Delhi District Court
Sh. Itwari @ Iqbal Ahmed vs . Smt. Shamima Begum & Ors. on 26 August, 2016
IN THE COURT OF SH. NAVJEET BUDHIRAJA: ACJ-cum-
CC- cum-ARC (SOUTH-WEST):DWARKA COURTS:NEW
DELHI
EP-13/15
Sh. Itwari @ Iqbal Ahmed vs. Smt. Shamima Begum & ors.
26.08.16
ORDER:
1. By virtue of this order, application u/s 25-B (5) of Delhi Rent Control Act, 1958 (henceforth referred to as 'the Act') seeking leave to defend and contest the eviction petition filed by the petitioner on the ground of bonafide requirement U/s 14 (1) (e) r/w section 25-B of the Act moved on behalf of the respondents is being disposed of.
2. In the application alongwith supporting affidavit, it is stated by the respondents that all sons of petitioner are well settled and there is no need of the premises i.e shop situated at property bearing no. 323, Ground Floor, J.J Colony, Hastsal Uttam Nagar, New Delhi (hereinafter referred to as the tenanted premises) for the petitioners. It is further stated that the petitioner is having three properties in the name of three sons namely Mohd. Afzal, Mohd. Azad and Sonu which are as under.
i)Property no. B-321, JJ Colony, Hastasal Road, Uttam Nagar, New Delhi measuring 22½ sq. yds ( in said property there are two shops, one is running by Sonu with the name and style of Sonu Chicken Center and another is running by Mohd Azad with the name and style of Azad Chicken And Mutton Shop).
1 EP13/15 Itwari @ Iqbal Ahmed vs. Shamima Begum & ors.
ii) Property no. B-322, JJ Colony Hastasal Road Uttam Nagar, New Delhi measuring 22 ½ sq. yds. (in the said property , there is one shop of Biryani which is running by Mohd Afzal with the name of style of Dilkhush Halim Biryani).
iii) Property bearing no. 323, JJ Colony, Hastsal Road, Uttam Nagar measuring 22½ sq. yds. (this is the only shop which is in the possession of respondents).
3. It is further stated that Mohd. Azad is running a shop of mutton and meat under the name and style of Azad Chicken and Mutton shop at property bearing no. B-321 situated at JJ colony, Hastsal Raod, Uttam Nagar, Delhi and petitioner is the owner of said shop & Mohd. Azad is his real son. It is further averred that petitioner did not produce any document in respect of property where his son Mohd. Azad is running a shop with the name and style of Muskan Meat shop nor filed any rent agreement deed, rent receipt between the landlord and his son Mohd Azad (as stated in his petition). It is further submitted that the alleged shop at property no. B-83 is being run by another person whose name is also Mohd Azad but his father's name is different as Mohd. Anward and thus, petitioner is misleading the court.
4. It is further stated that initially the rent was Rs 200/- p.m but father of petitioner never issued any rent receipt and there was no rent agreement executed between the father of petitioner and husband of respondent. As per respondents, husband of respondent never paid the rent of Rs 2,400/-p.m to the petitioners either to the father of 2 EP13/15 Itwari @ Iqbal Ahmed vs. Shamima Begum & ors.
petitioner or to the petitioner as alleged by petitioner. Further, it is stated that husband of respondent no.1 never paid Rs 12,500/- p.m on 20.10.11 as alleged by petitioners. As per respondents, the actual rate of rent is Rs 900/- p.m and respondent is continuously depositing the rent in the court U/s 27 of DRC Act.
5. It is further stated that present petition is not maintainable and covered under the DRC Act and barred by the Act as the DRC Act is applicable upto the rent of Rs 3,500/- but the petitioner is claiming the rent @ Rs 12,500/- p.m. It is further stated that respondents have already filed a petition U/s 45 of DRC Act for taking the permission to repair the shop which is pending in the court of Sh S.S.Sethi, Ld ARC and fixed for 21.11.15.
6. Per contra, it is the case of the petitioner as culled out from the petition as well as from reply of leave to defend that in the year 1998, the tenanted premises as shown red colour in the site plan, were let out by the father of petitioner to Mr. Sultan i.e late husband of respondent no.1 and father of rest of respondents, at a monthly rent of Rs.2,400/- exclusive of other charges, which was increased from time to time and lastly, the rent was paid by Mr. Sultan upto 20.10.11 at a monthly rent of Rs 12,500/- excluding other charges. As per petitioner, no written document was prepared regarding tenancy nor tenant asked for any rent receipt and after demise of his father Sh. Bhim Singh, 3 EP13/15 Itwari @ Iqbal Ahmed vs. Shamima Begum & ors.
petitioner collected the rent from original tenant, being the owner of suit property. As per petitioner, after the death of Mr. Sultan (original tenant), no rent was paid by the respondents despite repeated requests and respondent no.1 ran the business of preparing bread from the tenanted shop. As per petitioner, in the year 2012, respondent no1. filed a suit for permanent injunction against the petitioner in respect of tenanted shop titled as 'Smt. Shamima Begum vs. Sh. Itwari @ Igbal Ahmad' vide suit no. 316/12 stating therein that shop in question was taken on rent by her husband at a monthly rent of Rs 200/- and lastly the same was enhanced as Rs 900/- per month excluding other charges and also admitted the ownership and landlordship of petitioner qua the shop in question in her plaint and the said suit was disposed of vide order dated 07.07.15 in view of statement made by the petitioner as well as defendant statiing therein that defendant shall not dispossess the plaintiff from the suit property i.e one shop on ground floor in property bearing no. B-323 J.J.Coloy Hastsal Uttam Nagar, New Delhi, without following due process of law.
7. Further as per petitioner, the petitioner as well as his sons / dependents are not having any other property except the above mentioned property either in Delhi or NCR and are fully dependent upon the petitioner for running their respective business. As per petitioner, he is having three sons namely Md. Afzal (married) running a Biryani shop in B-33, ground floor, Md. Azad (married) running a mutton meat from tenanted shop at B-83 JJ colony Hastsal 4 EP13/15 Itwari @ Iqbal Ahmed vs. Shamima Begum & ors.
Uttam Nagar, New Delhi and Md. Shahzad running a meat shop in B-321, Ground Floor and one daughter namely Rukhsana (married).
8. It is further the case of the petitioner that the tenanted shop in question is required bonafide by the petitioner for his son Md. Azad who is running his business from a tenanted shop and paying rent of Rs 14,000/- p.m as there is no another space for the same except the tenanted shop. As per petitioner, the petitioner sent a notice to respondents U/s 106 T.P Act on 25.09.13 but to avoid more litigations, without prejudice to his right, ignored the said notice and admitted the rent of tenanted shop as Rs 900/- p.m excluding other charges as claimed by respondents.
9. Rejoinder was then filed on behalf of the respondent refuting the averments of the reply and reiterating the stand taken in leave to defend application.
10. During arguments on application for leave to defend, Ld counsel for the respondent has ambitiously argued that triable issues have been raised in the application for leave to defend, the first being that the petitioner has filed a wrong site plan of property No. B-321 which in fact consists of two shops, one of which can be utilized by Mohd. Azad. Ld counsel has further argued that otherwise also the plea of the petitioner that his son Mohd. Azad is running a meat business from a rented shop at 5 EP13/15 Itwari @ Iqbal Ahmed vs. Shamima Begum & ors.
monthly rent of Rs. 14,000/- is palpably false and fabricated which is evident from the fact that no rent agreement is placed on record.
11. On the other hand, Ld counsel for the petitioner has referred to the reply filed to leave to defend application and asserted that there is a bonafide requirement of the tenanted premises for running the business of meat and chicken by Mohd. Azad. Although, the aforesaid rent agreement has not been filed by the petitioner but that cannot be a ground to disentitle the petitioner to the possession of tenanted premises since bonafide requirement has been successfully averred on behalf of the petitioner. To further embolden his arguments, Ld counsel for the petitioner has relied upon following judgments:-
(i)Allahrakha & anr. Vs Allahwala & anr., 2014 (3) CLJ 378 Del.
(ii)North Delhi Municipal Corporation vs Mradul Construction Pvt. Ltd. 2015 (1) CLJ 363 Del.
(iii)Lahorian Di Hatti vs Shyam Lal Meher Chand Jain HUF, 2014 (3) CLJ 642 Del.
(iv)Subhash Jain vs Ravi Sehgal, 2014 (1) CLJ 762 Del.
12. I have heard the rival submissions of the parties and perused the material available on record.
13. Before deciding upon the question whether leave to defend ought to be allowed, it would be apposite to briefly recapitulate the underlying intendment behind 6 EP13/15 Itwari @ Iqbal Ahmed vs. Shamima Begum & ors.
adopting a summary procedure under Section 25-B of the Act and the underlying philosophy behind granting leave to defend. Section 25 B provides for an efficacious and speedy remedy for the landlord who has a bonafide need for his property. Initial burden is placed upon the landlord to prove his bonafide requirement. This burden becomes more onerous when he has other alternative accommodation in his possession. In the latter case, the court can justifiably require the landlord to justify his decision to carry on his business only from the property from where the Tenant is sought to be evicted. Though the landlord is considered to be the best judge of his own requirement and neither the court nor the tenant can dictate terms to him, whatever the landlord says cannot be treated as gospel truth.
14. It is the duty of the Landlord to demonstrate that the projected need of Tenanted premises was genuine and authentic and was not a mere wish and desire. If on the mere asking of every landlord that he needs the premises for doing his business and if he was to be the sole judge and master of his choices/ decisions, the statutory provisions afforded to the Tenant would become meaningless. Dismissing the claims of the tenant at the very threshold without giving him a hearing would be contrary to the principles of natural justice.
15. Thus, whenever the tenant is able to raise triable issues, leave to defend application ought to be allowed. Ordinarily Principle requirements for grant of leave to 7 EP13/15 Itwari @ Iqbal Ahmed vs. Shamima Begum & ors.
defend have for exhaustively being laid down by Hon'ble Supreme Court in case titled as Charan Dass Duggal vs Braham Naryan (21) 1982 DLT 378 and have subsequently been reiterated in several judicial pronouncements. When leave to defend is sought, the tenant must make out a prima facie case, thereby raising triable issues. The test is a test of triable issue and not of final success in the adjudication. While deciding a leave to defend application what is to be kept in mind is whether triable issues are being disclosed and not whether they are being conclusively proved.
16. In a bonafide necessity eviction petition u/s 14 (1)(e) of the Act, three aspects are required to be seen by the Court for decreeing the eviction petition:-
(i) Firstly, there must be relationship of landlord and tenant between the parties and the landlord must be the owner of the tenanted premises.
(ii) Second aspect which has to be seen is whether the landlord requires the tenanted premises for his bonafide need and/or the need of his family members.
(iii) Thirdly, it has to be seen whether the landlord has alternative suitable accommodation.
17. So far as, the first aspect that there must be relationship of landlord and tenant between the parties and the landlord is the owner of the tenanted premises, there has not been any demur on the part of the respondent. In application u/s 25 (B) of the Act for granting leave to 8 EP13/15 Itwari @ Iqbal Ahmed vs. Shamima Begum & ors.
defend, it has been affirmed by the respondent that the tenanted premises was let out by the father of the petitioner years back to the husband of the respondent namely late Sh Sultan. It has further been fessed up that the present petitioner would collect the rent from the respondent after the demise of her father. It has further been admitted that the respondent is continuously depositing the rent u/s 27 of the Act @ of Rs 900/- per month and the receipt of the same has also been filed on record. As per the respondent, there is no balance rent against her as he has been continuously paying the rent in the name of the petitioner before the Court u/s 27 of the Act. The petitioner in the present petition has also stated in para 18(a) of the petition that the respondent No. 1 had filed an application for deposit of rent u/s 27 of the Act in the case titled as 'Shamima Begum vs Itwari @ Iqbal Ahmed' vide DR No. 168/2016 which was disposed of. Thereafter, respondent No. 1 further filed an application for deposit of the rent u/s 27 of DRC Act which was also titled as 'Shamima Begum vs Itwari @ Iqbal Ahmed' vide DR /RC/ARC/U-1/2015.
18. In the light of this categorical admission, the aforenoted first requirement stands fulfilled.
19. To fortify my abovesaid view, reliance is placed upon judgment of Hon'ble Delhi High Court in Manjeet Singh vs Vani Jain, 2015 (1) RLR 331, para 6 of the judgment is germane which is reproduced as below:
9 EP13/15 Itwari @ Iqbal Ahmed vs. Shamima Begum & ors.
''In the leave to defend application the petitioner has not denied paying rent to the respondent for the last about 26 years as shared by the respondent in the eviction petition. The claim is that the respondent is not the owner of the premises as no legal title has devolved upon her in respect of the premises as her father was not the registered owner of the premises nor any memorandum of gift was executed in her favour. It is trite las that in a petition under section 14(1)(e) DRC the landlord is not required to prove absolute ownership and is only required to prove that he has a claim on property better than that of the tenant. The factum of the petitioner paying rent to the respondent for the last about 26 years is not denied in the leave to defend application and hence the claim of the petitioner that the petitioner has raised a triable issue that the respondent is not the owner falls to the ground.......''.
20. At this juncture, I would further like to dwell upon the issue raised in the leave to defend application that as per the admission of the petitioner with regard to the rate of rent of the tenanted premises to be Rs. 12,500/-, the present petition cannot be said to be maintainable under Delhi Rent Control Act, 1958. It is noted that in para 19 of the petition and also in para G-H of reply to leave to defend application, the petitioner has admitted the rate of rent to be Rs 900/- per month as claimed by the respondent, therefore, the present petition cannot be held to be not maintainable under the provisions of the Act. Thus, this contention of the respondent does not pass any muster.
21. As regards the abovenoted second aspect of the petition is concerned, Ld counsel for the respondent has zealously argued that the bonafide requirement as specified by the petitioner that the tenanted premises is required for running the business by her son Mohd. Azad who is presently running a mutton meat shop by the name and 10 EP13/15 Itwari @ Iqbal Ahmed vs. Shamima Begum & ors.
style of ''Muskan Meat Shop'' from a rented shop situated at B-83, J.J Colony, Hastsal, Uttam Nagar, New Delhi-110059 and paying the rent @ of Rs. 14,000/- per month is fale and confaleulated. Ld counsel for the respondent has also argued that petitioner has with malafide intention raised this so called bonafide requirement which is in fact palpably false and fabricated as is evident from the fact that no rent agreement has been filed in support of the contention that Mohd. Afzal is paying Rs. 14,000/- per month for a rented shop. On the other hand, Ld counsel for the petitioner has controverted the abovesaid argument of the respondent stating that even if the petitioner has not filed any rent agreement in respect of the rented shop of Mohd. Azad, the bonafide requirement of the petitioner in respect of the tenanted premises cannot be denied.
22. It is an admitted position on record that the respondent has not denied that the petitioner has three sons namely Mohd. Afzal, Mohd. Azad and Mohd. Shahzad (respondent has claimed the name of third son to be Sonu). As per the petitioner, Mohd. Afzal is running the shop in the name of ''Dilkhush Biryani'' from B-322. This fact has not been expostulated by the respondent. Further the petitioner has stated that Mohd. Shahzad is running the chicken shop in the name of ''Azad Chicken and Mutton Meat Shop'' from shop No. B-321. In this regard, respondent has claimed in his leave to defend application that in this property, there are two shops, one shop is under the possession of the son of the petitioner namely Sonu who is 11 EP13/15 Itwari @ Iqbal Ahmed vs. Shamima Begum & ors.
running the said shop in the name and style of Sonu Chicken Centre and another shop is in possession of another son of the petitioner namely Mohd. Azad for whose bonafide requirement, the present petition has been filed.
23. Petitioner, on the other hand, has filed the reply admitting that there are two shops in the property bearing No. B-321 but one of the shop is of area 2.5x5'' which is being used for keeping tools and trays etc. by Mohd. Afzal who is running his Biryani shop at B-322. Petitioner has specifically denied that any shop is being run from a part of the property B-321 in the name of Sonu Chicken Centre. Petitioner has reiterated in the reply that Mohd. Shahzad is running the meat shop from B-321 in the name of ''Azad Chicken and Mutton Meat Shop''. In support of this contention, petitioner has placed copy of form G-8-A and other documents issued by the concerned authorities in the name of Mohd. Shahzad.
24. At this juncture, site plan of the suit property filed by both the parties assumes importance and is needed to be looked into. Respondent has impeached the site plan filed by the petitioner on the ground that the petitioner has not shown that shop No. B-321 has two portions and the site plan filed by the respondent depicts the true picture. It is pertinent to note that although in the site plan the petitioner has not revealed the bifurcation in shop No. B- 321 but in the petition as well as reply to leave to defend application, petitioner has categorically spoken about the 12 EP13/15 Itwari @ Iqbal Ahmed vs. Shamima Begum & ors.
existence of small shop measuring area 2.5x5 feet at the corner adjacent to property bearing No. B-321. After having a glance at the site plan filed by the respondent, it is revealed that there is a small portion in shop No. B-321 which has a partition. But it is pertinent to note that admittedly this area is quite small as compared to the remaining part of the shop No. B-321 and certainly this small area cannot be said to be suitable for running a full fledged shop. Moreover, petitioner has already tendered his explanation that the said area is being used for keeping the tools and trays employed in running the business of meat by one of his sons. Furthermore, the photographs filed on record by the respondent nowhere demonstrate that the said small portion of the shop No. B-321 is being used in the name of Sonu Chicken Centre.
25. Considering the entire gamut of circumstances brought on record, the bonafide requirement of tenanted premises stated by the petitioner cannot be doubted. The family of the petitioner is into the business of meat and chicken and the petitioner intends to use the tenanted premises for running the meat shop by his third son Mohd. `Azad who at present is stated to be running his business from one rented shop. Although, petitioner has not filed the purported rent agreement in respect of the said rented shop but this would not make the case of the petitioner incredulous. Thus, in view of this discussion, the bonafide requirement cited by the petitioner cannot be said to be specious. It is also a settled legal proposition that the 13 EP13/15 Itwari @ Iqbal Ahmed vs. Shamima Begum & ors.
tenant cannot be permitted to dictate terms to the landlord who is the best judge of his interest as far as the requirement of the accommodation for any commercial purpose is concerned.
26. To bolster my view, reliance is placed upon Gulshan Rai Monga Vs Sanjay Malhotra and Ors. 226(2016) DLT 611, para 17 of which is relevant which is reproduced as below:-
''In Prativa Devi (Smt) v. T.V. Krishnan, (1996)5 SCC 353 on an observation of the High Court that the landlady therein being aged 70 years and as there was no one to look after her therefore she should continue to live as a guest with a family friend, the Supreme Court noted that the landlord is the best Judge of his residential requirement and he has complete freedom in the matter. It is no concern of the Courts to dictate to the landlord how and in what manner he should live or to prescribe for him a residential standard of their own. In Ragavendra Kumar v. Firm Prem Machinery and Co., 1(2000)SLT 211-AIR 2000 SC 534,the supreme Court repelling the contention that even if in evidence the plaintiff/landlord states that he has number of other shops and houses belonging to him but in a categorical statement being made that the said house and shops were not vacant and were not suitable and the suit premises was suitable for his business purpose, the Courts will not interfere because the landlord is the best Judge of his requirement for residential or business purpose and he has got complete freedom in the matter.''
27. As far as the above noted third aspect of the case is concerned, it has already been discussed in the foregoing discussion that the alternative accommodation as cited by the respondent is merely a small portion of shop No. B-321 which at all cannot be said to be suitable for running the shop effectively. Thus, it can be said that petitioner has been able to prove all the aforementioned 14 EP13/15 Itwari @ Iqbal Ahmed vs. Shamima Begum & ors.
necessary three aspects so as to entitle him to the possession of tenanted premises for carrying out the business of meat and chicken by his son Mohd. Azad.
28. In the backdrop of above discussion, it is held that the respondent has failed to raise any triable issue so as to grant the indulgence of this Court by allowing the leave to defend application. Thus, the leave to defend application stands dismissed.
29. The instant petition under clause (e) of the proviso to section 14 (1) of the Act filed by the petitioner stands allowed. Tenant/respondent is directed to vacate the tenanted premises i.e. property No. B-323, Ground Floor, J.J. Colony, Hastsal Road, Uttam Nagar, New Delhi, as shown in red colour in the site plan, within six months from the date of this order.
File be consigned to record room after due compliance.
Announced in open Court today i.e on 26.08.2016.
(Navjeet Budhiraja) ACJ/CC/ARC (SW)ND 15 EP13/15 Itwari @ Iqbal Ahmed vs. Shamima Begum & ors.