Delhi District Court
Smt. Nirmala Devi vs Shri Tarjeet Singh Walia on 30 September, 2013
IN THE COURT OF MS. SUGANDHA AGGARWAL,
ACJcumCCJcumARC, NORTH DISTRICT, ROHINI : DELHI
E.No. 72/2012
[U/s 14(1)(e) of DRC Act, 1958]
Unique Case Identification No. 02404C0196522012
Smt. Nirmala Devi,
Wife of Late Shri Shiv Kumar Sharma,
R/o WZ854, Rani Bagh, Delhi - 110034. ... Petitioner
Versus
Shri Tarjeet Singh Walia,
Son of Late Shri Gurbux Singh,
Shop at WZ854, Rani Bagh, Railway Road,
Main Bus Stand, Shakur Basti, Delhi - 110034 ... Respondent
Date of institution of petition : 26/7/2012
Date on which order was reserved : 23/9/2013
Date of decision : 30/9/2013
ORDER
1. By this order, I shall dispose of an application for leave to defend filed by the respondent/tenant.
2. The present petition has been filed seeking eviction of the respondent under Section 14 (1)(e) read with Section 25B of Delhi Rent Control Act from one shop on the ground floor of property bearing No. WZ854, Rani E.No. 72/2012 Page No. 1 of 18 Bagh, Delhi - 110034 as shown in red colour in the site plan (hereinafter to be referred as "the suit shop"). Petitioner has averred that she is the owner of the suit shop which was let out to the respondent by Shri Laxman Dass, fatherinlaw of the petitioner around 4042 years back and at present the monthly rent of the suit shop is Rs.550/ excluding electricity and water charges. It is contended that the original owner of the property bearing No. WZ854, Rani Bagh, Delhi - 110034 including the suit shop was Late Smt. Mewa Devi. Petitioner has submitted that she has become the exclusive owner of the suit shop by virtue of two Release Deeds executed in her favour by the remaining legal heirs of Smt.Mewa Devi. Petitioner has contended that her husband has already expired and after death of her husband, she is collecting the rent. It is contended that petitioner's family comprises of three sons and one daughter. Her elder son is married having wife and two children. It is further contended that the eldest son of the petitioner namely Mr.Sushil Kumar Sharma is unemployed and therefore the suit shop is required by him for setting up his business. Petitioner has further contended that her son is dependent on her and does not have any other suitable E.No. 72/2012 Page No. 2 of 18 accommodation with him.
3. Respondent was duly served with the summons of the eviction petition under schedule III of Delhi Rent Control Act and the respondent filed his application for leave to defend alongwith the affidavit within prescribed time period. In the leave to defend application, respondent has contended that material facts have been concealed by the petitioner and since long petitioner is trying to get the suit shop evicted and she has tried every trick and the present petition is also filed with malafide intention. It is stated that earlier also, he had made complaints to the police for the harassment by the petitioner and his son for getting the suit shop evicted. It is contended that the total area of the premises in which the suit shop is situated is 140 sq. yds. It is further contended that the eldest son of the petitioner is already running a coaching center from the first floor of property bearing No. WZ854, Rani Bagh, Delhi - 110034 in which the suit shop is also situated. It is contended that the eldest son of the petitioner is not unemployed. Respondent has further contended that as per the MCD notification, the building in which the suit shop is located is entirely a commercial building and commercial E.No. 72/2012 Page No. 3 of 18 activities are allowed till fourth floor. It is contended that the entire first floor alongwith roof rights are in possession of the petitioner. Respondent has also contended that besides him, there are two other tenants in other two shops. It is stated that the petitioner has malafidely stopped accepting rent from the other tenants also to create false grounds of eviction. It is further contended that the respondent is a senior citizen and the business from the suit shop is the only source of income for him and in these circumstances, it is contended that leave to defend shall be granted.
4. Petitioner filed reply to the leave to defend application whereby she reasserted and reaffirmed the contents of the eviction petition and denied the submissions of the respondent.
5. Respondent filed rejoinder wherein he reasserted & reaffirmed the contents of leave to defend application and denied the submissions of the petitioner.
6. I have heard the arguments of both the parties.
7. Learned Counsel for respondent has argued that the Relinquishment Deeds executed in favour of petitioner are not valid as there are two E.No. 72/2012 Page No. 4 of 18 Relinquishment Deeds executed in her favour. It is further stated that as per the contention of petitioner, she is owner of half portion of property bearing No. WZ854, Rani Bagh, Delhi - 110034, the total area of which is 300 sq. yds and admittedly the portion which falls in the share of the petitioner has not been identified. It is further contended that even in the legal notice, the petitioner has mentioned herself as coowner and other coowners have not been made as party to present petition. Further counsel for respondent has reiterated the contents of application for leave to defend and has also relied upon the following judgments :
a) Tarun Pahwa Vs. Pradeep Makin 2013 (1) RLR 15.
b) Prahlad Rai Mittal Vs. Rita Devi 2013 IV AD (Delhi) 863.
c) Gopal Das & Sons Vs. Dineshwar Nath Kedar 2013 (133) DRJ 468
8. Learned Counsel for petitioner has argued that ownership of the petitioner has no where been challenged by the respondent in his application for leave to defend and in fact it is an admitted fact that petitioner is the landlady. It is further averred that all the averments stated in the application for leave to defend are incorrect and therefore no ground has been made out E.No. 72/2012 Page No. 5 of 18 to grant leave to defend to the respondent.
9. I have considered the rival contentions of both the parties and have perused the record.
10. In the present case, though certain arguments have been raised by the counsel for respondent with respect to the ownership of the suit shop, however, in application for leave to defend, the ownership of the petitioner qua the suit shop has been admitted by the respondent. Hence the said argument being beyond pleadings cannot be considered by the Court.
11. Here even for the sake of arguments, if the objections raised by the respondent for ownership are considered then also the same are not tenable. Firstly, admittedly the entire property bearing No. WZ854, Rani Bagh, Delhi - 110034 is 300 sq. yds. and respondent in his application for leave to defend has admitted that petitioner is owner of 150 sq. yds. However, it is correct that there are two Relinquishment Deeds but the executants of both Relinquishment Deeds are different and hence both Relinquishment Deeds are valid. Admittedly, the owner of the suit shop was Smt.Mewa Devi and there is no denial to the details of legal heirs of Smt.Mewa Devi. E.No. 72/2012 Page No. 6 of 18 Furthermore, one argument raised by counsel for respondent is that petitioner has mentioned herself as coowner in the legal notice. Firstly, it is settled law that one of the coowner can file a petition for eviction. Further, as discussed above, there is no plea taken by the respondent in his application for leave to defend regarding ownership of the petitioner with respect to the suit shop. In fact, in copy of complaint addressed to the police by the respondent, the respondent has stated that petitioner is the landlady of the suit shop. Hence there is no triable issue raised by the respondent with respect to ownership of the suit shop.
12. The respondent has raised the following issues categorizing them as triable issues :
a) Alternate accommodation.
b) Need of the petitioner is not bonafide.
(I) ALTERNATE ACCOMMODATION
13. It is contended by the respondent that property bearing No. WZ 854, Rani Bagh, Delhi - 110034, in which the suit shop is situated, is built upto first floor. It is further contended by the respondent that MCD has allowed commercial activities upto fourth floor in the said area. However, E.No. 72/2012 Page No. 7 of 18 admittedly, the property bearing No. WZ854, Rani Bagh, Delhi - 110034 is constructed only upto first floor as in the application for leave to defend, respondent has stated that petitioner is in possession of the first floor with roof rights and even as per the site plan filed by the respondent, the said property is constructed upto first floor and thereafter there is a terrace, hence, the fact that MCD has allowed commercial activities upto fourth floor is not relevant for the purpose of the present petition. It is contended by the respondent that there is ample space available with the petitioner at the first floor. However, petitioner has stated in her reply to application for leave to defend that the first floor is being used for residential purposes by her family members. In the site plan filed by the respondent alongwith his application for leave to defend, no details have been given of the accommodation available at the first floor. On the other hand, petitioner has explained the accommodation available at the first floor in her reply and has stated that the same is being used for residential purposes. Further, it is settled law that business activities can be carried out more suitably from ground floor. Petitioner being the landlady is having the first right to choose best possible E.No. 72/2012 Page No. 8 of 18 space for commercial activity in the entire building. Petitioner has stated that the suit shop lies on the main road and therefore best suitable for commercial activities. Respondent being the tenant cannot dictate terms in this regard. In the case of Viran Wali v. Kuldeep Rai Kochhar, 2011(1) RLR (Del.) 229, landlord sought eviction of shop to start business with his son in demised premises. Tenant contended that basement is available to landlord, which was used by earlier tenant for commercial purpose. In these circumstances, it has been held as under: "Ground Floor is more convenient than shop situated in basement. Landlord has all right and choice to start his business in premises more suitable and convenient to him. Tenant can not dictate landlord as to how and in what manner he should use his property."
14. Hence in the present case also, the respondent being the tenant cannot dictate terms to the petitioner as to how she should use the property.
15. Respondent has stated that there are two shops which are also let out on rent. Admittedly the other two shops have been let out on rent and further as stated above, the suit shop falls on the main road and therefore more suitable. Here, it is pertinent to mention that the respondent has stated that correct site plan has not been filed by the petitioner and the respondent E.No. 72/2012 Page No. 9 of 18 alongwith application for leave to defend has filed another site plan. But comparison of the site plan filed by the petitioner and the site plan filed by respondent alongwith application for leave to defend shows that there is no difference with respect to the plan of ground floor of property bearing No. WZ854, Rani Bagh, Delhi - 110034. It is only that respondent in addition to the ground floor has also shown the first floor and terrace in the site plan. As per the site plan of the respondent also, there are three shops existing at the ground floor. One shop is at the rear portion which opens in Gali and the suit shop is situated on the main road and is therefore more suitable than the shop situated at the rear side. Now as per the contention of the respondent, there is third shop adjacent to the suit shop but as per the contention of the petitioner, the said shop is in joint ownership with her brotherinlaw. Though in the site plan, respondent has shown that entire shop is in the portion of the petitioner but in paragraph 4 of the affidavit accompanying application for leave to defend, the respondent himself has stated as under : "It is also pertinent to mention that about 45 years back petitioners got one shop vacated out of joint property." E.No. 72/2012 Page No. 10 of 18
16. It is not the case of the respondent that there is any other property available with the petitioner. Hence there is no triable issue raised by the respondent by stating that alternate accommodation is available with the petitioner so as to grant leave to defend to the respondent.
II NEED OF PETITIONER IS NOT BONAFIDE
17. As per the case of the petitioner, her eldest son Mr.Sushil Kumar Sharma is unemployed and therefore she requires to set up the business of her elder son. This ground has been resisted by the respondent on the following two aspects:
a) The elder son of the petitioner is already running a coaching center from the first floor of property bearing No. WZ854, Rani Bagh, Delhi - 110034.
b) Petitioner has not mentioned as to what business the elder son of the petitioner intends to start from the suit shop.
(A) PLEA OF COACHING CENTER
18. It is contended by the respondent that a coaching center is being run E.No. 72/2012 Page No. 11 of 18 by the elder son of the petitioner from the first floor of property bearing No. WZ854, Rani Bagh, Delhi - 110034. The said fact is denied by the petitioner who has stated that the first floor of the said property is being used for residential purposes. Firstly, the respondent has filed a site plan alongwtih application for leave to defend in which the plan for the first floor is also given. However, there is no mention in the site plan that the first floor is being used as a coaching center. If it is used for running a coaching center, then why the said fact has not been mentioned by the respondent in the plan, has not been explained by the respondent. Further in support of his averment, respondent has placed on record two photographs showing the signboard of Educative Study Center. There is no name of the owner mentioned on the said signboard. In fact from the photograph, it is not clear whether the said photographs pertains to first floor or ground floor of any property. From the entire scene in the photograph, it is more likely that the same pertains to ground floor of some property. Furthermore, the address written on the sign board is not clear and only number "85" is legible. However, in the first photograph, lower portion of a Board adjacent to coaching center can be seen E.No. 72/2012 Page No. 12 of 18 in which the property number is reflected as "WZ854" which shows that the property in question i.e. property bearing No. WZ854, Rani Bagh, Delhi - 110034 is adjacent to the coaching center and the property from which coaching center is being run is not property bearing No. WZ854, Rani Bagh, Delhi - 110034. Hence the said photographs does not inspire confidence. Further, besides these photographs, there is no documentary proof which has been placed on record in support of his contention. Hence there is no evidence which respondent wants to bring during trial with respect to the said aspect.
(B) NONDISCLOSURE OF NATURE OF BUSINESS
19. It is correct that the petitioner has not stated as to what business will be run by her son after the suit shop is got vacated. However, it is settled law which has been recently reiterated by the Hon'ble High Court of Delhi in the case of Prahlad Rai Mittal Vs. Rita Devi 2013 IV AD (Delhi) 863, which has been relied upon and referred by the respondent himself, in which it has been held that it is not necessary for the landlord to reveal the nature of business which he/she intends to set up for her son but it is important to establish the E.No. 72/2012 Page No. 13 of 18 need for setting up the business. In the present case, petitioner has stated that her son is unemployed. Respondent has failed to negate the said contention of the petitioner and from the averments in the petition, petitioner has successfully established that she needs the suit shop. Now it is not necessary for the petitioner to reveal the nature of business which her son intends to start, as held in the abovementioned judgment. Hence this is also not a good ground for allowing the application for leave to defend.
20. After filing of application for leave to defend, an amended application for leave to defend was filed by the respondent, in which one ground was taken by the accused that subsequent to filing of the present petition, one shop which was in the tenancy of M/s Saini Sweets has been vacated and now is available with the petitioner. However, the petitioner has stated that the said shop which was under tenancy of M/s Saini Sweets is owned by her brotherinlaw and therefore it is not available with the petitioner. In the additional affidavit, the respondent has not given any number of the shop and only stated that the tenanted shop under tenancy of M/s Saini Sweets has been vacated. As per the contention of the respondent E.No. 72/2012 Page No. 14 of 18 himself, as stated in paragraph 3 (c) of affidavit accompanying application for leave to defend, there are only three shops which are available with the petitioner, one is under his tenancy, second shop is under tenancy of Shiv Dayal who is running a tailoring shop under the name of Shiv Tailors and the third shop is under tenancy of Late Sahabuddin which is now being run by one Babu under the name of Babu Tailors. Then in fact in paragraph 3(f) of affidavit accompanying application for leave to defend, the respondent has admitted that besides the three shops, one shop which is a joint property has been let out to Sohan Lal who is running the said shop in the name and style of M/s Saini Sweets. Therefore, as per respondent's averments himself, the said shop is a joint property of petitioner and her brotherinlaw and therefore even if it is vacated during pendency of the present petition, the same cannot be available with the petitioner to set up the business of her son. Furthermore, as per the site plan filed by the respondent, there are only three shops on the ground floor of property bearing No. WZ854, Rani Bagh, Delhi
- 110034 which are in possession and control of the petitioner. As per paragraph (c), one shop is under the tenancy of the respondent, second shop E.No. 72/2012 Page No. 15 of 18 is under the tenancy of Shiv Dayal and third shop is under the tenancy of Babu Lal. As per paragraph (f), a shop which is a joint property of petitioner and her brotherinlaw has been vacated but it has not been stated that the said shop is the same shop which is under the tenancy of respondent or Shiv Dayal or Babu Lal. Hence from the entire pleadings, it appears that respondent is talking about the fourth shop which is under the tenancy of Saini Sweets.
21. Besides this, counsel for respondent has relied upon certain judgments. In Tarun Pahwa Vs. Pradeep Makin 2013 (1) RLR 15, it has been stated that the landlord has not given the extent of properties held by him and his family members. He has also concealed the fact that there were certain premises which are available and let out in recent past. However, in the present case, there is no such concealment on the part of the petitioner. Even respondent has not stated that petitioner owns any other property except property bearing No. WZ854, Rani Bagh, Delhi. Hence the same is not applicable on the facts of the present case.
22. In Prahlad Rai Mittal Vs. Rita Devi 2013 IV AD (Delhi) 863 and E.No. 72/2012 Page No. 16 of 18 Gopal Das & Sons Vs. Dineshwar Nath Kedar 2013 (133) DRJ 468, it has been held that Rent Controller has to see the averments made in the affidavit by the respondent and the petitioner/landlord has to establish that the tenanted premises are required for bonafide need. In the present case, this Court has considered all the averments made in the affidavit and in view of above discussion, after considering the said averments, I am of the considered opinion that no triable issue has been raised by the respondent.
23. In view of the above discussion, I am of the considered opinion that no triable issue has been raised by the respondent so as to grant him leave to defend. Only certain assertions have been made by the respondent in his application. No material has been disclosed which is stated to be in possession of the respondent which he intends to bring in evidence so as to falsify the claim of the petitioner. Hence, the present application of the respondent seeking leave to defend is dismissed.
24. On the other hand, the relationship of landlord and tenant has not been disputed. As discussed above, bona fide need is also duly established by the averments made in the petition and the documents annexed therewith. E.No. 72/2012 Page No. 17 of 18 Therefore, I am of the considered opinion that petitioner is entitled for an order of eviction under Section 14(1)(e) of Delhi Rent Control Act. Accordingly, the petition filed by the petitioner under Section 14(1)(e) read with Section 25B of Delhi Rent Control Act is allowed. An order of eviction is hereby passed in favour of the petitioner and against the respondent in respect of the suit shop i.e. one shop on the ground floor of property bearing No. WZ854, Rani Bagh, Delhi - 110034 as shown in red colour in the site plan. However, the petitioner shall not be entitled to obtain the possession thereof before the expiry of a period of six months from the date of this order. File be consigned to Record Room after completion of necessary formalities.
(SUGANDHA AGGARWAL) ACJcumCCJcumARC, North District, Rohini, Delhi Announced in the open Court on this 30th day of September, 2013 E.No. 72/2012 Page No. 18 of 18