in view of this Court have been satisfied. The landlady has been able to satisfy her bonafide need as also the additional fact that there is no other reasonably suitable accommodation available with her and being a widow, she does not wish to remain idle. Her son who has completed a hotel Management course is presently working in Hong Kong but he wishes to return to India and has sufficient fundsto help his mother in RCR No. 363/2014. Page 19 of 21 this business along with his wife. The submission of the tenant that the son of the landlady is a resident of Hong Kong and he has a citizenship of Hong Kong has been vehemently denied by the landlady. Moreover the need is not for the son; it is primarily for petitioner No. 2 herself. 26 The need being bonafide and there being no other alternate suitable accommodation available with the landlady, the Trial Court holding that there were triable issues which had arisen and which require trial has committed an illegality. The submission of the landlady that the order passed by the Trial Court is cryptic is also borne out from the order itself. After noting the contentions of the parties, the triable issues have been summed by the Trial Court in one concluding paragraph which findings are wholly perverse and thus call for an interference.
27 At this stage, it would also be relevant to note that the submission of the tenant that he had purchased this property was the subject matter of a suit for specific performance (CS (OS) No.177/2012) filed by the tenant against the petitioners which stood dismissed by a Bench of this Court on 01.03.2012. The appeal filed against that order was also RCR No. 363/2014. Page 20 of 21 dismissed in RFA (OS) No.68/2012 on 25.07.2012. While dismissing the appeal, the Bench had noted the contention of the tenant that he had become owner by virtue of an oral agreement to sell had been negatived. The Bench of this Court while dismissing the suit had additionally noted that the said suit had been filed only after the filing of the eviction petition and appeared to be a couter-blast to the eviction petition. 28 In this background, the impugned order is liable to be set aside. It is accordingly set aside. The eviction petition is decreed.
INDERMEET KAUR, J FEBRUARY 18, 2016 A RCR No. 363/2014. Page 21 of 21