Delhi District Court
Shri Harminder Singh Koghar vs Ram Nath Exports Private Ltd on 16 September, 2013
Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09
IN THE COURT OF SH. MANISH YADUVANSHI
SCJCUMRC (SOUTH) SAKET COURTS COMPLEX
NEW DELHI
E. No. 11/09
UNIQUE CASE ID NO. 02403C0054312009
IN THE MATTER OF:
SHRI HARMINDER SINGH KOGHAR
S/O LATE S. SARJIT SINGH KOGHAR
R/O 160, VANICHI I SAMPHENG
CHAKKAWAD SAMPHANTHA WONGSE
THAILAND 10100 ....PETITIONER
VERSUS
RAM NATH EXPORTS PRIVATE LTD.
(A COMPANY DULY INCORPORATED UNDER THE
COMPANIES ACT, 1956)
HAVING ITS REGISTERED OFFICE AT
A25, HAUZ KHAS ENCLAVE,
NEW DELHI110016.
THROUGH ITS DIRECTOR/SECRETARY/PRINCIPAL OFFICER
FOUND AT THE SITE OF THE REGISTERED OFFICE OF THE
COMPANY
....RESPONDENT
Result: Petition dismissed Page 1 of 114
Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09
DATE OF INSTITUTION : 13.01.2009
DATE OF RESERVING THE JUDGMENT : 11.09.2013
DATE OF DECISION : 16.09.2013
JUDGMENT
1. In this judgment, at the outset, it is necessary to point out that the petitioner abovenamed has brought a similar eviction petition in respect of the building housing the tenanted premises in this case and which building also houses the tenanted premises in the other eviction petition bearing No. 10/09 titled as 'Sh. Harminder Singh Koghar v. Bimla Devi & Ors.'. The second respondent in other petition is the Joint Managing Director of the respondent in present petition. Both petitions were instituted on same date i.e. 13.01.2009. An attempt was made by the petitioner herein for consolidation of both petitions which did not succeed as Ld. Predecessor Court recorded his opinion to the effect on the basis of law in (2007) 1 SCC 97 and (2004) 3 SCC 85 by virtue of his order dated 28.10.2010. Both the petitions were not consolidated. However, by virtue of order dated 03.05.2011 passed and recorded in this eviction petition, the crossexamination of PW1 recorded in other petition was directed to be also read in this petition. Result: Petition dismissed Page 2 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 Subsequent thereto, evidence has been recorded separately in both the cases but contents of crossexamination of witnesses remained same in both petitions. Thus, in view of commonality of pleadings reference may incorporate cross facts of both petitions. A common judgment would have been appropriate but for the orders dated 28.10.2010, both these petitions shall be disposed off by different judgments although discussion on evidence in both of them (in view of similarity of defence) shall be same. Thus, henceforth the eviction petition No. 10/09 shall be referred as Bimla Devi's case while eviction petition No. 11/09 shall be refereed as M/s Ram Nath Export's case in this judgment, wherever relevant. This judgment shall also dispose off petitioner's application under Section 340 read with Section 344 Cr.P.C.
FACTS
2. The facts of the case are as under:
2.1 The petitioner Sh. Harminder Singh Koghar an NRI brought a petition under Section 14(1)(e) read with Chapter III (a) of the Delhi Rent Control Act, 1958 (hereinafter, called 'DRC Act') against M/s Result: Petition dismissed Page 3 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 Ram Nath Exports Pvt. Ltd a company duly incorporated under the Companies Act, 1956 through Director/Secretary/Principal Officer found at the site of the registered office of the company. As per the petition, residential property i.e. "entire first and second floors of the building bearing No. A7, Green Park (Main), Aurobindo Road (also known as Mehrauli Road), New Delhi110016 along with one servant quarter in the annexe shown bounded by colour red in the site plan Ex.PW1/2" (hereinafter referred to as demised premises) were let out to M/s Ram Nath Export Pvt. Ltd. for office (commercial) purposes in 16.03.1971 on a monthly rent of Rs.1,500/ excluding electricity and water charges. The tenancy was for a period of 11 months created by way of document dated 18.03.1971 though not registered (Ex.PW1/1). The last rent was tendered at an escalated rate i.e. 10% over and above the contractual rate which petitioner claims to be an attempt to trap and/or tempt the petitioner. The property taxes till 31.03.2004 were responsibility of petitioner and the subsequent taxes as per unit area method w.e.f. 01.04.2004 is stated to be payable by the respondents.
2.2 Sh. Radhey Lall (deceased) during his lifetime was the CMD Result: Petition dismissed Page 4 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 (besides being the promoter Director) of the respondent hererin.
2.3 The premises demised is stated to be a residential property though let for commercial purposes and is so being used even though commercial user is prohibited by law and DDA has already objected to said misuser being violation of Zonal Development Plan prepared for the locality as per Section 14 and 29 of DD Act, 1957. This premises is stated to have been built up by petitioner's father Sh. Sarjeet Singh who, at the relevant time, was living abroad. The respondent is claimed as single tenant. The petitioner does not claims subletting by the tenant. The parties have been litigating since last several years and at the time of present petition a suit No. 883/02 titled as 'Sh.
Harminder Singh Koghar v. Sh. Radhey Lal (since deceased) through LR (hereinafter 'civil suit') was pending in the Court of Sh. Vipin Kumar Rai, the then Civil Judge, Delhi. It is also in the petition that there are no additions and alterations in the demised premises and that the premises to his knowledge, is the same as was at the time of letting in March, 1971 except that interior decorations have been carried out by the respondents. The petitioner's claim on the demised premises is that of landlord as also owner.
Result: Petition dismissed Page 5 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09
3. Above facts are amplified in para 18(a), 18(b) and 19 of the petition which are also culled out hereinunder.
3.1 The petitioner is owner/landlord of the entire building which also houses the demised premises and the same is assessed to property taxes in his name. His father Sh. Sarjeet Singh Koghar had acquired the land underneath the building from Sh. Udhe Singh Gahunia as per sale deed dated 06.11.1963 executed on his behalf by his attorney Sh. Harbhajan Singh which was duly registered with concerned Sub Registrar on 13.11.1963. The demised premises was let to the respondent by petitioner's father through its general attorney Sh. Ram Prakash Lakra (now deceased) vide GPA dated 29.08.1969. The petitioner's father died on 12.01.1989 leaving behind the petitioner as his heir and the respondent/ tenant sought attornment of the petitioner as its landlord. The premises is residential in nature though used as commercial but stated to be convenient for use as residential purposes. Thus, fit for residential use, the petitioner claims it for himself as also for use as residence by members of his family dependent upon him. An NRI, the petitioner is settled in Thailand doing his business from there. Claiming that he has recently acquired specialized knowledge of Result: Petition dismissed Page 6 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 processing of oil, particularly used turbine oil and that too "online" (i.e. without stopping the turbines generating electrical energy). He further claims that he and/or is a Private Limited Company is under negotiations with various corporations and companies, both in public and private sector for reprocessing the same then and there. Such negotiations are stated to be at an advance stage and finalization will result in substantial saving for electricity generating companies. The petitioner is thus contemplating to set up his residence and his own office at Delhi to advance his business prospects in India and for that he needs to be necessarily residing here till things are set up and functioning made smooth. In furtherance of these plans, he has acquired, by allotment from "Noida", a plot of land measuring 2100 sq. mtrs. for setting up an appropriate industry. He pays regular installment of the plot and thus industrial unit is also likely to be commissioned soon. For that, the petitioner will have to stay/live here to supervise actual execution of works and also to conserve costs. In order to liaison with officials concerned for both the projects, the petitioner has been visiting India from Thailand nearly once a month and is constrained to stay in hotel. The recent happening at hotel in Mumbai constrained the petitioner to think of alternatives Result: Petition dismissed Page 7 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 and as such he and his family members have decided to set up their own residence in Delhi particularly due to their owning a house at Delhi i.e. the demised premises herein. It is submitted that neither the petitioner nor his family members own or possess any other residential premises in India or Delhi/New Delhi.
4. In 200001, the petitioner had instituted a civil suit for ejectment in respect of demised premises as also for the entire building bearing No. A7, Green Park, New Delhi. Sh. Radhey Lall (since deceased) during his lifetime was the CMD (besides being the promoter Director) of respondent. The said suit with its particulars mentioned above was instituted treating Sh. Radhey Lall to be the sole /exclusive tenant in his personal capacity in whole of the building. The respondent herein was not impleaded as a party to that action. The suit was pending at the time of filing of this petition. In his written statement, Sh. Radhey Lall maintained there always were and still are two distinct tenancies qua different but specified portions of building No. A7 i.e. the first one, the demised premises herein at the rental of Rs.1,500/ per month and the second one for the remaining portions at a rental of Rs.2,000/ per month. Jurisdiction of Civil Court was Result: Petition dismissed Page 8 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 therefore challenged. Same stand was taken up and maintained by his LRs after demise of Sh. Radhey Lall. Since the relief of ejectment was being delayed on account of above defence hence the petitioner, in order to avoid further delay was advised to assume against his own interests that the said defence, for a moment is true. He therefore proceed on the assumption that the rentals above are separate for specified portions and since this Court has jurisdiction therefore, the present eviction petition.
4.1 It is further in the petition that during the two years preceding date of filing of present petition the petitioner, has visited India/Delhi on at least 25 occasions. Copies of his passport are relied (Ex.PW1/3). During these visits, he has stayed in a hotel paying escalated charges. Some of the bills are relied (Ex.PW1/4). 4.2 It is further in the petition that Sh. Radhey Lall (since deceased) and/or his family members including his business houses have several immovable properties in Delhi. Description of as many as seven properties is provided in the petition. It is further in the petition that the petitioner does not own any other house or or other residential Result: Petition dismissed Page 9 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 accommodation in Delhi. Premises No. A7, Green Park is the only residential immovable property of the petitioner. Lastly, the petition refers to be separate eviction petition for remaining portions of property No. A7 which stand filed and pending in this Court referred to as Bimla Devi's case.
5. The respondent's application under Order 25B and 14(1)(e) of the DRC Act was disposed off by the Ld. Predecessor Court by its order dated 10.02.2010 on the ground that the genuineness of the petitioner's case that he plans to shift to India to start his business can be decided only after trial. It was dismissed also on the ground that the nature and extent of the properties mentioned by the respondent in crossexamination in a previous litigation between the parties could be revealed only after evidence of parties. The Court also observed that the petitioner cannot be permitted to take two different stands in two different proceedings with respect to the same property.
6. The said orders were challenged in R.C. (R) No. 235/10 by the petitioner in the Hon'ble Delhi High Court. The R.C.(R) petition was disposed off on 07.05.2012. It was dismissed. The present respondent Result: Petition dismissed Page 10 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 filed written statement signed by Sh. Vivek Lall, MD and supported with his affidavit. A preliminary objection was taken that the avernments of petitioner in the petition are contrary to his pleas taken by him in the civil suit. It was informed that such civil suit stands since withdrawn. Contradictions, as recorded in short below, were pointed out viz:
a) Notice under Section 6A read with 8 of the DRC Act was sent to Sh. Radhey Lal, Proprietor M/s R.D. Ram Nath Co. and Managing Director of Ram Nath Exports Ltd. on 22.05.2000 thereby increasing rent by 10% w.e.f. 01.07.2000 refixing at the rate of Rs.3,850/ per month. Still in the present petition, the petitioner alleges that rent is being offered at escalated rates;
b) Vide subsequent notice dated 09.08.2000, the tenancy in respect of complete premises was allegedly terminated. Arrears were claimed at the rate of Rs.3850/ per month;
c) In civil suit for ejectment, a claim for mesne profits/damages qua entire property No. A7 was made against Sh. Radhey Lall but M/s R.D. Ram Nath Company and Ram Nath Export Ltd. were not Result: Petition dismissed Page 11 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 impleaded as defendants.
d) The defendant in civil suit i.e. Sh. Radhey Lall took objections qua bar to the suit under Section 50 of DRC Act; nonjoinder of parties; that premises demised herein were let out to 'M/s Ram Nath Exports Pvt. Ltd, being a separate legal entity later converted into limited w.e.f. 15.06.1988 at monthly rent of Rs.1,500/ while the premises demised in Bimla Devi's case was let to 'M/s R.D. Ram Nath Company, Proprietor Sh. Radhey Lall'; that a single suit for two separate tenancies was not maintainable; that M/s R.D. Ram Nath Company is a HUF of which Sh. Radhey Lall was Karta and thus suit is bad for nonjoinder of the HUF; that earlier Sh. Radhey Lall used to sign as Proprietor but on an objection by I.T. Department he started signing as Karta; that cheques qua rent sent by Sh. Radhey Lall were signed in capacity of Karta and so accepted by Sh. Sarjeet Singh Koghar, petitioner's father
7. In replication filed by the petitioner in the suit, it was said that M/s Ram Nath Export Pvt. Ltd. is family concern of M/s R.D. Ram Nath with the shareholding of Sh. Radhey Lall, his wife Smt. Bimla Result: Petition dismissed Page 12 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 Devi and also of one Mrs. Nisha Ram Nath. It was said that M/s R.D. Ram Nath Company is a proprietorship of Sh. R.D. Ram Nath. It was pointed out that whole of premises in suit i.e. building No. A7 was taken by Sh. Radhey Lal for his business purposes and there was no deviation of user; tenancy was created in his favour for him and his family entities by whatever names called; possession was given together; sending of cheques separately was for internal purposes of income tax by Sh. Radhey Lall.
7.1 It is pointed out that as PW1 in the civil suit, the petitioner said that the suit property was given to Sh. Radhey Lall in 1971; for commercial purposes; that his father was an Indian citizen while he is a Singapore citizen; that he is the only son of his father and has one sister who has no right in the property because of his father's Will registered in Thailand; that he had other properties in Delhi on rent which were being looked after by Sh. Ram Prakash Lakra during his father's lifetime.
7.2 On the basis of above, it is submitted that the petitioner is unsure about his tenants; about the agreement dated 18.03.1971 and its validity; that he cannot proceed without impleading his sister as a Result: Petition dismissed Page 13 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 necessary party; that he should file his father's Will and that he cannot claim to be sole owner/sole landlord.
7.3 It is further pointed out that in his crossexamination in civil suit, the petitioner admitted of having other properties in Delhi as against claim made in this petition. It is alleged that the details of the said properties is deliberately not mentioned in the present petition. It is further in WS that after death of Sh. Radhey Lall, the Karta of R.D. Ram Nath Company is Sh. Vivek Lall, the M.D. Of respondent herein. The present petition is stated to be bad for nonjoining of 'R.D. Ram Nath Company, HUF'. It is further in the WS that the premises demised cannot be used for residential purposes being commercial in nature and so declared under MPD2021. It is further in WS that for 40 years there was not even a hint of petitioner's requirement. The property was purchased by his father for rental income. His family is well established abroad and thus there is no chance of petitioner and his family coming back and living in Delhi. It is also in the WS that petitioner has not given details of his family members dependent upon him for accommodation and also as to how much area, space or rooms will be required by him for his bona fide need. It is also in the WS that Result: Petition dismissed Page 14 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 the petitioner does not state that he wants to shift permanently in the demised premises or wants to use it as residence in his future. It is further in WS that no details of Noida plot have been provided, the purpose for which it is required and what has been constructed on it is not disclosed. No details of specialized knowledge or the company/undertakings with which petitioner is in contact are provided. It is also in the WS that petitioner comes to India and stays in hotels only to pursue his civil suit. It is also in the WS that the petitioner has offered to sell demised premises to respondents but talks cannot be materialized as price could not be negotiated. It is alleged that he has intention to sell the property. It is also in the WS that petitioner has reasonably suitable alternative accommodation and that the petitioner owns a property at Lajpat Nagar, New Delhi. It is further in the WS that when the petitioner was negotiating for sale of demised premises with second respondent, he had revealed that he was constructing one 'thousand room hotel' in Thailand in collaboration with Ramada Inn. He also revealed that he and his sons have well established and lucrative business of embroidery. It is thus submitted that with this background the petitioner's only intention is to grab the Result: Petition dismissed Page 15 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 property in garb of setting up small business in Noida. His bona fide intention are said to be sham.
8. The aforementioned preliminary objection find amplification in the reply on merits. It is further added that petitioner is not the sole landlord and rent was paid to him only on his representation to be sole owner/sole landlord. It is further said that agreement dated 18.03.1971 is not admissible in evidence being unstamped and unregistered. It was denied that premises were let for period of 11 months only. It is further denied that petitioner has acquired any specialized knowledge as alleged on the ground that the said avernments are bereft of material particulars. The remaining contents of the WS are specific denial of avernments made by the petitioner.
9. It states that the written statement is not verified in accordance with law. Defence is rated as sham, moonshine, etc. On merits, the replication constitutes of denial of contents of written statement and reiteration of contents of eviction petition as correct. However, some additional points have been agitated.
9.1 The replication informs that the civil suit for ejectment has been Result: Petition dismissed Page 16 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 withdrawn by petitioner on 26.03.2009. Costs towards withdrawal were paid to the respondent. On that basis, it is said that with such withdrawal everything in the said suit goes away including pleadings and thus the demonstration of contradictions in pleadings of ejectment suit and the present petition is neither here nor there. It is so denied, as the petitioner has completely abandoned his claim before the civil Court.
9.2 It is denied that petition is bad for nonjoinder of necessary parties by virtue of undisputed lease agreement (Ex.PW1/1). It is said that mere payment of rentals by cheques issued from bank account of alleged H.U.F. does not confer them status of tenant who was always Sh. Radhey Lall till his demise. It is said that even otherwise the estate of Sh. Radhey Lall/said H.U.F. is represented in other petition by heirs of said deceased who as per there own showings are purported coparcener in the purported H.U.F. The sole tenant of premises demised herein is reasserted to be the respondent. 9.3 It is contended that even if the demised premises is situated in a locality since earmarked as commercial as alleged, it would not cease Result: Petition dismissed Page 17 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 to be a residential building. It is clarified that petitioner is not interested in using the premises for commercial purposes. 9.4 It is in the replication that the petitioner has a proper residence here and his family comprising of his wife, three married children as well as grandchildren would be happy to visit their motherland and also reside here as per their requirements/convenience. It is further said that the business being set up in India by the petitioner is ultimately for benefit of petitioner's family and they too would be participating in the same with the petitioner and as such they would also come and reside here to manage it. It is said that the whole building is a single unit house and required for petitioner as well as his family's use and occupation as residence.
9.5 The petitioner further undertakes that as long as he is alive, he will not alienate the demised premises or any of its part to any third party for any reason whatsoever and shall use and occupy the same himself with his family members as his/their residence whenever in town.
9.6 It is further in the replication that petitioner cannot disclose Result: Petition dismissed Page 18 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 details of his specialized knowledge of proposed business of recycling of used furnace oil, being a trade secret. He adds that his business enterprise namely UniOil Company (P) Ltd. is in highly advanced stage of negotiations with proposed business partners and intends trial very soon.
9.7 It is further in the replication that the petitioner is setting up his embroidery business at the newly allotted site at plot No.7, Sector140A, Noida, Gautam Budh Nagar, U.P. and proposes to start the unit i.e., production as soon as possible and thus requires residence with his family.
9.8 It is further in the replication that his visits to New Delhi and stay at hotel Imperial, Janpath, New Delhi is not exclusively for conducting civil suit but he also plans his visit to cater to his business prospects and attend to several matters including the court cases in one trip.
9.9 It is further in the replication that subject to unforeseen circumstances, the petitioner undertakes to start living in the demised premises along with his family members within three months of date Result: Petition dismissed Page 19 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 of vacation of demised premises by the tenant after refurnishing it. It is further said that the premises shall be lived in at least one week in a month.
9.10 It is denied that the petitioner ever offered to sell demised premises to respondents. On the contrary, it is submitted that the phrase "the price could not be negotiated and finalized" as used in the written statement is to the effect that the second respondent herein has been demanding premium for vacation of demised premises and it is this figure of 'premium/pagree' that could not finalized. It is in the replication that the petitioner is otherwise not willing to pay the exorbitant premium demanded that too when no premium was taken at the time of creation of tenancy of Sh. Radhey Lall.
9.11 It is further in the replication that petitioner does not intend to shut down his business at Thailand as alleged but wishes to further expand and enlarge many fold by making strategic investment in India and then to the other parts of the world.
9.12 The replication denies that petitioner owns one (residential) property in Lajpat Nagar, New Delhi as alleged.
Result: Petition dismissed Page 20 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 9.13 It is further in the replication that the petitioner owns a specified share in a commercial complex known as 'Hansalya Building at Barakhamba Raod, New Delhi wherein his share is 760 sq. feet of office accommodation on the first floor which is in tenancy of ABN Amro Bank.' 9.14 It is further in the replication that the respondents have not been able to disclose as to who, if not the petitioner, is the owner/landlord of demised premises. It is contended that even one coowner can institute an eviction petition.
9.15 It is further in the replication that it would be far fetched to say that merely because the petitioner/landlord has not disclosed in the eviction petition the size and extent of his family, he is not entitled to an order of eviction in respect of premises in suit. It is said that petitioner requires the premises for his own use and residential occupation and that naturally the petitioner's family would also be living in it more so as and when they are in town. It is further stated again that his family comprises of his wife and children i.e. 'two married sons with four grandchildren of the petitioner and a Result: Petition dismissed Page 21 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 married daughter with two grandchildren of the petitioner.' 9.16 It is further in the replication that the respondents have concealed that Sh. Radhey Lall (deceased) and his business concerns owns and possess a very large premises which is known as 'Ram Nath House' which is lying vacant and unused after being recently vacated by erstwhile tenant which was one of the distributors of Hyundai Cars. It is reiterated in the replication that petitioner's family is in process of constructing a big hotel in Thailand.
9.17 On merits, it is submitted that since petitioner's father is dead, the Will executed by him is of no consequence today. All these years none other than the petitioner has come forward to claim any right, title or interest in the premises. The tenant cannot dispute the Will of the original owner more so when they have attorned the petitioner after death of his father Sh. S. Sarjeet Singh. It is said that even petitioner's sister, in the last 20 years or more, has not asserted any rights etc. in the premises in question. Otherwise also, the petitioner would remain one of the coowners. He reiterates to be the sole owner/landlord qua the premises demised. It is further said that the tenancy was for limited period of 11 months and thus there is no Result: Petition dismissed Page 22 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 requirement for a registered lease deed. It is also said that the written statement incorporates the fact that the petitioner is the person liable to pay property taxes. It is said that cumulative effect of all pleadings regarding payment of rent and others is of an admission by respondent that petitioner is sole owner/landlord. Other contents of the replication ensure that the petitioner specifically denies all avernments raised in the written statement.
10. As observed in para 5 above, leave to contest application was dismissed on 10.02.2010 and the orders upheld by the Hon'ble Delhi High Court in R.C. Revision No. 235/10 dated 07.05.2012. Subsequent to it, a review petition was filed by the present petitioner in the Hon'ble Delhi High Court. In the said review petition No. 450/12 an order was passed on 17.08.2012 to the effect that the present matter be decided in a time bound frame. It was thus directed that the case be disposed off preferably within the outer limit of six months and the said order was passed on 17.08.2012. Subsequently, in a CM No. 2805/13 filed in R.C. Revision No. 235/10 by petitioner herein seeking extension of time for disposal of the present petition, the Hon'ble Delhi High Court pleased to say on 15.02.2013 that time for Result: Petition dismissed Page 23 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 disposal is extended by another six months. Further subsequently, in C.M. No. 11900/13 the respondents herein sought further extension of time and the Hon'ble Delhi High Court was pleased on 05.08.2013 to say an extension of time by one month. Thus, the period expiring on 15.08.2013 had been extended to another one month with effect from the said date.
11. During the trial, the petitioner produced himself as his own witness and filed his affidavit (Ex.PW1/A). He relied on lease agreement (Ex.PW1/1), site plan (PW1/2), copies of passport [PW1/3 (colly.)] and hotel bills [Ex.PW1/4 (colly)]. In his cross examination, lease deed of the 'Noida plot' was exhibited as Ex.PW1/R1 while the 'copy of examination in chief' of this witness recorded in the civil suit was exhibited as Ex.PW1/R2. As his second witness, the petitioner examined his Chartered Accountant namely Sh. Shailender K. Bajaj as PW2. His examinationinchief is in the form of his affidavit is Ex.PW2/A. He placed on record 'copy of lease deed dated 30.09.2008' between the petitioner and ABN Amro Bank regarding the Hansalya Building property; copy of its 'possession Result: Petition dismissed Page 24 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 letter' dated 24.02.2010 and the copy of 'agreement to sell' of said premises between the petitioner and one Smt. Prema Radha Krishan dated 24.02.2010 as MarkA. Subsequently, the original agreement to sell was produced and post the separate order of this Court dated 26.03.2013 as well as 14.04.2013, it was exhibited as Ex.PW2/4. Being insufficiently stamped, it was impounded and sent to the Collectorate of Stamps for realization of the stamp duty. The same was realized as per the endorsement on the document itself. The witness also produced 'original income tax return verification report of the petitioner for the assessment year 201011 with statement regarding computation of taxable income', which document was seen and returned and the copy collectively marked as Ex.PW2/2. The collective document (Ex.PW2/3) as mentioned in affidavit of PW2 was deexhibited pursuant to orders of this Court dated 26.03.2013.
12. The respondent, on the other hand, examined one witness i.e. Sh. Vivek Lall as MD of the respondent. During course of his examination Sh. Swatantar Yadav, Assistant Ahlmad in the Court of Sh. S.P.S. Laler, Ld. ACJcumARC (West), Tis Hazari Courts produced judicial file of suit No. 883/02 i.e. the civil suit. Copy of Result: Petition dismissed Page 25 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 'legal notice dated 09.08.2000' issued by the petitioner to Sh. Radhey Lall, Proprietor of M/s R.D. Ram Nath Company and Managing Director, M/s Ram Nath Exports Pvt. Ltd. as Ex.RW1/2; 'plaint' of said suit as Ex.RW1/3; 'written statement' of said suit Ex.RW1/4; 'replication' in said suit as Ex.RW1/5, 'examinationinchief and crossexamination of plaintiff' in said suit (already exhibited as Ex.PW1/R2) and lastly copy of 'notice dated 22.05.2000' issued by petitioner to the respondent under Section 6A read with Section 8 of DRC Act which has been again exhibited as Ex.RW1/1. RW1 also relied on lease deed of the 'Noida plot' which is already exhibited as Ex.PW1/R1. He was crossexamined.
13. The respondent also examined one Sh. Pratap Singh Saini, an employee of the respondent (M/s R.D. Ram Nath Company). He produced his affidavit in evidence Ex.RW2/A and relied on 'photographs of the Noida plot' clicked on 22.08.2013 by him on instructions of Sh. Vivek Lall as Ex.RW2/1 (colly.).
14. No further witnesses were examined on either side. Result: Petition dismissed Page 26 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 ARGUMENTS OF SH. PIYUSH SHARMA , LD. COUNSEL FOR THE PETITIONER
15. It was urged that in the crossexamination RW1 did not deny the landlordtenant relationship; did not dispute tenancy description; admitted that the tenancy was for 11 months and never extended; admitted receipt of tenancy termination notice dated 09.08.2000 (RW1/2); also admitted that the demised premises can be used for commercial as well as residential purposes and the fact that the adjoining property is a residential property. It was urged that respondents have been unable to show that he did hold any other property. In support of his contentions he relied on following judgments:
i) Satyawati Sharma (Dead) by Lrs. v. Union of India (UOI) 2008 (5) SCC 287. The judgment has been relied upon in regard to the respondents challenge that since the property demised was let out for commercial purposes, petition under Section 14(1)(e) of the DRC Act cannot be maintained by the landlord.
ii) Pawan Kumar & Ors. v. Sant Lal & Anr., Delhi High Court, Result: Petition dismissed Page 27 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 R.C. Rev. 303/2012, date of decision: 06.08.2013. This judgment has been relied upon in support of Satyawati Sharma's case (supra). In the said case, Hon'ble Delhi High Court had held that the plea of non applicability of Satyawati Sharma's in a case of premises let out for commercial purposes is untenable and contrary to the ratio laid down in the landmark judgment.
iii) Dharam Pal Gupta & Ors. v. Anand Prakash, Delhi High Court, 2008 Indlaw DEL 1954, 2008 (155) DLT 681. Paras 9, 10 and 11 of this judgment is relied to the effect that the subsequent events in eviction petition cannot form basis of decision in a revision petition and the Court has to be stick to the cause of action which was there at the time of filing of the petition.
iv) Sait Nagjee Purushotham & Co. Ltd. v. Vimalbhai Prabhulal & Ors., (2005) 8 SCC 252. Paras 4, 5 and 7 of the judgment have been relied to the effect that a person only having business at one place can expand his business at any other place in the country.
v) Manika Rani Ghosh & Ors. v. Dharwinder Kaur, R.C. Rev. 512/2012, date of decision 05.12.2012, 2012 Indlaw DEL 3604. This Result: Petition dismissed Page 28 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 judgment has been relied to the effect that it is not the prerogative of the tenant to question the need of the landlady to start her business. AIR 2010 SC 279 was relied in the judgment by the Hon'ble Delhi High Court to the effect that the landlord is the best judge of his need. Reference has been made to 2009 (2) RCR 55 wherein it was held that prior experience is not necessary to start a new business. It was finally held that it is not for the Court to examine the viability of the business at the suit premises or assess if it may be a profitable venture for the landlady.
vi) Ram Babu Aggarwal v. Jai Kishan Dass, 2009 (2) RCR 55 2009 Indlaw SC 1207. It was held in this case that experience is not a precondition to prove bona fide need.
vii) Baldev Singh Bajwa v. Munish Saini, (2005) 12 SCC 778. The case was solely relied by the petitioner to highlight the observations of the Hon'ble Apex Court that no particulars were given about the other properties held by the landlord and in the absence of cogent material placed before the Controller as to the other properties alleged to be held by the landlord, the burden placed on the tenant to rebut the Result: Petition dismissed Page 29 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 presumption that the need of the landlord is genuine and bona fide would not stand discharged.
In the said case, the landlord, an NRI was requiring the tenanted premises. It was held that in the light of restriction and conditions in Section 13B(3) and 19(2)B of the E.P. Urban Rent Restriction Act, 1949 the Court shall presume that landlord's need pleaded in petition is genuine and bona fide. A heavy burden would lie on the tenant to prove that requirement is not genuine. To prove this fact, tenant must give all necessary facts and particulars supported by documentary evidence if available, to support his plea in affidavit itself so that Controller will be in position to decide question of bona fide need of landlord.
viii) Saroj Khemka v. Indu Sharma & Anr., 1999 Indlaw DEL 11798 to the effect that a court cannot compel landlord to live a house of relative or hotel if she has a house but staying abroad.
(ix) S.P. Kapoor v. Kamal Mahavir Prasad Murarka & Ors., 2002 (2) RCR (Rent) 164 wherein the landlord a resident of Bombay frequently visited Delhi for political/business purposes. It was held Result: Petition dismissed Page 30 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 that even a need for temporary stay is bona fide. The court is not to insist on landlord to stay in hotels.
(x) Kamla Thukral & Ors. v. Tarlok Singh, 2013 Indlaw DEL 1819. In the said case the landlord belonged to UK. Being regular in Delhi, he and his family stayed in small part of suit property on second floor. Their two adult sons also regularly came to India. Their sisters living here used to visit them. They needed more area. It was held that it is the desire and will of the landlord to decide how he wishes to live.
(xi) Sargam Dass Bange v. Ram Prakash, 167 (2010) DLT 80. The judgment is in support of law laid down in Satyawati Sharma's case and Pawan Kumar's case (supra). It also relies on Baldev Singh's case, Saroj Khemka's case (supra) and S.P. Kapoor's case (supra).
(xii) Mohan Lal v. Tirath Ram Chopra, AIR 1982 Delhi 405 to the effect that while dealing with an application for leave to contest, the Controller is to first see as to whether the grounds raised are sham, malafide or frivolous.
(xiii) T.D. Dhingra v. Pritam Rai Khanna, 1992 (48) DLT 208 to the Result: Petition dismissed Page 31 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 effect that an Indian who has acquired foreign citizenship is entitled to enjoy a residence in his property in India when he chooses to return.
(xiv) Sh. Natha Singh v. Shr. H.B. Nayar, 1983 (1) RCJ 158 to the effect that the word 'himself' in Section 14(1)(e) is to include the family dependent on the landlord.
(xv) Adil Jamshed Frenchman (Dead) by Lrs v. Sardar Dastur Schools Trusts & Ors. (2005) 2 SCC 476. The judgment is on bona fide need. It has been observed that a judge of facts should place himself in place of landlord to see whether in facts proved, need is natural, real, sincere and honest. The assessment needs a practical approach instructed by realities of life.
(xvi) Siddalingamma & Anr. v. Mamtha Shenoy, AIR 2001 SC 2986 to the effect that the bona fide need is to be proved as natural, real and sincere.
(xvii) Prativa Devi v. T.V. Krishnan, 1996 (5) SCC 353 to the effect that a landlord is the best judge of his requirement and it is not for tenant to dictate and prescribe residential standards. Result: Petition dismissed Page 32 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 (xviii) Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd., 2005 (1) SCC 705. The said judgment is on the aspect of terms/conditions to be imposed in an appeal against eviction order and thus not applicable to the present case.
(xix) Mohd. Ahmed & Anr. v. Atma Ram Chauhan, (2011) 7 SCC
755. The said judgment is also on terms and conditions for grant of stay on an eviction decree and thus not applicable. (xx) M/s Atma Ram Properties (P) Ltd. v. M/s Pal Properties (India) Pvt. Ltd., 2001 (2) RCR (Rent) 463. The present judgment of the Hon'ble Delhi High Court was before the Hon'ble Supreme Court in (xviii) above wherein the Hon'ble Supreme Court disagreed with the view of the Hon'ble Delhi High Court regarding impositions of conditions in appeal. It is not attracted in this case. (xxi) Jai Bhagwan Mittal v. Meena Jain & Anr., 2013 Indlaw Delhi
445. The judgment is on Order 12 Rule 6 CPC in a suit for possession. The facts are not applicable to the present case.
(xxii) Skyland International Pvt. Ltd. v. Kavita Lalwani, 2012 Indlaw Result: Petition dismissed Page 33 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 Delhi 913. The judgment is on the aspect of determination of lease under the Transfer of Property Act.
(xxiii) Dhanna Lal v. Kalawati Bai & Ors., (2002) 6 SCC 16 to the effect that a coowner can file a suit for ejectment if the other co owner do not object to such ejectment.
(xxiv) Kanta Goel v. B.P. Pathak & Ors., AIR 1977 SC 1599 on the same aspect as in Dhanna Lal's case (supra). It is held that one co hire can sue for eviction if others have no objection. In the High Court the other cohires were parties and the Hon'ble Apex Court found nothing on record to show that they had objected to the claim of first respondent to the first floor on the strength of a 'Will' from his father. (xxv) Sh. Sri Ram Pasricha v. Jagannath & Ors., AIR 1976 SC 2335. The judgment is again on the aspect of maintainability of eviction petition by a coowner.
(xxvi) Sh. A.K. Nair v. Mahesh Prasad, 153 (2008) DLT 423 to the effect that the landlord is not to prove absolute ownership under Section 14(1)(e) of the DRC Act. and lastly;
Result: Petition dismissed Page 34 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 (xxvii) Ramesh Chand v. Uganti Devi, 157 (2009) DLT 450. The judgment is a landmark judgment on operation of an estopple under Section 116 of the Indian Evidence Act that operates against tenant paying rent to the landlord and simultaneously denying his title in subsequent proceedings. Also on the aspect that tenant's bald avernments of landlord possessing various other properties is no avernment in the absence of material to show that the landlord has a specific alternative accommodation at his disposal. ARGUMENTS OF SH. RAJESH YADAV , LD.
COUNSEL FOR THE RESPONDENTS
16. Detailed arguments shall be considered while recording opinion on evidence and pleadings. To summarize, inter alia, it is a contention of Mr. Rajesh Yadav, Advocate that the petitioner has not pleaded essential ingredients required under Section 14(1)(e). It is further argued that the record of civil suit would show that the present petition is concealing necessary and material particulars. It is further argued that the present petitioner is not the sole owner/landlord as his father's Will has not been filed and that the petitioner concealed presence of Result: Petition dismissed Page 35 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 his sisteranother legal heir of his father. It is further argued that the pleadings suffer from improvements and withholding of facts and may not be read in evidence being not part of pleadings. It is further argued that an adverse inference is to be drawn against present petitioner under Section 114 (g) of the Indian Evidence Act, 1872 on account of mentioning of his residence as 'P27, Malviya Nagar, Delhi' on lease deed of Noida plot (Ex.PW1/R1). Likewise, adverse inference should also be drawn on account of nonproduction of 'Will' as production of it will disclose other properties bequeathed by this petitioner particularly in the facts that copy of said Will was admittedly filed with MCD officials for purposes of mutation but not here. It is further submitted that in the crossexamination, the petitioner has submitted that he is not required to disclose details of his family members and other properties which tantamounts to abandonment of relief claimed. It is further argued that the site plan has not been proved as per Order 8 Rule 3 CPC. Objections to the conduct of the witness/petitioner while standing in the witness box are also taken. It is further submitted that the witness took two stands in regard to the capacity in which the Noida plot was allotted and whether to him in individual capacity or to Result: Petition dismissed Page 36 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 Mastex Embroideries (India) Ltd. It is submitted that companies of petitioner are merely paper companies. Lastly, it is argued that no suggestions on material particulars had been given to RW1 despite the fact that he, several times, deposed facts in affirmative. It is argued that petitioner has failed to show his bona fide need as such.
17. In support of his arguments, Sh. Rajesh Yadav, Advocate relies on following judgments viz:
i) Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, (1996) 6 SCC 222 to the effect that, the failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretest for getting rid of tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord.
ii) Shri C.L. Davar v. Shiv Amar Nath Kapur, 1962 (64) PLR 521 Delhi. The judgment is on the meaning of the word "dependent". It was held that it cannot be construed as meaning nothing but wholly Result: Petition dismissed Page 37 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 dependent in the sense of not earning anything at all and being entirely dependent on the father for board, lodging and food. It was held that the term must be construed as meaning somebody not wholly independent or self supportive and in a position to set up a separate residence.
iii) Freddy Fernandes v. P.L. Mehta, 1973 RCR 53 Delhi to the effect that, "when the landlord files a petition for eviction, he has to prove not only that his need for premises is bona fide but also that he has no other reasonably suitable accommodation for himself. Both these facts are within the special knowledge of the landlord and the burden of proving them is, therefore, on the landlord in view of Section 106 of the Evidence Act. Since no evidence can be adduced by the landlord except in accordance with his pleading, it is necessary, therefore, that the landlord should make a proper pleading of both of them in the petition for eviction."
iv) Bachhaj Nahar v. Nilima Mandal & Anr., (2008) 17 SCC 491. The judgment is relied on the fundamental rules in appreciation of evidence to the effect that, "10.... (i). No amount of evidence can be Result: Petition dismissed Page 38 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 looked into, upon a plea which was never put forward in the pleadings. A question which did arise from the pleadings and it was not the subjectmatter of an issue, cannot be decided by the Court.
(ii) A court cannot make out the case not pleaded. The court should confine its decision to the question raised in pleadings. Nor can it grant relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint."
v) Jasbir Singh Chadha v. UP Financial Corporation, 2008 (2) ILR (Del) 1321. This judgment has been relied in support of the argument that replication is not treated as part of the pleadings.
vi) Mussauddin Ahmed v. State of Assam, (2009) 14 SCC 541. This judgment is on criminal trial. Para 11 of it is relied which is quoted, "11. It is the duty of the party to lead best evidence in its possession which could not through light on the issue in controversy and in case such material evidence is withheld, the court may draw adverse inference under Section 114 Illustration (g) of the Evidence Act, 1872 not withstanding that the onus to prove did not lie on such party and it was not called upon to produce the said evidence." Result: Petition dismissed Page 39 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09
vii) Gopal Krishnaji Ketkar v. Mohamed Haji Latif & Ors., AIR 1968 SC 1413. The judgment is again on 'adverse inference'. It is held by the Hon'ble Apex Court that, "Even if the burden of proof does not lie on a party the court may draw an adverse inference if he withholds important documents in his possession which can through light on the fact on issue."
viii) Ganpatlal v. Nandlal Haswani & Ors., AIR 1989 MP 209 to the effect that as per the elementary of jurisprudence of civil litigation in India, the plaintiff must stand or fall on the strength of his own case.
ix) Harish Manshukhani v. Ashok Jain, 2009 (2) AD (Delhi) 30 on the effect being that of "most fatal" when there is variance between what was pleaded in the plaint and what was sought to be proved.
x) Suresh Chand Mathur v. Harish Chand Mathur, 174 (2010) DLT 665. The present judgment and the following have been relied on the question of inference from crossexamination. It has been held that, "when a witness deposes a particular fact and no suggestion to the contrary is given to him during crossexamination, the person against whom the deposition is made is deemed to have admitted that Result: Petition dismissed Page 40 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 fact."
xi) J.C. Enterprises v. Ranganatha Enterprises, 178 (2011) DLT 689; same as in (x) above.
Rebuttal Arguments of Sh. Piyush Sharma , Ld. Counsel for the petitioner.
18. It was submitted that lease deed (Ex.PW1/1) reveals that it has been signed by Sh. Radhey Lall as Proprietor of R.D. Ram Nath Company and as MD of M/s Ram Nath Exports (P) Ltd. And therefore, the respondents have been rightly arrayed in Bimla Devi's case as well as Ram Nath Export's case. It was further argued that even a coowner can also file an eviction petition. It was submitted that if the petitioner was not the owner than why Sh. Vivek Lall gave petitioner earnest money to purchase the building in question as submitted by him in his crossexamination. It is further submitted that the petitioner has proved his bona fide need which still exists. It is further said that SPA (Ex.RW1/1) was executed on 04.03.2013 and thus Sh. Vivek Lall had no authority to act on behalf of other respondents prior to that day. It was further submitted that objections Result: Petition dismissed Page 41 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 regarding the petitioner's company namely Mastex Embroideries (India) Ltd. and Unioil Company Pvt. Ltd. being paper companies and created for a purposes of justifying a bona fide need are misfounded as the said companies are matter of record. It is submitted that in present time of recession, the petitioner cannot be forced to run the proposed business. It is submitted that qua the Noida plot allotment, no objections were taken in pleadings. It is further submitted that the affidavit of PW2 is rightly filed in order to prove that the petitioner did sell the commercial flat at Hansalya Building, C.P., New Delhi. It is further submitted that P27, Malviya Nagar is merely an address, mere mentioning of which does not make it petitioner's residence. It is said that even otherwise the petitioner deposited copies of his passport and other ID proofs with the Noida officials. It is further submitted that qua other properties, there is none held by the petitioner; that the respondent has been unable to produce any record qua alternate properties of petitioner and on the contrary, it is the petitioner who has disclosed the properties of the respondent.
FINDINGS
19. In a petition of this nature, the landlord must prove; (a) that Result: Petition dismissed Page 42 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 there is existence of relationship of landlord and tenant between the parties regarding tenanted premises of which landlord is owner; (b) that the landlord requires the premises bona fide for his own need or for any member of his family dependent on him; and (c) that he has no other reasonably suitable residential accommodation. In Re: REPLICATION
20. The issue of replication requires to be taken up first and foremost for the simple reason that replication herein constitutes elaborated set of facts pleaded earlier in the petition. The defence relies on the judgment in Jasbir Singh Chadha's case (supra) on replication. In the said judgment the replication was found defective and its purport in totality on the case was under consideration. It was in those circumstances that the Hon'ble Delhi High Court held that replication is not treated as part of the pleadings and any defect in the same would not disentitle the plaintiff from claiming discretionary relief of injunction as prayed. Thus, the reference to the replication in the judgment, though in negative but was held in positive for the plaintiff. Further it is correct that under Order 6 Rule 1 of the Code of Civil Procedure, 1908, "Pleading" shall mean only plaint or written Result: Petition dismissed Page 43 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 statement. In the instant case, the Ld. Predecessor Court had given liberty to the petitioner to file replication which was filed in terms of the directions on the very next date i.e. on 28.07.2010. Its copy had been already supplied to the respondents. From thereupon till the evidence of RW1, no objection was ever taken by the respondents in as much as no positive steps were taken to obtain an order to the effect that the replication filed by the petitioner herein shall not form part of the record. It is only in the affidavit of RW1 Sh. Vivek Lall in para 32 that the petitioner's replication states additional facts not part of eviction petition and thus they were not given chance to reply to and rebut them; the additional facts said for the first time in replication cannot be considered being improvements. Conversely, at the time of crossexamination of PW1, the defence counsel crossexamined him on the attestation of his affidavit in support of his replication and despite the said crossexamination, the defence did not consider it appropriate or for that matter, necessary to drop a suggestion to PW1 that his replication contain additional facts. In simple words, the respondent is now taking advantage of Jasbir Singh Chadha's case (supra) despite the fact the Predecessor of this Court allowed filing of Result: Petition dismissed Page 44 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 this replication and despite the law being the subject, the defence did not raise objection to the filing of the replication at the first available instance. Thus, in my considered view, the respondent has acquiesced on the issue and raising it at this stage with an objective to urge this forum to discard the entire replication is improper and unwarranted. My observations to the effect that this replication forms major part of pleadings can be demonstrated by taking an instance. The present petition dated 24.12.2008 was filed on 13.11.2009. This petition has a reference to the 'Pvt. Company' of the petitioner which has been set up for the purposes of business in India. The replication provides name of the company i.e. 'M/s Uni Oil Company Pvt. Ltd.' The lease deed between petitioner and NOIDA (Ex.PW1/R1) is on record. It was executed on 09.10.2010. A question arises as to how a plot acquired by lease on 09.10.2010 found mention in the petition dated 24.12.2008? Perusal of lease deed would reveal that it is not an offer or confirmation of allotment and therefore, the allotment of plot measuring 2100 sq. mtrs. could have been made prior to date of execution of lease deed. True, the petitioner has not filed any document between him and NOIDA prior to execution of the lease Result: Petition dismissed Page 45 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 deed. However, it is also true that in the replication the petitioner submits that he is making payment of installments under the lease. This fact can be gathered from Ex.PW1/R1 itself. Clause II states that out of total premium of Rs.45,20,250, a sum of Rs.22,60,125/ was already paid till the date of lease deed i.e. 09.02.2010. Payment schedule reveals that first installment was paid on 31.12.2007. After the lease, possession offer was given on 25.03.2010. Thus the petitioner was confirmed with the municipal number of the plot and its exact location of which he was paying installments only on 09.02.2010. It being so address of plot could not have been provided in the petition. Therefore, it finds mention in the replication filed on 28.07.2010 i.e. after execution of the lease deed and after filing of the eviction petition. If petitioner is thus precluded from bringing these details in replication then obviously, a serious prejudice may be caused to his present cause. As to whether new facts were pleaded in the replication or not is an issue which I shall later address in this judgment.
In Re: Additional Facts/Beyond Pleading Result: Petition dismissed Page 46 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09
21. On the objection in this context, Ld. Counsel for the respondents has placed reliance on the judgment on Bachhaj Nahar's case (supra) and consequently on Ganpat Lal's case (supra). Also, heavy reliance is placed on the judgment in Harish Mansukhani's case (supra). In order to ascertain the vires of the objection in caption it shall be most suitable to refer to a short comparative analysis of facts pleaded at the three stages of pleadings i.e. petition, WS and replication. Following chart presents an analysis:
Para Petition WS Replication
No
1 Description of premises Matter of record. Since admitted, not replied.
provided. Though, in Clarified that SQ is on
prayer clause reference first floor of garage and to servant quarter not in annexe omitted.
2 Description of premises Matter of record Since admitted, not replied. 3(a) Petitioner is landlord Denied. Will not Will of no consequence. Not produced. Sister of pet. challenged in years together.
also a heir. Cannot be disputed by
tenants. Admission of
ownership by implication.
3(b) M/s Ram Nath Exports No specific denial but Said to be farcical and after (P) Ltd. was tenant clarification that said thought.
Pvt. Ltd. Co. was converted into a deemed public Ltd. Co. w.e.f.
15.06.1988 Result: Petition dismissed Page 47 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 4 Purpose of letting is No specific denial but Corresponding para commercial (office) premises said to be reiterated though premises incapable of residential residential in nature user.
5 Not aware of number of No specific reply. No replication. persons occupying premises.
6 Built in fitting/fixtures Denied any furniture No replication.
provided were provided
7 Normal amenities of Denied Reiterated
fittings provided
8 Details of Site plan not legible; Reiterated
accommodation description denied.
available as per site plan
9 Respondent is single No reply Reiterated
tenant
10 All normal amenities of Denied Reiterated.
light, water and
sanitation provided
11 Rate of rent Rs.1,500/ Denied that house tax is Denied. Corresponding para per month excluding payable by respondent. reiterated. water/electricity. Till Rent tendered to 31.03.04 house tax petitioner on his payments responsibility representation of being of petitioner and sole owner/landlord.
thereafter of respondent on unit area method.
Rent was being tendered at higher rate i.e. 10% increase 12 Date of completion of Details misdescribed. Reference to Hauz Khas a
(a) premises not known. Contents denied though typographical error. Site plan Premises referred to as not specifically. is undisputed as respondents A7, Hauz Khas. Built by have not filed their own to Result: Petition dismissed Page 48 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 father through contradict.
authorized agents.
12 Completion report Required to give details. Reiterated. Reference to
(b) obtained from Hauz Khas a typographical
authorities. error. Site plan is undisputed
as respondents have not filed
their own to contradict.
13 Rateable value as per No reply. No replication.
municipal records.
14 Let out on 16.03.71 for Agreement not Reiterated. Agreement not
11 months vide registered hence compulsorily registrable.
agreement dated inadmissible. Denied
18.03.71. Not registered. that tenancy created for 11 months. Execution of agreement not specifically denied.
15 No rent fixed under No reply. No replication.
special acts.
16 No subtenants. It is Not denied. It is denied Reiterated.
submitted that inspection that inspection of
of premises were not premises were not
granted. granted.
17 No additions/alterations. No reply. No replication.
Premises as it is as was
on date of letting.
18 Petitioner is Denied as Will and sister Respondent admit paying
(a) owner/landlord and not produced. MCD rent to petitioner. Also an
(i) property mutated in mutation/assessment admission that responsibility MCD in his name. does not confer of payment of house tax is of ownership. petitioner and thus an admission of tenant that petitioner is sole landlord/owner.
(ii) Property built by father Denied. No reply. No replication. Result: Petition dismissed Page 49 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 after being acquired from Mr. Gahunia vide registered sale deed dated 06.11.63 through attorney.
(iii) Tenancy in favour of Will not produced. Sister Respondent unconditionally respondent by also a heir. Landlord not attorned petitioner as petitioner's father the sole legal heir or landlord after his father's through attorney. On his representative. demise. death on 12.01.89, petitioner became his LR. Respondent sought attornment.
(iv) Rented for office Denied. Reiterated.
purpose though
residential unit and can
be so used conveniently.
(v) Bona fide need for Denied. Petitioner Reiterated. Petitioner's himself as also for use as settled in Thailand and family comprises of himself, residence by members of an NRI. Details of his wife, two sons and one his family dependent on family members and daughter (both married) and him for aforesaid accommodation required six grandchildren. They will purpose. not given. live with the petitioner in the residential premises.
(vi) Petitioner settled in Not denied. Reiterated.
Thailand, an NRI doing business abroad.
(vii) Petitioner recently Denied. Alleged that Reiterated. Name of acquired specialized qualification in business company M/s UniOil P. Ltd. knowledge of furnace not provided. Details provided. Also provided oil. Negotiations with oil about his Pvt. Ltd. Co. details that business of based companies in and about negotiations Embroidery is to be set up. advanced stages. Intends with other companies Other details not provided to set up residence of his not provided. regarding business being own and his own office. trade secret.
Result: Petition dismissed Page 50 of 114
Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09
Needs to reside till
things are settled and
functioning made
smooth. Refers to his
Pvt. Ltd. Co.
(viii) Petitioner acquired plot Denied. Details not Particulars of plot already at Noida measuring 2100 given about company, available on record. Address sq. mtr. for setting development work and of the plot i.e. Plot No. 7, appropriate industry and kind of industry. Detail Sector 140A, G.B. Nagar, paying its regular qua work undergone on Noida provided. Embroidery installments. A unit is plot not provided. unit to be set up its product likely to be being in great demand in commissioned soon. Thailand.
(ix) Petitioner visiting India Denied. Concealed Denied. Corresponding para every month for business properties. reiterated. and living in hotels.
Does not hold any other residential premises.
(x) Need is just, genuine and Denied. Reiterated.
bona fide 18 No notice is required to Two legal notices were Previous civil suit
(b) be given. sent by petitioner to the withdrawn. Relief respondent. abandoned. Thus, no bar to this petition.
19(i) As other relevant Not denied. Previous civil suit
information particulars withdrawn. Relief
of civil suit provided. abandoned. Thus, no bar to
this petition.
19 In the civil suit Sh. Matter of record. Since relief abandoned, no
(ii) Radhey Lall took a stand bar to this petition.
of two distinct tenancys
and rentals.
19 On advise, petitioner has Admitted. Reiterated.
(iii) assumed the respondents
Result: Petition dismissed Page 51 of 114
Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09
stand in civil suit as
correct to his own
detriment and has filed
this petition.
19 In last two calendar Denied. Reiterated.
(iv) years petitioner visited
Delhi on more than 25
occasions.
19 On every visit petitioner Denied. Reiterated.
(v) stays in hotel.
19 Properties held by the Denied. Tenant's Reiterated.
(vi) family of Sh. Radhey property irrelevant under Lall described. Section 4(1)(e).
19 Petitioner does not own Denied. One property Denied. Reiterated.
(vii) any other residential held at Lajpat Nagar.
property in Delhi. Details not known.
19 Petitioner shall file Denied. Reiterated.
(viii) eviction petition for
other part of tenancy
20 Relief. Denied. Reiterated.
22. Of course, the said pleadings are to be read in tandem with the preliminary objections taken by the respondents in WS; preliminary objections taken by petitioner in replication and the corresponding reply and submissions made by the petitioner against preliminary objections in the written statement. These are to be found in sufficient detail in para 6(a), (d), 7 to 7.3 and 9 to 9.16 of this judgment.
23. As said earlier, Sh. Rajesh Yadav, Advocate argued that details Result: Petition dismissed Page 52 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 of family members has not been provided in the petition and thus essential ingredients were not pleaded. The chart above shows that petitioner did not give details of his family members in petition. In replication he provided details of members of family but did not provide their age, names, place of their stay, address and their avocation. Subsequently, in his affidavit (Ex.PW1/A), in para III (g) he stated that his family comprises of his wife (aged 65 years), his two married sons namely, S. Narong Kokar (aged 46 years) and S. Charoen Kokar (aged 42 years), two daughtersinlaw namely Mrs. Satwinder Kaur and Mrs. Simrat Singh (aged 42 years and 32 years respectively) as also five grandchildren (being the sons and daughters of my married sons). The said grandchildren are aged from 1 year to 13 ½ years. He also deposes that he has a married daughter Mrs. Anju Kandhari and that she and her husband have very good relations with him and the members of his family. He lastly added that she has been blessed with three sons.
23.1 As against the replication wherein petitioner pleaded six grandchildren, he deposes five of his sons and daughtersinlaw while Result: Petition dismissed Page 53 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 three more of his married daughter in the evidence. Apparently, during the passage of time there has been addition in the family of his sister. However, his sister's family cannot be termed as his immediate family. In crossexamination dated 17.01.2011, PW1 admitted that he had not given details of his family members as mentioned in para 3(g) of his affidavit in his eviction petition. In his further crossexamination dated 23.02.2011, he was asked as to whether is it correct that he had not mentioned the names of his family members, age as well as their avocation in his eviction petition. The question was objected to on the ground that the text of the eviction petition is a matter of judicial record. The Ld. Predecessor directed that the objection shall be decided at the time of final stage. The answer was however recorded which makes an interested reading. It is quoted. "I did not mention these particulars as I did not feel it necessary.". 23.2 It is thus urged by defence that by virtue of above answer the proposed bona fide need of members of his family stands done away with by own words of the person projecting such need. Faced with such perilous question more particularly in view of the still open objection of the petitioner's sons, this Court shall have to see if the Result: Petition dismissed Page 54 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 above omission of giving details of complete family members, names, etc. prejudices the defence in its case and thus detrimental to the petitioner's cause. As said, the chart above shows the number of members of petitioner's immediate family. This number was given in replication only after objection in that regard. Details were still not given. Avocation of the adult members of petitioner's family is still not provided. The bona fide need projected by petitioner is of himself as also (as per petition) members of his family dependent on him for accommodation. As per the replication, the said bona fide need is for himself and also for the visiting members of his family comprising of wife, three married children as well as grandchildren who would also come and reside here to manage his business. Thus, apparently, the petitioner is not seeking eviction for the need of his sister, her husband and their children. Further, deposing about good state of relations of petitioner's family with that of family of his sister is a needless addition which is over and above pleadings. Rest pertains to the giving of names and ages of members of his family. In this context incorporation of their names and ages cannot be said the a new fact as the number of family members of petitioner was never a surprise to the respondent being already pleaded in replication. It is a fact Result: Petition dismissed Page 55 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 amplified in evidence and not a new fact introduced beyond pleadings. Thus, on this issue of details of name and age of petitioner's family members, the ratio of judgment in Bachhaj Nahar's case (supra), Ganpat Lal's case (supra) and Harish Mansukhani's case (supra) does not apply. I may also say that avocation of petitioner's family members is not pleaded. Though dependency of members of his family upon him for residence is pleaded. Members of his family are his wife, two married sons and his grandchildren. The petitioner should thus prove dependency. No such act has been done. Conversely, the respondent relies on Sh. C.L. Davar's case (supra) on the aspect of the meaning of the word 'dependent'. It is for petitioner to establish that his married sons are not wholly independent or self supporting and in a position to set up a separate residence. Conversely, the petitioner admits in his crossexamination that his grandchildren are presently studying in Thailand. His sons are residing in Thailand. They are in the family business i.e hotel, hospitality and industry i.e same as his. His company owns or manages 5 to 8 other companies. The turnover of all his companies put together would be Rs.1.5 billion per annum. Thus the petitioner has not put forth his case that his sons are Result: Petition dismissed Page 56 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 dependent on him for residence. Thus, nonmentioning of avocation of members of his family and justifying about the need of the family members to reside in the demised premises gives cogent cause to the defence to plead prejudice to it by rating such omission as deliberate on the part of the petitioner to prevent the respondent from making viable defence. Needless to say, in this case the petitioner admittedly did not feel it necessary to mention particulars of his family. The argument of defence therefore sustains. However, there is another aspect to the aforesaid argument which was not touched during the course of final arguments by either side but cannot be ignored by this Court. What also is made out from his pleadings and the way his evidence has progressed is that if he gets the premises for his bona fide need then his family members would be glad to come to India not only to stay here at times but also to assist in the proposed business. The need of the sons of the petitioner and their families to stay in the premises may not have been proved on the aspect of dependency however it is also to be viewed from the perspective of the need of the landlord to have presence of his sons and other family members for assistance to him in his business. This Court has made specific reference to this aspect at the appropriate place of this judgment which Result: Petition dismissed Page 57 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 is para No.37.
23.3 Attached to this omission is another plea of defence i.e. non pleading of essential ingredients under Section 4(1)(e) of the DRC Act. I my considered view, based on judgments to follow, mere non mentioning of the details of family members does not, ipso facto, render the present cause as one without cause of action for the simple reason that the respondent was not taken by surprise on the number of members in petitioner's family. In following cases, the Hon'ble Courts have held that nonmentioning of even the basic requisites of Section 14(1)(e) may not be fatal viz:
a) Sh. V.B. Raju v. R.L. Mahindroo, 1982 RLR 650 on the issue of nonpleading of necessary ingredients of Section 14(1)(e) of the DRC Act. It has been held that if a petitioner does not expressly plead all the necessary ingredients of Section 14(1)(e), the Controller is not bound to dismiss the petition under Order 7 Rule 11 CPC as the Controller has power to allow amendment to petition under Order 6 Rule 17 CPC. It is further held that besides it the Controller may see whether ingredients are in substance contained in pleas in the petition.Result: Petition dismissed Page 58 of 114
Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09
b) Gurdial Nagdev v. Devi Bai, 1979 (1) RCR 119 to the effect that failure to plead the ingredients does not necessarily result in dismissal of petition for ejectment if parties know the points in controversy and no one was taken by surprise. In the said case, the tenant was not permitted to raise technical objections in revision. In the said case, the petitioner did not mention that she has no other accommodation. It was held by the Hon'ble Delhi High Court that though it is not mentioned that she has no other accommodation but the very fact that the present premises were not sufficient for all the members of the family implies that other accommodation was really not available. The Court held that thus, there had been sufficient compliance of requirements of Section 14(1)(e). It was reiterated that failure to plead the ingredients does not necessarily result in dismissal of the petition.
c) Ram Gopal v. Basheshar Nath, 1981 RLR (Notes) 32 to 34. In the said case, the petitioner had omitted to say that he had no other reasonably suitable accommodation. The Court held that the same was implied under Section 14(1)(e) DRC Act. It was also pointed out that objection was not raised before the ARC or the Tribunal otherwise it could have been rectified by way of amendment. The Hon'ble Delhi Result: Petition dismissed Page 59 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 High Court further stated that the tenant had sufficient notice of the case set up by the landlady and both the parties knew well the points of controversy between them and no one was taken by surprise. The Hon'ble Court had relied on its earlier judgment in Gurdial Nagdev's case (supra).
d) Parvesh Kanta v. Vijay Kumar & Anr., 80 (1999) DLT 374. In the said case it was held that in view of the specific pleadings by the petitioner that the property in dispute was let out to respondent for residential purposes and petitioner requires the same for her bona fide use coupled with the sentence "that the petitioner has no other sufficient and suitable accommodation" was sufficient to demonstrate the urgency and need for getting the premises vacated. It was further held that law is not mere a technicality but the Court has to see the substance where is the basic requirements of Section 14(1)(e) of the Delhi Rent Control Act i.e. as to for what purpose the property was let out, the petitioner was owner thereof, the premises are required for accommodation for the petitioner and the members of the family of the petitioner have been pleaded and mere nonmentioning of the word "residential" cannot be the ground for nonsuiting the petitioner. Result: Petition dismissed Page 60 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09
e) Smt. Ram Chameli v. Smt. Sujan Kaur & Anr., 81 (1999) DLT
549. In the said case, the Hon'ble Delhi High Court held in regard to the nonmentioning of the word "bona fide", the eviction petition has to be read as a whole. If one word of English language has not been incorporated in the eviction petition, that will not be such an error which would be so fatal as to nonsuit landlady. In the said case, it was pleaded in para 18(a)(iii) that the accommodation available was not suitable for the petitioners and their family members. It was held that taking into consideration the eviction petition as a whole it cannot be said that the omission of the word "bona fide" was fatal for petition to be rejected under Section 14(1)(e) of the DRC Act.
The said argument therefore is not found worth merits. The aspect of nonmentioning of essential requisites qua the number of rooms required by the petitioner and family members shall be considered later.
24. In this limb of arguments is the objection of respondent that the details about the directors of company M/s UniOil Pvt. Ltd. are provided only in the evidence and therefore beyond pleadings. The comparative chart above would reveal that the objection is correct. In Result: Petition dismissed Page 61 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 para III (j) of the affidavit, the petitioner introduces that he and his elder son are founder directors of UniOil Company Pvt. Ltd. In the crossexamination, the petitioner admitted that he had not given details of para III (j) of the affidavit in this petition. It is to be found that other details of para III(j) except the detail regarding the petitioner and his sons being founder members are duly incorporated in the pleadings. Thus only the part i.e. "of which limited company my elder son and myself are the founder directors" is beyond pleadings in para III (j). This does not affect petitioner's case in any manner as existence of the company UniOil is duly pleaded and the documents of which are on record though not proved.
25. In the same context the PW1 has admitted that the contents of para III (k) of his affidavit so far they pertain to the address of the plot at Noida and further facts about setting up of an embroidery plant with specialized imported machinery which is in great demand in Thailand for such products and that he intends to set up his unit here and export the production not only to Thailand but also to worldwide and also the fact that formalities of allotment of land etc. have been completed and he is in process of commissioning of industrial unit as Result: Petition dismissed Page 62 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 soon as practicable and also the fact that there is a delay in process as the government machinery here in India moves very slow were not stated by him in his eviction petition in detail. Suffice would be to say that the said additional facts regarding demand of embroidery products in Thailand is an amplification of earlier pleading to the effect that the petitioner intends to set up an embroidery plant at Noida as its products are in great demand in Thailand. The said amplification is again not by way of any surprise to the defence and in any case not completely beyond pleadings. At best the same is an improvement. Further suffice would be to say that the reason for setting up the embroidery plant is no concern for this court as its viability is not for this court to decide as per the judgment in Manika's case (supra). Also for the reason that it is for the landlord to expand his business and his preexisting business cannot come in way of his bona fide requirement by virtue of judgment in Sait Nagjee's case (supra). Further, nondisclosure of expertise for any reason or for that matter for the reason of being a trade secret is also not the concern of the court by virtue of the judgment in Ram Babu Aggarwal's case (supra). Thus, at all places were the petitioner does not answer about Result: Petition dismissed Page 63 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 the details of his oil business or about the meetings that he had in that regard becomes inconsequential. The conduct of the witness however becomes material when he discloses that it is only one company i.e National Thermal Power Corporation with which he has had several meetings in regard to advancement of his cause. True, these are all business meetings and the failure of the witness to even give the name of the person with whom he had such meetings is disturbing. The petitioner has to advance his cause to demonstrate its potency in the manner it existed on the date of commissioning the cause as also today. Further comments on this shall be suitable for incorporation while discussing evidence led on bona fide need.
26. No other argument in regard to evidence beyond pleadings was urged. This brings me to the main merits of this case. In Re: Relationship of landlord tenant and ownership of petitioner
27. Petitioner has not produced his father's Will. He claims ownership exclusively to the exclusion of his sister over the building in question by virtue of his father's Will. It is settled law that the respondent tenant cannot stand in denial to execution of Will in favour Result: Petition dismissed Page 64 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 of his landlord. This Court places heavy reliance by virtue of judgment titled Bharat Bhushan Vij v. Arti Tekchandani, 2008 VIII AD (Delhi) 285 CM No. 9491/2008 wherein the Hon'ble Delhi High Court has summarized the law on the aspect of ownership claimed on the basis of Will which is as under:
"The concept of ownership in a landlordtenant litigation governed by the Delhi Rent Control Act, has to be distinguished from the one in a title suit. If the premises was let out by a person and after his death, the premises has come in the hands of beneficiary under a Will, the tenant has no right to challenge the title of such a beneficiary. If on the death of the original owner, the tenant has any doubt as to who was the owner of the premises, he is supposed to file an interpleader suit impleading all the legal heirs of the deceased and ask the Court to decide as to who shall be the landlord/owner after the death of the original owner. Where no interpleader suit is filed by the tenant and the tenant continues in possession after death of the original owner without demur and without raising an objection against the person, who claims to have inherited the property under the Will, he later on cannot challenge the ownership of such a person. It is not the domain of the tenant to challenge the Will of the deceased landlord. If a landlord is able to show that there is a testament in his/her favour, he/she is deemed to have discharged his/her burden of Result: Petition dismissed Page 65 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 proving the ownership under the Act. If the tenant takes a frivolous objection about ownership, such an objection cannot be entertained unless the tenant comes forward as to who was the landlord/owner of the premises and to whom he has been paying rent after the death of the original owner."
28. Ld. Counsel for the respondent does not stand in disagreement with law on the subject that the respondent is precluded from challenging landlord's Will. Though the respondent has denied the petitioner as his landlord but suffice would be to say here that in his crossexamination, the RW1 has admitted that "the landlord of the premises where Ram Nath Exports functions is petitioner herein.". Further, the respondent is not in denial that rent has been tendered to the present petitioner and in fact, they tendered arrears of rent by way of cheques to the present landlord in this Court as recorded in its order sheet dated 11.09.2013. Further, it is own case/pleadings of the respondent that the responsibility of payment of house/property tax of the premises demised is that of petitioner. These facts imply that petitioner is accepted as the landlord. Further, despite a categorical pleading to the effect that the respondent attorned petitioner as their landlord, there has been no specific denial by the respondent in WS. Result: Petition dismissed Page 66 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 According to Sh. Rajesh Yadav, Advocate, the respondent only denied that the petitioner is the sole owner/sole landlord of the premises demised. It is urged in pleadings that it was on the representation of the petitioner that he is the sole owner/sole landlord, that the rent was being tendered to him. Of course, this assertion is denied in pleadings. This brings me back to the law on ownership by Will as summarized above. It is in the pleadings of civil suit that on death of petitioner's father he survived as his son and legal heir and he is also having a sister. This fact about his other sibling is missing in the eviction petition and brought on record by the present respondent. It is finally admitted in the replication and also found place in the evidence. However, it is maintained that the sister has not challenged the Will so far and even otherwise if such a dispute is raised then he remains a co owner and therefore entitled to file the present eviction petition in the absence of the objection by the other coowner.
29. Before adverting to it, I may as well say about tenant status of present respondent. As per lease deed (Ex.PW1/1), it was executed between 'M/s Ram Nath Exports Private Ltd.' as lessee and Shri Sarjit Singh Ghogar through his general attorney Shri. Ram Prakash Lakra. Result: Petition dismissed Page 67 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 For the lessee, Shri. Radhey Lall signed as Managing Director of 'M/s Ram Nath Exports Private Ltd.' Admittedly, Shri. Vivek Lall is now the MD of said tenant now known as deemed public Ltd. company. The only objection to the lease deed is that it is not registered and thus inadmissible.
So far as the admissibility of lease deed (Ex.PW1/1) is concerned, it incorporates the clause of being for 11 months only. RW1 admits in his crossexamination that it was never extended. Despite a suggestion to that effect from petitioner's counsel regarding amendment to the said lease deed, no such conclusive proof of amendment (otherwise never raised by both the parties) could be found. Thus, by virtue of judgment in Satish Kumar v. Zarif Ahmed & Ors. (1997) 3 SCC 679, a lease deed executed for 11 months though reduced in writing and possession delivered, is not a compulsorily registrable instrument under Section 17(1)(d) and 49 of the Registration Act, 1908. Ex.PW1/1 is therefore held to be admissible in evidence.
30. Resuming back to the aspect of ownership under the Will, it is urged that the admission of PW1 that he never informed his sister Result: Petition dismissed Page 68 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 about present eviction petition would introduce the element of agency in terms of judgment in Kanta Goel's case (supra) and of M/s Indian Umbrella Manufacturing Company & Ors. v. Bhaga Bandei Aggarwalla (Dead) by LRs & Ors. AIR 2004 SC 1321 shall become of relevance. I have perused both of them. As per Indian Umbrella's case (supra), consent of other coowners is assumed to be taken unless it is shown that the other coowners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement. In Kanta Goel's case (supra) all the LRs otherwise were parties before the Hon'ble Delhi High Court. Therefore, the ratio of Kanta Goel's case (supra) which held that it was permissible for tenant to challenge the validity of Will will operate in favour of the respondent herein. It is a matter of record that Kanta Goel's case (supra) was quoted with approval before the Hon'ble Delhi High Court in case titled Ishwar Dass Rajput v. Chaman Prakash Puri & Anr., 46 (1992) DLT 619. The judgment is on the aspect of Will. In the said case, it was observed that no Court has decided that the Rent Controller has no jurisdiction to decide validity of a Will. If such a question is raised before the Rent Controller, the Rent Controller is within its Result: Petition dismissed Page 69 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 competence to decide this question when the eviction petition is for the bona fide need under Section 14(1)(e) of the DRC Act where one of the ingredients to be proved is that of ownership. It is in this case that the Hon'ble Delhi High Court pointed out that the order passed in Ishwar D. Rajput v. Chaman P. Puri, 1991 RLR 322 was an interlocutory order which was not maintained by the Hon'ble Supreme Court in SLP 10032/91 decided on 14.05.1991. Hence, the said law is not more a good law. The Hon'ble Court also differentiated the facts of M/s International Building and Furnishing Co. Pvt. Ltd. & Anr. v. J.S. Rikhy & Ors., AIR 1985 Delhi 338. The Hon'ble Delhi High Court also referred to the judgment of the Hon'ble Apex Court in Kanta Goel v. B.P. Pathak, 1997 (2) SCC 814 in which it has been held that it was permissible for a tenant to challenge the validity of the Will. The Hon'ble Delhi High Court pointed out that in the said case i.e. Kanta Goel's case (supra), the father had made Will in favour of his sons. The challenge to that Will was not allowed in the eviction petition because the other cosharers were the parties to those proceedings and there was nothing on record to show that they challenged the Will. It was in those circumstances that the Hon'ble Result: Petition dismissed Page 70 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 Supreme Court held that as all the heirs of the deceased father had been impleaded and they did not object to the said Will so the tenant cannot challenge the Will. It was not held by the Hon'ble Supreme Court that if the question about the factum and validity of the Will as raised before the Rent Controller, he cannot decide.
31. I may as well point out the facts of Ishwar D. Rajput v. Chaman P. Puri, 1991 RLR 322. It was observed that tenant cannot be permitted to question legality and validity of Will. It was held that, "the legality and validity and due execution of the Will can only be subject matter of proceedings under the Indian Succession Act. It is in such a proceedings that the Will can be proved to be duly executed, and probate granted; or a Will is held to be not proved, and probate refused. The Rent Controller cannot exercise jurisdiction which is conferred by the Indian Succession Act. The jurisdiction of the Rent Controller is confined to the provisions of the DRC Act.".
32. I may also point out the facts of M/s International Building and Furnishing Co. Pvt. Ltd. & Anr. v. J.S. Rikhy & Ors., AIR 1985 Delhi 338. In the said case, the father of the respondent/landlord died Result: Petition dismissed Page 71 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 leaving a Will for the house in dispute to be inherited by his widow and after her demise by the other two sons i.e. the respondent and his brother. The widow died. The respondent and his brother became joint owners. They arrived at a family settlement. The brother of respondent relinquished all his rights in the property in favour of the respondent. The respondent executed a registered Gift Deed gifting his plot to his brother. It was held that the Will executed by respondent's father cannot be disputed by the petitioner/tenant as the petitioner themselves have asked the respondent to furnish the necessary documents to them in order to enable them to pay the rent in future to the respondent. Same were furnished and rent was being tendered to the respondent.
33. Thus, it is clear that the objection of Sh. Rajesh Yadav, Advocate to the Will of deceased father of petitioner herein is not genuine challenge in the absence of a no objection by petitioner's sister. It is so as in Indian Unbrella's case (supra), it is highlighted that the consent of other coowners is assumed as taken unless it is shown that the other coowner were not agreeable to eject the tenant and the suit was filed in spite of their disagreement. The said judgment is not on the aspect of ownership by Will. In the case before Result: Petition dismissed Page 72 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 me, the petitioner has withheld the Will on the premise that its production is not necessary in view of the fact that absolute ownership is not required to be proved in such cases and that otherwise also the present respondent shall be estopped from challenging his status of landlord when rent is being paid to him. However, the reliance on case of Uganti Devi's case (supra) shall not assist this petitioner on the issue of ownership on the basis of Will for the simple reason that this Court has already held him to be the landlord of the present respondent. It is in the crossexamination of PW1, the said witness admits that his father left two natural heirs i.e. him and his sister. The respondent went ahead and put a very specific question to PW1 which is as under:
"Q. Did your sister give No objection Certificate when you applied for mutation of premises in dispute to the MCD? Ans. My sister gave the No objection Certificate when the Will of my father was opened for the first time."
The witness admitted that he had not filed any copy of NOC in the present case. However, the defence kept the crossexamination on this issue up to that stage only and thus failed in suggesting this witness that his sister had not executed any No Objection Certificate in Result: Petition dismissed Page 73 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 his favour qua the Will in question. This would mean that the defence accepted the affirmative assertion of the witness as aforestated. For this reason, it is to be held that as mandated in the Indian Umbrella's case (supra), the respondent herein could not show that the petitioner's sister had disagreement with him qua these eviction proceedings. Likewise, for the same reason the judgment in Kanta Goel's case (supra) regarding creation of agency between the petitioner and his sister does not benefit the respondent. Merely because the petitioner also admitted that he had not informed his sister about pendency of this eviction petition, it would not imply that she will have no knowledge of it from other sources. It is therefore held that the present respondent had remained unsuccessful in challenging to the Will in question. As to whether any adverse inference is required to be drawn for nonproduction of Will shall be seen later.
34. Accordingly, the fact will remain that the petitioner's claim of being an owner of the premises or the alternate claim of being the co owner sustains and thus he shall be able to maintain the eviction petition by virtue of law in Dhanna Lal's case (surpa) and Sh. Sri Ram Pasricha's case (supra).
Result: Petition dismissed Page 74 of 114
Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09
In Re: Site plan of demised premises
35. The site plan of the demised premises is Ex.PW1/2. Its veracity has remained under challenge. Para 1 and 2 of the eviction petition describes the demised premises by its Floors only. The said description as given in the eviction petition is said to be matter of record in the corresponding paras of written statement. In para 8 of the written statement on merits, the respondent submits that the site plan does not correctly describe the premises in question. This objection needs due attention in view of the fact that the petitioner does not plead his residential requirement in terms of number of rooms etc. At no place in pleadings, same even finds a mention despite the fact that the respondent raised an objection to that effect in written statement. In his affidavit Ex.PW1/A, petitioner produced the site plan of the premises demised as Ex.PW1/2 submitting that it has been prepared by Draughtsman inter alia on his instructions. He deposes that it is correct as per site. He further deposes that the respondents have not disputed the correctness of the site plan, nor have they filed any counter site plan. When crossexamined on the aspect of the site plan, the PW1 deposed following in his crossexamination dated Result: Petition dismissed Page 75 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 18.01.2011. "I last visited premises in dispute prior to filing of this eviction petition, approximately six months before the filing of present eviction petition. I did not go inside the premises as I was not allowed to do so. I did not intimated the tenants/respondent about my proposed visit inside the tenanted premises. I did not register any protest with the tenant regarding his preventing my entry in the premises in dispute. I did not recollect whether I had sanctioned builiding plan and completion plan for the premises in dispute. One Architect prepared the site plan Ex.PW1/2. I was not in the picture when the site plan Ex.PW1/2 was prepared as the same was got prepared by my father. I do not know when the site plan was prepared. I received the site plan Ex.PW1/2 from my attorney named Mr. Vijay Lakhra, who was taking care of the rentals etc. I do not know whether the Architect actually visited the premises of the site at the time of preparation of the site plan Ex.PW1/2. I have not compared the site plan with the sanction plan or the completion plan. I have never measured the area of the premises in dispute. I cannot say how the site plan Ex.PW1/2 is as per site. It is wrong to suggest that site plan Ex.PW1/2 is incorrect and not as per the site at the spot. The site plan does not bear Result: Petition dismissed Page 76 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 signature of Vijay Lakra or my father.
At the time of filing of eviction petition I was not aware of the exact measurement and position of the premises in dispute as well as the construction thereon. Even today I am not aware of the exact measurement and position of the premises in dispute. It is wrong to suggest that I made a request to the respondent only once in October, 2010 to give me permission to enter the premises in dispute and respondent allowed me entry into the premises in dispute on that occasion. I do not have documentary evidence to show that tenant prevented me from entering the premises despite my request."
In his crossexamination dated 23.02.2011 the witness admitted the suggestion of respondent as per his following words, viz, "It is correct that I have not mentioned the number of the rooms required by me in my eviction petition as I require the whole building."
36. From the above crossexamination, it is apparent that PW1, by his own admission, was not the person at whose instance the Draughtsman or for that matter the Architect prepared the site plan Ex.PW1/2. It does not bear signature of either PW1, Sh. Vijay Lakra or his father. The person preparing it from R.R. Nagpal & Company Result: Petition dismissed Page 77 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 was not examined as a witness. Further, by his own admission, the PW1 has never been inside the demised premises. He has further denied that he was granted entry into the premises in October, 2010. Thus, the site plan remains not proved in accordance with law. For said reason, this Court shall not be able to look at its contents in order to form an opinion regarding the usage of rooms therein visavis the petitioner herein and members of his family dependent upon him for accommodation, if any.
37. This brings me to one of the first and foremost objection of defence that the petitioner has not pleaded anything on the area required by him for purposes of his bona fide need. In this context, I have already said that the aspect of dependency of his family members has not been proved. At best, his wife, his daughtersinlaw and their children can be said to be dependent on the petitioner for purposes of residence in Delhi. Reference may be made to my observations in para 23.1 and 23.2 of this judgment. To add to it, this Court will not be obligated only to say that since the petitioner could not prove that his sons are not dependent upon him for purposes of residence, they are not entitled to live in their own house. This analogy would be farcical. Result: Petition dismissed Page 78 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 It has been held by the Hon'ble Delhi High Court in Lala Shambhu Nath v. Pandit Ram Sarup, 1971 RCJ 124 Delhi that married sons, their wives and children though not dependent, would be member of landlord's family. In the same context it has been held in Ochhi Ram v. Moti Ram, 1979 (2) RCR 116 HP that the grandsons are member of family of the landlord. They assist the landlord in his old age. Their requirement is requirement of the landlord's family. It is observed that so far as the married daughters are concerned, they may not be immediate members of landlord's family but if the landlord desires presence of his married daughter in his house for whatever reasons, it cannot be said that the need of such married daughters shall not be the need of the landlord for accommodation for such married daughters. Thus, the observations as recorded in para 23.1 and 23.2 of this judgment regarding failure of petitioner to put forth his case that his sons are dependent upon him for residence will not come in the way of the petitioner's need of assistance in business from his family members for setting up industry and supervise operations. The requirement of the petitioner for space for the sons in the demised premises for purposes of assistance to him in furtherance of his Result: Petition dismissed Page 79 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 business shall still be a need which the petitioner can still project even if he does not prove dependency. The question arises for said purposes is whether the petitioner is obligated to disclose as to how the demised premises is to be put to use by him and members of his family dependent upon him? Was it indeed imperative on the petitioner to have disclosed that his entire family, when in India along with others who may come visiting him and his family shall be requiring so and so number of rooms? The facts are intricately woven. Here is a case where the petitioner has first projected setting up an industry in India and for setting it up and supervise its operations when so set up, the petitioner has put forth his need of residence which is therefore dependent on his primary wish of opening up an industry. He builds up his case by adding facts to it in his replication and also evidence. The case so put forth is to the effect that the visiting members of his family will also require residence and that they will also assist him in the setting up of an industry. It is in this context as to whether the petitioner should have disclosed the number of rooms constructed in the demised premises and the number of rooms requiring at a time habitation by all members of his family. It is not his case that either he or members of his family are shifting base from Thailand to Delhi. It Result: Petition dismissed Page 80 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 being so, it becomes more important in view of the fact that the present petitioner is seeking eviction of the respondents from the entire premises by referring the petitions for eviction in Bimla Devi's case and M/s Ram Nath Export's case. Met with several of defences by the respondent including absence of any bona fide of the petitioner, had it became of paramount importance that the petitioner justified his dependent need of residence by giving facts to that effect in detail? As said earlier, it has not been done.
38. The petitioner has relied on Kamla Thukral's case (supra). In the said case the petitioner and her family stayed in a small part of a suit property on the second floor, which area, was not sufficient for them whenever they visited India from U.K. They needed more area. It was in that context that it was held that it is the desire and will of a landlord to decide how he wishes to live. Needless to say, the petitioners did describe the area required by them in the said case which is missing in the present case. However, it was a case of additional accomodation.
38.1 The reliance by the petitioner in the case of T.D. Dhingra Result: Petition dismissed Page 81 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 (supra) shall not come as assistance to him in the present case as the facts in the said case are not be found in the judgment cited. This Court cannot therefore pick a line from here and there for the benefit of the contesting parties before it. Needless to say, the similarity of facts and circumstances is required to be analyzed.
39. In Prativa Devi's case (supra) all that is of assistance to the present petitioner is that the tenant cannot dictate or prescribe residential requirement as the landlord is the best judge of his residential requirement and it is not the concern of the Courts to dictate to the landlord how, and in what manner, he should live or to prescribe to him a residential standard of their own. However, in the said case the Hon'ble Apex Court was examining the orders of the concerned High Court passed in revision reversing Rent Controller's order on the ground that the appellant being an old lady of 70 years having no one to look after her should continue to stay with the family friend instead of her own accommodation. It is in this context the judgment was passed. The extent of accommodation required was not the issue.
40. On the contrary, the judgment in Freddy Fernandes's case Result: Petition dismissed Page 82 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 (supra), casts and obligations on the petitioner/landlord to make a proper pleading of bona fide need for his premises. Thus, until extent of accommodation required is justified in terms of availability of space, then proper examination of landlord's need when faced with opposition of intentions to the contrary, this Court shall not be able to draw an inference that the reality was to the contrary and the landlord was merely attempting at finding out of pretext for getting rid of the tenant in the way it has been mandated in the judgment in Shiv Sarup Gupta's case (supra). Thus, the landlord must substantiate the pleaded need. However again, what is to be seen is whether this petitioners failure to give details of accommodation required shall render his case redundant.
41. The question of describing the area needed for proper habitation has come up before various courts on several occasions. Reference may be made to the landmark judgment of the Hon'ble Delhi High Court in R.C. Gupta. v. Brahma Nand, (Delhi) 1992 (1) RCR (Rent) 66 as well as on the another judgment of the Hon'ble Delhi High Court in Smt. Sudesh Kumari Soni & Anr. v. Smt. Prabha Khanna & Anr., 2000 IX AD (Delhi) 657. Reference is also made to one more Result: Petition dismissed Page 83 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 judgment of the Hon'ble Delhi High Court in M/s Ruparel & Co. (Delhi) v. S. Avtar Singh Puri, 159 (2009) DLT 109. All such cases have been invariably in the nature of seeking additional accommodation. At the same time, in R.C. Gupta's case (supra) it has been observed that owner is entitled to make himself comfortable in his house. He is best judge of his residential requirement. Owner can very well plan how he and his family want to live comfortable life in his house. It is not the function of Rent Controller to suggest the landlord how he should make use of space available with him. Further, in Ruparel's case (supra) it is again held that Court cannot dictate to a landlord as to how he should live and to what use he should put each and every portion to and the landlord is entitled to assess the need and requirement of himself and his other family members. Neither the Court nor the tenant can dictate to him the mode and manner in which he should live or to prescribe him a residential standard of their own. In R.C. Gupta's case (supra), the Hon'ble Court also took into account the petitioner's status, the status of members of his family, the movable properties owned by them amongst other such aspects while arriving at the conclusion. It is settled law that the status of landlord Result: Petition dismissed Page 84 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 and his family are decisive factors to arrive at the conclusion about the need of residential space. In the present case the landlord is not only an NRI but is a billionaire by his own admission. He and his family resides at Thailand and are in business of hotel, hospitality and industry. His own company owns and manages five to eight companies. He is a citizen of Singapore. His children were born at Thailand. None of his family members is an Indian citizen. All his grandchildren were also born in Thailand. These are all the factors which are to be kept in the mind in arriving at a conclusion as to whether the petitioner's requirement of space asked for is genuine. The demised premises herein and also in the other eviction petition comprises of a basement hall, complete ground floor, garage, one servant quarter above the garage, the entire first floor, the entire second floor and one servant quarter in the annexe. As per the petition, the petitioner requires the demised premises in both the cases for use as residence for himself and also for his family members. I have already said that in regard to the number of family members, the respondent was never taken by surprise. All throughout, the petitioner has maintained that he required the entire premises. In fact, in cross examination the PW1 admitted to the suggestion of the respondent Result: Petition dismissed Page 85 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 that he had not mentioned the number of rooms required by him in his petition and has added that he required the whole building. The suggestion is recorded in verbatim in para 35, page 78 of this judgment. There is no contrary suggestion to this witness by the respondents that he did not require the whole building for use as residence. The said positive assertion of this witness on oath therefore remains on record unrebutted. Thus, having regard to the law cited above and the social/economic status of the petitioner and his family, if he feels requirement of the entire premises for residential usage then it shall be so as it is not for this Court to prescribe residential standards. Lastly, this is not the case of additional accommodation. Petitioner has maintained that he does not own any other residential premises in Delhi.
In Re: Bona fide need
42. The petitioner has been extensively crossexamined on the aspect of bona fide need. The facts in this regard are to be found in para No. 3.1 in this judgment so far as they pertain to the petition. The opposition on it stands recorded in para 7.3 and 9.3 of this Result: Petition dismissed Page 86 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 judgment. Further facts in support of the petition are recorded in para 9.4 - 9.9 of the judgment. They are not repeated therein as already set out in specific detail in the judgment. It is further explained in paras III (f) to (o) and (q) of petitioner's affidavit Ex.PW1/A. The contents of para III (j) i.e. "(of which limited company my elder son and myself are the founder directors)." is beyond pleadings and admitted so by PW1 in his crossexamination. PW1 has also admitted that he has not mentioned the contents of para III(q) in detail in eviction petition. The said paragraph constitutes detail of the factum of his entire family being in town and staying at hotel Imperial, Janpath, New Delhi on the date of swearing in of the affidavit. It is further in the said para that the respondents are attempting to overreach this Court and constrain him to handover the title of the house in reference them, for all times to come and that he had no such intention as he possess acute affection for his property and also wish to live here in his old age whenever in India. This deposition is also beyond pleadings. PW1 also admits that contents of para III(s) of the affidavit are not pleaded by him in the petition. However, the same are duly mentioned in the replication.
Result: Petition dismissed Page 87 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09
43. The petitioner has recently acquired specialized knowledge of processing of oil, particularly used turbine oil and that too online (i.e. without stopping the turbines generating electrical energy). He is negotiating the terms of imparting this specialized knowledge and technology with the various corporations and companies (both under the public sector as well as private) for reprocessing the same (then and there). The negotiations are stated to be at an advanced stage and will result in substantial savings for the said electricity generating companies. The PW1 has been contemplating to set up his residence and office at Delhi so as to advance his business prospects in India and therefore to necessarily reside here till things are set up and the functioning is made smooth. He has to necessarily stay here or atleast visit his offices as well as the site in reference regularly after ensuring setting up of business in order to make it profitable. He has set up in India an industrial company by the name of UniOil Co. Pvt. Ltd. It is in process of advanced negotiations. He has also acquired plot No.7, Sector140A, (Noida Plot), for setting up an appropriate industry i.e. an embroidery plant. The witness PW1 admitted in his cross examination that the remaining contents of para III(k) of the affidavit Result: Petition dismissed Page 88 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 were not mentioned by him in the petition. In fact, the same were not even mention in the replication. Thus the part of the para wherein PW1 states that, "I intend to set up here an embroidery plant with specialized imported machinery, more so as there is great demand in Thailand for such products. I intend to set up my unit here and export the production not only to Thailand but also worldwide. The formalities of the allotment of the land etc. have been completed and I am in the process of commissioning the industrial unit as soon as practicable. There is a delay in the process, as the government machinery here in India moves very slow" are therefore beyond pleadings. The replication only stated that there is great demand in Thailand for embroidery products.
43.1 Further, the petitioner relies on copy of his passport (Ex.PW1/3) and hotel bills (Ex.PW1/4) to show that he has been visiting every month to India and has been staying at Imperial Hotel, Janpath, New Delhi. The bills relied are from 01.06.2007 to 17.11.2008. Bills thereafter have not been filed despite the fact that according to the witness, he was carrying the bills subsequent thereto with him. Regardless of it, same have not been filed on record. The Result: Petition dismissed Page 89 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 petition was filed on 13.01.2009. So far as the passport Ex.PW1/3 is concerned, no VISA endorsement subsequent to that of the last date of the hotel bills was pointed out by the petitioner's counsel to show his visits to Delhi. Thus, this Court is not in a position to see as to whether the petitioner has been visiting India during pendency of the present petition, except of course, the days/dates on which he was cross examined on record of this case.
43.2 Having pointed out about the bona fide need of the petitioner as above, I have to be conscious of the fact that the need projected is not only bona fide but it is also existing as on date. Much has been argued, pointed out and demonstrated from the crossexamination that the demised premises is not fit for use as a residence. However, all of it looses all force in view of fact that the RW1 Sh. Vivek Lall admitted in his crossexamination dated 24.07.2013 that the demised premises can be used for residential purposes in the same manner as any other place can be so used.
43.3 To begin with, the petitioner claims acquisition of a specialized knowledge recently. The word 'recently' has to be read in connotation with the date of filing of the petition i.e. 13.01.2009. The petition is Result: Petition dismissed Page 90 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 silent as to from where the petitioner learnt the specialized knowledge. Similar is the position in the replication. Likewise, same is the position in Ex.PW1/A. In fact in replication, the petitioner has submitted that the procedure and details in regard to his special knowledge cannot be disclosed being a trade secret and this fact can be appreciated as it is settled law that it is not for the Court to see the viability of the proposed business. In fact, it has been also held that the landlord is not even required to disclose as to what business in intends to start in the vacated premises. Reference may be had para 25 of this judgment. However, the court has to see as to whether the need projected is just, genuine, honest and therefore bona fide. The court can also see as to whether any steps have been taken for furtherance of such business particularly when the landlord himself urges the Court to notice such facts. It is in the petition that petitioner has a private limited company and that he has acquired a 2100 sq. mtrs. plot at Noida to set up appropriate industry. It is in the replication that the said Noida plot bears plot No.7, sector140A, Noida, G.B. Nagar, U.P. and that the name of his company is UniOil Company Pvt. Ltd. It is further in the replication that the petitioner intends to set up Result: Petition dismissed Page 91 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 embroidery business at the Noida plot and that he is in advanced negotiation with various companies for his oil business. With these facts deposed by him in his chiefexamination minus the beyond pleading deposition, he was taken for crossexamination. The relevant part is extracted in this judgment.
"... I am an G.C.E. 'O' Level, it is a degree. As a child I studied in India for about six months. I cannot tell what is processing of oil, as it is my technology and I am entitled to keep it a secret. I acquired the knowledge of processing of oil from U.S.A. Q. Can you tell me the name of the degree or the course which you had undertaken for acquiring knowledge of processing of oil?
A I do not need to answer this question.
Q. What is the used turbine oil?
A. Disallowed as it is not relevant.
The name of the company mentioned in para (vii) of
para 18A of the petition is Uni Oil Company Limited. The said company was incorporated some years back but I do not remember the year of its incorporation. Me and my family are the other Directors of this company.
Q. Can you tell me the names of various corporations and companies with which you and your private limited company had been negotiating?
A. The negotiations are being carried out by me through my representative with National Thermal Power Corporation. Q. What are the electricity generating companies mentioned by you in sub para 7 of para 18A of your petition?
Result: Petition dismissed Page 92 of 114
Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09
A. National Thermal Power Corporation.
At the moment National Thermal Power Corporation is the only company with whom I am negotiating with my representative. Even at the time of filing of the eviction petition, I was negotiating with National Thermal Power Corporation only and no other company. I did not make any project report before initiating business in India. I cannot place on record my communication or the correspondence which I was having with the companies for start of business in India. I cannot tell the names of the officials with whom I have to liaison with for starting business in India as mentioned in Sub para 9 of para 18A of my petition. Vol. For business reasons I cannot tell the names of officials It is wrong to suggest that I have not acquired any specialized knowledge for processing of used turbine oil and reprocessing of the same. It is wrong to suggest that I or my private limited company never had/has negotiations with any corporations or companies in India. It is wrong to suggest that I never had liaison with any officials regarding the setting up for my business or project in India. It is wrong to suggest that I have no intentions to set up any business in India.
I have dealt with National Thermal Power Corporation only with respect to my remarks in para K of para III of the affidavit that government machinery herein India moves very slowly.
Q. Can you tell me where and what kind of obstacle did you come across while dealing with the government machinery in India?
A. Disallowed as it not related to the matter is dispute.
I have not made any complaint against any erring government official. I have been in NTPC personally Result: Petition dismissed Page 93 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 approximately 510 times. I do not the location of the office of NTPC as my agent takes me there. I cannot tell the name of the person or the official with whom I met in the office of NTPC. It is wrong to suggest that I never visited NTPC office. It is wrong to suggest that I never met any NTPC official. It is wrong to suggest that I am unnecessarily blaming the government machinery in India. I have stated the same fact in para (vii) of subpara 18() of the eviction petition and sub para
(i) of para (iii) of my affidavit that the negotiations are at advance stage as there was no progress in this regard. Vol. The delay is on account of inaction on the part of government officials. Vol. The negotiations are finally concluded when the same are finally signed and sealed by the government officials.
It is wrong to suggest that I have not set up any business in India and for this reason there is no progress.
Q. Have you obtained any licence or permission from the government authorities for starting a business in India? A. I have not obtained such licence or permission as the need in India is only the registration of company.
It is correct that for obtaining a plot from NOIDA authorities a project report is to be submitted. Vol. I submitted the project report. The name of the company which submitted the project report with the NOIDA authorities is M/s. Mastex Co. Ltd. My family members are the Directors in this company. I was the applicant for allottment of plot from NOIDA authorities on behalf of M/s.Mastex Co. Ltd. I or my company opened two new bank accounts in India during last 23 years. I do not exactly remember whether these accounts were opened by me or by my company. I or my company did not obtain RBI permission for starting a business in India as the same was not needed. I or my company have not taken any loan for starting Result: Petition dismissed Page 94 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 the business in India. I have not raised any construction in the plot allotted to me by the NOIDA authorities. NOIDA authorities has not fixed any time limit for raising the construction on the plot. Vol. The only condition is that if no construction is raised within three years some penalty will be imposed. I do not remember whether I have not mentioned the number of the plot or the name of company who owns this plot, in the petition. I can produce the documents showing the payment to NOIDA authorities. Photocopy of two challans/receipt dt. 17.01.11 shown to the Court. Same are returned back to the witness. Photocopy of the receipts are also shown to Ld Counsel for respondent. I can produce the original lease deed whereby the plot at NOIDA was allotted to me by the NOIDA authority. Photocopy of the same is taken on record and exhibited as Ex. PW1/R1."
43.4 Thus, it can be seen that while standing in witness box the petitioner maintained his stand that that his technology being secret should justify his attempt to not to divulge information on it. However, as to why the witness did not answer about the course he did for acquiring knowledge of processing of oil is not understandable being not connected to the technology. Likewise, as to why the witness could not tell the name of officials with whom he had to liaison for starting business is again not understandable being not connected to the technology. Further, as against the pleadings, PW1 is seen stating in his crossexamination that the negotiations with various companies is Result: Petition dismissed Page 95 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 being carried out by him through his representative with NTPC. The witness restricts the number of companies to just one against the pleadings. He qualified that 'at present' he is negotiating with only one company i.e. NTPC but does not provide the name of the companies and the fate of such negotiations. Even with regard to NTPC, despite the fact that the witness claims to be at NTPC approximately 510 times, he could not tell the name of the person or the official with whom he met in the office of NTPC. This testimony has to be read in tandem with his pleadings. The talks of negotiations were at advanced stage at the time of filing of petition and after more than four years, the same are still at the stage of advanced negotiation. Obviously, no oil business has been started by the petitioner so far. The company UniOil was incorporated on 21.09.2005. The petitioner was unable to give any details about the said company as would be evident from his crossexamination recorded on 24.02.2011. He declined to show documents pertaining to UniOil Company. He did not remember where the registered office of UniOil Ltd. is located. He did not remember since when the said company is filing the annual returns. He did not remember where the working office of the said Result: Petition dismissed Page 96 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 company was located. Same had been the response of PW1 in regard to his other company i.e. M/s Mastex Embroideries. It is this company, which according to PW1 applied for allotment of plot with NOIDA. The record would reveal that the said company was incorporated way back on 29.07.1994 and thus, it had nothing to do with the proposed business i.e. oil business regarding which UniOil Company was floated in the year 2005. The plot at Noida was however, acquired physically on 25.03.2010 and the lease deed (Ex.PW1/R1) reveal that on the said plot an embroidery unit has to be opened. In fact none other than it can be opened as per its clauses. Even the same has not been opened so far as evident from the testimony of PW2. In all these years only boundary wall has been constructed at the plot side. The unit has not commenced. It is not the petitioner's case that for setting up of business, he is dependent to have a residence. Rather, it is his case that he visited Delhi every month to ensure his business prospects. It be so then some growth to his business plans should have definitely come on record which is not the case here. 43.5 It has been a contention of the respondents that setting up of the two companies by the petitioner is only with an objective to seek Result: Petition dismissed Page 97 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 ejectment. Since no effort was made in time by the petitioner to produce the records of these companies, ultimately the said records in the form of collective document Ex.PW2/3 were ordered to be de exhibited and cannot be therefore, of any use to the petitioner. Further, the crossexamination of PW1 was conducted on 12.12.2001 in the civil suit. The said crossexamination is Ex.PW1/R2. The chief examination is also of same date. There is nothing on record of said case even at the time of its withdrawal that the petitioner wanted to file the present eviction petition on a particular bona fide requirement. 43.6 There is no reason to say that the petitioner shall not be entitled for benefit of the judgments of Dharam Pal Gupta's case (supra), Sait Nagjee Purushottam's case (supra), Manika Rani Ghosh's case (supra) and Ram Babu Aggarwal's case (supra). The landlord's objective of setting up of business cannot be questioned but whether he has intention of actually doing so particularly when he states that it is just about to be done, then it needs to be tested. According to the petitioner, the burden to prove that the requirement is not genuine would lie heavily on the tenant. In this context the judgment in Baldev Singh Bajwa (supra) is relied. However, I have already pointed out in Result: Petition dismissed Page 98 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 para 15 (vii) above that in said case, the said observations were given in the light of restriction and conditions in Section 13B(3) and 19(2) B of the E.P. Urban Rent Restriction Act, 1949. Section 13B of said Act is with a view to provide immediate possession of the accommodation owned by an NRI. Under the E.P. Urban Rent Restriction Act, 1949 the Court "shall presume" that landlord's need pleaded in petition is genuine and bona fide. No analogous provision of such presumption has been provided in the DRC Act. On the contrary the respondent has relied on Fredeey Fernades's case (supra) wherein it is held that since the petitioner has to prove that his need for premises is bona fide and also that he has no other reasonably suitable accommodation, which facts are within his special knowledge, the burden to prove such facts is on the landlord in view of Section 106 of the Evidence Act. Proper pleadings are required as the evidence has to be adduced on such pleadings. The said law applies to this case. The burden of proving that the present petitioner has a bona fide need rests upon him.
43.7 So far, I have pointed out that the present petitioner has remained unable to show any furtherance in his business activities. Sh. Result: Petition dismissed Page 99 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 Piyush Sharma, Advocate argued that the petitioner cannot be forced to carry on a business at times of recession. I agree with the said submission. In the present case, petitioner, though not coherently, has maintained acquiring special knowledge of oil business which he still contemplates to do and he has also acquired an industrial plot on lease to carry on another business of embroidery from NOIDA. It is one of his businesses in which he is actively engaged in Thailand. Petitioner's need of residence is not for spending idle time here but to set up business and supervise it. He has already acquired land for one of his businesses. As to when he starts it has to remain purely personal to him and this Court shall not be concerned with the fact that the land was acquired in his independent capacity or as Director of his company M/s Mastex Embroideries (India) Ltd. This company is in existence since 1994. The petitioner has produced oral evidence supported with the documentary evidence in the form of lease deed Ex.PW1/R1 which mentions embroidery business. I am conscious of the fact that petitioner as PW1 has not examined his authorized representative who had been dealing with NTPC but suffice is to say that the petitioner himself states on affirmation that he met some Result: Petition dismissed Page 100 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 official of the NTPC about 510 times. Merely because he did not give the name of official it cannot be said that burden was not displaced. The burden on the landlord therefore shifts to the respondents. The respondent's attempt is to shake the petitioner's version by showing that he does not take steps appropriate for starting his businesses; that he intends to have the demised premises as the prices have sky rocketed and that the petitioner also negotiated the sale of the premises with Sh. Vivek Lall and therefore he shall not come to India for business.
43.8 It is in pleadings that the respondent wanted to have some premium to vacate the premises and that there had been no talk of sale of premises to the respondent. The petitioner accordingly suggested RW1 that he or his father had asked for sum of Rs.15 Million to vacate the tenanted premises, which suggestion was denied. Further, it is in the pleadings that the petitioner does not want to sell the property to respondent. In cross examination Ex.PW1/R2 recorded in the civil suit, a peculiar assertion of the present petitioner is recorded to the following effect, "The broker of Mr. Radhey Lall has written me a letter saying that Mr. Radhey Lall wants to purchase the property Result: Petition dismissed Page 101 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 hence I can say that he know my address.". PW1 in his examination inchief in the form of affidavit (Ex.PW1/A) has stated in para III
(q) that, "They are attempting to overreach this Hon'ble Court and constrain me to handover the title of the house in reference to them, for all times to come."
43.9 A conjoint reading of the above two stands would reveal that there have been attempts from respondent to purchase this property. It is in this context that the respondent submits about negotiations of sale not materializing for want of agreement on purchase money. In this context, in the crossexamination of RW1 a positive assertion has been recorded on 31.07.2013 which is as under:
"... I had about 15 meetings with the petitioner wherein very clearly he told me that he is well established in Thailand in his embroidery business and also is in the process of opening a thousand room hotel in collaboration with Ramada and he wanted to sell the property in question for which we even negotiated for which he accepted the down payment which he returned to me subsequent therefore the petitioner does not want the premises in question for his bona fide requirement. For the down payment and refund the said fact has never been taken by me in my pleadings before this court. (vol. I have Result: Petition dismissed Page 102 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 two witnesses who can substantiate my stand."
44. The petitioner was content after eliciting from the witness that the fact of down payment and refund were not stated by him in his pleadings. Even though the witness volunteered that he had two witnesses who could substantiate his stand, it was not thought appropriate at behest of the petitioner to suggest the witness that his stand was false. Conversely, even though the witness said that he has not so pleaded but the fact remains that the Court has to see that the said fact was pleaded or not. In para 12 of the written statement the respondent pleaded that the petitioner has offered to sell the tenanted premises to the respondent but talks failed to materialize as price could not be negotiated and finalized between the parties. It is correct that facts qua acceptance of down payment and subsequent return of it are beyond pleadings. However, offering no suggestion to the witness on the contents of para 12 of written statement which are duly stated under oath by him under para 12 of his affidavit Ex.RW1/A would imply that the said assertion has remained unrebutted. The fact that towards the end of the crossexamination the petitioner offered a few omnibus suggestions to RW1 cannot be sufficient to negate what has Result: Petition dismissed Page 103 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 been said as a positive assertion on oath.
44.1 In the same context the RW1 was further crossexamined on para 6 of his affidavit where the respondent had highlighted the conduct of the petitioner and that of his father prior to his death. The witness said that he had deposed so on the basis that father of the petitioner also approached his father to sell the premises in question. No corresponding suggestion was offered to the witness.
45. By virtue of the judgments in Suresh Chand Mathur's case (supra) and J.C. Enterprises (supra) the above assertions shall be deemed to have been admitted. It being so the onus reshifts on the petitioner. Thus, the burden that rests on the petitioner has not been finally discharge by him. In these circumstances, this Court shall have to draw an inference that the reality is to the contrary as per the law laid down in Shiv Sarup Gupta's case (supra).
45.1. Having said so, it shall have to be held that the petitioner could not substantiate his case of requiring residential accommodation for the purposes of setting up of and advancement of his business which actually is yet to see light of the day.
Result: Petition dismissed Page 104 of 114
Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09
In Re: Suitable alternate accommodation
46. The petitioner pleads that he has no residential accommodation in Delhi. In his crossexamination recorded in the civil suit i.e. Ex.PW1/R2 he said the following on the issue, viz, "We have other properties in Delhi. All property are on rent. The other property were also looked after by Ram Prakash Lakra during the lifetime of my father. I am not aware whether the rent of other properties are collected by way of cheque. xxxx The rent for the property in Hanshalia Building is deposited in Bank of America. I have jointx account with my father therefore there has no need of certificat of succession and that awas in Bank of America. I can not tell the year in which the account was opened. I can not tell the year in which the property was let out to the Bank of America as affairs were handled by my father. Me and my father had only one joint account in Inida. We are not taking rent except bank of America."
47. This statement is made by the witness in the ejectment petition qua the demised premises in the present case as well as in the other eviction petition. Conscious of this fact the witness replied that we had Result: Petition dismissed Page 105 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 other properties in Delhi. Obviously, the witness was referring to properties other than the property in civil suit. Further, he deposed that all properties are on rent. Obviously, he will not be referring to the premises in said suit while referring to his other properties on rent. He was put questions qua the property in Hansalya building. Appropriate reply as above were given. The above crossexamination gives an impression that the petitioner had more than one property apart from the premises in said suit and the premises in Hansalya building. In present petition, he said nothing about Hansalya building premises. The respondent was able to obtain leave to contest. In the cross examination of PW1 in the instant petition, his statement Ex.PW1/R2 was confronted with. The response is quite interesting and it is recorded in third form of English language. It is as under, "Witness deposes that he not deposed about those properties in the eviction petition as it is not needed. It is wrong to suggest that I have deliberately not disclosed the two properties mentioned in my statement Ex.PW1/R2 in my eviction petition." The words "two properties" are to be read as "other properties" as per the order of the Court dated 24.02.2011. Having read so, it is seen that according to the Result: Petition dismissed Page 106 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 witness deposition about other properties is not needed. In normal course of events, the said deposition would imply presence of other properties.
47.1 The written statement made a reference to the petitioner having a property at Lajpat Nagar. The respondent does not categorize the Lajpat Nagar property as either residential or commercial. The respondent does not give any further details of this property. In para 14 of the replication the petitioner denies owning one property in Lajpat Nagar, New Delhi as alleged. Surprisingly, he refers to the alleged Lajpat Nagar property as 'residential'. Nothing could have prevented the petitioner from saying that he does not own any kind of property at Lajpat Nagar. By deliberate use of the word 'residential', an inference can be drawn that the petitioner may be holding commercial or commercialcumresidential premises premises. This fact has not been explained anywhere and sufficient to create a doubt in peculiar circumstances of this case.
48. According to the respondent the description of premises No. 'P27, Malviya Nagar, New Delhi110017' as residence of the petitioner in lease deed Ex.PW1/R1 has to be taken as an admission Result: Petition dismissed Page 107 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 of the petitioner possessing said property for his residence. The petitioner was put to some crossexamination on the issue. The same is recorded in his crossexamination dated 24.02.2011. the relevant part is as follows:
"It is wrong to suggest that property No. P27 Malviya Nagar, New Delhi which is shown as my residence in the lease deed Ex.PW1/R1 is my residence. It is further wrong to suggest that I deliberately not shown that this property is my residence. It is wrong to suggest that property at P27, Malviya Nagar, New Delhi is owned by me. I did not disclose while applying to the NOIDA for this plot that I am not a permanent resident and citizen of India. Vol. The officials of NOIDA never asked this to me. However, I furnished the documents like copy of passport or any other documents which they sought."
The witness has therefore not explained the circumstances in which he gave the above address as his residential address. It is observed that the witness has volunteered about necessary details at several places wherever required. On the above aspect he did not come up with any explanation which was otherwise required from him. The circumstances in which the said address was used had to be brought on record. In the absence of it, the Court shall have to presume that the said address is available to the petitioner as his residence even though Result: Petition dismissed Page 108 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 he denies the corresponding suggestions. There is not even a whisper anywhere that the said address was merely used as a 'postal address'.
49. Nonproduction of Will of petitioner's father assumes importance at this juncture. In the crossexamination of petitioner on the aspect of his Will, several specific questions were put to the petitioner as PW1. On 18.01.2011 the petitioner as PW1 submitted that he applied for mutation of premises in dispute in his name on the basis of a Will executed by his father in his name. He admitted that he had not filed the copy of said Will in the present case. He stated that he must have filed the copy of Will with the MCD for the mutation of the premises in dispute. The defence did not obtain such copy or information regarding filing of it in the MCD through initiating the procedure provided in the RTI Act as argued by petitioner. Even otherwise the burden of proof of nonacquiring any other suitable alternate accommodation remains on the landlord by virtue of the judgment in Freddy Fernades's case (supra). It will have to be seen as to whether the present petitioner has been able to stand on his own legs. In his crossexamination dated 23.02.2011 the PW1 said the following on the will:
Result: Petition dismissed Page 109 of 114
Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 "I do not remember whether I have placed on record the order of probate Court whereby the Will executed by my father has been probated in my favour. I do not remember with respect to how many properties my father made a Will in my favour. Vol. My father has bequeathed all his properties by the Will in my favour. My father did not give the details of the properties executed in my favour through Will. It is wrong to suggest that I have not placed on record the copy of the Will and the copy of the probate order as I would have disclosed the other properties left behind my father in my favour in Delhi. I have not written any letter to the respondent to the effect that my father has written a Will and the property in dispute has been bequeathed by my father in my favour."
50. It is in context of the above crossexamination that Ld. Counsel for the respondent has urged this Court to draw an adverse inference against petitioner under Section 114 Illustration (g) of the Evidence Act. The above deposition of the witness gives to understand that there were several properties bequeathed in his favour. They can be outside India. But the facts remains that the witness failed to clarify as whether the other properties were outside India. He was thus promptly suggested that Will was withheld from being filed as it would have disclosed other properties left by his father in his favour in Delhi. Still the witness who has volunteered quite often during his entire cross Result: Petition dismissed Page 110 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 examination did not offer an explanation. It is in the crossexamination of RW1 dated 31.07.2013 that the petitioner owns atleast three properties in Delhi. It is stated that petitioner himself told RW1 that he owns atleast three properties in Delhi from which he is getting rental incomes. It is also said that the petitioner's agent Mr. Lakhra, who was brokering the deal for the tenanted premises and also informed him that petitioner owns properties in Karol Bagh and also Lajpat Nagar. He admitted that he had not seen any title documents pertaining to these properties. No further crossexamination was offered to this witness regarding his positive affirmation of the Karol Bagh property. No suggestion was offered to the witness that the petitioner did not own any of the said properties.
51. Ld. Counsel for the respondent has relied on judgment in Mussauddin Ahmed's case (supra) regarding duty of party to lead best evidence in its possession which could through light on the issue in controversy and the fact that Court may draw adverse inference under Section 114 (g) Evidence Act, 1872, if withheld, not withstanding that the onus to prove did not lie on such party and it was not called upon to produce the said evidence. Similar is the situation in Result: Petition dismissed Page 111 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 Gopal Krishnaji Ketkar's case (supra). It also implies that there is variance between what was pleaded in the plaint and what was sought to be proved.
52. Having regard to the facts that the petitioner did not disclose possession of Hansalya Property (which, it has been now proved to have been sold by virtue of agreement to sell Ex.PW2/4); the deposition regarding owning other properties as recorded in Ex.PW1/R2; nonexplanation regarding the address i.e P27, Malviya Nagar, New Delhi110017 and the consequent nonproduction of Will of petitioner's father; and nonexplanation regarding referral to the Lajpat Nagar property as residential and also having regard to the fact that there is absence of any counter suggestion to the RW1 regarding a property of Karol Bagh, an adverse inference is required to be drawn against the petitioner of withholding best evidence in the form of the Will of his father and residential address of Malviya Nagar.
53. Resultantly, the petitioner has remained unsuccessful in discharging the burden of proof that he has no other residential premises as alleged.
Result: Petition dismissed Page 112 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 In Re: Petitioner's application under Section 340 Cr.P.C. against respondent Sh. Vivek Lall
54. After completion of evidence and crossexamination of RW1, the petitioner filed the captioned application dated 03.09.2013 to which reply was also filed. A preliminary objection was taken against the application in view of judgments in Prakash H. Jain v. Marie Fernandes (Ms), (2003) 8 SCC 431; Iqbal Singh Narang & Ors. v. Veeran Narang, (2012) 2 SCC 60 and Abdul Gani Bhat v. Chariman, Islamia Collage Governing Board & Ors., (2011) 12 SCC 640. The Hon'ble Apex Court in the case of Iqbal Singh Narang & Ors. (supra) has categorically held that the Rent Controller is not a Court within meaning of Section 195(1) Cr.P.C. It has been further held that though the Rent Controller discharges quasi judicial functions, he is not a Court, as understood in the conventional sense and he cannot, therefore, make a complaint under Section 340 Cr.P.C. The Hon'ble Apex Court also upheld the fact that only a complaint can be made by a private party in the proceedings. Needless to say such complaint under Section 200 Cr.P.C. cannot be entertained by this Court. Thus, without going into the merits of the application in hand, it is held that Result: Petition dismissed Page 113 of 114 Harminder Singh Koghar v. Ram Nath Export P. Ltd. E-11/09 by virtue of the analogy and facts created on a conjoint reading of Section 340 Cr.P.C., Section 2(b) of DRC Act, Section 35(1) & (2) of the DRC Act, Section 36 of the DRC Act and the judgment of the Hon'ble Apex Court in Iqbal Singh Narang & Ors.'s case (supra), the application is not maintainable on the aforesaid preliminary objections. It requires to be dismissed at threshold. RESULT
55. In view of the above, the petition fails. It is dismissed. Application under Section 340 Cr.P.C. read with Section 344 Cr.P.C. also dismissed. Parties are left to bear their own costs.
56. File be consigned to record room.
Announced in the open Court (MANISH YADUVANSHI)
on 16.09.2013 SCJCUMRC (SOUTH)
SAKET COURTS,
NEW DELHI.
Result: Petition dismissed Page 114 of 114