Delhi District Court
Sir Sobha Singh & Sons (P) Ltd vs Pramod Kumar Gupta on 30 September, 2014
E. No.97/2009 1 30.09.2014
IN THE COURT OF MS. KIRAN GUPTA, SENIOR CIVIL JUDGECUM
RENT CONTROLLER: PATIALA HOUSE COURTS: NEW DELH
E.No.97/2009
Unique ID No.02403C0297102009
Sir Sobha Singh & Sons (P) Ltd.
1A, Janpath,
New Delhi110001
....... Petitioner
Versus
Pramod Kumar Gupta,
Flat No.G83, 3rd Floor,
Sujan Singh Park,
New Delhi110003
Also at
C27, Pushpanjali Farms,
Bijwasan, New Delhi
........ Respondent
Date of institution : 09.04.2009
Date of arguments : 25.09.2014
Date of decision : 30.09.2014
J U D G M E N T
1 Present eviction petition is under section 14 (1) (h) of Delhi Rent Control Act, 1958, (hereinafter referred as Act), in respect of premises consisting of one bed room measuring 14'0" X 13'0", one drawing roomcumsitting room (drawing room 14'0" X 16'0") (sitting room 18'0" X 14'0"), one kitchen, one W.C and baths and veranda and one study room of Flat No. G83, 3rd Floor, Sujan Singh Park, New Sir Sobha Singh & Sons (P) Ltd. Vs. Pramod Kumar Gupta Page 1 of 15 E. No.97/2009 2 30.09.2014 Delhi110003 (hereinafter referred as the tenanted premises) as shown red in the site plan, on the ground that the tenant has acquired vacant possession of a residence.
2 Brief facts of the case are that the petitioner company is the owner and landlord of the entire Sujan Singh Park and the tenanted premises was let out to the respondent for residential purposes on 01.03.1983 at the monthly rent of Rs. 979/ per month excluding the electricity, water charges but including the house tax . It is stated that neither the respondent nor any member of his family has been residing in the tenanted premises for the last more than 2 years and has sublet the same to one Mr. Avtar Singh. Petitioner came to know that either respondent or his wife has acquired the vacant possession of another property bearing no. C27, Pushpanjali Farms, Bijwasan, New Delhi110061 or they have been allotted residence. Respondent and his wife are residing together in the said allotted accommodation and as such have become liable for eviction from the tenanted premises under section 14 (1) (h) of the Act and it is prayed that respondent be evicted from the tenanted premises and eviction order be passed in favour of petitioner.
3 Respondent in his written statement while denying the contents of the petition has stated that no ground for eviction u/s. 14 (1) (h) is made out as the tenanted premises was let out for composite purposes and the respondent has been using the same for both residential cum commercial purposes. Petitioner has concealed the description of the tenanted premises in the present petition, whereas Sir Sobha Singh & Sons (P) Ltd. Vs. Pramod Kumar Gupta Page 2 of 15 E. No.97/2009 3 30.09.2014 in the petition bearing no. E 200/08, he has describe the tenanted premises comprising of one bed room, drawing cum sitting room, one kitchen , one WC and baths and veranda and one study room / office. The respondent has denied that the present petition has been filed by a duly authorized person in terms of resolution dt. 06.08.1979. He has denied that the tenanted premises was let out only for residential purposes or that he and his family are not residing in the tenanted premises or have sublet the same to Sh. Avtar Singh. It is stated that Sardar Avtar Singh has nothing to do with the occupation of the tenanted premises and is being used by the respondent for composite purposes ie residentialcumoffice purposes. He along with his family is residing in the tenanted premises and is also doing the business of import and sale of stainless steel cutlery in the name and style of 'Sterling Repropart Pvt. Ltd.' and he is the Director of the same. It is stated that he and his family members are not residing in Farm House No. C27, Pushpanjali Farms, Bijwasan. It is stated that petitioner has filed the present petition to compel him to pay the enhanced rent from Rs. 979/ per month to Rs.2,000/ per month as demanded by the petitioner and for that reason the Director Sh. Gurbax Singh has refused to deposit the rental cheques issued by him for the months of April, 2008 onwards. It is prayed that the present petition be dismissed with compensatory costs.
4 In the replication filed by the petitioner to the written statement of respondent, it has denied the contents of written statement and reiterated the facts as stated in the petition. It is specifically denied that the defendant is using the tenanted premises Sir Sobha Singh & Sons (P) Ltd. Vs. Pramod Kumar Gupta Page 3 of 15 E. No.97/2009 4 30.09.2014 for residential cum commercial purposes. It is stated that the entire Sujan Singh Park is a residential colony and the tenanted premises is only for residential purposes and the same was let out to the respondent for residential purposes. The word 'office' in para 8 of the earlier petition as highlighted by the respondent is inadvertent or typographical mistake and further that does not lead to the inference that the tenanted premises was let out for any composite purpose.
5 The petitioner company in order to support its contention has examined Brig. Gurbux Singh as PW1, who has tendered his evidence by way of affidavit as Ex. P1 and has relied upon the extract of Resolution of Board of Directors dt. 06.08.1969 as Ex.PW1/1, certified copy of the Certificate of Incorporation as Ex.PW1/2 and site plan as Ex.PW1/3.
5.1 Sh. Chander Pal, Junior Engineer, NDMC has been examined as PW 2. He has proved the application for transfer of the electricity connection K No. 11403 installed in the tenanted premises in the name of P K Gupta as Ex. PW 2/1. The copy of the application for request for transfer of connection dt. 22.03.1983 as Ex. PW 2/1 and the receipt regarding deposit of requisite fee as Ex. PW 2/2. The bond furnished which was furnished by Sh. P K Gupta at the time of transfer of connection as Ex. PW 2/3 and the original agreement entered between P K Gupta and NDMC regarding supply of electricity as Ex. PW 2/4.
5.2 Sh. S K Yadav , Deputy Manager commercial , Delhi Cantt.
Sir Sobha Singh & Sons (P) Ltd. Vs. Pramod Kumar Gupta Page 4 of 15 E. No.97/2009 5 30.09.2014 Telephone Exchange has been examined as PW 3. He proved the record of land line telephone no. 28063193 installed at C27, Pushpanjali Farm, Bijwasan, New Delhi is in the name of Sh. Pramod Kumar Gupta (Karta). He has proved the application for change of category of telephone connection from NOYT to OYT as Ex. PW 3/1, copy of the receipt dt. 21.02.1986 regarding payment made by the applicant for telephone connection as Ex. PW 3/2, copy of receipt whereby the payment was deposited for change of category as Ex. PW 3/3 and the copy of unpaid bill is Ex. PW 3/4.
6 Respondent in order to support his contention has examined himself as RW1 and has tendered his evidence by way of affidavit as Ex. R1 and has relied upon the order dt. 07.07.2010 as Ex. RW 1/1. He has also relied upon the original assessment as Ex. RW 1/2, statement of accounts as Ex. RW 1/3, original sales tax order Ex. RW 1/4 and certain photocopies of challans as Ex. RW 1/5 to Ex. RW 1/14.
7 Both the parties during cross examination of PW 1 and RW 1 , have confronted both these witnesses with certain documents. PW 1 was confronted with mark A to M by the counsel for respondent during his cross examination and the said documents have been subsequently exhibited by him during the examination in chief of RW 1 as Ex. RW 1/1 to Ex. RW 1/14. RW 1 was also confronted with certain documents by the counsel for petitioner which were admitted by him and were exhibited as follows:
a) Copy of notice dated 14.09.2012 as Ex. RW 1/PX1 Sir Sobha Singh & Sons (P) Ltd. Vs. Pramod Kumar Gupta Page 5 of 15 E. No.97/2009 6 30.09.2014
b) Acknowledgment card as Ex. RW 1/PX2.
c) Reply dt. 24.09.2012 as Ex. RW 1/PX3.
d) Cross examination of RW 1 Pramod Kumar Gupta in E. no.
44/08 as Ex. RW 1/PX4
e) Summons sent to respondent and received by him at the
address ie C 27, Pushpanjali Farms as Ex. RW 1/PX 5.
8 Heard counsel for petitioner. No arguments have been addressed by respondent despite opportunity. Perused the complete record file. Present petition is under section 14 (1) (h), which reads as under:
"That the Controller may, on the application, make an order for recovery of possession of the premises on the ground that tenant has whether before or after the commencement of this Act acquired vacant possession of , or been allotted, a residence."
Thus the clause (h) of Section 14 (1) has two facets, firstly, the tenanted premises should have been let out for residential purposes only and secondly, the tenant has acquired the vacant possession of an alternative accommodation.
9 In the present petition, the relationship of landlord and tenant is not disputed between the parties. The description of the tenanted premises as such is not disputed except the fact that in the connected eviction petition, E no. 44/08 which is Ex. PW 1/RX1, the petitioner has described the property along with other rooms as study room / office.
10 Now coming to the first facet of section 14 (1) (h) . Section Sir Sobha Singh & Sons (P) Ltd. Vs. Pramod Kumar Gupta Page 6 of 15 E. No.97/2009 7 30.09.2014 14 (1) (h) of the Act, applies to those premises which are let out for residential purposes only. It has no application to premises let for non residential purposes or for composite purpose. The clause applies to eviction of a tenant only if the tenanted premises from which he is sought to be evicted as well as the premises which he has newly acquired are both residential. Where the tenanted premises are let out for residential cum commercial purpose, acquisition of residential accommodation will not attract Clause (h). The limb of the argument of the respondent is that the tenanted premises was let out for composite purpose, hence section 14 (1) (h) which applies only in respect of residential accommodation is not applicable. On the contrary, the limb of the argument of petitioner is that the tenanted premises is situated in a residential area and was let out only for residential purposes to the respondent. Let these arguments be discussed in view of the evidence on record.
10.1 PW 1 during his cross examination admitted that in paragraph 8 of petition no. 44/08, words 'study room / office' has been used and whereas in the present petition word 'office' has been omitted but volunteered that the word 'office' used in the previous petition does not imply that the same was let out for commercial purpose. He denied the suggestion that the premises was let out for residential as well as commercial purpose. He was confronted with one order in E no. 44/08 Ex. PW 1/DX 2.
10.2 In the said order Ex. PW 1/DX2, the Ld. Predecessor while dismissing the application of the petitioner u/o. 6 rule 17 CPC has held Sir Sobha Singh & Sons (P) Ltd. Vs. Pramod Kumar Gupta Page 7 of 15 E. No.97/2009 8 30.09.2014 that the petitioner shall be at liberty to prove that the word 'office' was typed inadvertently in para 8 of the petition. PW 1 during his testimony and cross examination has categorically stated that the tenanted premises was let out only for residential purposes and not for any composite purpose or commercial purpose.
10.3 Petitioner has also examined PW 2, the Junior Engineer from NDMC who proved the electricity connection in the name of respondent, in respect of the tenanted premises. He categorically deposed that the electricity connection was sanctioned for domestic purpose and even prior to the transfer of the same in the name of respondent, the same was being sanctioned for domestic purpose. He further deposed that as per record, Mr. P K Gupta had never made any application for commercial supply of electricity. On 25.06.1983 an application for enhancement of load was made by Mr. P K Gupta, which was consequently enhanced. The enhancement of the load was occasioned due to the reason that four window ACs of the load 1.5 tons each were installed at the premises and four power plugs of 500 watt each were installed at the premises. He further deposed that as per the record brought by him, at page no. 2 of the application, for supply of electricity, the description of premises has been mentioned as 'residence'. The said witness was not cross examined by the counsel for respondent despite opportunity.
10.4 RW 1 during his cross examination admitted Ex. RW 1/PX 4 ie. the certified copy of his cross examination in E no. 44/08. When he was shown mark R and S , he stated that he does not remember if, the Sir Sobha Singh & Sons (P) Ltd. Vs. Pramod Kumar Gupta Page 8 of 15 E. No.97/2009 9 30.09.2014 original of the same was filed by him in the another case pending him and the petitioner. He admitted that he has mentioned in document mark R that flat no. G 83 is the residential flat . He admitted that petitioner raised bill from time to time from him which are similar to mark R . He admitted that he had never protested in writing to the petitioner for mentioning the flat no. G 83 on its bill as residential . No written agreement was executed between him and petitioner in respect of the premises. He denied the suggestion that the flat at Sujan Singh Park are exclusively for residential purpose and no commercial activity is permissible in the flats at Sujan Singh park. He admitted that the study / office at the premises can be used only for personal office. He denied the suggestion that the premises cannot be used for commercial purposes. He admitted that electricity connection installed at the premises is for domestic purpose.
10.5 Thus from the testimony of PW 2 and RW 1, it is evident that the electricity connection in the tenanted premises is sanctioned only for domestic use and not for any commercial purpose. RW 1 had categorically admitted that there is no written agreement executed between him and the petitioner. Respondent has merely disputed the description of the area as described by the petitioner that there is study room / office. RW 1 during his cross examination has categorically admitted that the study room / office at the premises can be used only for personal office. Though the respondent has relied upon certain assessment orders Ex. RW 1/2 , RW 1/4 , RW 1/5 to Ex. RW 1/14, however he has not examined any other witness in respect of the said documents. Even otherwise, from perusal of the said documents, it Sir Sobha Singh & Sons (P) Ltd. Vs. Pramod Kumar Gupta Page 9 of 15 E. No.97/2009 10 30.09.2014 cannot be inferred that the tenanted premises was let out for commercial purposes by the petitioner. Sujan Singh Park where the tenanted premises is situated is a residential area and is to be used only for residential purposes. No such evidence has been brought on record by the respondent to show / prove that the area where the tenanted premises is situated can also be used for commercial purposes. The user if any, for the commercial purpose by the respondent, is in violation of building byelaws of the said area and tantamounts to misuser. Petitioner has successfully proved that the tenanted premises was let out by it to the respondent only for the residential purposes and not for any composite purpose.
11 Now coming to the second facet of section 14 (1) (h). The landlord has only to prove that the tenant has acquired the vacant possession of an alternative accommodation. It is not necessary for him to prove that the tenant has shifted to that premises and was not living in the tenanted premises. In order to take benefit of section 14 (1) (h) of the Act, the onus is on the landlord to show that the tenant has acquired the alternative accommodation.
11.1 PW 1 has categorically deposed that the respondent or his wife have acquired the vacant possession or have been allotted residence at C 27, Pushpanjali Farms, Bijwasan, New Delhi. The petitioner in para 18 (a) of the petition has categorically stated that the respondent or his wife have acquired or have been allotted the above said residence. In reply to the said paragraph, respondent has not denied regarding the alleged acquisition / allotment but has merely Sir Sobha Singh & Sons (P) Ltd. Vs. Pramod Kumar Gupta Page 10 of 15 E. No.97/2009 11 30.09.2014 denied that he is not residing in the said property but is residing in the tenanted premises. It is settled law that the facts not specifically dealt with will be taken to be admitted under order 8 Rule 5 of the Code of Civil Procedure which is known as doctrine of non transverse. Which means that where a material averment is passed over without specific denial, it is taken to be admitted. The Rule says that any allegation of fact must either be denied specifically or by necessary implication or there should be a statement that the fact is not admitted. If the plea is not taken in that manner, then the allegation should be taken to be admitted.
11.2 In the present matter the respondent in his written statement has not denied the averments made by the petitioner regarding acquiring / allotment of the property at C 27, Pushpanjali Farms, Bijwasan, New Delhi thereby implying that the said fact that the respondent or his wife have acquired or have been allotted the said property is deemed to have been admitted.
11.3 Further, when RW 1 during his cross examination was asked about the documents pertaining to property no. C27, Pushpanjali Farms, he stated that he is not in possession of the documents pertaining to ownership, allotment, transfer and mutation etc. of property bearing no. C 27, Pushpanjali Farms, Bijwasan , New Delhi. He stated that he cannot tell as to who is in possession of these documents. He denied the suggestion that these documents are in his possession as owner of the said property. He stated that he is not in possession of the documents pertaining to the assessment and levy of Sir Sobha Singh & Sons (P) Ltd. Vs. Pramod Kumar Gupta Page 11 of 15 E. No.97/2009 12 30.09.2014 house tax on said property of Pushpanjali Farms. He admitted that Ex. RW 1/PX4 is the copy of transcript of his testimony in another case pending between him and the petitioner. He admitted that notice Ex. RW 1/PX5 was received by him at his address C 27, Pushpanjali Farms, Bijwasan, New Delhi. He admitted that the telephone connection bearing no. 28063193 has been installed in his name at C 27, Pushpanjali Farms, Bijwasan, New Delhi. He stated that he does not remember as to in whose name, the house tax is levied in respect of property at Pushpanjali Farms but denied the suggestion that being owner of the said property, he pays the house tax of the said property and is deliberately not disclosing the fact in the court. He stated that he is not the owner of C31 of Pushpanjali Farms. He denied the suggestion that he is the owner of C27 as well as C 31, Pushpanjali Farms. He stated that one of his son Arjun Gupta is the owner of C 31, Pushpanjali Farms, New Delhi. His other son Harsh Gupta is the owner of C 27, Pushpanjali Farms. The date of birth of his son Harsh Gupta and Arjun Gupta is 08.07.1968 and 24.10.1966 respectively. He stated that the ownership of C 27 and C 31 Pushpanjali Farms was transferred to his two sons after dissolution of HUF which was the owner of the said two properties. He admitted that he was the Karta of the HUF which was dissolved in the year 198990 and the property of said HUF was transferred to his two sons. He stated that the mutation of transfer of property in the name of his two sons is still pending with MCD. He denied the suggestion that the properties of the HUF have not yet been transferred in the name of his two sons but volunteered that legally the properties have been transferred but in the books of MCD it has not been recorded yet. He denied the suggestion that even today , he is the Sir Sobha Singh & Sons (P) Ltd. Vs. Pramod Kumar Gupta Page 12 of 15 E. No.97/2009 13 30.09.2014 owner of C 27, Pushpanjali Farms and that he is deliberately not producing the documents of ownership of the said property. He denied the suggestion that he is not residing at the tenanted premises and instead he has been residing along with his wife at C 27, Pushpanjali Farms.
11.4 Thus from the testimony of RW 1, it is evident that he was the Karta of HUF who was the owner of the property C27 and C31 Pushpanjali farms, Bijwasan, New Delhi. No deed of dissolution of HUF has been placed on record by the respondent. RW 1 himself has admitted that as per the MCD record, the said property is still in the name of HUF and has not been transferred in the name of any of his two sons.
12 The only thing which is required to be seen in the petition u/s. 14 (1) (h) of the Act is whether, the respondent has acquired vacant possession of a residence or not. In the present case, the respondent himself has admitted that he was the Karta of HUF , which is the owner of the property C27 and C31 Pushpanjali farms, Bijwasan, New Delhi. The position of law is now well settled that if, tenant has acquired another residential accommodation out of his own funds and has legal right to reside there, he is liable to be evicted, irrespective of the fact, in whose name property stands purchased. Even if, the alternative accommodation is acquired in the name of joint family of the tenant, he is liable to be evicted. In the present case there is no denial of the fact that property C27 and C31 Pushpanjali farms, Bijwasan, New Delhi is in the name of HUF and respondent is the Karta of said HUF .
Sir Sobha Singh & Sons (P) Ltd. Vs. Pramod Kumar Gupta Page 13 of 15 E. No.97/2009 14 30.09.2014 Though the respondent has stated that he has transferred the said properties in favour of his two sons, however, he has not placed on record any such document and has admitted during his cross examination that in the books of MCD the said transfer has not been yet recorded. It is not the case of the respondent at any stage, that he has no legal right to reside in the said property. He himself has admitted that he received the notice Ex. RW 1/PX 5 at his address C27 Pushpanjali farms, Bijwasan, New Delhi. He has further admitted that the telephone connection is installed in the said premises in his name. Under these circumstance, it was for the respondent to show that he has no legal right to occupy this property which has been purchased in the name of HUF of which he himself is the Karta. Since the respondent himself has not denied the acquisition of said accommodation, the question that whether he is residing in the tenanted premises or not is irrelevant (reliance placed on the judgment titled as Asha Kapoor Vs. Hari Om Sharda , 2011 (1) RCJ 381 (Delhi)).
13 Further, it is no more res intergra that once the condition stipulated in clause (h) was fulfilled by the tenant, he was disentitled to protection under the Act. The mere fact that the tenant has subsequently disposed of the residence does not efface the fact that he had once acquired and thus gave a cause of action to the landlord for filing a petition for eviction. (reliance placed on Modi Spinning and Weaving Vs. Krishna Wanti & anr. Decided on 23.02.2012 by the Hon'ble High Court of Delhi).
Sir Sobha Singh & Sons (P) Ltd. Vs. Pramod Kumar Gupta Page 14 of 15 E. No.97/2009 15 30.09.2014 14 Thus on the basis of above discussion the petitioner has proved that the tenanted premises was let out for residential purposes only and that the tenant has acquired vacant possession of or has been allotted a residence ie property C 27, Pushpanjali Farms, Bijwasan, New Delhi . The petition is allowed u/s. 14 (1) (h) and eviction order is accordingly passed against the respondent in respect of the tenanted premises ie Flat No. G83, 3rd Floor, Sujan Singh Park, New Delhi and in favour of petitioner.
File be consigned to record room.
ANNOUNCED IN OPEN ( KIRAN GUPTA )
COURT ON 30.09.2014 SCJCUMRENT CONTROLLER
PATIALA HOUSE COURTS:NEW DELHI
Sir Sobha Singh & Sons (P) Ltd. Vs. Pramod Kumar Gupta Page 15 of 15