Delhi District Court
{Smt. Sharda Rani vs . Joginder Pal & Ors. (E-53/12)} on 25 July, 2013
{Smt. Sharda Rani Vs. Joginder Pal & Ors. (E-53/12)}
IN THE COURT OF SH. SIDHARTH MATHUR,
ARC-02 (Central), Tis Hazari Courts, DELHI
E-53/12
Unique Identification No. 02401C0127002012
Smt. Sharda Rani
W/o Sh. Ratan Kumar,
R/o 2358, Teliwara,
Delhi-110006.
........... Petitioner.
Through,
Sh. Mahmood Hassan,
Advocate.
Versus
1. Sh. Joginder Pal
2. Sh. Yash Pal
3. Sh. Satish Kumar
All S/o Sh. Kedar Nath,
All R/o 2359, Ward no. 13,
Teliwara, Delhi-110006.
........ Respondents.
Through,
Sh. Pramod Ahuja,
Advocate.
JUDGMENT
1. Under Section : 14 (1) (e) DRCA.
2. Date of institution : 20.03.2012.
3. Date of Final Order : 25.07.2013.
4. Final Order : Petition Allowed.
BRIEF FACTS
A) Petition
1. The father in law of the petitioner was the initial owner of the property no. 2358-2359, Teliwara, Sadar Bazar, Delhi-110006 (hereinafter "suit property"). On the basis of his Will dated 27.06.1972, his wife inherited the suit property on his death.
(Page No. 1 of 23) {Smt. Sharda Rani Vs. Joginder Pal & Ors. (E-53/12)} Likewise on the basis of the Will dated 06.07.1998 executed by her mother in law, the petitioner inherited the suit property.
2. The father of the respondents was initially inducted as a tenant by the deceased father in law of the petitioner at one of the ground floor shop and adjoining store of property no. 2359, Teliwara, Sadar Bazar, Delhi-110006 as shown red in the site plan of the petitioner (hereinafter "tenanted premises").
On the death of their father, the respondents became the joint tenants being his LR's and henceforth started paying rent to the mother in law of the petitioner.
3. The family of the petitioner presently comprises of her husband Ratan Kumar, son Karan aged 23 years and an unmarried daughter.
Her husband is involved in the business of selling hardware items. He is using the godown at the ground floor for storing his goods. However since he has no other vacant shop in his possession, he is forced to sell his items from the Patri / Chabutra adjoining his godown, which has been shown in green in the site plan of the petitioner.
The petitioner's son is unemployed and is unable to start his own hardware business due to the lack of commercial space.
The petitioner does not have any vacant alternate suitable reasonable commercial accommodation to answer the respective requirements of her husband and son. Thus the petitioner bonafidely requires the tenanted premises for her dependents whereby the present petition came into being on 20.03.2012.
B) Leave to Defend
4. The respondents were served with the notice of this petition whereafter they filed a combined leave to defend within time on 10.05.2012.
5. In their combined leave to defend, the respondents have raised the following factual contentions :-
1) That the provisions of Section 14(1)(e) DRCA are not applicable since they are applicable only in cases of residential tenancies ;
(Page No. 2 of 23) {Smt. Sharda Rani Vs. Joginder Pal & Ors. (E-53/12)}
2) That there is no relationship of landlord and tenant between the parties as they have never attorned to the landlordship of the petitioner, nor had ever paid any rent to her and nor she had ever demanded any rent from them after becoming the owner of the tenanted premises ;
3) That neither the petitioner, nor her predecessors are / were the owner(s) of the tenanted premises ;
4) That the petition is bad for the non joinder of the LR's of the mother in law of the petitioner ;
5) That the husband of the petitioner is not accepting rent from them whereby all of them have been depositing the rent before the Court as joint tenants.
6) That after the death of the mother in law of the petitioner, they had been depositing rent jointly by filing petitions U/s 27 DRCA against her LR's wherein the petitioner's husband had stated in his objections that they are not the owner / landlord of the tenanted premises despite being her LR's ;
7) That the Will dated 06.07.1998 executed by the petitioner's mother in law in her favour is a forged and fabricated document since its factum was never disclosed by the petitioner's husband in the previous proceedings filed U/s 27 DRCA ;
8) That the petitioner did not disclose that she along with her husband and son are also occupying the first and second floors of the suit property, where they have more than 40 tenants ;
9) That the petitioner despite becoming the owner of the suit property in 2005 has not placed any document on record to show that the tenants at the first & the second floor of the suit property had ever attorned to her landlordship or that she ever demanded any rent from them or that they ever paid any rent to her or that she ever gave any notice of attornment to any of them.
10) That the rent is being collected by petitioner's husband and son ;
11) The Will dated 06.07.1998 is a forged and fabricated document manufactured by her husband to evict them ;
12) That petitioner cannot be allowed to earn her livelihood from numerous places, who is using the ground floor meant for commercial use for residential purposes and the remaining first & the second floor meant for residential use for commercial purposes ;
13) That son of the petitioner is not unemployed and is rather working jointly with his father ;
14) That neither the petitioner's son, nor her husband are dependent upon her as both of them are earning sufficiently from the rents collected from the tenants of the first floor and the second floor ;
(Page No. 3 of 23) {Smt. Sharda Rani Vs. Joginder Pal & Ors. (E-53/12)}
15) That the petitioner has merely filed the photostat copies of the documents relied by her in contradiction of Order 7 rule 14 CPC and Order 14 rule 3 CPC, which thus cannot be relied ;
16) That the husband of the petitioner has been named as the sole executor in the Will dated 06.07.1998 whereby the petitioner cannot claim any right on its basis ;
17) That the petitioner's husband never disclosed the factum of he being the sole executor of Will dated 06.07.1998 in his reply dated 11.11.2008 filed during their petition U/s 27 DRCA ;
18) That the petitioner never alleged any requirement of the tenanted premises since last seven years after she became its owner and hence her need cannot be termed as bona fide ;
19) That the petitioner has concealed the fact that her husband and son already have sufficient accommodation at the ground, first and second floor of the suit property and thus she deliberately did not file the site plan of the first and the second floor to conceal their accommodations available there ;
20) That the son of the petitioner is already running joint business with his father whereby he does not need to open another shop for running the same nature of business, which instead would create business rivalry amongst them ;
21) That the petitioner has concealed that the first floor has two big hall with one shop while the second floor has one shop and that these floors have already been let out to numerous traders resulting in the rental income of Rs. 1 Lac per month but no rent receipts are issued with a view to evade income tax ;
22) That the petitioner has placed nothing on record pertaining to the qualification of her son or his business experience to establish his expertise to start a new business ;
23) That the photograph and signature of the petitioner's mother in law appears in the ration card of June 2006 though she had already expired in 2005 which shows that the Will dated 06.07.1998 is a bogus document ;
24) That the Will dated 06.07.1998 has been manufactured so as to create false grounds qua the bona fide requirement of the petitioner's husband and the son ;
25) That the Will dated 06.07.1998 was executed by the mother in law of the petitioner in her favour daughter in law instead of her natural LRs, which makes it a suspicious document ;
26) That the petitioner has concealed that the first and second floor were earlier occupied by Barielly Corporation Bank whereafter they were repeatedly re-let to several persons ;
27) That tenanted premises was let out to their father in 1967 by the petitioner's father in law on Pagri amount of Rs. 75,000/- which was more than the cost of the said (Page No. 4 of 23) {Smt. Sharda Rani Vs. Joginder Pal & Ors. (E-53/12)} shop at that time whereby a less rate of rent was fixed, which has been now enhanced to Rs. 150/-per month but the same is not accepted by the petitioner's husband ;
28) That the aforesaid Pagri amount now is equivalent to the present cost of the tenanted premises and thus the petitioner cannot seek their eviction unless the said amount is repaid in its present value ;
29) That the petitioner's father in law also let out the adjoining shop in 1954 to their father after accepting a Pagri amount of Rs. 5000/- wherefrom the respondents are conducting the same nature of business as that of petitioner's husband and therefore because of the professional rivalry the present petition has been filed ;
30) That the petitioner's father in law filed a suit for possession in 1980 wherein the respondents were accepted as joint tenants on the death of their father whereafter they also paid Rs. 2 Lac's to him without receipt to continue in the possession of the shops under the tenancy of their father ;
31) That the need of the petitioner can not be deemed as bona fide need since she is a Pardanasheen lady who never steps out of her residence ;
32) That the tenanted premises is not required by her husband or son as both of them already have sufficient commercial accommodations with them ;
33) That the petitioner's husband is occupying one shop Mark A at the first floor and godown Mark B at the second floor whereby he does not require any further accommodation ;
34) That the election I.D. Of the petitioner bears her address at "2358, Bahadurgarh Road", which is different from her "Teliwara address" which thus shows that she has one more commercial property at Bahadurgarh Road ;
35) That the election ID of the petitioner's son bears his address as "Chhatta Panjabiyan, Gali Pahiyan Wali, Medganj, Delhi", which area though falls in Teliwara but is different from the petitioner's address whereby either the said ID is bogus or that the petitioner owns one more property with same municipal number in that area ;
36) That the tenanted premises is in dilapidated condition but the petitioner's husband is not allowing them to carry out the necessary repairs ;
37) That the petitioner is using the backside of the ground floor for residential purposes though it is meant for commercial use and she is also using the first and second floor meant for residential use for commercial purposes ; and
38) That the petitioner has leased 30 almirahs of the first floor and 40 almirahs of the second floor to different traders and has also rented out one shop at the first floor to "M/s G.S. Belt House" and one shop at the second floor to a bangle merchant.
(Page No. 5 of 23) {Smt. Sharda Rani Vs. Joginder Pal & Ors. (E-53/12)} C) Reply to Leave to Defend
6. In her reply to leave to defend, the petitioner has asserted that the first and second floor of the suit property are fully occupied by her various tenants whereby no free space is available there for being used either by her husband or son.
She has also alleged that her husband is only occupying the godown at the ground floor & the adjoining Patri / Chabutra whereby no further portion at the suit property is in his possession.
She has also denied the existence of any bangle shop at the second floor by alleging that the same is instead the bangle godown of one of her tenant.
She has also alleged that her address mentioned in her election ID as "2358, Bahadurgarh Road" is same as "2358, Teliwara" wherein "Bahadurgarh Road" refers to name of the polling booth.
The remaining contents of this reply are a simple reiteration of the contents of her petition whereby she has merely denied the contrary assertions of the respondent.
D) Rejoinder to the aforesaid Reply
7. In her rejoinder, the respondents have merely reiterated the contents of their leave to defend by denying the contrary contentions of the petitioner.
E) Additional affidavits of Respondent no. 1
8. The respondent no. 1 had filed two additional affidavits on behalf of himself and other joint tenants on 18.09.2012 and 16.05.2013 respectively.
In his additional affidavit dated 18.09.2012, the respondent no. 1 has stated that the father in law of the petitioner had filed a written statement in response to their petition U/s 27 DRCA. In this written statement, he has stated that the father of the respondents was initially the tenant but his tenancy was subsequently terminated and resultantly he became a statutory tenant whereby his tenancy could not have been succeeded by his LRs including the respondents. Thus the respondent no.1 alleges that the denial of their status as that of joint tenants by the petitioner's father in law contradicts the stand qua their joint tenancy taken by the petitioner in the present case.
In his subsequent additional affidavit dated 16.05.2013, the respondent no. 1 has alleged that he has obtained the copy of the sale deed of the suit property wherein it is clearly recorded that the (Page No. 6 of 23) {Smt. Sharda Rani Vs. Joginder Pal & Ors. (E-53/12)} petitioner's father in law had purchased it jointly with his brother Shyam Lal making him the owner of only the half of the suit property. He has thus asserted that the Wills executed by the petitioner's father in law and mother in law bequeathing the entire suit property are invalid.
FINDINGS
9. The respondents have alleged that there is no relationship of landlord and tenant between the parties. They have also alleged that neither the petitioner, nor her predecessors are / were the owner(s) of the tenanted premises.
The petitioner has disputed the aforesaid contentions of the respondents. She has alleged that the father of the respondents was initially inducted as a tenant by her father in law and after his death, the respondents jointly succeeded to his tenancy. She has also alleged that her father in law was initially the owner of the tenanted premises, which was bequeathed by him to his wife via Will dated 27.06.1972 who thereafter bequeathed the same in her favour via her Will dated 06.07.1998.
The respondents in their leave to defend have admitted that the tenanted premises was let out to their father by the petitioner's father in law in 1954 on acceptance of a Pagri amount of Rs. 5000/-. Admittedly their father has since expired. Meaning thereby all his LRs had stepped into his shoes whereby all of them became the joint tenants.
The respondents have also stated in their leave to defend that the petitioner's father in law had filed the suit for possession bearing CS no. 484/80 wherein they were accepted as joint tenants. They have also placed on record the relevant court proceedings of the said civil suit.
The aforesaid assertions of the respondents establishes that their father was initially inducted as a tenant by the father in law of the petitioner. After the death of their father, the respondents along with the remaining LRs automatically became the joint tenants at the tenanted premises. The CS no. 484/80 filed by the father in law of the petitioner against the LRs of the father of the respondents was withdrawn on 16.02.1983 on the basis of the compromise between the parties whereby the respondents were accepted as joint tenants in place of their deceased father from the date of his death i.e. 01.10.1981 to the exclusion of the remaining LRs namely Kamlesh Kumari and Subhash Kumari, who since had relinquished their tenancy rights. These circumstances clearly shows that the respondents thus became the joint tenants of the father in law of the petitioner from the date of the death of their father. Thus the relationship of the landlord and tenant between the father in law of the petitioner and the respondents stands established on record. In these (Page No. 7 of 23) {Smt. Sharda Rani Vs. Joginder Pal & Ors. (E-53/12)} circumstances, the respondents are now barred from challenging the ownership of the father in law of the petitioner by virtue of Section 116, Indian Evidence Act.
The respondents have also admitted in their leave to defend that they had filed a petition U/s 27 DRCA against the LRs of the mother in law of the petitioner. The filing of this petition against the LRs of the mother in law of the petitioner means that the respondents had virtually accepted the mother in law of the petitioner as their landlord pursuant to the death of the father in law of the petitioner, otherwise, they never would have filed the said petition against her LRs on her death. Moreover the mother in law of the petitioner had automatically become one of the joint landlords of the respondents on the death of her husband being one of his LRs. Further the respondents have nowhere alleged that they had never attorned to the landlordship of the mother in law of the petitioner after the death of her husband. These circumstances shows that their existed the relationship of landlord and tenant between the mother in law of the petitioner and the respondents. Now the respondents being joint tenants are also barred from challenging the ownership of the mother in law of the petitioner by virtue of Section 116, Indian Evidence Act. Likewise they being joint tenants are also not entitled to challenge the Will dated 27.06.1972 executed by the father in law of the petitioner bequeathing the suit property in favour of the mother in law of the petitioner.
The petitioner has rested her ownership of the tenanted premises on the Will dated 06.07.1998 executed by her mother in law in her favour. The respondents being joint tenants are not entitled to challenge this Will executed by their landlord during her lifetime in favour of the petitioner. The right to challenge this Will rests exclusively with the natural LRs of the mother in law of the petitioner which also includes the husband of the petitioner. However nothing has been placed on record by the respondents to show that this Will has been challenged by any of the natural LRs of the mother in law of the petitioner or that any of such LRs is aggrieved by its execution. None of the said LRs of mother in law of the petitioner have joined the present proceedings to challenge the execution or authencity or veracity of the said Will. Meaning thereby neither the LRs of the mother in law of the petitioner have challenged the said Will, nor any of them seems to be interested in disputing the same whereby the said Will shall continue to hold good. It is none of the business of the respondents being joint tenants to create any doubt or to pose any challenge to this Will or the previous Will dated 27.06.1972 executed by the father in law of the petitioner. Once the respondents are not entitled to raise any dispute qua the Will dated 06.07.1998 executed in favour of the petitioner, she automatically becomes the landlord cum owner having stepped into the shoes of her mother in law, who earlier was the landlord.
(Page No. 8 of 23) {Smt. Sharda Rani Vs. Joginder Pal & Ors. (E-53/12)} The respondents have asserted that the petitioner cannot be assumed as their landlord since neither she had never demanded any rent from them after becoming the owner of the tenanted premises, neither they had ever attorned to her landlordship and nor had ever paid any rent to her. Once it is established on record that the petitioner has acquired the ownership cum landlordship of the tenanted premises, the ancillary facts like she never demanded any rent from the respondents or that they never attorned to her landlordship or that they never paid any rent to her becomes totally inconsequential and irrelevant. These ancillary facts cannot take away the legal right of the petitioner qua the ownership cum landlordship of the tenanted premises acquired by her on the strength of the Will dated 06.07.1998 executed by her mother in law.
In the given circumstances, the petitioner has been able to establish herself as the owner cum landlord of the tenanted premises.
Thus the objections taken by the respondents qua her ownership and landlordship of the petitioner and her predecessors loses their steam.
10. The respondents have alleged that the Will dated 06.07.1998 executed by the mother in law of the petitioner is a forged, fabricated, bogus, manipulated and manufactured document, which thus creates no legal right in favour of the petitioner. They have also asserted that the husband of the petitioner has been named as the sole executor of this Will whereby the petitioner cannot claim any right on the basis of this Will. They have asserted that the petitioner's husband never had disclosed the factum of this Will in his objections filed against their petition U/s 27 DRCA wherein he instead had stated that neither of the natural LRs of his mother are the owner cum landlord of the tenanted premises. They have also alleged that the petitioner's husband has never disclosed that he is the sole executor of the said Will in his reply dated 11.11.2008 filed during the petition U/s 27 DRCA filed by the respondents. They have also alleged that the said Will has been subsequently manufactured by the petitioner's husband so as to mischievously evict them. They have also alleged that the mother in law of the petitioner had expired in 2005 and even thereafter her signatures and photographs appeared on the ration card of June 2006, which shows that this Will is a bogus document. They have also alleged that the said Will has been subsequently manufactured so as to create false grounds of the bona fide requirement of the petitioner, her husband and son. They have also alleged that the mother in law of the petitioner executed this Will in favour of her daughter in law to the exclusion of her natural LRs, which per se creates suspicion qua its execution. In his additional affidavit dated 16.05.2013, the respondent no. 1 has also alleged that the sale deed of the suit property shows that the father in law of the petitioner had jointly purchased the same with his (Page No. 9 of 23) {Smt. Sharda Rani Vs. Joginder Pal & Ors. (E-53/12)} brother Shyam Lal whereby he only was the owner of its half share and thus his Will dated 27.06.1972 and the other Will dated 06.07.1998 executed by the mother in law of the petitioner bequeathing the entire suit property are invalid. On the strength of the aforesaid submissions, the respondents are challenging the execution, veracity, authencity and legality of this Will.
As already been discussed herein above, the respondents being the joint tenants have got no legal right to challenge any of the Wills executed by their previous landlords. The right to challenge the same only vests with the natural LRs of either the previous landlord or the owner of the tenanted premises. None of the natural LRs of any of the previous landlord or owner are challenging or disputing any of two Wills. Thus both the said Wills continues to hold good.
Likewise when the relationship of the landlord and tenant between the parties as well as their predecessors in interest has been established on record, the respondents are estopped from challenging either the sale deed of the father in law of the petitioner or the legality of his Will dated 27.06.1972 or the legality of the Will dated 06.07.1998 executed by the petitioner's mother in law.
Thus the objections of the respondents raised in context of the execution, legality, authencity and veracity of the Will's dated 27.06.1972 and 06.07.1998 are rejected.
11. The respondents have alleged that the husband and son of the petitioner already have sufficient commercial space at their disposal within the suit property. They have alleged that the petitioner has not disclosed that her husband is in occupation of one shop Mark A at the first floor and one godown Mark B at the second floor. They have also alleged that the petitioner has deliberately not filed the site plan of the first and the second floor with a view to conceal the said accommodations available therein and to create an impression of space deficiency.
The petitioner has admitted only to the extent that her husband is in the exclusive possession of one shop at the ground floor and adjoining Patri / Chabutra. She has however denied that her husband or son are occupying any other portion anywhere else at the suit property. The respondents have placed nothing on record suggesting that the husband of the petitioner is occupying any portion of the suit property other than the ground floor shop and the adjoining Patri / Chabutra. They have also not been able to establish that the son of the petitioner is in exclusive possession of any portion at the suit property. Admittedly the entire first and the second floor are occupied by the tenants of the petitioner. Thus the respondents have failed in establishing that the husband or the son of the petitioner are in exclusive occupation of any portion at the first or the second floor. They have also failed to rebut the contention of the petitioner that her husband is running his hardware business from the Patri / Chabutra adjoining to his godown situated at the ground floor. Likewise (Page No. 10 of 23) {Smt. Sharda Rani Vs. Joginder Pal & Ors. (E-53/12)} they have also failed to rebut that the son of the petitioner has no commercial space at his own to start his hardware business. The factum of husband of the petitioner running his hardware business from the Patri / Chabutra and her son having no commercial space to start his business are sufficient to assume the insufficiency of space qua their business requirements. The petitioner is well within her rights to reclaim the tenanted premises with a view to help her husband to properly run his business from a shop instead of from a Patri / Chabutra. Likewise she is also entitled to reclaim the tenanted premises alternatively for her son so as to enable him to start his independent hardware business, which he is unable to start because of the lack of commercial accommodation. The respondents have failed to establish that either the petitioner or her husband or her son have any sufficient alternate commercial accommodation with them to answer their respective requirements. Further when neither the petitioner nor any of her family members are in exclusive possession of any portion at the first and second floor, which admittedly are occupied by the tenants, the petitioner was not required to file the site plan of these floors and thus her failure to do so cannot be assumed as a deliberate concealment or omission.
Hence the aforesaid pleas of the respondents fails to hold any water.
12. The respondents have alleged that the petitioner has concealed that she along with her husband and son are in occupation of the first and second floor of the suit property where they have more than 40 tenants under them.
The petitioner in her reply to leave to defend has clarified that the first and second floor are fully occupied by her tenants whereof no portion has been exclusively occupied by any of her family members. She in her petition has specifically asserted that her husband is only in occupation of one godown at the ground floor along with the adjoining Patri / Chabutra.
Once the petitioner has alleged that none of her family members are in exclusive occupation of any portion at the first or the second floor, the onus was on the respondents to establish the contrary. However the respondents except for their bald allegations have placed nothing on record to establish the same. The petitioner was only required to disclose the portions of the suit property which are under the exclusive physical possession of any of her family members and thus she did the needful by asserting that her husband is only occupying the godown at the ground floor along with the adjoining Patri / Chabutra. The non disclosure by the petitioner, if any, with regard to the portions of the first and second floor occupied by her tenants cannot be treated as fatal for her case.
Thus the aforesaid plea of the respondents fails to raise any triable issue.
(Page No. 11 of 23) {Smt. Sharda Rani Vs. Joginder Pal & Ors. (E-53/12)}
13. The respondents have alleged that the petitioner has not placed anything on record showing that any of the tenants of the first and second floor have ever attorned to her landlordship or any of them has ever paid rent to her or she had ever demanded any rent from them or she had ever given any notice of attornment to them. They have also alleged that the rent from the tenants at the suit property is instead being collected by the husband and son of the petitioner and not by the petitioner herself, which falsifies her claim of landlordship. On the strength of these submissions, the respondents alleges that the petitioner has not been able to establish her landlordship of the suit property.
As already been discussed herein above, the petitioner has already established herself as the owner cum landlord of the suit property whereby all the ancillary circumstances like whether the tenants of the suit property had ever attorned to her landlordship or whether they had ever paid rent to her or whether she had never given any notice of attornment to them or whether she had never collected rent from them or whether her husband & son collects the rents from them becomes totally inconsequential. None of these ancillary circumstances are sufficient to demolish her legal right pertaining to the ownership cum landlordship of the suit property acquired via Will dated 06.07.1998.
Hence the aforesaid objections of the respondents fails to hold any water.
14. The respondents have alleged that the first and second floor were earlier leased out to Barielly Corporation Bank and after its vacation by the bank, the same have been repeatedly re-let to the numerous other tenants. They have also alleged that the petitioner has deliberately concealed the factum of these past and present tenancies, which exposes her malafide. They have also alleged that the petitioner has concealed that the first floor has two big halls with one shop while the second floor has one shop, which portions are occupied by her numerous tenants yielding a rental income of more than Rs. 1 Lac per month. They have also alleged that no rent receipts are being issued to any of these tenants either by the petitioner or her family members with a view to avoid income tax.
The petitioner in her reply to leave to defend has denied the factum of any previous tenancy allegedly been created in favour of Barielly Corporation Bank. However she has admitted that the said floors are currently occupied by numerous tenants. She has denied that her family is earning more than Rs. 1 Lac from the rental income of the first and the second floor. She has also denied that the rent receipts are not being issued or that they are not issued to the said tenants with a view to evade income tax.
(Page No. 12 of 23) {Smt. Sharda Rani Vs. Joginder Pal & Ors. (E-53/12)} The respondents have placed nothing on record to substantiate that the said floors were ever leased out to Barielly Corporation bank at any point of time. Meaning thereby, their plea of concealment in that regard fails.
As far as the non disclosure by the petitioner of the other tenancies of the first and the second floor in her petition are concerned, the same is not fatal for her case. She was only required to disclose those portions of the suit property, which are exclusively in her possession or any of her dependents. The tenanted portions of the first and second floor admittedly are not readily available either to the petitioner or her family members whereby these facts were not required to be disclosed by her since neither of these floors could have served as the alternate suitable accommodations. For this very same reasoning, the petitioner was also not required to file the site plan of any of these floors. She is deemed to have done the needful by filing the site plan of the ground floor depicting the tenanted premises in red colour along with the other portion in green colour exclusively occupied by her husband. The factum of the non issuance of the rent receipts to the tenants of these two floors for any reason whatsoever, be that evasion of income tax or otherwise, has no bearing or relevance qua the present case. When the factum of these floors is not relevant for the present adjudication, then the pleas raised by the respondents qua their structural composition also becomes irrelevant. The composition of the said floors would have been of some relevance, had any of their portion might have been exclusively occupied by any of the dependents of the petitioner and not by her tenants. However that is not the case herein.
Hence the aforesaid pleas of the respondents falls flat on the ground.
15. The respondents have alleged that the neither the son, nor the husband of petitioner are dependent upon her for commercial purposes since they are earning handsomely from the rents collected by them from the various tenants of the first and second floor.
The petitioner has denied the factum of collection of rents either by her husband or the son from the tenants at the suit property. The respondents have placed nothing on record to substantiate their verbal plea made in this regard. The respondents have also placed nothing on record to show that either the husband or the son of the petitioner have any alternate commercial property or accommodation of their own, which can suitably answer their respective requirements. Had any of them would have been having any such alternate commercial accommodation of their own, they certainly would have ceased to be dependents of the petitioner. However this is not the case herein. It appears from the record that the only commercial accommodation available to them is in the form of the suit property, which is exclusively owned by the petitioner. Both of them are the closest (Page No. 13 of 23) {Smt. Sharda Rani Vs. Joginder Pal & Ors. (E-53/12)} family members of the petitioner whereby they are to be treated as her dependents for the purposes of the present case. Moreover the petitioner respectively being the wife and the mother is under a moral and social obligation to help her husband and son by providing them commercial accommodations out of her self owned property so as to answer their respective needs.
Now if for the sake of the arguments, it is assumed that the petitioner's husband and son are earning handsomely from the rents collected from the tenants of the first and second floor, even then they does not cease to be her dependents. They could have lost their dependency qua the provision of commercial accommodation, only if any of them would have been exclusively owning their personal, separate and suitable commercial accommodation. Their commercial earnings, if any, have no bearing on their dependency on the petitioner qua the commercial accommodation.
Hence the aforesaid plea of the respondent fails.
16. The respondents have alleged that the petitioner is using a portion of the ground floor for residential purposes though the same is meant for commercial use. Likewise they have also alleged that she is using the first and the second floor for commercial purposes though the same are meant for residential use. They have also alleged that the petitioner cannot be allowed to earn her livelihood from the different portions of the suit property by changing the nature of their user i.e. using the portions meant for residential use for commercial purposes and vice versa. Hence they are alleging that the need of the petitioner thus be treated as malafide.
The respondents being the tenants cannot dictate terms to the petitioner-landlord as to how and in what manner she ought to use her property. She can use her property in any manner she likes unless and until the alleged change of user is barred by any law. Nothing has been placed on record by the respondents suggesting that the ground floor is only meant for commercial use or that she cannot use the same for residential purpose or that she can use the first and second floor for residential purposes only or that these floors cannot be used for commercial purposes. In absence of any such prima facie proof, the liberty of the petitioner to use her property in any manner she likes cannot be curtailed. She is the master of her property and thus can use the same in a way she deems fit. Merely because she is using her property in the way she deems fit cannot lead to an inference that her need is not bona fide.
Hence the aforesaid pleas of the respondents are rejected being flimsy.
17. The respondents have alleged that the petitioner has numerous tenants at the first and the second floor. They have alleged that around 70 almirahs existing on these floors have been rented (Page No. 14 of 23) {Smt. Sharda Rani Vs. Joginder Pal & Ors. (E-53/12)} out by the petitioner to numerous tenants. They have also alleged that a portion of the first floor has been rented out to "M/s G.S. Belt House" while a portion of the second floor has been leased to a bangle shop.
Once it is established on record that neither the petitioner, nor any of her family members are in exclusive possession of any portion at these floors, which instead are used and occupied by numerous tenants, the factum of as to who are tenants therein (whether it is M/s G.S. Belt House or a Bangle shop or rented almirahs) becomes insignificant.
Hence the aforesaid plea of the respondents fails to raise any triable issue.
18. The respondents have alleged that the petition is bad for the non joinder of the natural LRs of the mother in law of the petitioner.
As already been discussed herein above, the petitioner has already established herself as the exclusive owner cum landlord of the tenanted premises on the strength of the Will dated 06.07.1998 executed in her favour by her mother in law. Hence the petitioner was not at all required to implead any of the natural LRs of her mother in law, who did not succeed to her rights qua the tenanted premises.
Thus the aforesaid objection of the respondents fails to impress this Court.
19. The respondents have alleged that the need of the petitioner for opening a hardware shop for her son is not bona fide since her son is not unemployed who instead is working jointly with his father.
The petitioner had denied the aforesaid contention of the respondents. The respondents have placed nothing on record to substantiate their plea in question though the onus to establish the same rested squarely on them.
Even otherwise if it is assumed that both the father and son are working jointly, even then there is nothing in law which prevents the son to start his own independent business to settle in his professional life. He cannot be forced to work with his father throughout his life. He like any other citizen of this country is fully entitled to start and establish his own independent business whereby the respondents being the tenants cannot dictate terms to him as to how, when and from where, he should start or manage his business.
Hence the aforesaid plea of the respondents is also rejected.
(Page No. 15 of 23) {Smt. Sharda Rani Vs. Joginder Pal & Ors. (E-53/12)}
20. The respondents have alleged that the petitioner has placed nothing on record suggesting that her son possesses sufficient qualification or business experience to start his new business.
This plea of the respondents is totally meritless. The petitioner has alleged that her son intends to start his own hardware business similar to that of his father. Now for starting such kind of business, no minimum qualification or expertise or experience has been prescribed by any law. Such kind of business does not involve any deep technical knowledge or expertise whereby it can be started and managed even by a lay man. When the law does not prescribe any minimum qualification or experience for starting such kind of business, the respondents have got no right to suggest the same.
Hence the aforesaid plea of the respondents fails to impress this Court.
21. The respondents have alleged that the petitioner is a Pardanasheen Lady who never leaves her residence whereby her need is to be assumed as malafide.
This plea of the respondents deserves to be rejected outrightly. Firstly, the petitioner is not claiming the tenanted premises for herself. Rather, she is claiming it for answering the requirement either of her husband or her son. Secondly, the petitioner is not barred from reclaiming the tenanted premises for her dependents merely because she is a housewife. No law debars her from filing and maintaining the present petition even if she happens to be a Pardanasheen Lady, who allegedly never steps out of her residence. She being the owner is fully entitled to reclaim the tenanted premises for answering the requirements of her dependents. Her status that of being a housewife has no relevance in the present facts.
Hence the present plea of the respondents is discarded.
22. The respondents have alleged that the provisions of Section 14(1)(e) DRCA are not applicable in the present case since the same only applies in respect of residential premises and residential tenancies.
The aforesaid objection of the respondents falls in the teeth of the judgment of the Apex Court delivered in the case of "Satyawati Sharma (Dead) by LRs Vs. Union of India & Another"
2008 (5) SCC 287. In this judgment, the Supreme Court has categorically held that the provisions of Section 14(1)(e) DRCA are equally applicable to all sort of tenancies and premises, irrespective of their nature.
Thus the aforesaid objection of the respondents is overruled.
(Page No. 16 of 23) {Smt. Sharda Rani Vs. Joginder Pal & Ors. (E-53/12)}
23. The respondents have alleged that the address of the petitioner mentioned in her election ID is "2358, Bahadurgarh Road" which is different from her address of "Teliwara, Delhi". Hence they are alleging that the petitioner owns one more alternate property at Bahadurgarh Road. Likewise they have also alleged that the address of the son of the petitioner mentioned in his election ID is of "Chhatta Panjibiyan, Gali Pahiyanwali, Medganj, Delhi" which falls in Teliwara area and is different from that of the petitioner, which shows that either the said election ID is fake or that the petitioner has alternate properties with the same municipal number in that area.
The aforesaid assertions were denied by the petitioner whereby the onus at this stage was on the respondents to establish them. They have placed nothing on record to establish that the address of the petitioner at "2358 Bahadurgarh Road" does not fall within "Teliwara Area" or that it is a different property other than the residential address of the petitioner mentioned in her memo of the parties. Likewise they have also placed nothing on record to suggest that the election ID of the petitioner or that of her son are fake or that the petitioner has alternate properties with the same municipal number as that of the address of her son in the "Teliwara area". The proof to establish the contentions could have been easily procured by the respondents either from the Municipal Department or from the Election Department, but they did nothing.
Hence the aforesaid contentions of the respondents are rejected being bald and unsubstantiated.
24. The respondents have alleged that the petitioner has only filed the photostat copies of her documents in disregard of the provisions of Order 7 rule 14 CPC and Order 14 rule 3 CPC whereby no eviction order can be passed on the basis of these photostat documents.
This objection of the respondents is totally misconceived. Firstly the provisions of CPC are not applicable during the course of the summary proceedings of Section 25B DRCA whereby none of the aforesaid provisions of Order 7 rule 14 CPC or Order 14 rule 3 CPC would apply (Refer :-
"Prithipal Singh Vs. Satpal Singh (Dead) through LRs." 2009 (2) SCC 15).
Secondly the Court at the stage of adjudicating the leave to defend is only required to render a prima facie opinion on the basis of the material on record whereby even the photocopied documents filed by either of the parties can be considered by the Court without getting into the technical rules of procedure and evidence. The technical and procedural rules of evidence pertaining to the admissibility of the documents would only come into play during a trial and not during the summary procedure conducted U/s 25B DRCA. Unless and until it is shown that the Photostat documents relied by a party are not the genuine and true copy of their originals, the same can be (Page No. 17 of 23) {Smt. Sharda Rani Vs. Joginder Pal & Ors. (E-53/12)} considered and relied by the Court at the stage of the adjudication of leave to defend. However the respondents have placed nothing on record suggesting that the Photostat documents relied by the petitioner are not the genuine and true copies of their originals.
Moreover when the respondents themselves are relying upon numerous Photostat documents, it does not lie in their mouth to say that their Photostat documents be considered, but, not that of the petitioner.
Hence the aforesaid objection of the respondents falls flat on grounds.
25. The respondents have alleged that their father had taken the tenanted premises on rent in 1967 after giving a Pagri amount of Rs. 75,000/- to the father in law of the petitioner. They have alleged that said Pagri amount was equivalent to the cost of the said shop at that time whereby a lesser monthly rent was thus fixed. They have alleged that since this Pagri amount corresponds to the cost of the tenanted premises, the petitioner cannot seek their eviction unless the same in its present value is repaid to them.
Nothing has been placed on record by the respondents that their father had ever paid any such Pagri amount to the father in law of the petitioner. Hence they have failed to establish the payment of this Pagri amount.
Even if it is assumed to be true that this Pagri amount was ever paid, then also it does not lie in their mouth to say that their eviction cannot be sought without the repayment of this Pagri amount in its present value. The said Pagri amount in normal legal language is to be treated as a lease amount, which does not change the nature of the status of the respondent's father or of the respondents as that of tenant. If any such amount was in fact ever paid, the proper remedy available with the respondents is to file a civil suit for its recovery instead of seeking the same in the present case.
Hence the aforesaid plea of the respondents fails to impress this Court.
26. The respondents have alleged that their father had also taken the adjoining shop on rent in 1954 after giving a Pagri amount of Rs. 5000/- to the father in law of the petitioner. They have alleged that said Pagri amount now corresponds to the present cost of the tenanted premises whereby the petitioner cannot seek their eviction unless the said Pagri amount in its present value is repaid to them. They have also alleged that the petitioner never gave them any notice of attornment after acquiring the ownership of this adjoining shop on the death of her mother in law.
(Page No. 18 of 23) {Smt. Sharda Rani Vs. Joginder Pal & Ors. (E-53/12)} The aforesaid contentions raised by the respondents does not pertain to the tenanted premises in question herein. Rather the same pertains to a separate adjoining shop in whose respect a separate tenancy was admittedly created in 1954. The tenancies of the tenanted premises in question and the other adjoining shop are two different tenancies whereby the facts pertaining to the tenancy of the said other shop are totally irrelevant for the present adjudication.
Hence the aforesaid pleas raised by the respondents are rejected being irrelevant.
27. The respondents have alleged that the petitioner had never raised her need for the tenanted premises since last seven years after she became its owner whereby her present need cannot be deemed as bona fide.
This plea of the respondents is totally misconceived. The petitioner being the landlord cum owner of the tenanted premises can raise her claim for the tenanted premises on the ground of her own requirement or that of any of her dependents at any time, even after several years of becoming its owner. Merely because she never filed claim for the tenanted premises either for her requirement or that of her dependents since the last seven years after becoming its owner does not mean that she is now barred from alleging the same or that her requirement now is to be assumed as malafide. The perusal of the petition reveals that the husband and the son of the petitioner have started facing difficulties qua the availability of the commercial space only recently whereby it is to be assumed that the petitioner's requirement for the tenanted premises only arose recently. Now when the requirement for the tenanted premises arose recently, the petitioner could not have filed the present petition at any point of time prior thereto.
Hence the aforesaid plea of the respondents fails to raise any triable issue.
28. The respondents have also alleged that the petitioner does not need to open another shop for her son for starting the same nature of business in the vicinity of her husband's business since that would result in business rivalry between them.
The respondents are merely the tenants whereby its none of their business to suggest or dictate to the petitioner or her family members as to how they should be starting, conducting, managing or expanding their respective businesses. It is a sole prerogative of the petitioner and her family members to decide as to what kind of business they need to start and as to from where it should be started / conducted. The respondents cannot advice that opening of a similar business by the son of the petitioner in the vicinity of his father's business would lead to a business rivalery amongst them. That is for them to decide whereby they are at full liberty to start even a similar (Page No. 19 of 23) {Smt. Sharda Rani Vs. Joginder Pal & Ors. (E-53/12)} nature of business in the vicinity of each other. Otherwise also the starting of a similar business by the son of the petitioner in the vicinity of his father's business is not barred by any law.
Hence this plea of the respondents fails to garner any strength.
29. The respondent no. 1 in his additional affidavit dated 18.09.2012 has alleged that the petitioner and her father in law had taken contradictory stand qua their joint tenancy status. They have alleged that the father in law of the petitioner in response to their petition U/s 27 DRCA had alleged that the tenancy of their father was terminated during his lifetime making him a statutory tenant whereby the respondents could not have succeeded his tenancy as joint tenants. They have alleged that the petitioner has contradicted this stance of her father in law by alleging in the present case that they are the joint tenants after succeeding the tenancy of their father.
The aforesaid plea of the respondents does not raise any triable issue. They themselves have placing on record the proceedings of the CS no. 484/80, which was filed by the father in law of the petitioner against them and the remaining LRs of their deceased father. The said CS were compromised between the parties on 16.02.1983 whereupon the respondents were accepted as joint tenants by the father in law of the petitioner to the exclusion of their remaining LRs i.e. Kamlesh Kumari and Subhash Kumari. The statement of all the concerned parties were recorded before the concerned Court on 16.02.1983 which same shall continue to bind the parties till date despite the fact that either the petitioner's father in law or the respondents might have taken any stand contrary to these court proceedings. The alleged contradictory stand taken by the petitioner or her father in law in any other subsequent proceedings will not dilute the legal effect and sanctity of the said compromise, which shall continue to determine the legal status of the parties even in presenti. Moreover the respondents throughout have admitted themselves as the joint tenants whereby they are now estopped from raising any plea to the contrary and hence cannot derive any benefit from the alleged contradictory stand taken either by the petitioner in the present case or by her father in law in the previous proceedings U/s 27 DRCA.
Hence the aforesaid alleged contradiction allegedly appearing in the stance of the petitioner and her father in law does not render any substantial benefit in favour of the respondents.
30. The respondents have alleged that the tenanted premises is in dilapidated condition and they are not allowed by the husband of the petitioner to carry out the necessary repairs.
(Page No. 20 of 23) {Smt. Sharda Rani Vs. Joginder Pal & Ors. (E-53/12)} The questions pertaining to the condition of the tenanted premises or that the petitioner's husband not permitting them to repair it are totally irrelevant qua the present adjudication and are hence rejected.
31. The respondents have relied upon numerous judgments to contend that they are entitled to leave to defend. They have cited as "Narender Kumar Manchanda & Anr. Vs. Hemant Kumar Talwar" 197 (2013) DLT 171, "Sudhakar Singh Vs. Sunil Batra" 192 (2012) DLT 491, "Prahlad Rai Mittal Vs. Rita Devi" 196 (2013) DLT 703, "Mohd. Illyas Vs. Nooruddin and Ors" RCR no. 133/2011 decided by Delhi High Court on 15.11.2011, "Charan Dass Duggal Vs. Brahma Nand" (1983) 1 SCC 301, "Jatinder Singh Nanra Vs. Sarita Rani" RCR no. 81/2010 decided by Delhi High Court on 12.07.2011, "Sri Prakash Gupta Vs. Dharmanand Pandey Deceased through LRs." RCR no. 88/2011 decided by Delhi High Court on 04.11.2011, "Vijay Kumar Gupta Vs. Ashok Sharma" RCR no. 47/2010 decided by Delhi High Court on 23.01.2012, "Santosh Devi Soni Vs. Chand Kiran" JT 2000 (3) SC 397, "Manoj Kumar Vs. Bihari Lal (DEAD) by LRs." (2001) 4 SCC 655, "Laxmi Narain Vs. Shyam Mohan Sharma" RCR no. 241/2010 decided by Delhi High Court on 19.09.2011, "Santosh Devi Soni Vs. Chand Kiran" CA no. 412/2000 decided by Delhi High Court on 17.01.2000, "V.K. Arora Vs. K.B. Madan" 85 (2000) DLT 24, "Sh. Surendra Trikha Vs. Smt. Monika Gupta & Ors" RCR no. 32/2008 decided by Delhi High Court on 02.03.2009, "Vijay Nayyar Vs. Om Prakash Malik" RCR No. 120/2011 decided by Delhi High Court on 11.07.2011, "Inderjeet Kaur Vs. Nirpal Singh" SLP (Civil) 554/2000 decided by Supreme Court on 15.12.2000, "Satpal Vs. Sahi Ram" RCR no. 25/2010 decided by Delhi High Court on 27.05.2011, "Sant Lal Kathura Vs. D.K. Miglani" RCR. no. 326/2011 decided by Delhi High Court on 22.03.2012.
The citations relied by the respondents are so many that it is not feasible to deal with each one of those whereby I instead shall briefly enunciate the legal principles laid by them to find out if any of them helps the cause of the respondents. These citations basically lays certain principles which needs to be kept in mind by the Court while deciding the leave to defend. That if the tenant is able to show that the need of his landlord is for additional accommodation, then he is entitled to unconditional leave to defend. That if the tenant is able to show the existence of triable issues which could eventually non suit the landlord, then also he is entitled to unconditional leave to defend. That the landlord must come to the Court with clean hands by disclosing all the alternate and relevant accommodations available with him otherwise the tenant would be entitled to (Page No. 21 of 23) {Smt. Sharda Rani Vs. Joginder Pal & Ors. (E-53/12)} unconditional leave to defend. That if the landlord possesses reasonable & sufficient vacant accommodation, then also the tenant is entitled for unconditional leave to defend.
There is no doubt to these legal principles. However the respondents cannot draw any benefit from these legal principles once my aforesaid discussion clearly spells out that they have squarely failed to prima facie establish that either the petitioner's need is in the nature of any additional requirement or is a mere desire lacking bona fides or that their case involves any triable issues capable of non suiting her.
32. The petitioner is claiming the tenanted premises to help her husband to set up an independent shop for his hardware business, which he had present is forced to carry out from the Patri / Chabutra adjoining to his godown at the ground floor. Alternatively, she is also claiming the tenanted premises so as to enable her son to start his independent hardware business, which he could not start till date due to lack of commercial accommodation.
The petitioner being the wife as well as the mother is under a moral obligation to look after the personal and professional well being of her husband and son. She has prima facie established that neither she, nor her dependents have any alternate reasonable sufficient commercial accommodation. Moreover in the light of failure of the respondents to raise any triable issues, the needs of the petitioner and that of her dependents is to be assumed as genuine, honest and bona fide.
Lastly the passing of eviction order dated 11/07/2013 against the respondents no. 1 & 2 in the connected EP no. 94/12 regarding the adjoining tenanted shop is no bar to the passing of eviction order in the instant case. The petitioner has filed these petitions for the requirements of her husband and son, whereby her husband can apportion one of these tenanted portions for himself while the remaining can be used by the son.
CONCLUSION
33. It is well settled that leave to defend is granted to the tenant in case of any triable issue has been raised by him, which can be adjudicated by consideration of additional evidence. The mere existence of any triable issue is not sufficient. The nature of the triable issue raised by the tenant must be such that it will disentitle the landlord from obtaining the eviction order. The whole purpose and import of summary procedure under Section 25B of the Act would otherwise be defeated. The prayer for leave to contest should be granted to the tenant only where a prima facie (Page No. 22 of 23) {Smt. Sharda Rani Vs. Joginder Pal & Ors. (E-53/12)} case has been disclosed by him. In the absence of the tenant having disclosed a prima facie case i.e. such facts which disentitles the landlord from obtaining an order of eviction, the Court should not mechanically & in routine manner grant leave to defend.
In the light of the aforesaid legal ratio, all the pleas taken by the respondents seems to be sham and moonshine, which have failed to raise any requisite triable issues. The application for leave to defend filed by the respondents is thus rejected.
Consequently an eviction order is passed U/s. 14 (1) (e), DRCA against the respondents regarding the tenanted premises comprising of one shop and adjoining store at the ground floor of property no. 2359, Teliwara, Sadar Bazar, Delhi-110006 as shown red in the site plan of the petitioner.
However in light of Section 14 (7) DRCA, the aforesaid eviction order shall not be executable for a period of six months from today.
The parties are left to bear their own costs.
File be consigned to Record Room after due compliance.
Announced in the open court on 25.07.2013. (SIDHARTH MATHUR) ARC-02/Central/THC/DELHI.
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