Delhi District Court
Smt. Sharda Ahuja vs Sh. Sh. Sandeep Puri on 21 April, 2015
IN THE COURT OF NAVEEN K. KASHYAP, COMMERCIAL CIVIL
JUDGE-CUM-ADDITIONAL RENT CONTROLLER (WEST), TIS
HAZARI COURTS, DELHI.
E. No- 126/2012
Smt. Sharda Ahuja
W/o Sh. Baldev Raj Ahuja
R/o W-21, Rajouri Garden,
New Delhi-110027. ..... Petitioner
VERSUS
Sh. Sh. Sandeep Puri
S/o Late M.M. Puri
Sole Prop. M/s M.M. Puri & Co.
Shop No. 5/2947-D, Shiv Chowk,
Ranjeet Nagar, New Delhi-110008.
.... Respondent
Date of institution : 16.03.2012
Date of order : 21.04.2015
ORDER
THE FACTS:
1. The present petition U/Sec. 14 (1) (e) of Delhi Rent Control Act, 1958 is filed by petitioner for eviction of the respondent from one shop measuring 23'X9'9"X6'x6" in respect of property No. 5/2947-D, Shiv Chowk, Ranjeet Nagar, New Delhi-110008, as shown in red in site plan filed with the petition (hereinafter referred to as E. No. 126/2012 Smt. Sharda Ahuja vs. Sh. Sandeep Puri Page No.-1/17 suit premises), on the ground of commercial bonafide need of the petitioner and her family members.
2. The brief facts as stated in the petition are that the petitioner is the owner and the landlord of the property in question. It is further stated that the property in question earlier belonged to Smt. Janak Rani and petitioner is the daughter of Smt. Janak Rani along with Smt. Satnam Manchanda and brother, Sh. Manjot Singh. It is further stated that Smt. Janak Rani expired on 22.10.2009 leaving behind petitioner, Satnam Manchanda as daughters and son Sh. Manjot Singh. It is further stated that a relinquishment deed dated 23.12.2009 was executed by Smt. Satnam Manchanda and Sh.
Manjot Singh in favour of the petitioner and petitioner became absolute owner of the property in question bearing No. 2947-D, Shiv Chowk, Ranjeet Nagar, New Delhi-110008.
It is further stated that current rate of rent is Rs.1,196/- p.m. besides electricity charges. It is further stated that the petitioner being the owner and landlady of the property in question requires the premises bonafidely for using the same for commercial purposes for herself and her dependent family members as the petitioner has no other alternative accommodation available for her.
It is further stated by the petitioner that the elder daughter of petitioner Ms. Shafali is well versed with boutique business and petitioner and her daughter want to ran a boutique in the shops no. 4 & 5 and for running the boutique a sufficient space is required, i.e. E. No. 126/2012 Smt. Sharda Ahuja vs. Sh. Sandeep Puri Page No.-2/17 for fabricating the cloths, hand work embroidery place for entertaining the customers, displaying the garments and also a try room and space for fabrication. Hence, the present petition.
3. Notice of this eviction petition was sent to the respondent in the prescribed format which was duly served on the respondent. In response to which the respondent has filed leave to defend application nil filed on 07.04.2012 along with accompanied affidavit.
4. The respondent in his leave to defend application read with supporting affidavit has raised many issues. Same are discussed later in detail.
5. The petitioner has filed his reply dated 23/04/2012 to leave to defend application of respondent along with supporting counter affidavit. In nutshell, the petitioner has specifically denied the assertions made by the respondent in his leave to defend application as well as tried to explain the same. In his reply, the petitioner has reasserted his bonafide requirement of the suit premises. It is further stated that respondent failed to raise any triable issues.
6. Thereafter the respondent even filed a rejoinder along with supporting affidavit to his leave to defend application.
7. I have heard Ld. Counsels for the parties at length and gone E. No. 126/2012 Smt. Sharda Ahuja vs. Sh. Sandeep Puri Page No.-3/17 through the records as well as the number of case laws filed by both sides. Further I have gone through the written synopsis filed by the petitioner side.
THE LAW:
8. Before proceeding further it would be worthwhile to state that Chapter IIIA Of Delhi Rent Control Act deals with summary trial of certain applications expressly stating that every application by a landlord for recovery of possession on the ground specified in clause
(e) of the proviso to sub- section (1) of Section 14 of the Act, or under Section 14A or 14B or 14C or 14D shall be dealt with in accordance with the special provisions prescribed in Section 25B of the Act. The provisions in Chap. IIIA confer a real, effective and immediate right to obtain possession by confining the trial only to such cases where the tenant has such a defence as would disentitle the landlord from obtaining an order for eviction under s.l4(1)(e) or under s. 14A. Chap. IIIA seeks to strike a balance between the competing needs of a landlord and a tenant and has therefore provided that the tenant shall have a right to apply for leave to contest. As per the broad scheme of this Chapter a tenant is precluded from contesting an application filed for eviction on the grounds mentioned in the aforementioned provisions unless he obtains leave from the Controller to contest the eviction petition. In default of obtaining leave to defend or leave is refused to him an order of eviction follows. It appears recourse to summary trial is E. No. 126/2012 Smt. Sharda Ahuja vs. Sh. Sandeep Puri Page No.-4/17 adopted having due regard to nature of the grounds on which the eviction is sought with a view to avoid delay so that the landlord should not be deprived or denied of his right to immediate possession of premises for his bona fide use. The defence must also be bonafide and if true, must result in the dismissal of landlord's application. Defences of negative character which are intended to put the landlord to proof or are vague, or are raised mala fide only to gain time and protract the proceedings, are not of the kind which will entitle the tenant to the grant of leave. The Controller cannot set down the application for hearing without making an order in terms of sub-s. (5) of s. 25B. The trial must be confined only to such grounds as would disentitle the landlord to any relief.
9. A landlord, who bona fidely requires a premises for his residence and occupation should not suffer for long waiting for eviction of a tenant. At the same time, a tenant cannot be thrown out from a premises summarily even though prima facie he is able to say that the claim of the landlord is not bona fide or untenable and as such not entitled to obtain an order of eviction. Hence the approach has to be cautious and judicious in granting or refusing leave to defend to a tenant to contest an eviction petition within the broad scheme of Chapter IIIA and in particular having regard to the clear terms and language of Section 25B(5) of DRC Act.
10. Further, it is pertinent to note that the scope of the Section E. No. 126/2012 Smt. Sharda Ahuja vs. Sh. Sandeep Puri Page No.-5/17 14(1)(e) D.R.C. Act has been enlarged in view of the judgment of the Hon'ble Supreme Court titled as "Satyawati Sharma v. Union of India" [AIR 2008 SC 3148] so as to include premises let out for commercial purposes also within the scope and ambit of a petition under section 14(1)(e) of DRC Act.
THE FINDINGS:
11. With this background, this court turns to the facts of the case in hand. The respondent has raised many issues in the leave to defend application which have been stated to be triable issues. At this stage, it would be appropriate to note that decision in each individual petition depends on the peculiar facts, circumstances and material placed on record in that particular petition.
12. It is stated by the respondent that petitioner does not have a locus standi to file the present petition, as she is neither the owner nor landlady. It is further stated that the respondent is a tenant under Smt. Janak Rani and after her death, nobody has come forward to claim ownership or rent. It is further claimed that petitioner has not placed on record any document reflecting about her parentage or her connection with late Smt. Janaki Rani in any manner. It is further stated that petitioner is not the daughter of the original landlady Smt. Janak Rani because the petitioner is the daughter of Sh. Mehar Singh whereas the name of the husband of Smt. Janak Rani was Sh. Charan Das.
E. No. 126/2012 Smt. Sharda Ahuja vs. Sh. Sandeep Puri Page No.-6/17
13. On the other hand, the petitioner has submitted that she is the daughter of Sh. Charan Das which is mentioned in the school certificate of petitioner, which has already been placed on record. As such it is further submitted that there is no question of her adoption by such Sh. Charan Das.
14. As far as this contention is concerned, whatever the respondent has stated is not more than vague and bald allegations. It is not supported by any material at all by the respondent side that natural father of petitioner is one Sh. Mehar Singh. On the contrary, the petitioner has placed on record copy of school certificate of the petitioner showing the name of Sh. Charan Das as the father of petitioner. Further, even class-I legal heirs of Sh. Charan Das has not raised any objection in this regard. Further, the respondent has not disclose who is his landlord if petitioner is not his landlord.
15. In M.M.Quasim Vs Manohar Lal Sharma[ (1981) 3 SCC 36] it was observed by the Apex Court that an "owner-landlord" can seek eviction on the ground of his personal requirement is one who has a right against the whole world to occupy the building in his own right and exclude anyone holding a title lesser than his own.
Further, it was observed in "Shanti Sharma Vs. Smt. Ved Prabha" [AIR 1987 SC 2028] that the term "owner" has to be understood in the context of the background of the law and what is contemplated in the scheme of the Act. The Act has been enacted for E. No. 126/2012 Smt. Sharda Ahuja vs. Sh. Sandeep Puri Page No.-7/17 protection of the tenants. But, at the same time, it has provided that the landlord under certain circumstances will be entitled to eviction and bona fide requirement is one of such grounds. Ordinarily, the concept of the ownership may be absolute ownership in the land as well as of the structure standing thereon. But in the modern context, where all lands belong to the State, the persons who hold properties will only be lessees or the persons holding the land on some term from the Government or the authorities constituted by the State. The legislature, when it used the term "owner" in s. 14(1)(e), did not think of ownership as absolute ownership. The meaning of the term "owner" is vis-a-vis the tenant i.e. the owner should be something more than the tenant.
Suitable Alternative Accommodation:
16. It is further argued by the respondent side that in the same building itself there are three storeys and there is commercial space available on the first floor, second floor and also at third floor of the said building which is lying vacant at present. The entire building is commercial in nature and was let out to different tenants from time to time. It is further alleged by the petitioner that the petitioner's husband got the property vacated recently.
It is further alleged by the respondent that there is a shop between shop no. 3 & 4 which is lying locked in the said building and covered with iron shutter.
It is further stated that petitioner has commercial property E. No. 126/2012 Smt. Sharda Ahuja vs. Sh. Sandeep Puri Page No.-8/17 bearing no. 2632/16, opposite metro pillar no. 213, Main Patel Road, Shadi Pur, New Delhi-110008 and such property comprises of five floors including basement and ground floor and each floor except basement is about 100 sqr. yards. It is further stated that business of petitioner's husband is confined to ground floor and basement is being used for godown. But remaining floor i.e. first, second & third are lying completely vacant.
It is further alleged that petitioner also has property no. 2740, Street no. 23, Beadon Pura, Karol Bagh, New Delhi measuring about 200 sqr. yards with a considerable commercial prospect.
17. On the other hand, the petitioner has denied all such allegations. It is stated by the petitioner that respondent has not disclosed category/use as per law of the road in which the building, in which suit premises is situated. And it is submitted that as per the Master Plan 2021, certain roads can be used as mixed land use and others for commercial use. It is further submitted that suit premises falls under mixed land use road only and not commercial road and, therefore, only ground floor can be used for commercial activities as per law. It is further submitted that even otherwise, ground floor is most suitable for business than first floor and second floor. Consequently, it is also submitted that there is no need to file site plan of first floor and second floor. Further, the petitioner denied that she has anything to do with property other than the building in which suit property is situated and shop at 2632/16, Main Patel Road, E. No. 126/2012 Smt. Sharda Ahuja vs. Sh. Sandeep Puri Page No.-9/17 Shadi Pur Delhi. It is further explained that space between shop no. 3 & 4 is the place where water and electricity meter, main switch board is affixed or jet pump boring is installed.
18. I found force in the argument of learned counsel for petitioner in this regard. The petitioner has specifically asserted that the property falls under the mixed land use road and only ground floor can be used for commercial activities. Despite that no argument or material to contrary is placed on record by the respondent.
Further, when as per law first floor and second floor cannot be used for commercial activities, then the fact that same were in fact used for commercial activities by other tenants is not a legally tenable ground.
Further, it is a common knowledge that ground floor is better than first and second floor, particularly for retail business. Therefore, it cannot be said that first floor and second floor is equally suitable alternative accommodation in comparison with the ground floor suit premises/shop. Consequently, even if the details of first floor and second floor of building in question or property no. 2632/16 is not given, same does not amount to suppression of material fact as held by the Hon'ble High Court of Delhi in "Surinder Singh Vs. Jasbir Singh" [172 (2010) DLT 611] that if the property is not suitable to the requirement of the petitioner then non- disclosure of the same is not fatal to the case. Even otherwise, only those accommodation are required to be disclosed which may serve the purpose of alternative E. No. 126/2012 Smt. Sharda Ahuja vs. Sh. Sandeep Puri Page No.-10/17 accommodation to satisfy the needs of the petitioner.
19. Further, the respondent has made a bald and vague statement by saying that petitioner is having property no. 2740, Street no. 23, Beadon Pura, Karol Bagh, New Delhi measuring about 200 sqr. yards. On the other hand, it is stated by the petitioner that she has nothing to do with such property.
20. It has been observed in the judgment titled as "Rajender Kumar Sharma & Ors. Vs. Leela Wati & Ors." [155 (2008) DLT 383] by the Hon'ble Delhi High Court that only those averments in the affidavit are to be considered by the Rent Controller which have some substance in it and are supported by some material. Mere assertions made by a tenant in respect of landlord's ownership of other buildings and in respect of alternate accommodation are not to be considered sufficient for grant of leave to defend.
21. Furthermore, the respondent has contended that the petitioner with malafide intention wants to get vacated the tenanted shop from the respondent and then to rebuild the same into a commercial complex for earning handsome amount.
22. On the other hand, the same has been vehemently denied by the petitioner in his reply to leave to defend application.
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23. It is held by the Hon'ble High Court of Delhi in "Vinod Kumar Bhalla Vs. Sh. Nanak Singh" [1982 (2) RCR (Rent) 715] that in all applications for leave to defend the common defence raised by almost all the tenants, is that the landlord wanted to enhance the rent or to sell the property after getting it vacated. It was observed by the High Court that such types of allegations are without any foundation and that after an order of eviction is passed under section 14 (1)(e) of D.R.C. Act, the tenant is granted six months time to vacate the premises and the landlord is required to occupy the same within two months and the landlord is further dis-entitle for re-letting or alienating the whole or any part of the premises within three years from the date of obtaining possession from the tenant. Thus, the landlord is not in a position either to sell or re-let the tenanted premises for a period of three years.
A similar observation was made in the judgment titled as "Krishna Chopra & Anr. Vs. Smt. Raksha" [2000 Rajdhani Law Reporter 83].
24. Thus, on the basis of the above said case-law the contention of the respondent is rejected as the same is a mere assertion without any substance. Moreover, the contention of the respondent is not tenable because in such kind of cases protection/remedy is available/provided for such tenants under the DRC Act itself as they can file petition for repossession if the premises are re-let or transferred by the landlord after evicting the tenant, but certainly the E. No. 126/2012 Smt. Sharda Ahuja vs. Sh. Sandeep Puri Page No.-12/17 leave cannot be granted solely on this ground.
25. Thus, the present contention of the respondent also does not raise any triable issue of such a nature that would disentitle the landlord from obtaining an order for the recovery of possession of the premises.
26. It is further stated that respondent and his family suffer irreparable hardship and injury if suit premises is vacated as the same is only source of livelihood of respondent and his family.
27. Although one can be sympethical with the tenant in such situation if it is true. But, it is not the livelihood of the tenant which is to be looked into by the court in such proceedings, rather, the court is to look into whether the tenant has disclosed some facts which may disentitle the landlord from obtaining an order for recovery of possession.
28. The fact that the suit shop is the only source of livelihood of respondent does not render the landlord/petitioner disentitle to eviction of respondent from the tenanted premises. There is no provision in the DRC Act to evaluate the comparative hardships and comparative need between the landlord and tenant for deciding eviction petition [Harbhajan Dass Vs Tilak Raj Mehta (1980 RCJ 780 Delhi)].
E. No. 126/2012 Smt. Sharda Ahuja vs. Sh. Sandeep Puri Page No.-13/17 No Bonafide Requirement and daughter not 'dependent' :
29. It is further stated that the petitioner is claiming bonafide requirement for her married daughter. And her daughter has never in her life done any business and is well settled in life as a wife of affluent husband, who is in whole sale business by the name of Tip Top Fashion and having the shops and properties giving huge rental income from them as well as from his own business. It is further stated by the respondent that Ms. shaifali, daughter of petitioner is well settled in her matrimonial home.
30. It is further stated that married daughter of petitioner is not dependent on petitioner for her commercial requirement and is not covered under the provision in which the present petition is filed as she is married and very well settled with her husband in her matrimonial home.
31. On the other hand, the petitioner has denied all such allegations. It is stated by the petitioner that petitioner's married daughter is still dependent on her. Further, Ld. Counsel for petitioner also relied on certain case law in this regard.
32. In "Baldev Sahai Bangia Vs. R.C. Bhasin" (1982 AIR 1091 ) (1982 SCR (3) 6701982), in which the term "family" (of tenant) was in question, it was held:
E. No. 126/2012 Smt. Sharda Ahuja vs. Sh. Sandeep Puri Page No.-14/17
12."............A conspectus of the connotation of the term 'family' which emerges from a reference to the aforesaid dictionaries clearly shows that the word 'family' has to be given not a restricted but a wider meaning so as to include not only the head of the family but all members or descendants from the common ancestors who are actually living with the same head. More particularly, in our country, blood relations do not evaporate merely because a member of the family-the father, the brother or the son-leaves his household and goes out for some time............
13.
33. In another case of "J.K. Saxena vs Shri Madan Lal Khurana" (1998 VI AD Delhi 765) {75 (1998) DLT 903}; it was held :-
"................12. In the present case, the family of the petitioner comprises of himself, his wife and a son who was six years old at the time of filing of the petition. It is also not denied that the parents-in-law of the petitioner moved in the premises about two years prior to the date of filing of the petition and since they did not possess any other residence in Delhi they started living in the accommodation as provided by the petitioner. It cannot be disputed that ordinarily such relations cannot be treated as dependent on the petitioner. However, in the present case, they are living in the accommodation as provided by the petitioner till date. At best the petitioner can evict them by lawful means. They cannot be turned out from the premises without following the due process of law. The close relationship exists between the petitioner and his father-in-law and mother-in-law and it cannot be denied that at the time of filing of the eviction petition as well as at the present juncture they are dependent upon the petitioner for their residence. In this background the averment that they have been specifically brought from Kota to live with the petitioner to create a false requirement of bona fide need is of no consequence and this plea of the respondent is liable to be rejected.
13. The learned Rent Controller has failed to take into consideration the present status of accommodation which the petitioner is possessed of and has merely stated on the basis of settled law that father-in-law and mother-in-law cannot be treated as his dependents as such relations do not form part of the family. However, the concept of "family" is not that rigid as to always exclude such relations from the family in as much as E. No. 126/2012 Smt. Sharda Ahuja vs. Sh. Sandeep Puri Page No.-15/17 there can be genuine cases where people in that category also require help in their old age. The learned counsel for the respondent has not denied that the father-in-law and mother-in- law of the petitioner have continued to live in the premises as given to them by the petitioner for the past many years. Therefore, it will be illogical to exclude the accommodation in their possession while determining the bona fide requirement of the petitioner. This Court in the judgment reported as R.K .Bhatnagar Vs. Smt.Sushila Bhargava and another clearly defined the concept of the "family". Operative portion of paragraph 8 of the judgment reads as follows:
14."However, the concept of family is not that rigid as to always exclude the married daughters from the family of their parents inasmuch as there can be genuine cases where married daughters are in fact living with their parents for one reason or the other and they may be said to be dependent on their parents for residential accommodation. It is now well settled that the expression "family" has to be interpreted reasonably and fairly giving due regard to the social, religious and economic conditions of life in our country as also peculiar circumstances of each case. As held by a Division Bench of this Court in Gobind Dass Vs. Kuldip Singh, , an extended meaning is to be given to the word "family". Observed the Division Bench:
15."The word "family" has not been defined in the Act and we feel advisedly so. The concept of what constitutes family when a number of persons are related or are living together is not something static or capable of concise definition. What constitutes a family in a given set of circumstances or in a particular society depends upon the habits and ideas of persons constituting that society and the religious and socio-religious customs of the community to which such persons may belong.............."
(emphasis added )
34. In present case, admittedly the petitioner's daughter is married and her husband is also working. Further, admittedly she is not living with the petitioner. In fact, she is living in her matrimonial home along with her husband. Therefore, in view of ratio of above mentioned case law, it is a matter of trial whether such daughter is dependent E. No. 126/2012 Smt. Sharda Ahuja vs. Sh. Sandeep Puri Page No.-16/17 on the petitioner within the scope of section 14 (1) (e) DRC Act.
Therefore, I find force in the contention of the Ld. Counsel for the respondent under these circumstances that the respondent has raised triable issue. Thus, having regard to the facts stated and ground raised in the affidavit filed by the respondent seeking leave to defend, it is not possible to take a view that no triable issue arose for consideration. The facts stated in the affidavits of the respondent in support of his Application seeking leave to defend, prima facie, do disclose that the Petitioner would be disentitled to obtain an order for the recovery of possession of the premises from the respondent as the defence does not appear to be frivolous or untenable on the face of it. In my view, the facts are disputed and the correctness or otherwise of the assertions made by each side requires to be examined. Thus, leave to defend is granted to the respondent to contest the petition.
Announced in the open Court on 21/04/2015 (This order contains 17 pages) (NAVEEN K. KASHYAP) Commercial Civil Judge-cum-
Additional Rent Controller, West District, THC, DELHI.
E. No. 126/2012 Smt. Sharda Ahuja vs. Sh. Sandeep Puri Page No.-17/17