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Delhi District Court

Smt. Gian Kaur vs Sh. Jeet Singh on 16 August, 2012

 In the Court of Rakesh Kumar­II: Additional Rent Controller­2 
      of East Delhi District at Karkardooma Courts, Delhi.

Eviction Petition No.177/11
Unique I.D. No:02402C0330792011

In the matter of :­
Smt. Gian Kaur
W/o late Sh. Sarmail singh,
R/o IX/3195, Gali No.5,
Dharampura, Gandhi Nagar,
Delhi­110031.                                    ..... Applicant

      VERSUS

Sh. Jeet Singh
S/o Late Sh. Ramji Dass,
R/o IX/3197, Gurudwara Gali,
Gali No.4, Gandhi Nagar,
Delhi­110031.                                    .....Respondent

Date of Institution              : 01.11.2011
Reserved for Order               : 14.08.2012
Date of Decision                 : 16.08.2012

ORDER

1. Vide this order I shall dispose off an application under Section 25­B (5) of DRC Act filed on behalf of the respondent for seeking leave to contest the present eviction petition.

2. The brief facts of the case as narrated in the petition are E­177/11 Smt. Gian Kaur v. Jeet Singh Page 1 of 13 that the petitioner is the landlady/owner of the property qua the respondent in respect of the shop in the property bearing no. IX/3195, Gali No.5, Dharampura, Gandhi Nagar, Delhi­110031 more specifically shown in red colour in the site­plan and the same was let out to the respondent for commercial purposes and the respondent is running its general store from the shop in question and the petitioner has no other alternate commercial accommodation in Delhi, so the petitioner requires the shop in dispute bonafidely for running her own business from the shop in dispute of readymade garments and the shop in dispute is more suitable to the petitioner for running the business of readymade garments.

3. It is stated that the petitioner is residing at first floor of the property bearing no.IX/3195, Gali No.5, Dharampura, Gandhi Nagar, Delhi and there are four shops in the above said property out of which one shop is in possession of Sh. Sadhu singh son of the petitioner who is running its STD shop under his occupation and one shop is under the tenancy of another tenant namely sh. Pradeep Kumar who is running its business of Kiryana Shop and another shop is under the tenancy of another tenant who is running business of tea shop and the said shop in dispute is more suitable to the petitioner for running its business of readymade E­177/11 Smt. Gian Kaur v. Jeet Singh Page 2 of 13 garments. It is stated that the petitioner has earlier filed an eviction petition under Section 14­D DRC Act against the respondent but due to inadvertence, the grounds of eviction were wrongly described as of bonafide requirement for the respondent. Petitioner prayed for an eviction order with respect to the premises in question i.e. shop at ground floor portion of property no.5A/36, Vishnu Garden, New Delhi­110018 as shown in red colour in the site plan.

4. An application under Section 25­B (5) of the DRC Act and affidavit was filed by the respondent. In the application for leave to defend, the main ground taken by the respondent is that the petitioner being 70 years of age is not been able to run any kind of business and the shop in question is not required bonafide by the petitioner for her use in any manner as the entire ground floor of the said disputed property is commercial in nature. The other ground of the respondent is that there are five shops, one big shop is with the petitioner and three shops are occupied by the tenants including the respondent and the remaining entire portion of the ground floor of the property including two shops are occupied by the petitioner. It is submitted by the respondent that the petitioner has not filed the correct site­plan with some malafide intention and she has not given the complete details of E­177/11 Smt. Gian Kaur v. Jeet Singh Page 3 of 13 accommodation occupied by her. It is averred by the respondent that the petitioner has not filed any document regarding the size of her family and daughter of the petitioner Ms. Manpreet Kaur is doing the service in Honda Motor as Trainer and her monthly salary is more than Rs.20,000/­ and the shop in question is not require by the petitioner to do her own business. The other contention of the respondent is that the petitioner has three sons and one son namely Brahmjeet Singh has a big property in Chitra Vihar, Shakarpur in which he is residing and he is having his office in the basement of the said property and one property in Jagat Puri, Laxmi Nagar, Delhi and one property measuring 500 sq. yds. in Sector 60, Noida, U.P. in which he runs a factory of electronics and other son namely Sampat Singh has one property at Sahibabad and Sh. Sadhu Singh who is also having a property at Lajpat Nagar and Krishna Nagar and Sadhu Singh is also running a STD Shop from the ground floor portion of the property in question.

5. The petitioner filed counter affidavit wherein she denied the contentions raised by the respondent in the leave to defend application and reiterated the allegations made in the petition.

6. I have heard counsel for the parties and perused the material available on record carefully.

7. Before I come to the contentions of learned counsel appearing for either parties, let us discuss the essential ingredients of Section 14 (1) (e) of DRC Act on which the petitioner may be entitled to an order of eviction as follows:­ i. The premises in question were let for residential purpose.

ii. That petitioner is a landlord and an owner of the said premises, iii.The premises are required bonafide by him for occupation as a residence for himself or for any member of his family dependent upon him or for any person for whose benefit the premises are held; and iv. That he has no other reasonable suitable residential accommodation.

(i) The premises in question were let for residential purposes:­

8. The petitioner has averred that the tenanted premises is non­residential/commercial that is a shop on the ground floor. However, the controversy has been set at rest by the Hon'ble Apex Court in Satyawati Sharma v. Union of India and Anr. (5) SCC 287 and now the premises let out either for residential or commercial purposes can be got vacated by the landlord for bonafide requirements.

(ii) That petitioner is a landlord and an owner of the said E­177/11 Smt. Gian Kaur v. Jeet Singh Page 5 of 13 premises.

9. It it contended by the respondent that late Sh. Sarnail Singh, husband of the petitioner, was the owner of the said property and he has expired on 06.12.97 leaving behind his widow (the petitioner), his three sons and one married daughter as his only legal heirs and after his death all his legal heirs have inherited the said property by operation of law so, the petitioner being not alone the absolute owner of the said property, has no right and locus standi to file the present petition.

10. It has been held by Hon'ble Delhi High Court in Rajinder Kumar Sharma and Ors. v. Leelawati & Ors. 155(2008) DLT 383 that where a tenant denies ownership of landlord, he is obliged to disclose who was owner/landlord and to whom rent was being paid. The respondent has not disclosed the name of any person who according to him is owner of the premises in question and to whom the respondent is paying rent presently but he has baldly denied the ownership of the applicants. For deciding an application under the provisions of Clause (e) of sub­Section (1) of Section 14 of DRC Act, the relationship of landlord­tenant is to be seen and not the ownership of the applicant qua the premises.

11. It is contended by the respondent himself that the petitioner is the legal heir of late Sh. Sarnail Singh who was owner E­177/11 Smt. Gian Kaur v. Jeet Singh Page 6 of 13 of the shop in question and as such, it is admitted by the respondent himself that the petitioner is the legal heir of the owner of the premises and apart from that there are other legal heirs. It is well settled law that an eviction petition under DRC Act can be filed by a co­owner and it is not necessary to implead all the co­owners. The relationship of landlord & tenant is not disputed by the respondent as he himself admitted the relationship between him and the petitioner in para 8 of the affidavit. In view of the above, the landlord­tenant relationship between the parties is established.

12. Now having admitted the petitioner to be the landlord, the respondent has estopped from denying the title of the petitioner to the property in question as per Section 116 of the Evidence Act and reference in this context may be made to the judgment in Amar Kaur v. Dhanesh Kumar 97 (2002) DLT 772 and Rital Lal v. Raj Kumar Singh (2220) VIII AD (SC) 43. In a very recent case of Ramesh Chand v. Ugani Devi 157 (2009) DLT 450, our own Hon'ble High Court has specifically held that:

"It is settled preposition of law that in order to consider the concept of ownership under Delhi Rent Control Act, the Court has to see the title and right of the landlord qua the tenant. The only thing to be seen by the Court is that the landlord had been receiving rent for his own benefit and not for and on behalf of someone else. If the landlord was receiving rent for himself and not on behalf of E­177/11 Smt. Gian Kaur v. Jeet Singh Page 7 of 13 someone else, he is to be considered as the owner, howsoever imperfect his title over the premises may be. The imperfectness of the title of the premises cannot stand in the way of an eviction petition under Section 14 (1) (e) of the D.R.C. Act, neither the tenant can be allowed to raise the plea of imperfect title or title not vesting in the landlord and that too when the tenant has been paying rent to the landlord. Section 116 of the Evidence Act creates estoppal against such tenant. A tenant can challenge the title of landlord only after vacating the premises and not when he is occupying the premises. In fact, such a tenant who denies the title of the landlord, qua the premises, to whom he is paying rent, acts dishonestly. I, therefore, find that there was no infirmity in the order of learned ARC in this respect".

13. In Meenakshi v. Ramesh Khanna & Anr. 60 (1995) DLT 524 it was held that:­ "Mere denial of ownership is no denial at all. It has to be something more. For this, first and foremost thing which has always been considered as a good guide is does that tenant say who else is the owner of the premises if not the petitioner? In the present case, the tenant does not say anything except denying petitioner's ownership. The tenant is completely silent on this aspect. Merely by saying that the petitioner is not the owner, the tenant is trying to ensure that the case drags on for years for trial. If leave is granted on the basis of such vague pleas, it will encourage the tenants to deny ownership of the petitioners in every case. The tenants are well aware that once leave to contest is granted, the cases go on for trial for years. Their purpose is achieved. Keeping this in mind, the Controllers should rather have positive approach in such matters so as to discourage such vague and frivolous pleas which are most of the time false to the knowledge of persons raising them."

14. In the light of above cited case law authorities, I observe E­177/11 Smt. Gian Kaur v. Jeet Singh Page 8 of 13 that plea of the respondent with regard to the ownership of the premises in question is untenable, hence rejected.

15. The other contention of the respondent is that the petitioner has not filed the correct site­plan of the property and he has not given the details of entire property. The petitioner is supposed to furnish the requisite information required under the law and accordingly the petitioner has filed the site­plan but the respondent has not placed on record any counter site­plan to prove his contention that the petitioner has reasonable accommodation available with her. In the absence of any site­ plan of the respondent, site­plan filed by the petitioner is deemed to be correct and this ground cannot be accepted.

(iii) & (iv) The premises are required bonafide by him for occupation as a residence for himself or for any member of his family dependent upon him or for any person for whose benefit the premises and that he has no other reasonable suitable residential accommodation:­

16. The petitioner has claimed the shop in question for her bonafide use. It is argued by counsel for the respondent that various properties are owned by the sons of the petitioner in Sahibabad and Noida but all these properties and places are not E­177/11 Smt. Gian Kaur v. Jeet Singh Page 9 of 13 relevant for deciding the present controversy as the petitioner being a senior citizen of more than 70 years of age requires the shop in question bonafide for running her business of readymade garments from the shop only. Being a widow, she has a right to start her own business and to earn her livelihood and properties of the children in other states are no ground to disallow the petitioner to start her own work. It is also not restricted in any law that a person at the age of 70 years cannot do any business. The other contention of the respondent is that the son of the petitioner are also having several residential flats in Delhi but, again these properties are not relevant for deciding the present controversy as these flats are residential and no commercial activity can be carried out from these flats. It is held by the Hon'ble Court in Navneet Lal v. Deepak Swahney 2010 (120) DRJ 346 that:­ "The landlord is the best judge of his residential requirement and has a complete freedom in the matter and it is no concern of the Courts to dictate to the landlord how and in what manner he should live. The Supreme Court deprecated the solicitous approach of the High Court and held that there is no law which deprives the landlord of the beneficial enjoyment of his property."

17. In Sarla Ahuja v. United India Insurance Co. Ltd. (1998) 8 SCC 119 the Hon'ble Apex Court has held that "The Crux of the E­177/11 Smt. Gian Kaur v. Jeet Singh Page 10 of 13 ground envisaged in clause (e) of Section 14 (1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bonafide. When a landlord asserts that he requires his building for his own occupation, the Rent Controller shall not proceed on the presumption that the requirement is not bonafide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case, it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bonafide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bonafides of the requirement of the landlord, it is quite unnecessary to make an endeavor as to how else the landlord could have adjusted himself."

18. In Ashok Kumar v. Raj Kumar & Ors. 2007 (1) RCR 417, Punjab & Haryana High Court has held that "Tenant cannot create a clog on the extension of business of landlord or dictate terms to the landlord and in the ejectment application only relationship of landlord and tenant is to be seen and sufficiency cannot be judged from the view point of the tenant."

19. It is also held by Hon'ble High Court of Delhi in Sudesh E­177/11 Smt. Gian Kaur v. Jeet Singh Page 11 of 13 Kumari Soni v. Prabha Khanna, 2008 (153) DLT 652, that "Determination of, relevant consideration for the suitability of accommodation for landlord and held suitability has to be seen from the convenience of the landlord and his family members and on the basis of the circumstances including their profession, vocation, style of living, habits and background."

20. In S. P. Sethi v. R. R. Gulati 2006 (2) RCR 205 it was held that "Landlord was running departmental store in ground floor. He wanted first & second floor for expansion of business. Held, the need was bonafide. The need of the landlord has to be examined broadly and reasonably considering the social status an other requirements."

21. In Diwan Chand Puri v. Gurchet Singh 2006 (1) RCR 302 it was held that "Landlord was running business and he required adjoining portion for business of spare parts and accessories and it was ancillary to the working of repair of cars. It was held that need was bonafide and the landlord is the best judge of his needs."

22. From the facts it is clear that shop in question is required by the petitioner for her bonafide requirement. In the light of above discussion, I observed that the petitioner has successfully explained her bonafide necessities.

23. For the discussions afore­stated, I am of the opinion that the respondent has failed to disclose such facts which would dis­ entitle the landlord from obtaining an order for eviction. The application for grant of leave to defend is declined.

24. For the afore­stated discussion, the application on the ground mentioned in clause (e) of the proviso of sub­section (1) of Section 14 read with Section 25­B of DRC Act is allowed. An eviction order is passed against the respondents in respect of one shop in the property bearing No.IX/3195, Gali No.5, Dharampura, Gandhi Nagar, Delhi­110031, more specifically shown in color red the site plan attached. The eviction order shall not be operative for a period of six month Announced in the open court (Rakesh Kumar­II) on 16.08.2012 Additional Rent Controller (East) Karkardooma Courts, Delhi.