Delhi District Court
Sh. Sewa Singh vs . Smt. Harcharan Kaur. on 14 September, 2011
IN THE COURT OF SH. RAKESH KUMARII, CCJCUMARC
(WEST), TIS HAZARI COURTS, DELHI.
E79/11.
Sh. Sewa Singh Vs. Smt. Harcharan Kaur.
ORDER
1. Vide this order I shall dispose off an application U/s 25B (4) of DRC Act filed on behalf of the respondents for seeking leave to contest the present eviction petition.
2. The brief facts of the case as narrated in the petition are that the petition is being filed through special power of attorney holder Sh. Surinder Singh and the petitioner is the husband of deceased Smt. Satwant Kaur who was the erstwhile owner and the wife of the petitioner died on 24/12/04. It is stated that the wife of the petitioner executed a will and the petitioner has become the landlord & owner of the suit property. It is stated that the husband of the respondent no.1 was inducted as tenant in respect of the premises earlier comprising of two shops facing main road at the front side and one room at the rear portion of the said property alongwith stair case from the said property leading to the roof on a monthly rent of Rs.125/ per month excluding water & electricity charges vide rent deed dated 25/12/74 executed between the wife of the petitioner through her father & power of attorney holder Late Sh. Gujjar Singh and husband of respondent no.1 i.e. Late Sh. Surjit Singh.
3. It is stated that the premises was earlier let out for commercial purposes for running a shop but later on another rent agreement dated 01/03/81 was executed whereby the rent was increased from Rs.125/ to Rs.150/ per month and the tenanted premises was let out for residential cum commercial purposes with two shops on the front side facing main road. It is stated that the tenancy of the husband of 1/9 Sewa Singh Vs. Harcharan Kaur E79/11 the respondent no.1 came to an end w. e. f. 31st January 1982 as no fresh agreement was executed between the wife of the petitioner & husband of the respondent and the petitioner alongwith his wife have been living in London (UK) since 28/02/65 and have been visiting India once or twice every year. It is stated that the petitioner was working as carpenter in London & was retired in the year 1981 and the respondents have been living & ordinarily residing in the said premises alongwith Late Sh. Surjit Singh as member of the family.
4. It is stated that the husband of the respondent died on 20/09/02 and the sons of the respondent are still living & residing in the said premises alongwith their family and doing business from the said two shops on the ground floor. It is stated that the respondents also owns an alternative residential accommodation bearing Flat no.402, Kamal Vihar Apartments, Plot no.5, Sector7, Dwarka, New Delhi45 and respondent also owns a factory at J70B, Hari Nagar, New Delhi. It is stated that the petitioner is having good old friend circle in India and wants to completely settle in India in future i.e. his birth place and he is interested in starting some business venture in India for which he is having talks with his old friend Sh. Sukhwinder Singh Manku.
5. It is stated that the petitioner requires a suitable commercial premises to start the aforesaid business and the elder son of the petitioner namely Jasvir Singh who is presently working in UK and will be retired soon also wishes to settle & work in India after his retirement. It is stated that the petitioner for himself & his son Sh. Jasbir Singh wants to establish the said air conditioning business so that it can can generate good income for himself as well as for his son as and when he comes & settles in India and the petitioner has no alternative accommodation to start his business.
6. It is prayed that an order of eviction of respondent/tenant from the premises i.e. WZ27A/ (J85), Milap Market, Beri Wala Bagh, Hari Nagar, New Delhi110064 as shown in red colour in the site plan may 2/9 Sewa Singh Vs. Harcharan Kaur E79/11 kindly be passed.
7. An application U/s 25B (4) of the DRC Act & an affidavit was filed by the respondents. In affidavit U/s 25B (4) of DRC Act respondents submitted that all the legal heirs of Late Sh. Surjit Singh are proper & necessary party to the present petition as they used to come quite often to meet respondents & to stay with them. It is stated that the petitioner is having property of 200 sq. yards at WZ3, J59, Beri Wala Bagh, New Delhi64 and apart from this property the petitioner is having properties at Ludhiana, Punjab which are lying vacant and the petitioner is having enough space to fulfill his desire if at all he wants to settle down in India.
8. It is stated that the prior to the filing of the petition, the petitioner sent a legal notice dated 15/12/2010 addressed only to the respondent no.1 and even in that notice the petitioner has not mentioned anything about his intentions to start any business of any nature from the premises in question. It is stated that the property bearing no.Flat no.402, Kamal Vihar Apartments, Plot no.5, Sector7, Dwarka, New Delhi45 does not belongs to the respondents and they have no right, title or interest in the said property of Dwarka.
9. It is stated that the present petition has been filed only on assumption & presumption and the contents of the petition clearly reveal that the petitioner has no real intention to settle down in India or to start any business from the property in question. It is stated that there is no affidavit in support with respect to the averments made by the petitioner to the effect that his son Sh. Jasvir Singh is willing to settle in India and to assist the petitioner in business. It is stated that as per my information for the purpose of claiming pension the petitioner has to stay at London and cannot leave London for longer duration therefore, the petition of petitioner is liable to be dismissed and the petitioner is not the exclusive owner of the property in question and all the legal heirs of Late Smt. Satwant Kaur are the proper & 3/9 Sewa Singh Vs. Harcharan Kaur E79/11 necessary party to the present petition.
10.Reply to leave to defend application filed on behalf of the petitioner in which he reiterated his grounds for seeking eviction of the respondents and denied almost all the averments of the leave to defend application and he prayed for the dismissal of leave to defend application.
11.I have heard the arguments of the Ld. counsels appearing for both the parties and perused the entire material record placed on record.
12.Before I come to the contentions of Ld. counsel appearing for either parties, let us discuss the essential ingredients of Section 14 (1) (e) of DRC Act on which the petitioner may be entitled to an order of eviction as follows:
(i)The premises in question were let for residential purpose.
(ii)That petitioner is a landlord and an owner of the said premises,
(iii)The premises are required bonafide by him for occupation as a residence for himself or for any member of his family dependent upon him or for any person for whose benefit the premises are held;
and
(iv)That he has no other reasonable suitable residential accommodation.
13.It is an admitted fact that the premises were let out for commercial purpose. Even or otherwise the controversy has been set at rest by the Hon'ble Apex Court in Satyawati Sharma Vs. Union of India and Anr. (5) SCC 287 and now the premises let out either for residential or commercial purposes can be got vacated by the landlord for bonafide requirements.
4/9 Sewa Singh Vs. Harcharan Kaur E79/11
14.The first ground taken by the respondent is that all the legal heirs of Late Sh. Surjit Singh are proper & necessary party to the present petition. It is held by Hon'ble High court of Delhi in K. C. Aggarwal Vs. Hardip Singh 2005 (1) RCR that: "A coowner is owner of premises and deemed to be landlord for purposes of Section 14 (1) (e) of the Act. It is not for the tenant to challenge the inter se arrangement of owners as to how they should manage the property. So long as there is no dispute between the owners themselves, no advantage can be taken by the tenant."
15.The petitioner in his petition has stated that premises are being used for residential & commercial purposes & the petitioner has further stated that he has no alternate accommodation & no other property has been mentioned by the petitioner. Respondent in his leave to defend has avered that petitioner is having another property of 200 sq. yards at WZ3, J59, Beriwala Bagh, New Delhi64 and the petitioner has concealed this fact in his petition. Ld. Coulse for the respondent aruged that above mentioned property is in the same locality where the demised property exists. In counter affidavit filed by the petitioner, he has admitted in para 8 that petitioner is having property of 200 sq. yards at WZ3, J59, Beri Wala Bagh, New Delhi & it is a concealment & a triable issue.
16.It is held in "Vijay Nayyar Vs. Om Prakash Malik" dated 11/07/11 in RCA no.120/2011 whereby at page no.7 that: " It concluded that the requirement of the petitioner landlord has to be something more than a mere desire and then narrated further to this aspect and hold that where only on the basis of affidavit and counter affidavit the leave to contest is to be decline, the same is bad in law, proper 5/9 Sewa Singh Vs. Harcharan Kaur E79/11 opportunity to be provided to the parties to prove their contentions and allowed the petition of the tenant & allowed the tenant to contest the petition."
Even otherwise the landlord has a right to decide as to which of the premises available to him is to be occupied cannot be sustained in view of the decision of the Supreme Court in "Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta" (1999) 6 SCC 222 wherein it is held that If landlord wants to get a property vacated from a tenant despite his having in possession another property then the Court can justifiably require the landlord to justify his decision as to why he wants to do his business only from the property from which the tenant is sought to be evicted and not from the other property already available with him. This is what the Court had observed in para 14 of this judgment: "The availability of an alternative accommodation with the landlord i.e. an accommodation other than the one in occupation of the tenant wherefrom he is sought to be evicted has a dual relevancy. Firstly, the availability of another accommodation suitable and convenient in all respects as the suit accommodation, may have an adverse bearing on the finding as to the bona fides of the landlord if he unreasonably refuses to occupy the available premises to satisfy his alleged need. Availability of such circumstance would enable the court drawing an inference that the need of the landlord was not a felt need or the state of mind of the landlord was not honest sincere, and natural. Secondly, another principal ingredient of clause (e) of subsection (1) of Section 14, which speaks of nonavailability of any other reasonably suitable residential accommodation to the 6/9 Sewa Singh Vs. Harcharan Kaur E79/11 landlord, would not be satisfied. Wherever another residential accommodation is shown to exist as available then the Court has to ask the landlord why he is not occupying such other available accommodation to satisfy his need. The landlord may convince the court that the alternative residential accommodation though available is still of no consequence as the same is not reasonably suitable to satisfy the felt need which the landlord has succeeded in demonstrating objectively to exist. Needless to say that an alternative accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction."
In M. M. Quasim Vs. Manohar Lal Sharma and others (1981) 3 SCC 36"
the Supreme Court has taken the same view. The relevant observations of the Supreme Court in para no.19 of its judgment are reproduced below: "19............. The time honoured notion that the right of reentry is unfettered and that the owner landlord is the sole judge of his requirement has been made to yield to the needs of the society which had to enact the Rent Acts specifically devised to curb and fetter the unrestricted right of reentry and to provide that only on proving some enabling grounds set out in the Rent Act the landlord. When examining a case of personal requirement, if it is pointed out that there is some vacant premises with the landlord which he can conveniently occupy, the element of need in his requirement would be absent. To reject this aspect by saying that the landlord has an unfettered right to choose the premises is to negative the very raison de'etre of the Rent Act. Undoubtedly, it is shown by the tenant that the landlord has 7/9 Sewa Singh Vs. Harcharan Kaur E79/11 some other vacant premises in his possession that by itself may not be sufficient to negative the landlord's claim but in such a situation the Court would except the landlord to establish that the premises which is vacant is not suitable for the purpose of his occupation or for the purpose for which he requires the premises in respect of which the action is commenced in the Court. It would, however, be a bald statement unsupported by the Rent Act to say that the landlord has an unfettered right to choose whatever premises he wants and that too irrespective of the fact that he has some vacant premises in possession which he would not occupy and try to seek to remove the tenant. This approach would put a premium on the landlord's greed to throw out tenants paying lower rent in the name of personal occupation and rent out the premises in his possession at the market rate."
It is held in CM (M) 1164 of 2009 "Nitin Garg Vs. Naresh Kumar Arora and Another" that: "Whether a particular floor of a house of the landlord can be used for commercial purposes or not cannot be decided at the stage of disposal of leave to defend application of the tenant and that controversy between the parties was a triable issue and a matter of trial. Therefore, in the present case also the question whether the respondentlandlord was justified in letting out the ground floor portion, which he was not claiming to be less than the first floor accommodation, to a new tenant before the filing of the present eviction petition is a triable issue and by itself is sufficient to grant leave to defend to the petitioners to contest the eviction petition."
Counsel for the respondent has placed on file AIR 1982 Supreme Court 8/9 Sewa Singh Vs. Harcharan Kaur E79/11 1518 "Precession Steel & Engineering Works & Another Vs. Prem Deva Niranjan Deva Tayal" in which it is held that: "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 further held that "The jurisdiction to grant leave to contest or refuse the same is to be exercised on the basis of the affidavit filed by the tenant. That alone at that stage is the relevant document and one must confine to the averments in the affidavit."
In the light of above discussion, I am of the view that there are some triable issues & can only be decided by leading the evidence. Hence, leave to defend is allowed.
Announced in the open Court.
Dated:14/09/2011. (Rakesh KumarII) CCJcumARC (West) Room no.139,Tis Hazari Courts Delhi.
9/9 Sewa Singh Vs. Harcharan Kaur E79/11