Delhi District Court
Sh. Devender Singh vs Sh. Ajay Kumar on 5 April, 2021
IN THE COURT OF SH. VIRENDER SINGH,
ACJ-CUM-CCJ-CUM-ARC (NORTH), ROHINI
COURT, DELHI
RC ARC No. 45-17
CNR No. DLNT03-001587-2017
In the matter of :-
1. Sh. Devender Singh
S/o Late Sh. Laxman Singh
R/o House No. 2826, Roop Nagar,
Delhi - 110007.
2. Sh. Surender Singh
S/o Late Sh. Laxman Singh
R/o 3/62, Upper Ground Floor,
Roop Nagar, Delhi - 110007.
....Petitioners
Versus
1. Sh. Ajay Kumar
S/o Late Sh. Kailash
2. Sh. Manoj Kumar
S/o Late Sh. Kailash
3. Sh. Deepak Kumar
S/o Late Sh. Kailash
4. Sh. Sanjay Kumar
S/o Late Sh. Kailash
5. Smt. Kiran Bala
W/o Late Sh. Kailash
All R/o
House No. 4/55, Roop Nagar,
Delhi - 110007.
RC ARC 45/17 1 of 25
6. Sh. Girdhari
S/o Late Sh. Madan Lal
7. Shri Ram
S/o Late Sh. Madan Lal
8. Sh. Shyam
S/o Late Sh. Madan Lal
9. Sh. Pradeep Kumar
S/o Late Sh. Lalu Prasad
10. Smt. Muni Yadav
W/o Late Sh. Lalu Prasad
11. Smt. Manju Yadav
W/o Sh. Govind Ram
12. Sh. Kishore
S/o Late Sh. Rameshwar Prasad
13. Sh. Ashok
S/o Late Sh. Raeshwar Prasad
All R/o
House No. 71, Rajpura,
Gurmandi, Delhi - 110007.
....Respondents
ORDER
1. RC ARC No. : 45-17
2. Under section : Eviction of tenant U/s
14(1) (e) r/w Section 25
(B) of DRC Act
RC ARC 45/17 2 of 25
3. Date of institution : 10/08/2017
4. Reserved for Order : 01/04/2021
4. Date of final order : 05/04/2021
5. Final order : Eviction petition is
allowed / Leave to
defend application is
dismissed.
1. Vide this order, I shall decide the Leave to Defend Application filed by the respondents against the present eviction petition filed by the petitioners under Section 14 (1) (e) read with Section 25 (B) of Delhi Rent Control Act 1958 (herein referred as DRC Act 1958).
PLEADINGS OF THE PARTIES Petition
2. Brief facts necessary for the disposal of the present application are as follows:-
a) As per the averments taken by the petitioners, Shri Laxman Singh i.e. the father of the Petitioners was the owner of the case property i.e. Premise No. 71, Rajpur Village, Gurmadi, Delhi- 110007 (hereinafter referred as rented premises/suit RC ARC 45/17 3 of 25 property) who inducted the predecessor of Respondents i.e. Shri Badri Prasad as tenant and expired on 23/05/2005. Shri Badri Prasad has also expired on 07/02/1996. Now the petitioners are two among four co-owners and other co-owners do not have any objection to the present eviction petition. The Premise is residential one and occupied by some of the respondents. The premise is comprises of Tin- Shed Rooms as well as Khaprail Rooms with open court-yard having measurement of 82' X 49', more specifically shown in red color in Site Plan. The monthly rent is Rs.100/ (Rupees One Hundered Only) per month excluding electricity charges. Earlier the father of Petitioners had preferred an Eviction Petition on various grounds U/s 14(1) (b) (c) (d) (e) (f) (h) (k) on separate cause of actions in the year 1996, which is already dismissed. Earlier an eviction petition U/s 14 (1) (e) on same cause of action was filed against dead persons, which is already withdrawn with liberty to file fresh petition on 26/07/2017 from the Court of Shri Amit Arora. The Petitioner No.1 is, 67 years of age and he is Retired Associate Professor from Delhi University, who retired in the year 2015. He is not getting any pension after retirement and his source of livelihood is rental income derived from premises no.72 and 176, Rajpura Gurmandi, Delhi jointly owned with his brothers and premises no. 186, Rajpura, RC ARC 45/17 4 of 25 Gurmandi, Delhi. All the three properties are in occupation of respective tenants. The Petitioner no.1 is having Two married sons. The petitioner no.1 and his both married sons are residing at 2/26, Roop Nagar, Delhi-7 on their respective floors. The Elder son Sanjay Singh is 45 years of age and he is still un- employed. It is the moral duty of Petitioner no.1 to settle down his son well in life. Shri Sanjay Singh has already completed various computer and networking programs. But despite his best efforts he is still un- employed. Therefor the tenanted premise is urgently required for starting some computer and networking business.
That the Petitioner no.2 is about 56 years of age and he has only the rental income from premises no.72, and 176, Rajpura, Gurmandi, Delhi for his livelihood. He alongwith his son's family is residing at 3/2, Upper Ground Floor,, Roop Nagar, Delhi 110007. Shri Narpinder Singh i.e. son of Petitioner no.2 is still un-employed and it is the moral duty of the Petitioner no.2 to settle down his son and to contribute his best for his independent life. Shri Narpinder Singh has already done his Diploma in Computer Operations. But despite his best efforts he is still un-employed. Hence, the tenanted premises is urgently required for starting some computer and networking related business from the tenanted premises by the said RC ARC 45/17 5 of 25 Shri Sanjay Singh and Shri Narpinder Singh in Partnership.
That the Petitioners do not have enough space to set up an office at their respective premises as already five families are residing there. They do not have any other space vacant either in Delhi or in any other place except the tenanted premises either in their name or in the name of their family members. The tenanted premises is the best suitable premises to the petitioners to start computer related business/profession for their respective un-employed sons.
Leave to Defend Application
3. Upon the service of summons, the respondents have filed the present application seeking leave to defend under Section 25 - B (4) & (5) of Delhi Rent Control Act, 1958. Various grounds have been taken in the leave to defend application which can be briefly summaries as follows:-
a) The present Petition is unsustainable at law under section 11 of Civil Procedure Code (hereinafter referred as CPC) as the Petition on the ground of Bonafide Necessity on similar grounds is already dismissed vide judgment dated 24/04/2014 RC ARC 45/17 6 of 25 with costs of Rs.10,000/- against the petitioners in Eviction Petition no.35/2009. The Appeal against the said Judgment is already dismissed by Ld. Rent Controler vide RCT no. 10/14 as withrawn vide Judgment dated 08/04/2017.
b) That thereafter the petitioners filed another Eviction Petition under Section 14 (1) (e) r/w Section 25B of Delhi Rent Control Act vide Eviction Petition No.E-7/17, which was Dismissed as Withdrawn on frivolous ground that the petitioners did not know about the death of Respondents no. 1 t& 5 even when they new it during the pendency of earlier Eviction Petition.
c) The Petitioners have concealed that the tenanted premises had been let out in the year 1938 to Shri Babu Lal for Residential-cum-commercial purposes and after his death, his sons namely Shri Badri Prasad (since deceased) Madan Lal and Rameshwar Prasad became the lawful tenants as tenancy devolved to them after the death of their father in the year 1948-1949 and thereafter upon their legal heirs. In the earlier petition the petitioners had wrongly mentioned the names of tenants however in the present petition they have rightly admitted that the Respondents Nos. 1 to 13 are the tenants in possession of the tenanted premises.
RC ARC 45/17 7 of 25 d) That in the Judgment dated 24/04/2014
passed in E-35/2009, it has been clearly held that the petitioner/their father own various residential and commercial properties incluiding:-
i) House no. 2/26, Roop Nagar, Delhi,
ii) House no. 3/62, Roop Nagar, Delhi
iii) House no. 72, Village Rajpura, Delhi,
iv) House no.176, Village Rajpura, Delhi,
v) Property no.186, Rajpura, Delhi.
e) That the petitioners have concealed that after the dismissal of above said petition the Property no.72, Rajpura, Delhi has been reconstructed and the said property having an area of 400 Sq. Yards is in four blocks and every block comprises of four floors (ground Floor- 4th Floor) and one block is in occupation and possession of petitioner no.1 and there are total 12 rooms in each block. The petitioner no.2 is also in occupation of ground floor alongwith first floor, second floor, third floor and fourth floor. There are shops on the ground floor of this portion and he has let out two shops to a Water Cooling Plant. Recently another shop is let out for grocery in the year 2016 and the fourth shop is with a Beauty Parlour while the entire first floor, second floor, third floor are in possession of the petitioner no.2.
RC ARC 45/17 8 of 25 f) That as far as the property no.3/62 is concerned
the Petitioners have recently constructed a new building which comprises of upper ground floor, first floor, second floor, third floor (Four Floors), apart from stilt area for car parking under the upper ground floor.
g) That in property no.2/26, Roop Nagar, Delhi there are four shops on the ground floor and the same are available to the petitioners where the sons of the petitioners can be accommodated for carrying their computer shop.
h) That the pleadings of the petitioners that their respective sons are un-employed are false and baseless as both sons of the respondents are employed in Gurgaon and working in a Network Company. And if the petitioners are desirous of starting their own Computer Business then four shops in Property No.2/26, Roop Nagar, Delhi are in possession of the petitioners, where their sons can start their Computer & Networking Business. Therefore the need of the Petitioners is neither bonafide nor sustainable in view judgment dated 24/04/2014 passed in E-35/2009 in between the parties/their LRs.
RC ARC 45/17 9 of 25 i) That the suit premises consists of Chappar etc.
and can not be used for sophisticated business of Computer and Networking and nor situated in the market which is the basic requirement of carrying business activities.
j) That the petitioners have sufficient reasonable alternative accommodation (both residential and commercial) in their possession and do not need the suit premises.
k) There is no change of circumstances after passing of judgment dated 24/04/2014 except that the petitioners have obtained the vacant possession of four shops in the Property no.2/26, Roop Nagar, Delhi-
110007.
Reply to the Leave to Defend
4. In response, the petitioner has filed reply to the leave to defend application, whereby the contents of the leave to defend application have been denied and it is contended that no triable issues are disclosed by the respondents.
5. It is also contended that it is incorrect that the present petition is unsustainable under section 11 RC ARC 45/17 10 of 25 of CPC as the similar petition on similar ground has been dismissed vide judgment dated 24/04/2014. It is submitted that the said Eviction Petition was filed by the father of petitioners 21 years back on separate cause of action U/s 14(1) (b) (c) (d) (e) (f) (h) (k) of DRC Act. Now the present petition is on separate cause of action in the year 2017. Hence, Section 11 CPC is not applicable in the facts and circumstances of present case.
6. It is further contended that the Petitioners have already disclosed about the judgment dated 24/04/2014. The judgment passed in that Eviction Petition has no bearing to the present Petition as the said Petition was filed 21 years back on different cause of action by the father of Petitioners. None of the premises as disclosed by the respondents is vacant and available to the petitioners at present. The status of various premises claimed by the respondents are as under:-
a) House no.2/26, Roop Nagar, Delhi-
The petitioners alongwith two other brothers were Co-Owners of the said property. It had been devided in two parts A and B. The Part A goes to the Petitioner no.1 and and the Part B goes the another RC ARC 45/17 11 of 25 brother namely Ravinder Singh. The Petitioner No.1 and his two married sons alongwith their families are residing in Part A and the Top Floor of Part A is under tenancy. The four shops below are also devided among four brothers. The Petitioner no. 2 has already sold his shop with tenant, while the brother Rajinder is doing his work from his shop. And the shop in the share of petitioner no.1 is in occupation of his daughter-in-law and she is running a Homeopathy Clinic from the said shop.
b) House no.3/62, UGF, Roop Nagar, Delhi 110007 This was also a joint property and developed in colaboration with builder, where UGF goes to the share of petitioner no.2 and Top Floor goes to another brother Shri Rajender. Rest of the floors goes to the builder. The Petitioner no.2 is 56 years of age and he is residing at the UGF with his married son namely Narpinder Singh.
c) House no.72 and 176 Village Rajpura, Delhi.
These properties are jointly owned by four brothers and let out to different persons as tenant. The rental income is the only source of income of the petitioners. The said rent is distributed between all four RC ARC 45/17 12 of 25 brothers.The said two premises are neither available nor suited to start the business by the sons of the petitioners.
d) Property no.186, Rajpura, Delhi.
This property belongs to the wife of petitioner no.1 and occupied by different tenants and as such not available to the Petitioners.
7. It is further denied that, the petitioners have got any additional accommodation as claimed.
8. It is denied that the sons of both Petitioners are employed in Gurgaon in any Networking Company. It is reiterated that the respective sons of both Petitioners are still un- employed.
9. It is further denied that the tenanted premises can not be used for the purposes of Computer and Networking business. The tenanted premises can easily and properly be used for the said purpose after some renovation and modifications. In fact the tenanted premises is most suitable to the petitioners to start above said business for their sons.
RC ARC 45/17 13 of 25
10. It is further denied that the Petitioners have sufficient reasonable alternative accommodation in their possession and do not need the suit premises.
11. It is denied that the Petitioners have concealed material facts or that the leave to defend application disclose triable issues.
I have heard Ld. Counsels for the Parties and also carefully gone through the entire material on record.
Findings of the Court
12. The petitioners have contended that the Tenanted Premises was given on rent for Residential Purpose. However the Respondents have contended that the premises were given for Residential-cum- commercial purpose. It is further contended on behalf of Respondents that in the Judgment dated 24/04/2014 passed in E-35/2009 it was held that premises had been let out for commercial purposes. Primarily the Section 14 (1) (e) DRC Act 1958 was applicable on the premises for residential purpose only, however Section 14 (1) (e) DRC Act 1958 has been partially struck down by the Hon'ble Supreme Court in 'Satyawati Sharma (dead) by LRs Vs. Union RC ARC 45/17 14 of 25 of India [Appeal (Civil 1897 of 2003 dated 16/04/2008)] and now it is also applicable on the premises given on rent for commercial purpose. Hence, it does not make any difference that weather the tenanted premises were given for residential or commercial purpose, therefore it is concluded that the nature of petition can be decided by this Court under aforesaid provision.
13. That for proving the case under Section 14 (1) (e) DRC Act 1958, the petitioners have to prove four facts which are as under :-
i) That the petitioners are owner of the rented premises.
ii) That there is landlord tenant relationship between the petitioners and respondents.
iii) The petitioners require the tenanted premises bonafidely for their respective sons who are dependent upon them.
iv) That, there is no other suitable accommodation for the purpose required by the petitioners with them.
14. The petitioners have categorically claimed that they are the Co-Owners of the Tenanted Premises RC ARC 45/17 15 of 25 alongwith their other two brothers. They have further claimed that their other brothers do not have any objections in filing present Eviction Petition. In addition to that they have filed the NOCs of their other two brothers. Further the Respondents have also not contended that the petitioners are not owners of the Tenanted Premises. Rather, they have admitted that they are tenants in the Tenanted Premises. Thus, the Petitioners have duly proved that they are owners of the Tenanted Premises and there is Tenant-Landlord relationship between the Respondents and Petitioners.
15. The respondents have further taken the plea that the present Petition is barred under Section 11 CPC as earlier Eviction Petition inter-alia on the ground of Bonafide requirement filed by the father of the Petitioners has already been dismissed on 24/04/2014. Therefore the present petition is liable to be dismissed. The petitioners have vehemently objected the present contention of respondents. It is contended by the petitiners that the earlier Eviction was filed on different cause of action about 21 years before. However, present petition is filed on different cause of action arose in the year 2017. I have gone through the copy of judgment relied upon by the respondents. The said petition was filed in the year 1996 by the father of petitioners inter-alia on the RC ARC 45/17 16 of 25 ground that the eldest son Mr. Devender is married and having 2 sons. One of whome is of marriageable age. The younger son Ravinder Kumar is having two kids. Another son Rajinder is married and he is also having two children. The youngest son Surinder is doing business of electric shop in his portion of residence. In the light of growing needs of the family, the petitioner needs a bigger accommodation. Thus as per the earlier petition the property was required for the accommodation of the family. However in the present Petition the Petitioners have specifically averred that the Suit Property is required for opening the shop of computer and networking by Shri Sanjay Singh and Shri Narpinder Singh i.e. the sons of the Petitioners. Further, in the considered opinion of this Court the needs of the human beings are dynamic and it changes constantly. It can not be said that if a person does not need a thing at one point of time then he will not require that thing in his entire life. So in the present case there might be a time that in the opinion of the court the Father of the Petitioners did not require the property or he had some alternate accommodation with him for that purpose. But it is noteworthy that the earlier petition was filed about 21 years before. Thus in view of above considerations it can not be said that the present petition is filed on the same cause of action on which the previous petition was filed by the Late father RC ARC 45/17 17 of 25 of Petitioners. In the considered opinion of this court the present petition is filed by the petitioners on different cause of action as the earlier Petition was filed for accommodation of the big family while the present Petition is filed for setteling two un-employed sons of Petitioners. Hence, Section 11 CPC is not applicable in the facts and circumstances of present case.
16. That the respondents have further taken the plea that Shri Sanjay Singh and Shri Narpinder Singh are not un-employed and they are working in some Networking Company in Gurgaon. However, both petitioners have catagorically denied this contention of respondents. As per record the Petition was firstly listed before the court on 10/08/2017 and the Leave to Defend Application was filed on 13/09/2017 till date the respondents have not disclosed the name of the Networking Company in which the sons of the Petitioners are doing job. They have also failed to file on record any cogent proof of document in support of their contention. They have also failed to disclose the name of any witness through whom they want to prove this fact. That even if for the sake of arguments it is presumed that the sons of the petitioners are working in a Networking Comany, then, also in the considered opinion of this court they can do RC ARC 45/17 18 of 25 any business of their choice. It is settled law that the respondents cannot dictate the terms to the petitioners. The petitioners are master of their choice and they are the better judge of their situation. In "Ram Babu Aggarwal Vs. Jay Kishan Dass", 2009(2) RCR 455, The Hon'ble Apex Court observed as under :-
"However as regards the question of bonafide need, we find that the main ground for rejecting the landlord's petition was that in the petition the landlord has alleged that he required the premises for his son Giriraj who wanted to do footwear business in the premises in question. The High Court has held that since Giriraj has no experience in the footwear business and was only helping his father in the cloth business, hence there was no bonafide need. We are of the opinion that a person can start a new business even if he has no experience in the new business. That does not mean that his claim for starting the new business must be rejected on the ground that it is a false claim. Many people start new business even if they do not have experience in the new business, and sometimes they are successful in the new business also."
RC ARC 45/17 19 of 25 In the case titled as "Ragvendra Kumar Vs Firm Prem Machinery", AIR 2000 SC 534, it was observed as under :-
"It is settled law that the landlord is the best judge of his requirement for residential or business purpose and he got complete freedom in the matter, (See; Pavita Devi (Smt.) T. K. Krishnan {1996} 5 SCC 353. In the case in hand the plaintiff-landlord wanted eviction of the tenant from the suit premises for starting his business as it was suitable and it cannot be faulted." In our case the premises are required by the Petitioners for settling their respective sons. Thus, the present contention of the respondents is without merits.
17. The respondents have further contended that the petitioners have concealed material facts from the Court and thus they have not come with clean hands before the Court. The respondent has failed to put forth any material fact allegedly concealed by the petitioner. In the considered opinion of this Court, the petitioners have disclosed all material facts before the Court for the disposal of petition under Section 14 (1)
(e) of DRC Act.
18. The petitioners have categorically taken the plea that they do not have any other suitable RC ARC 45/17 20 of 25 premises for the business of their sons. In "Mohd. Ayub Vs Mukesh Chand", (2012) 2 SCC 155 the Hon'ble Apex Court held as under :-
"That the hardship appellants would suffer by not occupying their own premises would be far greater than the hardship the respondent would suffer by having moved out to another place. We are mindful of the fact that whenever the tenant is asked to move out of premises some hardship is inherent. We have noted that the respondent is in occupation of the premises for time. But in our opinion, in the facts of this case that circumstances can not be sole determinative factor."
The respondents have disclosed that the petitioners are having the following properties :-
i) House no. 2/26, Roop Nagar, Delhi,
ii) House no. 3/62, Roop Nagar, Delhi
iii) House no. 72, Village Rajpura, Delhi,
iv) House no.176, Village Rajpura, Delhi,
v) Property no.186, Rajpura, Delhi.
However the Petitioners have elaboratly described the status of the above said properties as under :-
a) House no. 2/26, Roop Nagar, Delhi -
RC ARC 45/17 21 of 25
The Petitioners alongwith two other
brothers were Co-Owners of the said property. It had been devided in two parts A and B. The Part A goes to the Petitioner no.1 and and the Part B goes the another brother namely Ravinder Singh. The Petitioner No.1 and his two marries sons alongwith their families are residing in Part A. and the Top Floor of Part A in under tenancy. The four shops below are also devided among four brothers. The Petitioner no. 2 has already sold his shop with tenant, while the brother Rajinder is doing his work from his shop. And the shop in the share of petitioner no.1 is in occupation of his daughter-in-law and she is running a Homeopathy Clinic from the said shop.
b) House no.3/62, UGF, Roop Nagar, Delhi 110007 This was also a joint property and developed in colaboration with builder, where UGF goes to the share of petitioner no.2 and Top Floor goes to another brother Shri Rajender. Rest of the floors goes to the builder. The Petitioner no.2 is 56 years of age and he is residing at the UGF with his married son namely Narpinder Singh.
c) House no.72 and 176 Village Rajpura, Delhi.
RC ARC 45/17 22 of 25 These properties are jointly owned by four brothers and let out to different persons as tenant. The rental income is the only source of income of the petitioners. The said rent is distributed between all four brothers.The said two premises are neither available nor suited to start the business by the sons of the petitioners.
d) Property no.186, Rajpura, Delhi.
This property belongs to the wife of petitioner no.1 and occupied by different tenants and as such not available to the Petitioners.
Thus, the petitioners have specifically and categorically explained that these properties are not readily available with them to settle their respective sons. Further more according to the Petitioners it is most suitable property for starting the Computer and Networking business by their sons in partnership.
Further, in Vidhya Dhari Bhagat Vs M/s Allahbad Law Journal Co. Ltd. the Hon'ble Supreme Court has held that "If the tenant is evicted under section 14 (1) (e) and the premises are not occupied by the Landlord or by the person for whose benefit the premises are held, within two months of obtaining such possession, or the premises having been so occupied RC ARC 45/17 23 of 25 are, at any time within three years from the date of obtaining the possession, re-let to any person other than the evicted tenant without obtaining the permission of the Controler under sub section (1) of section 19 of the DRC Act or the possession of such premises is transferred to another person for reasons which do not appear to the Controler to be bonafide, the Controller may, on an application made to him in this behalf by such evicted tenant within such time as may be prescribed, direct the landlord to put the tenant in possession of the premises or to pay him such compensation as the Controller thinks fit under Section 19(2) of DRC Act.
Thus, if the respondents are residing/ doing business in the rented premises for long time then the petitioners can not be forced to remain out of their own premises even when they have genuine need of the same for starting business of their sons. And if the respondents have any apprehension that the petitioners will use the property otherwise then their rights are already secured under Section 19(2) of DRC Act.
19. The petitioners have further categorically contended that their sons namely Sanjay Singh and Narpinder Singh are sitting idle at home and they have to settle them. Considering the nature of our RC ARC 45/17 24 of 25 society, it can be presumed that the children are always dependent upon their parents. The parents also have duty towards their children to help them at the time of need. The respondents have failed to put forth any fact against the aforesaid contention of the petitioners. Thus, the petitioners have proved that the rented premises are bonafidely required by them for starting of business of their respective sons.
20. In view of above mentioned considerations, facts and circumstances the respondents have failed to put-forth any triable issue. Therefore, I do not find merits in the Application to Leave to Defend moved by the Respondents and hence it is dismissed. In consequence of the same the Petition is allowed and the Respondents are directed to vacate the rented premises i.e. Premise No. 71, Rajpur Village, Gurmadi, Delhi-110007. It is hereby clarified that the Landlords/Petitioners shall not be entitled to obtain possession of the rented premises before the expiration of six months from the date of this order as per section 19(7) of DRC Act.Digitally signed by VIRENDER Announced in the open Court VIRENDER SINGH SINGH Date:
On this 05th Day of April, 2021 2021.04.05 15:43:45 +0530 (VIRENDER SINGH) ACJ-CUM-CCJ-CUM-ARC NORTH DISTRICT, ROHINI COURT, DELHI RC ARC 45/17 25 of 25