Delhi District Court
Sunita vs . Sunil Kumar & Ors. on 27 May, 2023
IN THE COURT OF SH. DEEPAK VATS
ACJCUMCCJCUMARC
DISTRICT: SOUTHEAST, SAKET COURTS, NEW DELHI
RC ARC 87/2019
SUNITA Vs. SUNIL KUMAR & ORS.
Ms. Sunita
W/o Sh. Raj Kumar
R/o C9, Housing Society,
South Extension PartI, New Delhi49
............Petitioner
Versus
1. Sh. Sunil Kumar
S/o Late Sh. Jagdish Prasad
2. Smt. Alpana Modi
W/o Lt. Pramod Kumar
3. Prateek Modi
S/o Lt. Sh. Pramod Modi
All residents of:
1859A, Ravi Das Basti,
Kotla Mubarakpur, New Delhi110003
...........Respondents
APPLICATION FOR RECOVERY OF POSSESSION OF
TENANTED PREMISES UNDER SECTION 14(1) (e) READ
WITH SECTION 25B OF DELHI RENT CONTROL ACT, 1958
Date of Institution : 23.12.2019
Arguments heard on : 24.01.2023 Digitally
signed by
DEEPAK VATS
Date of pronouncement : 27.05.2023 DEEPAK
VATS
Date:
2023.05.27
17:47:34
_____________________________________________________________________________________
+0530
RC ARC 87/2019
SUNITA Vs. SUNIL KUMAR & ORS. Page no. 1 of 23
JUDGMENT
1. The present petition has been filed U/s 14 (1) (e) r/w Section 25B of the Delhi Rent Control Act (hereinafter referred DRC Act) wherein the petitioner seeks eviction of the respondents from One Shop on ground floor in the property bearing No.1859A, Ravi Das Basti, Kotla Mubarakpur, New Delhi110003 as per site plan (hereinafter referred to as the "tenanted premises").
2. Shorn of unnecessary details the facts of the present petition are that the respondents are tenants of the petitioner. The whole property bearing 1859A, Ravi Das Basti, Kotla Mubarakpur, New Delhi110003 was purchased by the petitioner and Smt. Sangeeta (wife of brother of petitioner's husband) vide GPA dated 23.12.1996 from one Sh. Attar Singh. The ground floor of the said property consists of basement, two shops of ground floor, first floor, second floor and third floor. The first floor and above floors are used for residential purpose. As per the Memorandum of UnderstandingcumFamily Settlement dated 10.03.2011, one shop on the ground floor and the basement went to the share of Smt. Sangeeta and the other shop on ground floor (tenanted premises), first floor, second floor and the third floor came to the share of the petitioner. The respondents were inducted in tenanted premises by the previous owner and have been occupying the same in the capacity of the tenants.
3. The family of petitioner consists of herself, her husband, her son, her daughterinlaw, her granddaughter and her married daughter and they reside at property bearing no. second floor C9, Housing Digitally signed by DEEPAK DEEPAK VATS VATS Society, South Extension PartI, New Delhi49. The other floors of the Date:
2023.05.27 17:47:45 +0530 _____________________________________________________________________________________ RC ARC 87/2019 SUNITA Vs. SUNIL KUMAR & ORS. Page no. 2 of 23 said property bearing no. C9, Housing Society, South Extension Part I, New Delhi49 are in occupation of the brothers of the husband of petitioner.
4. It is further stated that the husband of petitioner also owns another property i.e. 1467/4 Gurudwara Road, Kotla Mubarakpur, New Delhi, the ground floor and mezzanine floor of which are used by the husband of petitioner to run his business and the second and third floors are used by the son of petitioner as warehouse/godown.
5. It is averred that Sh. Rajat Khandelwal, the son of petitioner has been running online business of sale of home decor items from his residence i.e. Second floor C9, Housing Society, South Extension PartI, New Delhi49 and has been using the second and third floor of property bearing no.1467/4 Gurudwara Road, Kotla Mubarakpur, New Delhi as godown/warehouse. It is contended that the tenanted premises is required by son of petitioner for opening/running a showroom of decor items and also for office to operate the existing online business.
6. It is further averred that apart from the tenanted premises, the petitioner does not have any other suitable place for the aforesaid purpose. It is, thus, prayed eviction order under Section 14(1)(e) DRC Act be passed.
Leave To Defend Application
7. Summons were sent upon the respondents after which they filed an application seeking leave to defend. In the application, the respondents have admitted that they were inducted in the tenanted Digitally premises by Sh. Attar Singh. It is further admitted that they attorned to signed by DEEPAK DEEPAK VATS VATS Date:
the petitioner after the sale of tenanted premises. The rent receipts filed 2023.05.27 17:47:53 +0530 _____________________________________________________________________________________ RC ARC 87/2019 SUNITA Vs. SUNIL KUMAR & ORS. Page no. 3 of 23 by the petitioner are also admitted. However, it is alleged that the petitioner is not the owner of tenanted premises. The sale/transfer of tenanted premises through registered GPA is not valid. Further, that, the MoUcumFamily Settlement was executed only to illegally dispossess the respondents from the tenanted premises. Further, that, the shop adjacent to tenanted premises which allegedly fell in share of Smt. Sangeeta was sold to Sh. Rakesh only to evict the respondents.
8. It is further contended that apart from Ms. Sunita, Ms. Sangeeta is also a coowner of the tenanted premises and since she has not been made a party, the petition is barred for nonjoinder of necessary party. Further, that, originally Sh. Sunil Kumar (respondent no.1) & Sh. Pramod Kumar (brother of respondent no.1, husband of respondent no.2 and father of respondent no.3) were inducted as tenants in the tenanted premises. After the death of Sh. Pramod Kumar, the tenancy rights were inherited by his wife respondent no.2, his son respondent no.3 and his daughter Mrs. Isha Modi. Mrs. Isha Modi being a necessary party though not impleaded, the petition is barred for non joinder of necessary party on this ground also. It is further alleged that the son of petitioner has already been running a business from two properties and has no requirement of space as sufficient space is already available to him.
9. It is further stated that on the first floor, second floor and third floor above the tenanted premises (owned by petitioner), the petitioner has been running paying guest facility (PG) and the said floors are suitable for opening/running the showroom and thus, Digitally signed by DEEPAK DEEPAK VATS sufficient alternate space is already available with the petitioner and the VATS Date:
2023.05.27 17:48:00 _____________________________________________________________________________________ +0530 RC ARC 87/2019 SUNITA Vs. SUNIL KUMAR & ORS. Page no. 4 of 23 present petition has been filed on false grounds only to evict the respondents.
10. It is further contended that the rent receipts filed by the petitioner are issued by Mr. Raj Kumar i.e. husband of petitioner which suggests that the tenanted premises is not owned by the petitioner. Further that, the exact municipal number of tenanted premises is not known as in the rent receipts issued by erstwhile owner Sh. Attar Singh both property No. 1859 and 1859/A are mentioned. Also, the electricity meter in the tenanted premises is for property No. 1859. Thus, it is claimed that the exact municipal number of the tenanted premises is not known and leave is sought on this ground.
11. It is alleged that the present eviction petition is totally wrong and incorrect and no ground is available to the petitioner under Section 14(1)(e) DRC Act. Further that there is neither any bonafide nor any genuine need of the tenanted premises. The petitioner is having sufficient reasonable, suitable, comfortable accommodation. It is further pleaded that the respondents have raised various triable issues and are entitled to defend the petition.
Reply To Leave To Defend Application
12. Reply to the application was filed wherein the assertions made in the application were denied and those made in the petition were reaffirmed. In reply, it is further stated that the petitioner does not own any property other than the one which comprises the tenanted premises and the other floors are not suitable for opening the Digitally signed by showroom. It is prayed that the application be dismissed and the DEEPAK DEEPAK VATS VATS Date:
2023.05.27 _____________________________________________________________________________________ 17:48:07 +0530 RC ARC 87/2019 SUNITA Vs. SUNIL KUMAR & ORS. Page no. 5 of 23 petition be allowed.
13. I have heard the arguments by Ld. counsels for the parties and given my thoughtful consideration to the record.
Discussion and Decision
14. Before proceeding to decide the application, I deem it appropriate to discuss the provisions of law which provide for eviction of a tenant on the ground of bonafide requirement. The legal provision which provides for eviction of a tenant for bonafide requirement is Section 14 (1) (e) of the DRC Act.
As per section 14 (1) (e) DRC Act, the landlord needs to prove that :
1. He/She is the owner of the tenanted premises.
2. The premises are required bonafide by the landlord.
3. That there is no other reasonably suitable accommodation.
15. The procedure for filing and defending a petition for eviction on the ground of bonafide requirement is provided in chapter III A of the DRC Act. Section 25B (4) provides that the tenant has to file an affidavit stating the grounds on which he/she seeks to contest the eviction petition and has to obtain the leave to defend from the Controller. Section 25B (4) provides as follows: "The tenant on whom the summons is duly served (whether in the ordinary way or by registered post) in the form specified in the Third Schedule shall not contest the prayer for eviction from the premises unless he files an affidavit stating the grounds on which he DEEPAK Digitally signed by DEEPAK VATS Date:
VATS 2023.05.27 17:48:18 +0530 _____________________________________________________________________________________ RC ARC 87/2019 SUNITA Vs. SUNIL KUMAR & ORS. Page no. 6 of 23 seeks to contest the application for eviction and obtains leave from the Controller as hereinafter provided; and in default of his appearance in pursuance of the summons or his obtaining such leave, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant and the applicant shall be entitled to an order for eviction on the ground aforesaid."
16. Section 25B (5) DRC Act further provides that the tenant can be granted leave to defend only when he/she discloses such facts as would disentitle the landlord from obtaining the eviction order. The law regarding leave to defend is no more resintegra and has been settled by a catena of judgments. In the case of Inderjeet Kaur Vs. Nirpal Singh, (2001) 15 CC 706, Honble Supreme Court observed as follows: "13.......In short and substance, a wholly frivolous and totally untenable defence may not entitle a tenant to leave to defend, but when a triable issue is raised a duty is placed on the Rent Controller by the statue itself to grant leave. At the stage of granting leave the real test should be whether facts disclosed in the affidavit filed seeking leave to defend prima facie show that the landlord would be disentitled from obtaining an order of eviction and not whether at the end defence may fail."
Further, in recent case of "AbidUlIslam Vs. Inder Sain Dua (AIR 2022 SC 1778)" Hon'ble Supreme Court held as under: "15. For availing the leave to defend as envisaged Under Section 25B(5), a mere assertion per se would not suffice as Section 14(1)(e) creates a presumption subject to the satisfaction of the learned Rent Digitally signed by Controller qua bona fide need in favour of the landlord DEEPAK DEEPAK VATS Date:
VATS 2023.05.27 17:48:24 +0530 _____________________________________________________________________________________ RC ARC 87/2019 SUNITA Vs. SUNIL KUMAR & ORS. Page no. 7 of 23 which is obviously rebuttable with some material of substance to the extent of raising a triable issue. The satisfaction of the Rent Controller in deciding on an application seeking leave to defend is obviously subjective. The degree of probability is one of preponderance forming the subjective satisfaction of the Rent Controller. Thus, the quality of adjudication is between a mere moonshine and adequate material and evidence meant for the rejection of a normal application for eviction.
16. Before a presumption is drawn, the landlord is duty bound to place prima facie material supported by the adequate averments. It is only thereafter, the presumption gets attracted and the onus shifts on the tenant. The object of Section 14 (1) (e) visavis Section 25B has to be seen in the light of yet another provision contained Under Section 19. Section 19 gives a right to the dispossessed tenant for repossession if there is a noncompliance on the part of the landlord albeit after eviction, to put the premises to use for intended purpose. Such a right is available only to a tenant who stood dispossessed, on the application filed by the landlord invoking Section 14(1) (e) being allowed. Thus, Section 19 inter alia throws more light on the legislative objective facilitating a speedy possession. The object is also reflected in the proviso to Section 25B(8), denying a right of appeal.
17. Dealing with a pari materia provision, this Court in Baldev Singh Bajwa v. Monish Saini, (2005) 12 SCC 778, was pleased to clarify the aforesaid position holding the procedure as summary. In such a case, the tenant is expected to put in adequate and reasonable materials in support of the facts pleaded in the form of a declaration sufficient to raise a triable issue. One cannot lose sight of the object behind Section 25B in Digitally facilitating not only the expeditious but effective remedy DEEPAK signed by DEEPAK VATS VATS Date:
2023.05.27 17:48:31 _____________________________________________________________________________________ +0530 RC ARC 87/2019 SUNITA Vs. SUNIL KUMAR & ORS. Page no. 8 of 23 for a class of landlords, sans the normal procedural route. In this regard, we wish to quote the decision of this court in Baldev Singh (supra):
19.....In our view there are inbuilt protections in the relevant provisions for the tenants that whenever the landlord would approach the court he would approach when his need is genuine and bona fide. It is, of course, subject to the tenant's right to rebut it but with strong and cogent evidence. In our view, in the proceeding taken up under Section 13B by the NRI landlords for the ejectment of the tenant, the court shall presume that the landlord's need pleaded in the petition is genuine and bona fide. But this would not disentitle the tenant from proving that in fact and in law the requirement of the landlord is not genuine. A heavy burden would lie on the tenant to prove that the requirement of the landlord is not genuine. To prove this fact the tenant will be called upon to give all the necessary facts and particulars supported by documentary evidence, if available, to support his plea in the affidavit itself so that the Controller will be in a position to adjudicate and decide the question of genuine or bona fide requirement of the landlord. A mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine." (Emphasis supplied).
17. From the above cited precedents it emerges that the tenant has to raise triable issues to be entitled to defend the petition. If the issues raised by the tenant are not substantial or material and are only bald averments without being supported by any material or documents, Digitally signed by DEEPAK DEEPAK VATS VATS Date:
2023.05.27 _____________________________________________________________________________________ 17:48:38 +0530 RC ARC 87/2019 SUNITA Vs. SUNIL KUMAR & ORS. Page no. 9 of 23 leave to defend the petition cannot be granted. On the touchstone of above legal position let us now see whether the respondent has raised any material ground which entitles him to defend the present petition.
18. The present petition is filed for bonafide requirement of petitioner for his son to open/run a showroom of home decor items and also for office to operate the existing online business. Thus, the need pleaded by the petitioner is, on the face of it, bonafide and as the respondents admitted that they attorned to the petitioner after the sale of tenanted premises and rate of rent are admitted by the respondents, it may be said that the initial onus to show bonafide requirement has been discharged by the petitioner.
19. From the above, it can be said that, prima facie, the need pleaded by the petitioner is bonafide and she has fulfilled the other ingredients of Section 14 (1) (e) DRC Act. Let us now consider the grounds taken by the respondents in the application seeking leave to defend. The said grounds are dealt with one by one herein below.
(I) Petitioner Is Not The Owner Of The Tenanted Premises
20. It is averred on behalf of the respondents that the petitioner is not the owner of the tenanted premises. The respondents were inducted in the tenanted premises by previous owner Sh. Attar Singh. The tenanted premises was transferred in favour of the petitioners through GPA which is not a valid transfer.
21. The petitioner has filed the registered GPA dated 23.12.1996 as per which the rights in the property comprising tenanted premises Digitally were transferred in the name of petitioner and her sisterinlaw Smt. DEEPAK signed by DEEPAK VATS VATS Date:
_____________________________________________________________________________________ 2023.05.27 17:49:14 +0530 RC ARC 87/2019 Digitally signed by DEEPAK DEEPAK VATS VATS Date:
2023.05.27 17:48:50 +0530 SUNITA Vs. SUNIL KUMAR & ORS. Page no. 10 of 23 Sangeeta. The petitioner has also filed the MoUcumFamily Settlement dated 10.03.2011 which interalia provides that the tenanted premises has fallen in share of the petitioner. It is settled law that under Delhi Rent Control Act, the concept of ownership is different from as it is understood conventionally. All the petitioner is required to show is that she has a better title than the respondents. In the case of Smt. Shanti Sharma & Ors. Vs. Smt. Ved Prabha & Ors. AIR 1987 SC 2028 Hon'ble Supreme Court of India observed as follows:
"The word 'owner' has not been defined in this Act and the word 'owner' has also not been defined in the Transfer of Property Act. The contention of the learned counsel for the appellant appears to be is that owner ship means absolute ownership in the land as well as of the structure standing thereupon. Ordinarily, the con cept of ownership may be what is contended by the counsel for the appellant but in the modern context where it is more or less admitted that all lands belong to the State, the persons who hold properties will only be lessees or the persons holding the land on some term from the Govt. or the authorities constituted by the State and in this view of the matter it could not be thought of that the Legislature when it used the term 'owner' in the provision of Sec. 14(1)(e) it thought of ownership as absolute ownership. It must be presumed that the concept of ownership only will be as it is un derstood at present. It could not be doubted that the term 'owner' has to be understood in the context of the background of the law and what is contemplated in the scheme of the Act. This Act has been enacted for pro tection of the tenants. But at the same time it has pro vided that the landlord under certain circumstances Digitally signed by DEEPAK will be entitled to eviction and bona fide requirement is DEEPAK VATS VATS Date:
one of such grounds on the basis of which landlords 2023.05.27 17:49:22 +0530 _____________________________________________________________________________________ RC ARC 87/2019 SUNITA Vs. SUNIL KUMAR & ORS. Page no. 11 of 23 have been permitted to have eviction of a tenant. In this context, what appears to be the meaning of the term 'owner' is visavis the tenant i.e. the owner should be something more than the tenant. Admittedly in these cases where the plot of land is taken on lease the struc ture is built by the landlord and admittedly he is the owner of the structure. So far as the land is concerned he holds a long lease and in view of the matter as against the tenant it could not be doubted that he will fall within the ambit of the meaning of the term 'owner' as is contemplated under this Section."(Emphasis Sup plied).
From the above observation of Hon'ble Supreme Court, it is clear that the GPA and the MoUcumFamily Settlement filed on behalf of the petitioner are sufficient to prove her ownership within the meaning of Section 14(1)(e) Delhi Rent Control Act, 1958. Thus, the argument of defendant in this regard is without any substance and is not sufficient to grant the leave.
22. Moreover, it is settled law that a tenant cannot dispute the title of the landlord under Section 116 Evidence Act, 1872: "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".
DEEPAK
23. The respondents have admitted that they were inducted in VATS the tenanted premises as tenants by the previous owner Sh. Attar Singh. Digitally signed by DEEPAK VATS Date: 2023.05.27 _____________________________________________________________________________________ 17:49:29 +0530 RC ARC 87/2019 SUNITA Vs. SUNIL KUMAR & ORS. Page no. 12 of 23 They have further admitted that they were directed to pay rent to the petitioner and Mrs. Sangeeta. They have also admitted that they started paying rent to them. Thus, they attorned to the petitioner and Mrs. Sangeeta. Now the respondents cannot say that the petitioner is not the owner of the tenanted premises and accordingly leave to defend on this ground cannot be granted.
(II) CoOwner Not Made A Party
24. Another defence of respondents is that the coowner of tenanted premises i.e. Mrs. Sangeeta has not been made a party to the present petition and thus, the petition is not maintainable.
25. The petitioner has already placed on record the MoUcum Faimly Settlement which shows that the petitioner is exclusive owner of the tenanted premises. However, even if it is believed that the petitioner's sisterinlaw is the coowner, it is now settled law that a co owner can file an eviction petition without impleading other coowners. The law of impleadment of coowner in an eviction petition has been summarised by Hon'ble High Court in the case titled as "Puran Chand Agarwal Vs. Meghraj (RC Rev.No.291/2010 and CM No.11491/12, decided on 16.04.2014)". Hon'ble High Court observed as follows:
"24.The following cases are relevant in this regard, i.e. on the issue of coownership:
(i) This Court in Ram Dulari Thr. LRs V. Om Parkash Gupta & Anr., 169 (2010) DLT 301, observed that the learned Additional Rent Control Tribunal went wrong in holding that the petitioner being owner only of a part Digitally of the premises could not have filed the eviction petition signed by DEEPAK DEEPAK VATS unless she was joined by her husband, who was a joint VATS Date:
2023.05.27 17:49:38 +0530 _____________________________________________________________________________________ RC ARC 87/2019 SUNITA Vs. SUNIL KUMAR & ORS. Page no. 13 of 23 owner of the premises. Even otherwise, it is settled law that the court an take into account subsequent events and in this case, the petitioner's husband had died soon after filing of the petition and she became the owner of not only in her own right but as legal heir of her husband of the remaining portion of the premises. Learned Additional Rent Control Tribunal could not have ignored this fact.
(ii) In Yashpal v. Chamanlal Sachdeva, 129 (2006) DLT 200, it was held that a coowner can maintain a petition and that the inter se arrangement between owners is no business of the tenant.
(iii) In India Umbrella Manufacturing Co. and Ors. V. Bhagabandei Agarwalla (Dead) by LRs and Ors., AIR 2004 Supreme court 1321, the Supreme Court observed that one of the coowners can file a suit for eviction of a tenant in the property generally owned by the co owners and this principle was based on doctrine of agency. One coowner filing a suit for eviction against the tenant does so, on his own behalf in his own right and as an agent of the other coowners is assumed as taken unless it is shown that the other coowners were not agreeable to eject the tenant.
(iv) In Col. Inderjeet Singh v. Mr. Vikram Singh & Anr., 194 (2012) DLT 209, it was observed that it is a settled principle of law that one of the coowners can file a suit for eviction of tenant in a property generally owned by the coowners. (also see M/s. India Umbreall Manufacturing Co. and Others Vs. Bhagabendei Agarwalla (Dead) by LRs Smt. Savitri Agarwalla and Ors. AIR 2004 SC 1321, paragraph 6 cited Sri Ram Pasricha Vs. Jagannath and others, 1977 1 SCR 395;
Dhannalal Vs. Kalawatibai and Others, AIR 2002 SC 2572). A coowner filing a suit for eviction does so on his own behalf and in his own right and as an agent of other coowners. The consent of other coowners is assumed to be taken unless, it is shown that other co Digitally signed by DEEPAK owners were not agreeable to eject the tenant and the DEEPAKVATS VATS Date:
2023.05.27 17:49:44 +0530 _____________________________________________________________________________________ RC ARC 87/2019 SUNITA Vs. SUNIL KUMAR & ORS. Page no. 14 of 23 suit was filed in disagreement. In the present case, the suit was preferred by the plaintiff himself. One of the coowners, cannot withdraw his consent so as to prejudice the other coowner. The suit once filed, the rights of the parties stand crystallized on the date of the suit and the entitlement of the co-owners to seek ejectment must be adjudged by reference to the date of institution of the suit. (See also Mohinder Prasad Jain vs. Manohar Lal Jain, AIR 2006 SC 1471, paragraphs-7 & 8).
(v) In Sri Ram Pasricha vs. Jagannath and Ors., AIR 1976 SC 2335, it was observed that jurisprudentially, it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place. It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and co-
owner of the premises is not the owner of the premises within the meaning of Section 13(1)(f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of Section 13 (1)(f) as long as he is a co-owner of the property being at the same time the acknowledged landlord of the defendants.
(vi) In Sheikh Mohd Zakir & Ors. v. Shahnaz Parveen & Ors., 2012 (2) RCR (Rent) 235, it was observed that in the suit between the landlord and tenant, a third person claiming to be co-owner of the property cannot intervene as the issue of ownership could not be decided in the proceedings under the DRCA...... It is not necessary that all co-owners need to file the petition for eviction.
(vii) In Krishan Lal vs. Rajan Chand Khanna, AIR 1993 Delhi 1, it was observed that being a heir, the person will be one of the co-owners of the property and as such will be entitled to file the eviction petition under Section 14(1)(e) of the Act.
(viii) In Fibre Bond (Sales) Pvt. Ltd. vs. Smt. Chand Digitally Rani, 1993(1) RCR 492 it was held that widow, a co-
signed by DEEPAK DEEPAK VATS landlady of the premises can initiate eviction VATS Date:
2023.05.27 17:49:50 +0530 _____________________________________________________________________________________ RC ARC 87/2019 SUNITA Vs. SUNIL KUMAR & ORS. Page no. 15 of 23 proceedings against the tenant in absence of other co- owners.
The above pronouncement makes it clear that a petition filed by a coowner for eviction of tenant without impleading other co owners is maintainable. Thus, this defence raised by the respondents is immaterial and does not warrant granting of leave to defend.
III. Daughter of deceased, CoTenant Not Made A Party
26. It is contended on behalf of the respondents that Mrs. Isha Modi, daughter of deceased, cotenant Sh. Pramod Kumar has not been made a party to the petition and thus, the petition is not maintainable for nonjoinder of necessary party. It is further contended that after the death of Sh. Pramod Kumar, his son (respondent no.3), his wife (respondent no.2) and his daughter Mrs. Isha Modi inherited the tenancy rights, however, Mrs. Isha Modi not made a party and leave is sought on this ground claiming that necessary party has not been impleaded.
27. Though, it is true that the tenancy rights are inheritable and heirs of the tenants/cotenants succeed to the tenancy, they succeed as joint tenants and not as tenants in common. In joint tenancy, two or more tenants have identical interest with each other. In joint tenancy, incidents of tenancy are same as those enjoyed by original tenant and if one of the legal heirs is not made a party, the other legal heirs who are joint tenants represent the tenancy. In "Suresh Kumar Kohli Vs. Rakesh Jain (Civil Appeal No.3996 of 2018 decided on 19.04.2018), Digitally Hon'ble Supreme Court of India observed as follows:
signed by DEEPAK DEEPAK VATS VATS Date:
2023.05.27 17:49:56 _____________________________________________________________________________________ +0530 RC ARC 87/2019 SUNITA Vs. SUNIL KUMAR & ORS. Page no. 16 of 23 "20) We are of the view that in the light of H.C. Pandey (supra), the situation is very clear that when original tenant dies, the legal heirs inherit the tenancy as joint tenants and occupation of one of the tenant is occupation of all the joint tenants. It is not necessary for landlord to implead all legal heirs of the deceased tenant, whether they are occupying the property or not. It is sufficient for the landlord to implead either of those persons who are occupying the property, as party. There may be a case where landlord is not aware of all the legal heirs of deceased tenant and impleading only those heirs who are in occupation of the property is sufficient for the purpose of filing of eviction petition. An eviction petition against one of the joint tenant is sufficient against all the joint tenants and all joint tenants are bound by the order of the Rent Controller as joint tenancy is one tenancy and is not a tenancy split into different legal heirs. Thus, the plea of the tenants on this count must fail". Emphasis Supplied.
28. In the present case as the other LRs of Sh. Pramod Kumar i.e. respondent no.2 & 3 have been impleaded, nonimpleadment of daughter of deceased, cotenant (who is admittedly married and is residing at her matrimonial house) is inconsequential and the defence taken in this regard is no defence at all and leave cannot be granted on the same.
(IV) Rent Receipts Issued By Husband Of Petitioner
29. Another defence taken by the respondents is that the rent receipts are not signed by the petitioner or Mrs. Sangeeta and they have been signed by Sh. Raj Kumar i.e. husband of petition which raises a triable issue as to who is the owner/landlord of tenanted premises. To DEEPAK VATS this, the petitioner has replied that the rent was taken by Sh. Raj Kumar Digitally signed by DEEPAK VATS Date: 2023.05.27 17:50:16 +0530 _____________________________________________________________________________________ RC ARC 87/2019 SUNITA Vs. SUNIL KUMAR & ORS. Page no. 17 of 23 on her behalf and the same does not at all create any doubt about the ownership of the petitioner or landlordtenant relationship between the parties.
30. The rent receipts that the respondents are referring to are dated 23.10.2018. The heading of the rent receipts show that the petitioner and Mrs. Sangeeta are the owners/landlords of the tenanted premises. The heading itself makes it amply clear that the landlord/owner are petitioner and Mrs. Sangeeta and mere issuance of the same by Sh. Raj Kumar is insignificant and does not raise any doubt about the ownership or the landlordtenant relationship and thus, the defence taken on this ground is liable to be rejected.
(V) Availability of Alternate Space/ Sufficient Accomodation
31. It is pleaded on behalf of the respondents that the son of petitioner has already been running his business from two properties i.e.
(i) second and third floor of property no.1467/4 Gurudwara Road, Kotla Mubarakpur, New Delhi (ii) C9, Housing Society, South Extension PartI, New Delhi49. It is pleaded that the son of petitioner has sufficient space to run his business and thus, there is no bonafide requirement.
32. The petitioner has explained in detail the requirement of her son. It is stated that the second and third floor of the property no. 1467/4 Gurudwara Road, Kotla Mubarakpur, New Delhi is used as a warehouse/godown/storage space of the goods and the second floor of DEEPAK C9, Housing Society, South Extension PartI, New Delhi49 (which is VATS Digitally signed in occupation of the petitioner) is the residence of the petitioners and by DEEPAK VATS Date: 2023.05.27 17:50:23 +0530 _____________________________________________________________________________________ RC ARC 87/2019 SUNITA Vs. SUNIL KUMAR & ORS. Page no. 18 of 23 her family. It is further stated that both the aforesaid places are not suitable for opening a showroom and office for online business.
33. So far as the second and third floor of the property no. 1467/4 Gurudwara Road, Kotla Mubarakpur, New Delhi are concerned, admittedly same is used for storage of goods as warehouse. Since the said space had already been used, the plea of petitioner that the same is not suitable for opening the showroom appears to be reasonable and bonafide. The other property is used as residence of the petitioner and her family wherein the petitioner is allegedly already facing space crunch. In such circumstances, expecting the petitioner's son to run his business from the aforesaid two properties would not be fair to the petitioner or his son.
34. Further, both the properties cited by the respondents are not situated on ground floor. Opening of a business on a ground floor cannot be equated with opening the same on first floor or some other floor. It can easily be said that the chances of success of a business, like the one the petitioner's son intends to start, on a ground floor are much higher than of a similar business on some other floor. Hence, both the properties are not suitable for the petitioner's son to open/run his showroomcumoffice for his online business.
35. The respondents have further contended that the petitioner is running a business of paying guest facility (PG) from the first, second and third floor of the property bearing No.1859A, Ravi Das Basti, Kotla Mubarakpur, New Delhi110003 i.e above the tenanted premises. Further, that the petitioner can use the said first, second and third floor DEEPAK Digitally signed by DEEPAK VATS VATS Date:
for commercial purpose of her son's business which is more suitable 2023.05.27 17:50:29 +0530 _____________________________________________________________________________________ RC ARC 87/2019 SUNITA Vs. SUNIL KUMAR & ORS. Page no. 19 of 23 and having more space than tenanted premises.
36. As stated earlier the chances of success of showroom on ground floor are much higher than that of one on first floor or above. Further, It is settled law that a tenant cannot dictate terms to a landlord. In the case of Bishamber Dayal Gupta Vs. Naresh Kumar Sharma (2014 SCC online Del 3693), Hon'ble High Court of Delhi held : "15. It would be rather unjust to expect the landlord were to accommodate himself as per the wishes of his tenant especially when her bonafidely requires the tenanted premises. The accommodation on the first and the second floor is unsuitable as it would be inconvenient for the age mother of the landlord................
17. The tenant cannot dictate how the property belonging to the landlord should be put to use. Once the landlord shows that there is bona fide requirement for the tenanted premises, the Court is bound to allow the eviction petition. The Supreme Court in Sarla Ahuja V. United India Insurance Co. Ltd. (1998) 8 SCC 119 held:
"14. the crux of the ground envisaged in clause (e) of Section 14 (1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation, the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case, it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by courts that it is Digitally not for the tenant to dictate terms to the landlord as to signed by DEEPAK how else he can adjust himself without getting DEEPAK VATS VATS Date:
2023.05.27 possession of the tenanted premises. While deciding the 17:50:35 +0530 _____________________________________________________________________________________ RC ARC 87/2019 SUNITA Vs. SUNIL KUMAR & ORS. Page no. 20 of 23 question of bona fides of the requirement of the landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself."
37. The above observations of Hon'ble Supreme Court of India and Hon'ble Delhi High Court make it clear that the respondents cannot claim that the petitioner should open/run showroom on first floor or above of the tenanted premises or should open his showroom on second and third floor of the other property used as warehouse/godown/storage space and not on the tenanted premises. This is no ground for granting leave to defend to the respondents and the same is accordingly rejected.
(VI) Exact Number of Tenanted Premises
38. It is argued on behalf of the respondents that it is not clear as to what is the exact property number of the tenanted premises i.e. 1859 or 1859(A) and the same raises triable issues for which leave should be granted.
39. This ground taken by the respondents is completely frivolous and is meant only to delay the out come of the case. The exact property no. 1859A, Ravi Das Basti, Kotla Mubarakpur, New Delhi 110003 as is mentioned in rent receipts dated 23.10.2018. Further, site plan was also been filed by the petitioner which has not been disputed by the respondents. Thus, leave on this ground is not made out on this ground either.
Conclusion
40. The petitioner has clearly stated in the petition about her Digitally signed by ownership, bonafide requirement of opening/running showroom by her DEEPAK DEEPAK VATS VATS Date:
2023.05.27 _____________________________________________________________________________________ 17:50:42 +0530 RC ARC 87/2019 SUNITA Vs. SUNIL KUMAR & ORS. Page no. 21 of 23 son and the absence of any alternate accommodation/space. Thus, all the ingredients of Section 14(1)(e) DRC Act have been pleaded and shown by the petitioner.
41. Further, finding has already been given that the grounds namely petitioner is not the owner of the tenanted premises, non impleadment of coowner, daughter of deceased/ cotenant not made a party, rent receipts issued by husband of petitioner, availability of alternate space/sufficient accommodation and exact number of tenanted premises are without any substance and not worthy of granting leave to defend to the respondents. Apart from the aforesaid grounds no other substantial ground has been shown by the respondents.
42. The respondents have relied upon the Judgment of Hon'ble Apex Court in the matter of S. M. Mehra Vs. D. D. Malik wherein leave to defend was granted by Hon'ble Apex Court to prove that additional space for extension of work of the son of the petitioner is not required. It is argued by Ld. Counsel for the respondents that since in the present case also the petitioner's son wishes to expand his current business of trade of online home decor items. The respondents should be granted leave to prove that the additional space is not required.
43. The aforesaid judgment of Hon'ble Apex Court is not applicable to the present case as the son of petitioner not only wishes to open an office for his existing online home decor business, but also for opening a showroom. In the said case the landlord was occupying the ground floor and second floor of a property and sought to evict the Digitally tenant who occupied the first floor. The facts of the present case are signed by DEEPAK DEEPAK VATS VATS Date:
completely different and accordingly, the said judgment is not 2023.05.27 17:50:51 +0530 _____________________________________________________________________________________ RC ARC 87/2019 SUNITA Vs. SUNIL KUMAR & ORS. Page no. 22 of 23 applicable.
44. Thus, I am of the opinion that the application is sans any merits and same is liable to be dismissed.
45. Accordingly, application seeking leave to defend of the respondents is dismissed and the petition U/s 14 (1) (e) r/w Section 25B on behalf of petitioner is allowed. The respondents are directed to vacate the tenanted premises i.e. One Shop on ground floor in the property bearing No.1859A, Ravi Das Basti, Kotla Mubarakpur, New Delhi110003 as per site plan. The petitioner shall not file execution petition for eviction of the tenanted premises before the expiry of period of six months from today.
46. File be consigned to Record Room after due compliance.
Digitally signed by DEEPAK DEEPAK VATS VATS Date: 2023.05.27 17:50:59 +0530 (DEEPAK VATS) ACJcumCCJcumARC (SouthEast) Saket Courts, New Delhi Announced in the open Court On 27th May, 2023
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