Delhi District Court
Sh. Youdhvir Gakkar vs Sh. Ashok Kumar Katyal on 28 May, 2013
Youdhvir Gakkar v. Ashok Kumar Katyal E-59/11
IN THE COURT OF SH. MANISH YADUVANSHI
RENT CONTROLLER (SOUTH) SAKET COURTS COMPLEX
NEW DELHI
E59/11
UNIQUE CASE ID NO. 02406C0187022011
IN THE MATTER OF:
SH. YOUDHVIR GAKKAR
S/O LATE SH. RAM LAL,
B.I. 82 (FIRST FLOOR)
LAJPAT NAGARI,
NEW DELHI110024.
....PETITIONER
VERSUS
SH. ASHOK KUMAR KATYAL
S/O SH. AMAR NATH KATYAL
B.I. 160, LAJPAT NAGARI,
NEW DELHI110024.
....RESPONDENT
DATE OF INSTITUTION : 23.07.2011
DATE OF RESERVING JUDGMENT : 13.05.2013
DATE OF DECISION : 28.05.2013
Page 1 of 35
Youdhvir Gakkar v. Ashok Kumar Katyal E-59/11
Orders on application of respondent seeking leave to contest in the
eviction petition and also on the respondent's application under
Section 3 (a), (b) and (c) of DRC Act, 1958 read with Section 15 of
the Displaced Persons (Compensation and Rehabilitation) Act,
1954.
ORDER
1. Sh. Youdhvir Gakkar filed a petition under Section 14(1)(e) of the Delhi Rent Control Act (hereinafter, called 'DRC Act') claiming himself to be the owner/landlord against tenant/respondent Sh. Ashok Kumar Katyal for seeking his eviction from one shop measuring 9.75 sq. mtrs. in premises No. B.I. 82, Lajpat NagarI, New Delhi110024 (hereinafter, called 'demised premises') more specifically shown in red colour in the site plan.
2. The entire premises in possession of the petitioner is in 100 sq. yards area. Initially one Sh. Ram Lal Gakkar, father of the petitioner, is claimed to be owner of the leasehold government building property as aforestated which measured 200 sq. yards. On his death on 03.03.1987 Sh. Ram Lal Gakkar left registered Will dated 11.11.1980 to the effect that on his demise the said property shall devolve in favour Page 2 of 35 Youdhvir Gakkar v. Ashok Kumar Katyal E-59/11 of his wife Smt. Vidhya Vanti and on her death upon his grandsons i.e. present petitioner and his brother namely Sh. Manu Gakkar in equal portions of 100 sq. yards each which have been specifically described in the registered Will. However, the testator's wife died prior to him on 13.05.1983. The testator expired on 03.03.1987. Accordingly, the aforesaid property fell to the share of the petitioner and his brother. The 100 sq. yards portion of the property that fell in the petitioner's share was mutated in his name in the MCD records. In October, 1988 the demised premises was let out on monthly rent of Rs.400 and after the completion of 15 years of tenancy the rent was enhanced to Rs.450/ per month.
3. The petitioner seeks the aforestated demised premises which were let out for shop purposes on the ground that he has retired from his employment in the Bureau of Indian Standards, Manak Bhawan, New Delhi. At the time of creation of tenancy it was stipulated that the respondent shall vacate the premises as soon as the petitioner retired from his service. He retired on 27.07.2007 by obtaining voluntary retirement four days prior of his due date of superannuation and thereafter requested the respondent to vacate the premises which he Page 3 of 35 Youdhvir Gakkar v. Ashok Kumar Katyal E-59/11 did not. According to the petitioner, the demised premises is situated on ground floor (front side of the premises) in a busy car market and is most suitable for setting up for office for sale and purchase of used cars. The petitioner himself is residing at the first floor of B.I. 82. All of the floors above are purely residential. The entry to the first floor is from the back side through a narrow gali. The petitioner claims that he does not have any sufficient accommodation available in the residential premises to open up an office and which in any case, he shall not prefer. It is submitted that the petitioner has only one drawingcumdinning room, one small bedroom, kitchen, small bathroom and lavotary on the first floor. The family of the petitioner consists of himself and his wife. They have one son, his wife and children who reside on the second floor of the premises. Third floor has been rented out. It is submitted that one married daughter of the petitioner stays in Delhi and she very often visits the petitioner with her family. The petitioner is already short of one bedroom. It is further submitted that on the ground floor of this premises there are two shops of size 10'x7' on the front side and both are tenanted. As per the site plan, the portion in occupation of the petitioner is in green colour, the portion in occupation of the respondent herein is in red colour, the Page 4 of 35 Youdhvir Gakkar v. Ashok Kumar Katyal E-59/11 portion in occupation of the other tenant is in blue colour and the portion in yellow is in the occupation of LRs of deceased Sh. Manu Gakkar. It is further submitted that although no notice is required however, a notice was duly served on the tenant on 02.03.2011 in regard to termination of tenancy of which a reply dated 18.03.2011 was also received. It is further submitted that the respondent owns two more shops out of which one is in his own name and the other in the name of his wife which are opposite the demised premises in building bearing No. B.I. 38, Lajpat NagarI, New Delhi. It is submitted that area of these shops is bigger than area of the demised premises. It is submitted that the respondent also owns a house No. B.I. 160, Lajpat NagarI, New Delhi in the same locality which is situated on the same road and a few yards away from the demised premises.
4. The respondent filed an application seeking leave to contest along with his affidavit as required under Section 25B(4) of the DRC Act. It is stated in the affidavit that petitioner is unsure as to what he intends to do in the demised premises. It is submitted that at one place in the main petition he stated to be in requirement of demised premises to "set up his own business" and at the other place said requirement is Page 5 of 35 Youdhvir Gakkar v. Ashok Kumar Katyal E-59/11 to "set up an office for business of sale and purchase of used cars". 4.1 It is submitted that the petitioner is already running his own business of Chit Fund from Kailash Plaza, Sant Nagar, New Delhi. In the additional rejoinder affidavit dated 11.11.2011, it is amplified that said business of Chit Fund in the name of Orchid Chits Pvt. Ltd. run by the petitioner in partnership with Sh. Shyam Sunder and his son namely Sh. Gaurav Gakkar has been closed down and now the said premises in Kailash Plaza, Sant Nagar, New Delhi are in his sole possession. He further stated in his rejoinder/affidavit that the petitioner is running a Chit Fund office in his residential building/house No. B.I. 82, Lajpat Nagar, New Delhi in the name and style of Neron Chits Pvt. Ltd having current account No. 836 at Karnataka Bank, Lajpat Nagar Branch, New Delhi.
4.2 In the affidavit in support to leave to contest, it is further submitted that at the time of letting out the petitioner had taken Rs. 50,000/ as Pugree from him and he again intends to earn pugree from the commercial area. It is further stated that the back portion of the demised premises measuring 50'x14' is not used as a store. The MCD officials inspected it on 28.03.20012003 and found that the said Page 6 of 35 Youdhvir Gakkar v. Ashok Kumar Katyal E-59/11 portion is used for commercial purposes. It is stated that at present, the entire back portion behind the demised premises is in occupation of petitioner. It is further stated that the petitioner has encroached on 5 feet government land and fixed fancy grills. It is further contended that the petitioner has raised 50% construction on the fourth floor of his residential premises which is lying vacant. It is further submitted that the petitioner has two more shops in ABlock, Lajpat NagarI. Number of only one shop 'A39' was given which is submitted to have been let out to tailors. It is further submitted that the petitioner and his son had broken the locks of the basement of house No. A1/141, Lajpat Nagar, New Delhi and which premises belongs to one Sh. Om Parkash Dawar. They were involved in a criminal case. The respondent admitted to be the owner of 50 sq. yards of house No. B.I. 160. He also admitted to have raised construction of basement, ground floor, first floor and second floor. It is stated that the ground floor is with the respondent as well as other floors are in possession of his sons. Household goods are kept in basement. The respondent further admits that he had one shop in his name and one shop in the name of his wife. He further clarifies that due to dispute between his sons and him due Page 7 of 35 Youdhvir Gakkar v. Ashok Kumar Katyal E-59/11 to the business, the respondent sold his shop to one of the son while his wife to the other in August, 2000 by virtue of of sale deeds.
5. The reply affidavit filed by the petitioner is primarily a reiteration of the contents of the eviction petition as correct. In addition to it, the petitioner clarifies that the back portion of the demised premises is used as a store as it is not usable for any other purposes. Qua the MCD inspection report dated 28.03.2003, the petitioner submits that prior to August, 2000 the back portion of the demised premises was in tenancy of one tenant who vacated half portion on the ground that it was not suitable for business purposes on account of absence of sunlight and ventilation. This fact was communicated to the MCD in the year 2000. Despite that the report was prepared in March, 2003 for the purpose of house tax assessment of the property at rateable value. It is further stated that the passage to the said back portion of the premises is very narrow and lies in the back street. Encroachment over government land is denied. It is further stated that the fourth floor has not been shown in the site plan as same is not the subject matter of the dispute. Petitioner relies on assessment order of MCD containing the description of the property. The Page 8 of 35 Youdhvir Gakkar v. Ashok Kumar Katyal E-59/11 petitioner further states that the shop in ABlock, Lajpat NagarI bearing No. A39 is in the name of the Smt. Mamta Gakkar, daughter inlaw of petitioner and the other shop is in the name of Smt. Veena Gakkar wife of landlord. The avernment of the exchange of pugree amount of Rs.50,000/ is denied. Regarding the avernment of running office at Kailash Plaza, First Floor, Sant Nagar, New Delhi, it is also denied that the petitioner is running any business in Chit Fund with his son. Qua the avernment regarding pendency of criminal case that was later compromised, it is submitted that the petitioner and his son were discharged by the trial court. It is further contended that the property owned by the respondent bearing No. B.I. 38, Lajpat Nagar, New Delhi has been diverted by the respondent in the name of his son Sh. Vikas Katyal and the property that the respondent's wife held has been diverted to her son Sh. Amit Katyal on the same date i.e. 28.08.2000 only with a dishonest intention.
5.1 In the rejoinder/affidavit the respondent further states that the petitioner has purchased area of 25 sq. yards on ground floor at B.I. 130, Lajpat NagarI, New Delhi from one Sh. Ramesh Chander. It is also stated that the petitioner has purchased a property in Ghaziabad in Page 9 of 35 Youdhvir Gakkar v. Ashok Kumar Katyal E-59/11 the name of Smt. Veena Gakkar from Uppal Chadha Developer Pvt. Ltd. in colony namely Wave Infrastructure. It is further submitted that the petitioner's son was running a firm titled Gold Star Refrigeration from premises AI39, Lajpat Nagar, New Delhi w.e.f. 08.03.1997 which has now been closed and thus, the said premises is in possession of the petitioner.
6. After completion of pleadings, the respondent filed an application under Section 3 (a), (b) and (c) of DRC Act read with Section 15 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 for dismissing petitioner's petition being not maintainable and on the ground that this forum has no jurisdiction to hear this case. Several new facts were introduced. The respondent took a stand that at present rent of the property is Rs.1,00,000/ and thereafter it is out of the purview of the DRC Act. Secondly, it is contended that the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1954 are applicable to the present case and Section 15 thereof will bar jurisdiction of this forum. The third ground introduced is the fact that petitioner has no bona fide need as if the petition is allowed he shall park old cars on public road and create Page 10 of 35 Youdhvir Gakkar v. Ashok Kumar Katyal E-59/11 nuisance.
7. The petitioner filed a reply to the application submitting that the same is abuse of process of law. The petitioner pointed out that the respondent himself has been claiming protection under the DRC Act and has made over several applications under Section 27 of the DRC Act and wherein he has submitted to the jurisdiction under the DRC Act and has also admitted the landlordtenant relationship as well as the current rate of rent qua demised premises. The petitioner clarified to be the owner of the entire property in which the demised premises is situated on the ground that it had been conveyed to his late father by way of Deed of Conveyance of building constructed on leasehold sites on 14.04.1965. The said property has been bequeathed to him by his father's registered Will. It is further submitted that there is no applicability of provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 195. It is further stated that the Central Government had a lease of the plot and not of the premises in question.
8. To the said reply the respondent brought a detailed counter reply wherein he relied on several judgments and also placed copy of Page 11 of 35 Youdhvir Gakkar v. Ashok Kumar Katyal E-59/11 conveyance deed. Its perusal reveals that it does not pertain to the premises in question.
9. Detailed arguments have been advanced by Sh. H.S. Gill, Ld. Counsel on behalf of the petitioner and Sh. F.C. Sharma, Ld. Counsel on behalf of the respondent. Both the parties have also proceed on record their written submissions.
10. The main thrust of the arguments of the counsel appearing on behalf of the respondent is bar of jurisdiction to this Court by virtue of Section 15 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954.
11. Before proceeding further, it shall be really necessary for this forum to record an observation before any assessment of the arguments addressed that Section 25B of the DRC Act is a complete code and there is no applicability of Rule 23 of the Delhi Control Rules, 1959.
11.1 The application under Section 3 (a), (b) and (c) of DRC Act, 1958 read with Section 15 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and more particularly the detailed Page 12 of 35 Youdhvir Gakkar v. Ashok Kumar Katyal E-59/11 counter/reply seem to be incorporating facts contrary to what have been put forth in the detailed affidavit filed by the respondent with his leave to contest application. In the application itself, the respondent is challenging the ownership of the petitioner qua demised premises. Plea contrary to the earlier plea to the effect that rate of rent received by the petitioner from property No. B.I. 82 is more than Rs.1,00,000/ is taken. Facts controverting the pleadings of petitioner in regard to his bona fide requirement of the demised premises are also incorporated. The detailed counter/reply is not only illustrative but also elaborative on facts. All pleas raised therein are akin to addition/improvement over the facts already constituted in the supporting affidavit filed with leave to contest application. The respondent is contending in the instant application and its counter/reply - by extracting the pleadings of plaintiff as made in the main petition - that there is no bona fide need of the petitioner.
11.2 New defence is incorporated by saying that by virtue of judgment in M.C. Mehta v. UOI & Ors. WP(C) No. 4677 of 1985, the bona fide need disclosed i.e. 'sale and purchase of used cars' is against the spirit of the said judgment.
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Youdhvir Gakkar v. Ashok Kumar Katyal E-59/11 11.3 Towards the middle of the detailed reply/counter, the respondent again reverts to the contents of the main petition saying that the petitioner never obtained any permission from the civic authorities for conversion of user of the premises as mandated under various provisions of DMC Act and a letter No. J1036/3/96DD II B, the contents of which are set out in the reply/counter itself. 11.4 The conveyance deed relied upon by the petitioner is also severely questioned by the respondent in the reply/counter. It is submitted that the petitioner's grandfather declared himself to be a 'displaced person'. It is further contended that despite the terms of the conveyance deed, the entire property was reconstructed in 1993 without obtaining any permission therefore rendering the premises to the threat of reentry by the superior lessor. Towards the end the counter/reply again deals with the merits of the petitioner's claim qua his bona fide requirement.
12. The question is can this approach of the respondent/tenant be permitted in the present proceedings?
13. As per case titled Precision Steel and Engineering Works v. Page 14 of 35
Youdhvir Gakkar v. Ashok Kumar Katyal E-59/11 Prem Deva Niranjan Deva Tayal AIR 1982 (3) SCC 270, the following principles of law are to be borne in mind while deciding an application for leave to contest filed by the tenant on the ground of personal bona fide need :
"it would be open to the landlord to contest the application of the tenant seeking leave to contest and for that purpose he can file an affidavit in reply but production and admission and evaluation of documents at that stage has no place. The controller has to confine himself to the affidavit filed by the tenant under sub section 4 and the reply, if any. On perusing the affidavit filed by the tenant and the reply if any filed, controller has to pause to himself the only question : does the affidavit disclosed, not prove, facts as would disentitled the landlord from obtaining an order for recovery of possession on the ground specified in clause (e) of the proviso to section 14 (1). The controller is not to record a finding on disputed questions of facts or his preference of one set of affidavits against others set of affidavits. That is not the jurisdiction conferred on the controller by sub section 5 because the controller while examining the question whether there is a proper case for granting leave to contest the application has to confine himself to the bona fide affidavit filed by the tenant disclosing such facts as would prima facie and not on contest disentitle the landlord from obtaining an order for recovery of possession. At this stage, when affidavit is filed under sub Page 15 of 35 Youdhvir Gakkar v. Ashok Kumar Katyal E-59/11 section 4 by the tenant and the same is being examined for the purposes of sub section 5, the controller has to confine himself only to the averments in the affidavit and the reply, if any, and that becomes manifestly clear from the language of sub section 5 that the controller shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would dis entitle the landlord from recovery, possession etc. The jurisdiction to grant leave to contest or to refuse, the same is to be exercised on the basis of affidavit filed by the tenant. That alone at that stage is relevant document and one must confine to the averments in the affidavit. If the averments in the affidavit disclosed such facts which, if ultimately proved to the satisfaction of the court, would disentitle the landlord from recovering possession, that by itself makes it obligatory upon the controller to grant leave. It is immaterial that facts alleged and disclosed are controverted by the landlord because the stage of proof is yet to come. It is distinctly possible that a tenant may fail to make good the defence raised by him. Plausibility of the defence raised and proof of the same are materially different from each other and one cannot being in the concept of proof at this stage when plausibility has to be shown."
14. A situation may arise when the respondent having filed his detailed affidavit setting out the grounds on which he seeks leave to contest, certain new facts may arise warranting to be brought to the Page 16 of 35 Youdhvir Gakkar v. Ashok Kumar Katyal E-59/11 knowledge of a Rent Controller. In such circumstances, in Vinod Industries(P) Ltd v Smt. Suraj Kumari, 1993 (2) All India Rent Control Journal IX1993 (2) 87, the Hon'ble High Court of Delhi while considering the aspect of amendment to the written statement in a petition under Section 14(d) read with Section 25B(4) of the DRC Act observed the following in para 7, viz:
"So far as the application under Order 6 Rule 17 CPC is concerned, it is a well settled principle of law that the tenant can be permitted to file an additional affidavit bringing on record subsequent events but inconsistent pleas can not be allowed to be brought on record."
15. In the said case, the Hon'ble High Court of Delhi noted that the amendment proposed amounted to withdrawal of an admission already made. However, the Court also noted that a tenant is always permitted to file an additional affidavit to bring on record a 'subsequent event'. 15.1 Before proceeding further on the question which is under consideration and as incorporated above, it shall be essential to take note of Rule 23 under the Delhi Rent Control Rules. It is as under:
"23. Code of Civil Procedure to be generally followed - In deciding any question relating to procedure not specifically provided by the Act and these rules the Controller and the Page 17 of 35 Youdhvir Gakkar v. Ashok Kumar Katyal E-59/11 Rent Control Tribunal shall, as far as possible, be guided by the provisions contained in the Code of Civil Procedure, 1908."
16. This aspect was dealt in Prithipal Singh v. Satpal Singh (2010) 2 SCC 15. It has been mandated by the Hon'ble Apex Court that after insertion of the Section 25B, any application for granting an eviction for a special kind of landlord shall be dealt with strictly in compliance with Section 25B and Rule 23 of the Rules, which also does not give full right to apply the provisions of Code of Civil Procedure, cannot be applied. In the said case, the Hon'ble Apex Court had set aside the orders of the Hon'ble Delhi High Court as well as the order of ARC, Delhi. The Ld. ARC concerned held that he was conferred with powers to set aside an exparte order under Order 9 Rule 13 read with Order 37 Rule 4 and Section 151 CPC. It was affirmed by the Hon'ble High Court of Delhi in an appeal. The petition was for bona fide need of the tenanted premises. The leave to defend application was dismissed being time barred. The tenant sought setting aside of the said order by filing application under Order 9 Rule 13 read with Order 37 Rule 4 and Section 151 CPC. The application was allowed. The landlord took the proceedings to the Hon'ble High Court of Delhi but Page 18 of 35 Youdhvir Gakkar v. Ashok Kumar Katyal E-59/11 his petition was dismissed. The Hon'ble Apex Court had set aside both the orders observing that in the case at hand there was no relevance of the applicability of Rule 23 by virtue of special procedure as prescribed under Section 25B of the Act.
17. Once it is noted that the applicability of Rule 23 of the Rules of the DRC Rules is restricted in the proceedings under Section 25B of the DRC Act, the approach has to be circumspect.
18. It has been held in Madhu Gupta v. Gardenia Estates (P) Ltd., 184 (2011) DLT 103 while noting the ratio of judgment in Prithipal Singh's case (supra) that in an application under Order 6 Rule 17 CPC is not permissible after insertion of Section 25B of DRC Act and that too, when all facts and circumstances were preexisting. It has been further held that such an approach as would defeat the purpose of the special provision of Section 25B is not permitted.
19. A conjoint reading of the judgment in Precision Steel and Engineering Works's case (supra) and Vinod Industries (P) Ltd.'s case (supra) would answer the question above. As per the Precision Steel and Engineering Works's case (supra) all that a Controller is to Page 19 of 35 Youdhvir Gakkar v. Ashok Kumar Katyal E-59/11 see is as to whether the affidavit in support of the leave to contest application discloses facts as would disentitle the landlord from obtaining an order of recovery under Section 14(1)(e) of the DRC Act. Further, there is no general applicability of Rule 23 of the Rules to the DRC Act and therefore, the Controller has to be very circumspect in permitting any amendment to the grounds raised in support of seeking leave to contest. By virtue of Vinod Industries(P) Ltd.'s case (supra) it shall be clear that even though an amendment may be disallowed but a tenant can file additional affidavit to bring on record subsequent events. However, by virtue of the same judgment as well as Madhu Gupta's case (supra) facts preexisting are not entitled to find the place in the already raised pleas to seek such leave. As a matter of fact even the Ld. Counsel for the petitioner has relied on the judgment in Prithipal Singh's case (supra) and Madhu Gupta's case (supra) besides relying upon Rameshwar Dayal v. Nirula Handicraft Bazar Pvt. Ltd., 186 (2012) DLT 186.
20. Resuming back to the point where I have recorded a finding that by virtue of filing of the application under Section 3 (a), (b) and (c) of DRC Act, 1958 read with Section 15 of the Displaced Persons Page 20 of 35 Youdhvir Gakkar v. Ashok Kumar Katyal E-59/11 (Compensation and Rehabilitation) Act, 1954 and its reply/counter, the respondent is making an attempt to introduce facts not earlier made part of his leave to contest application/affidavit in the garb of raising a legal issue to the effect that there is a bar in regard to the proceedings against the demised premises, it being property vesting in 'compensation pool' under the Displaced Persons (Compensation and Rehabilitation) Act, 1954; would be an attempt to seek amendment to leave to defend application/affidavit.
21. The leave to contest application and its affidavit are categorical to the effect that there is no denial of landlordtenant relationship. It is manifest from the affidavit itself that no challenge to the ownership or title of the petitioner/landlord was raised. It would further manifest that no dispute in regard to the rate of rent is made. On the contrary, the rate of rent in the DR petition filed by the respondent is admittedly Rs.450/. Furthermore, it shall be imperative to point out on the part of this forum that copy of legal notice dated 12.04.2010 issued to the petitioner by the respondent herein estoppes the present respondent from either denying landlordtenant relationship by virtue of para 1 of the said notice or the ownership title of the petitioner by virtue of para Page 21 of 35 Youdhvir Gakkar v. Ashok Kumar Katyal E-59/11 2 and 8 of the said notice. The rate of rent i.e. 450/ per month is admitted in the respondent's reply/notice dated 18.03.2011 made over to the counsel for the petitioner by virtue of para 1 of the said notice. Furthermore, by virtue of para 4 of the said notice it is to be observed that the respondent herein is claiming protection as a tenant under the DRC Act. He challenges any valid termination of tenancy by virtue of legal notice dated 02.03.2011. He himself invokes jurisdiction under the DRC Act by filing various petitions admitting the aforesaid contents regarding rate of rent, ownership, landlordship, accordance to description of tenancy premises and jurisdiction.
22. Thus, the facts constituted in the application under consideration and the counter/reply to it are introduction of facts which if considered will tantamount to grant of an amendment to the leave to contest application and its affidavit without there being even an application in that regard. I have also pointed out that the challenge to ownership and the challenge to the rate of rent introduces all pleas inconsistent with the earlier pleas taken up in the application for leave to contest and its supporting affidavit. There would be bar to it by virtue of judgment in Vinod Industries (P) Ltd.'s case (supra) as well Page 22 of 35 Youdhvir Gakkar v. Ashok Kumar Katyal E-59/11 as Madhu Gupta's case (supra). Thus, in my considered opinion the facts in this regard are liable to be discarded.
23. So far as the legal issue is concerned, i.e. applicability of the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1954, again a fresh ground is taken up subsequently which was not taken earlier in the leave to contest application/affidavit. It needs to be outrightly rejected for want of being introduced as a part of the affidavit filed with the leave to contest application as not introduced by way of a valid amendment however, it being a legal aspect deserves to be examined.
24. The contention of the Ld. Counsel for the respondent in this regard is that the petitioner has failed to produce on record copy of the lease deed regarding which he refers the premises in question as "lease hold government built up property". He relies on Church of Christ Charitable Trust and Educational Charitable Society v. M/s Ponniamman Educational Trust, 2012 (3) JCLR 501 (SC). In the said case, a document relied upon i.e. power of attorney was not filed and the Hon'ble Court held that rejection of plaint under Order 7 Rule 11 Page 23 of 35 Youdhvir Gakkar v. Ashok Kumar Katyal E-59/11 is proper. In this regard the petitioner nowhere specifically pleads that any lease deed was executed besides execution of the conveyance deed. Copy of conveyance deed is on record. It is the contention of the respondent that the petitioner has violated the terms of the conveyance deed and has therefore ceased to be owner.
25. I have perused the copy of conveyance deed. The deed itself makes a mention of the fact that the purchaser i.e. Sh. Ram Lal has taken on lease the site i.e house No. B.I./26X82, Lajpat Nagar, New Delhi i.e. a single storyed brick built house consisting of two rooms by lease deed dated 14.04.1965. The conveyance deed is also dated 14.04.1965. If any separate lease deed was executed then it has not been filed. However, the conveyance deed recites the conditions and covenants of grant of conveyance in the deed itself. It is clear from the deed that the property stated therein had been 'granted, released, conveyed and assured unto the purchaser'. The said indenture affects a "sale" against a consideration of Rs.3,206/. On payment being made the said indenture 'granted, conveyed, released and assured unto the purchaser the building described in ScheduleI'. Thus, the conveyance is in respect of building only. It was subject to covenants No.1 to 11. In Page 24 of 35 Youdhvir Gakkar v. Ashok Kumar Katyal E-59/11 case of a dispute of difference between the vendor and the purchaser as to the true intent and meaning of the provisions of the conveyance etc., the dispute would be referred to the Chief Commissioner, Delhi or his nominees. Thus, if the purchaser and/or his successors, legal heirs, representatives, etc. violated the reservations, conditions and covenants of the conveyance deed then it shall be for the Chief Commissioner Delhi and/or his nominees to take suitable action. It shall not be for this forum to hold that the petitioner herein has acted in violation of covenants to the deed of conveyance. I have already pointed out that the indenture itself signifies a sale of the building to the purchaser i.e. deceased Sh. Ram Lal. The title itself is "Deed of Conveyance of Building constructed on Leasehold Sites sold otherwise then by public auction". Therefore, as to how the said building would continue to vest in 'compensation pool' has not been clarified at all by the Ld. Counsel for the respondent. He relies on Shankara Cooperative Housing Society Ltd. v. M. Prabhakar & Ors., (2011) 5 SCC 607 which is not applicable to the facts at hand. The nonproduction of the lease deed, if any, is not fatal to petitioner's case as the basic conditions are provided in the conveyance deed itself Page 25 of 35 Youdhvir Gakkar v. Ashok Kumar Katyal E-59/11 and therefore, the judgment in Church of Christ Charitable Trust and Educational Charitable Society's case (supra) shall not be of any assistance to the respondent.
26. Further it shall be necessary for this forum to take into account the provisions of Section 116 of the Indian Evidence Act, 1872 which is as under:
"S.116. Estoppel of tenant; and of licensee of person in possession. No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given."
27. In the instant case, the petitioner contends that the tenancy was terminated by way of notice. It is admitted position that the tenant continues in possession of the demised premises. It has been held in Uday Prathap Singh Deo v. Krushna Badhno, AIR 1952 Ori 95 that the expression "during continuance of the tenancy" in Section 116 Page 26 of 35 Youdhvir Gakkar v. Ashok Kumar Katyal E-59/11 means "during the continuance of the possession" that was received by or under the tenancy in question. Where the tenancy had long ago ceased the exist and the tenant does not continue in possession on the strength of or in pursuance of the tenancy, he is not debarred from raising the question of competence and validity of the title of the lessor. Even otherwise, it is own case of the respondent that his tenancy has not been determined. I have already pointed out that the respondent herein has admitted himself to be the tenant of the demised premises which facts are evident from legal notice dated 12.04.2010 and reply notice dated 18.03.2011 as well as from various DR petitions, copies of which are on record. In the leave to defend application and its supporting affidavit, no challenge to claim ownership of the petitioner is made. The tenant would be therefore estopped to challenge the same by virtue of the law in Uday Prathap Singh Deo's case (supra) which was later followed in Smay Bali Ram v. Dhani Ram, AIR 1979 Ori 101.
27.1 Even otherwise, it has been held in Rajinder Kumar Sharma & Ors. v. Leela Wati & Ors., 55 (2008) DLT 383 that, "it is settled law that for purpose of Section 14(1) (e) of Delhi Rent Control Act, a Page 27 of 35 Youdhvir Gakkar v. Ashok Kumar Katyal E-59/11 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 a landlord. In this case, landlady has placed on record the document by which she became owner." Further, it has been held in Sheela & Ors. v. Firm Prahlad Rai Prem Prakash, (2002) 3 SCC 375 that, "In rent matters, the burden of proving ownership of landlord is not that heavy as it is in a title suit and even a lessor quantum of proof may suffice for holding that the landlord is the owner of the premises in question". In the present case also the landlord has placed on record copy of the conveyance deed and copy of Will of his late father.
28. Thus, the respondent has been unable to establish that the demised premises remained a 'compensation pool property' even though the conveyance deed sold the building on the lease hold land. Further, it is the respondent who has availed same jurisdiction under the DRC Act on several occasions. I have already said that the violation of the covenants of the conveyance deed, if any, shall be liable to action by the vendor. Thus, the application under Section 3 Page 28 of 35 Youdhvir Gakkar v. Ashok Kumar Katyal E-59/11
(a), (b) and (c) of DRC Act, 1958 read with Section 15 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 is misconceived and therefore, dismissed.
29. In the main petition, the petitioner has raised need for requirement of demised premises for setting up business of sale and purchase of used cars. The judgment in M.C. Mehta's case (supra) considers the issue of misuser. The judgment clarifies in page No.11 that the Hon'ble Court was not considering the cases of small shops opened in residential houses for catering to day to day basic needs but was focused at large scale conversion in flagrant violation of residential premises for commercial use. In any case, if the petitioner establishes his bona fide need and choses to continue with the same business then as to whether it is contrary to law of land shall be for the enforcement by the civic authorities and the local police. If the landlord does not decide to carry on the same business as disclosed in his bona fide need and later choses to do some other business, even then his need will remain the same though he may have found another viable option more suitable to his need. Admittedly, the petitioner has retired and had been conducting the same business earlier. After Page 29 of 35 Youdhvir Gakkar v. Ashok Kumar Katyal E-59/11 retirement he wishes to pursue business for his own need and that certainly would be a bona fide need.
30. It has been contended in the leave to contest application that the petitioner is running his own business of Chit Funds in Kailash Plaza, Sant Nagar, New Delhi. In this regard the petitioner has filed Memorandum And Articles of Association of Orchid Chits Pvt. Ltd. It is in name of one Sh. Shyam Sunder Sharma and Sh. Gaurav Gakkar. Thus, the present petitioner has no concern with it. Moreover, the said company is no more existing as per letter dated 07.03.2011 issued by Deputy Registrar of Companies.
31. Further, it is stated in the leave to contest application that back portion of demised premises measuring 50'x14' is vacant and in occupation of the petitioner and that he has encroached on 5 feet of government land. No supporting document is filed. It is not clarified as to what commercial activity is being carried out from the said premises. On the contrary, the petitioner has specifically stated that the portion is not usable for commercial activity and is only used as store. Thus, there is only a bald statement of the respondent in this regard.
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32. Further, it is stated in the application for leave to defend that the petitioner has raised construction on the fourth floor of premises No. B.I./82. It is stated that the petitioner has either let out the same on high rent or it is lying vacant. It is nowhere contended that the petitioner carried on his business activity from the construction made on the fourth floor. In any case, it is a contention of the petitioner that the premises above the ground floor are purely residential and therefore no triable issue is disclosed on this ground.
33. Further, it has been stated by the respondent that petitioner has two more shops in ABlock, Lajpat Nagar, New Delhi and that shop No. A39 has been let out to tailors. On the contrary as per the petitioner, shop No.A39 is in the name of his daughterinlaw Smt. Mamta Gakkar while the other shop is in his wife name i.e. Smt. Veena Gakkar. In this regard copies of sale documents of property No. A1/39, Lajpat Nagar, New Delhi which are registered documents have been produced. Likewise, the copies of sale documents in regard to the other shop bearing private No. 4, rear portion of ground floor in property No. A1/39 between Smt. Mamta Gakkar and Sh. Balbir Singh are also produced.
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34. It is further stated in the additional affidavit (rejoinder) of the respondent that after closing down of business of Orchid Chits Pvt. Ltd. the premises concerned at Kailash Plaza are in sole possession of the petitioner. A contrary plea is also taken that the petitioner is now running business of Neron Chits Pvt. Ltd. from his residential premises in B.I. 82, Lajpat Nagar. As to why the said business could not be conducted from the premises at Kailash Plaza has not been contended. It is the petitioner's case that he has nothing to do with Orchid Chits Pvt. Ltd. Moreover, the respondent nowhere states that the petitioner is owner of the premises at Kailash Plaza, New Delhi.
35. Regarding the business of Chit Funds and business of Neron Chits Pvt. Ltd., again no document has been relied upon by the respondent.
36. It is further contended by the respondent that petitioner has purchased 25 sq. yards land on ground floor at B.I. 130, Lajpat Nagar and has paid advance money to one Sh. Ramesh Chander and which premises he intends to use for commercial purposes. No supporting document has been placed on record. The fact remains that it is only a bald assertion. No date or time period, etc. in this regard has been Page 32 of 35 Youdhvir Gakkar v. Ashok Kumar Katyal E-59/11 provided. Similar is the position with respect to the respondents avernment of purchase of property by Smt. Veena Gakkar at Ghaziabad, U.P. Suffice would be to say that the petitioner is raising a bona fide need with respect to demised premises and not any other premises. Otherwise also, so far nothing has come to record to even indicate that the petitioner owns any other commercial premises as alleged.
37. So far as the business of 'Gold Star Refrigeration' in the name of the son of the petitioner is concerned, suffice would be to say that the said business has been now closed. There is no avernment that the petitioner owns the said premises at A139, Lajpat Nagar, New Delhi. Thus, even on this count also the avernment made by the respondent remains a bald avernment. In the contest of these pleadings, the Ld. Counsel for the petitioner has relied on Paam Antibiotics Ltd. v. Sudesh Madhok, 186 (2012) DLT 652 (DB) wherein it has been held that loose and lacunic pleadings are insufficient for purpose of raising an issue and a failure to plead sufficient details would mean that plea is insufficient.
37.1 I have already said that the respondent is basing his pleas on Page 33 of 35 Youdhvir Gakkar v. Ashok Kumar Katyal E-59/11 bald assertions. In this regard the Ld. Counsel for the petitioner also relies on the judgment of Hon'ble High Court of Delhi in RC Revision No. 494/11 dated 12.12.2012 to the effect that the mere assertion made by a tenant in respect of landlord's ownership of other buildings and in respect of alternate accommodation are not sufficient and in this regard the Rent Controller was not precluded from considering the material placed before it by the landlord in response to leave to defend to show that tenant's assertions were false. In my considered view, the petitioner has correctly relied on the law as cited above as the observations made therein establish that the pleas raised before me are lacunic. The petitioner has also relied on 188 (2012) DLT 263; 180 (2011) DLT 5; 185 (2011) DLT 33 (DB) and 173 (2010) DLT 518 which are not being considered as not related to the fact in the case at hand.
38. It is settled principle of law that a landlord is best judge of his requirement for residential or business purpose and has complete freedom in the matter. It is not for the tenant to dictate terms to landlord in this regard. On this issue, the petitioner has also relied on the judgment titled Ragavendra Kumar v. Firm Prem Machinery & Page 34 of 35 Youdhvir Gakkar v. Ashok Kumar Katyal E-59/11 Co., (2000) 1 SCC 679 and Abdul Malik & Anr. v. Shashi Bhalla, 186 (2012) DLT 669.
39. In the result no triable issue is disclosed by the respondent. On the contrary, the petitioner establishes presence of all necessary characteristics required to be shown in a petition under Section 14(1)
(e) of the DRC Act. In the result, petition succeeds. The leave to defend application dated 10.08.2011 is dismissed.
40. As a result, an eviction order is hereby passed in favour of the petitioner and against the respondent in regard to one shop measuring 9.75 sq. mtrs. in premises No. B.I. 82, Lajpat NagarI, New Delhi110024 more particularly shown in red colour in the site plan. However, the eviction order passed under section 14(1) (e) of The DRC Act shall not be executable for a period of six months from the date of this order.
41. File be consigned to record room.
Announced in the open Court (MANISH YADUVANSHI)
on 28.05.2013 RENT CONTROLLER (SOUTH)
SAKET COURTS, NEW DELHI
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