Delhi District Court
Dr. Sunder Saran Bhatnagar vs Nihal Chand on 31 July, 2012
In the Court of Dr. Rakesh Kumar: Additional Rent Controller of
East Delhi District at Karkardooma Courts, Delhi.
Application No. E563/06
Unique I.D. No.02402C0353532006
In the matter of :
1. Dr. Sunder Saran Bhatnagar
S/o late Devi Saran Das Bhatnagar.
2. Dr. Amit Bhatnagar
S/o Dr. Sunder Saran Bhatnagar,
Both r/o 440, Farsh Bazar,
Shahdara, Delhi110032. .....Applicants
Versus
1. Nihal Chand
S/o late Mela Ram,
R/o 27/51, Jawala Nagar,
Shahdara, Delhi32.
2. Suresh Kumar
3. Nand Kishore
Both s/o Nihal Chand,
Both at shop No.VI/443, Farsh Bazar,
Shahdara, Delhi32. .....Respondents
Date of institution : 26.04.2006
Date on which arguments heard : 27.07.2012
Date of decision : 31.07.2012
E-563/06 Dr. Sunder Saran Bhatnagar & Anr. v. Nihal Chand & Ors. Page 1 of 15
Application for Eviction of Tenant under Section 14(1)(b) & (j)
of the Delhi Rent Control Act, 1958
JUDGMENT
1. This is an application for the recovery of possession of one shop in the property bearing no. 443, Farsh Bazar, Shahdara, Delhi32 (hereinafter referred to as 'the premises') as shown in colour red in the site plan attached, made by the landlords Dr. Sunder Saran Bhatnagar and Dr. Amit Bhatnagar against the tenants Nihal Chand, Suresh Kumar and Nand Kishore on the grounds mentioned in clauses (b) and (j) of the proviso of sub section (1) of Section 14 of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the DRC Act').
2. In the present application, it is alleged by the applicants that the premises were let out to the respondent no.1 for running a shop and no rent deed was executed by him; that the respondent no.1 has illegally sublet, assigned and parted with possession of half portion of the premises to the respondent no.2 and the other half portion of the premises to the respondent no.3; that the respondent no.1 has caused substantial damages to the premises without the consent of the applicants and has raised the floor level and height of the shop of the premises; that the respondent no.1 has also enlarged the size of the premises by E-563/06 Dr. Sunder Saran Bhatnagar & Anr. v. Nihal Chand & Ors. Page 2 of 15 making both the Chabutaras as a part of the premises; that the respondent no.1 has also divided the premises unauthorizedly into two parts by raising partition wall in between thereby causing structural changes. It is further prayed in the application that an eviction order be passed against the respondents.
3. The respondents contested the eviction application by filing joint written statement of their defence wherein contended that the respondent no.1 has not sublet, assigned or parted with the possession of the premises to the respondents no.2 and 3; that the respondent no.1 is running his business of medical store and cassette business in the premises with the help of the respondents no.2 and 3 who are the real sons of the respondent no.1; that the respondent no.1 is in the full control of the said business and is responsible for day to day activities of the said business; that the respondent no.1 is in exclusive possession of the premises and the respondents no.2 and 3 are only assisting the respondent no.1 in his business being the real sons; that the respondent no.1 has not caused any damage or effected any structural change in the premises; that the respondents no.2 and 3 are in use and occupation with the respondent no.1 in the premises; that there is only almirahs which has been placed to segregate medical store from cassette business but, there is E-563/06 Dr. Sunder Saran Bhatnagar & Anr. v. Nihal Chand & Ors. Page 3 of 15 sufficient passage/window through which the respondent no.1 keeps control and watch on both the businesses; that the respondent no.1 has been running medical store since 1990 which is a partnership firm in which the respondent no.1 is a partner alongwith his son namely Raj Kumar; that the respondent no.1 is also running the business of cassette in the premises; that in order to assist the respondent no.1 in running the said business for medical store, the respondent no.1 has been taking the assistance from the respondent no.2; that the respondent no. 3 who is assisting the respondent no.1 in running the business of cassette since the respondents no.2 and 3 are the real sons of the respondent no.1.
4. It is denied that initially at the time of commencement of the tenancy, the size of the tenanted shop was 8'6' X 8'8' with two chabutras. It is further denied that a partition wall exists between the said two shops. It is denied that the premises is in occupation of the respondents no.2 and 3 as illegal subtenant. Other allegations of the eviction application are denied and disputed by the respondents and prayed for dismissal of eviction application.
5. The applicants filed the replication to the written statement wherein they denied the contentions raised by the respondents in E-563/06 Dr. Sunder Saran Bhatnagar & Anr. v. Nihal Chand & Ors. Page 4 of 15 the written statement and reiterated the allegations made in the present eviction application.
6. The applicants examined four witnesses. PW1 is K.K. Soni, Head clerk from Drug Control Office, PW2 is Dr. Sunder Saran Bhatnagar, the applicant no.1 himself, PW3 is Dr. V.S. Rawat and PW4 is Raghuvansh Tyagi. During their evidence, the applicants also produced the documents from Ex.PW1/A, Ex.PW1/B, Ex.PW2/1 to Ex.PW2/12.
7. The respondents also examined four witnesses. RW1 is Nihal Chand, the respondent no.1 himself, RW2 is Suresh Kumar, the applicant no.2 himself, RW3 is Nand Kishore, the respondent no.3 himself and RW4 is Ashok Kumar Kathuria. During their evidence, the respondents also produced the documents from Ex.RW1/1 to Ex.RW1/13 and Mark A.
8. I have heard counsel for the parties and perused the material available on record carefully. My findings are as follows.
9. In the present application for eviction, the applicants are seeking possession from the respondents on the grounds of subletting and causing substantial damage to the premises.
10. To prove subletting and substantial damage to the premises, it is stated by PW2 Dr. Sunder Saran Bhatnagar in his affidavit that the respondent no.1 is a tenant in respect of the E-563/06 Dr. Sunder Saran Bhatnagar & Anr. v. Nihal Chand & Ors. Page 5 of 15 premises shown in red colour in the siteplan (Ex.PW1/1). It is further stated that at the time of commencement of tenancy, the size of the shop was 8'6' X 8'8' with two chabutaras measuring 15' X 5'6" on the northern side and 15'8" X 5'8" on the eastern side of the property bearing municipal no.443, Farsh Bazar, Shahdara, Delhi. It is further stated that at present a partition wall does exist in between the said shop and the size of the said shop is now 14' X 16' with partition wall in between as shown in red colour in the siteplan. It is further stated that the respondent no. 1 has caused substantial damages to the premises without consent and permission of the applicants. It is further stated that the respondent no.1 has illegally raised the floor level of the premises to the extent of 4' and have also raised the height of the shop to the extent of 3'. It is further stated that the respondent no. 1 has enlarged the size of the shop by including both the chabutaras by making the same illegally and unauthorizedly as part and parcel of the premises. It is further stated that the respondent no.1 has has divided the shop unauthorizedly into two shops by raising a partition wall in between thereby causing structural changes therein illegally for his material gains. It is further stated that the respondent no.1 has not restored the premises to its original condition despite the notice dated E-563/06 Dr. Sunder Saran Bhatnagar & Anr. v. Nihal Chand & Ors. Page 6 of 15 06.12.05 which was served upon him through registered post. It is further stated that the respondent no.1 has illegally sublet, assigned and parted with the possession of the half portion of the premises to his son namely Suresh Kumar, the respondent no.2 who is running the medical store under the name and style of Budhiraja Medical Store on the basis of the license which he has fraudulently obtained by misrepresentation of the facts before the concerned licensing authority. It is further stated that the other half portion of the said shop has been illegally sublet by the respondent no.1 to his another son namely Nand Kishore, the respondent no.3 who is dealing in cassettes business in his individual capacity is also running the business of charging of Cell Phones under the name & style of Budhiraja Telecom (hutch & Essar). It is further stated that both the respondents no.2 and 3 being in complete control and actual physical possession of the aforesaid shop open and close the same daily and for the last about three years, the respondent no.1 has not even visited the said shop for any purpose whatsoever. It is further stated that the respondent no.1 has no concern on any of the business which are being run by the respondents no.2 and 3.
11. PW3 Dr. V.S. Rawat and PW4 Raghuvansh Tyagi also made similar statements in their separate affidavits to support the case E-563/06 Dr. Sunder Saran Bhatnagar & Anr. v. Nihal Chand & Ors. Page 7 of 15 of the applicants.
12. To disprove the case of the applicants, RW1 Nihal Chand, RW2 Suresh Kumar and RW3 Nand Kishore made similar statements in their affidavits. It is stated by them that the respondent no.1 has not sublet, assigned or parted with the possession of the premises to the respondent no.2 and 3. It is further stated that the respondent no.1 is running the business of medical store and cassette business in the premises with the help of respondents no.2 and 3 who are the real sons of the respondent no.1. It is further stated the respondent no.1 is in exclusive possession of the premises and the respondents no.2 and 3 are only assisting the respondent no.1 in his business being the real sons. It is further stated that the respondent no.1 has not caused any damage or effected any structural change in the premises. It is further stated that there exists no wall between the shop as there is only almirah which has been placed to segregate medical store from cassette business but, there is sufficient passage/window through which the respondent no.1 keeps control and watch on both the business. It is further stated that the respondents no.2 and 3 are acting only as an assistants and assist the respondent no.1 in running his business being his real sons. It is further stated that the respondent no.1 has not E-563/06 Dr. Sunder Saran Bhatnagar & Anr. v. Nihal Chand & Ors. Page 8 of 15 enlarged the size of the shop by including both the chabutaras by making the same illegally and authorizedly as part and parcel of the premises. It is further stated that necessary repairs are being made to cover the Nala which is already part and parcel of the premises. It is also stated that the respondent no.1 has not divided the shop unauthorizedly into two shops by raising a partition wall in between thereby causing structural changes therein illegally for his material gains. It is further stated that the premises are in its original condition so, the question of restoring the premises to any other condition does not arise at all. It is also stated that the respondent no.1 has replied the notice dated 06.12.05 of the applicant vide reply dated 17.12.05.
13. PW1 K.K. Soni has, in his cross examination, made following deposition:
"Sh. Ravinder Kumar Kasana was the pharmacist w.e.f. 18.06.98 and as per our record he is still the pharmacist. The address of Sh. Ravinder Kumar Kasana is 1799, Kotla, Mubarak Pur, New Delhi3..... I have brought the copy of partnership deed as well as copy of site plan filed with our office. I have brought the partnership deed as summoned from record and in our record the carbon copy of the same is filed. However, the same was duly notarized and signature in the original was appended on the same on both pages. It runs into two pages. The copy of the same are Ex.PW1/A and Ex.PW1/B respectively."
14. PW2 Dr. Sunder Saran Bhatnagar has, in his cross E-563/06 Dr. Sunder Saran Bhatnagar & Anr. v. Nihal Chand & Ors. Page 9 of 15 examination, made following deposition:
"It is correct that respondent no.1 is paying rent to me regularly @ Rs.134/ p.m. upto date..... It is correct that I myself receive the rent and I myself had received the rent till date..... The petitioner no.2 has not taken any interest in relationship of landlord and tenant with respondent no.1 so far because I am collecting the rent..... Except the photographs I have not filed any documentary proof to show that there is a partition wall. It is correct that the partition wall is not visible is photographs Ex.PW2/2 and PW2/3..... The additional alteration carried out most probably in the month of January, 03. Vol. I remained away to Srinagar to my son alongwith my wife and the addition/alteration carried out during said period in the month of Jan/feb, 03..... I have not given any written complaint to MCD..... It is correct that the fire broke out in both the portions of the tenanted shop..... Respondent no.1 is aged about 8085 years. He does not require any assistance at this stage from his sons to look after his business because he is very much active and he might be retired...... I have come to know about the business of Medical Store in partnership on the basis of record summoned from the Drug Control Office. It is correct that the respondents no.2 and 3 are the sons of respondent no.
1..... I have not made and complaint to the police or to any authority regarding partition of the shop in two portions..... It is correct that respondent no.1 since the inception of the tenancy i.e. 1961 has carried out some necessary repairs at his own cost whenever required and I never objected to the same so far."
15. PW3 Dr. V.S. Rawat has, in his cross examination, made following deposition:
"I cannot tell the date month and year of any addition alteration carried in the suit premises..... I do not remember on which date month and year the partition wall was erected since I have no concern for the same..... It is correct that the respondent no.1 is the tenant and the E-563/06 Dr. Sunder Saran Bhatnagar & Anr. v. Nihal Chand & Ors. Page 10 of 15 respondent no.2 and 3 are looking after the business of the tenanted shop..... The respondent no.2 and 3 are looking after both the business from the very beginning from the inception of the shop..... It is correct that respondent no.2 and 3 are sons of Sh. Nihal Chand but I cannot ascertain if they are assisting Sh. Nihal Chand in the tenanted premises or not..... It is correct that the tenanted shop was constructed about 40 years ago and whenever required the respondent carried out the necessary repairs from there own pocket..... The shop is being run from the tenanted premises under the name and style of Buddhiraja Medical Store for the last ten to fifteen years."
16. PW4 Raghvansh Tyagi has, in his cross examination, made following deposition:
"I have come on request of the petitioner to depose..... I cannot tell when the alteration was made in the tenanted premises but the respondent converted one room into two shops and they covered the chabutara in front of shop..... I cannot say whether the partition is made by wooden almirah or otherwise but there is partition in the tenanted premises..... I do not remember when the respondent partitioned the suit premises..... It is correct that both respondent no.2 and his brother used to sit in both the shops and look after the same. I never seen the father of the respondent no.2 present in court."
17. In the light of evidence of the parties, it is admitted by the applicant no.1 (PW2 Dr. Sunder Saran Bhatnagar) that the respondent no.1 has been paying rent to him upto date. The applicant no.1 has also admitted that he himself was receiving rent. It is admitted by the applicant no.2 that the respondents no.
E-563/06 Dr. Sunder Saran Bhatnagar & Anr. v. Nihal Chand & Ors. Page 11 of 152 and 3 are sons of the respondent no.1. In view of the above, it is proved that since the inception of the tenancy till date, the respondent no.1 was paying rent to the applicants in respect of the premises.
18. PW3 has also admitted in his cross examination that the respondent no.1 is a tenant and the respondent nos. 2 and 3 are looking after the business of the tenanted premises. PW3 has also admitted that the respondents no.2 and 3 are looking after the business from the very beginning from the inception of the shop. PW3 has also admitted that the shop in question is being run from the premises under the name and style of Budhiraja Medical Store from the last 1015 years. In view of the admissions made by PW3 in his cross examination, it is proved that the respondents no.2 and 3 were looking after the business of the premises in which the respondent no.1 is a tenant, since the very beginning.
19. PW4 has also admitted that the respondent no.2 and 3 used to sit in both the shops and look after the same but, he has no where stated that the respondents no.2 and 3 are in exclusive possession of the premises.
20. In view of the above crossexamination of PW2, PW3 and PW4, it is highly probable that the respondents no.2 and 3 are only looking after the business of medical store and cassettes of E-563/06 Dr. Sunder Saran Bhatnagar & Anr. v. Nihal Chand & Ors. Page 12 of 15 their father, the respondent no.1.
21. The applicants have not placed on record any material to prove that that the respondents no.2 and 3 are in exclusive possession of the premises. The applicants have also not placed on record any material to prove that the respondent no.1 has sublet the premises without obtaining the consent in writing of the applicants and that between the respondent no.1 and the respondents no.2 and 3, there is a relationship of lessor and lessee.
22. Next comes the question of making substantial damages to the premises. PW2 Dr. Sunder Saran Bhatnagar (the applicant no.
2) has, in his crossexamination admitted that since the inception of the tenancy i.e. 1961, the respondent no.1 had carried out some necessary repairs at his own costs whenever required and he had never objected to the same so far. PW3 Dr. V.S. Rawat has also admitted in his cross examination that the premises were constructed about 40 years ago and the respondent had carried out necessary repairs from his own pocket whenever required. The applicant no.1 has also admitted in his crossexamination that fire had broken out in both the portion of tenanted premises. Neither PW2 Dr. Sunder Saran Bhatnagar (the applicant no.1) nor PW3 nor PW4 have been able to state in their crossexamination E-563/06 Dr. Sunder Saran Bhatnagar & Anr. v. Nihal Chand & Ors. Page 13 of 15 when alteration was carried out by the respondent no.1. PW4 was unable to deny the question whether the partition of the shop was made by wooden almirah or otherwise. In view of the above, it is proved that the respondent no.1 had carried out necessary repairs in the premises whenever required, more particularly after fire had broken out in the premises and the applicants never objected to it which suggest that they had consented the carrying out of repairs by the respondent no.1.
23. PW2 Dr. Sunder Saran Bhatnagar (the applicant no.1) has himself admitted in his crossexamination that except the photographs he had not filed any documentary proof to show that there was a partition wall. PW2 has also admitted that the partition wall was not visible in the photographs Ex.PW2/2 and Ex.PW2/3. The photographs Ex.PW2/2 and Ex.PW2/3 were not proved by the applicants as per the law. Even otherwise, these photographs are of no use when, admittedly, they do not show the alleged partition wall.
24. The siteplan Ex.PW2/1 was also not proved by the applicants as per law. PW2 has admitted that he has got prepared the siteplan from the draftsman. The said draftsman was not examined by the applicants. In view of the above, the siteplan also remained unproved.
E-563/06 Dr. Sunder Saran Bhatnagar & Anr. v. Nihal Chand & Ors. Page 14 of 1525. For the discussions aforestated, there is no material on record to prove that the respondent no.1 has sublet the premises without obtaining the consent in writing of the applicants and that between the respondent no.1 and the respondents no.2 and 3, there is a relationship of lessor and lessee. The applicants have also failed to prove that the respondent no.1 has caused substantial damages to the premises without the consent of the applicants and has raised the floor level and height of the shop of the premises.
26. For the reasons aforestated, the application for the recovery of the possession on the grounds mentioned in clause
(b) and (j) of the proviso of subsection (1) of Section 14 of the DRC Act is dismissed with costs.
Announced in the open court (Dr. Rakesh Kumar) on 31.07.2012 Additional Rent Controller (East) Karkardooma Courts, Delhi.
E-563/06 Dr. Sunder Saran Bhatnagar & Anr. v. Nihal Chand & Ors. Page 15 of 1531.07.2012 Present: Applicant no.1 in person.
Respondent in person.
Vide my separate judgment of even date, the application for the recovery of possession on the ground mentioned in clause (b) & (j) of the proviso of subsection (1) of Section 14 of the Delhi Rent Control Act is dismissed with costs.
File after due compliance be consigned to record room.
(Dr. Rakesh Kumar) Additional Rent Controller (East) Karkardooma Courts, Delhi.
31.07.2012 E-563/06 Dr. Sunder Saran Bhatnagar & Anr. v. Nihal Chand & Ors. Page 16 of 15