Delhi District Court
Smt. Sawaran Kanta vs Sh. Ram Phal on 4 January, 2016
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IN THE COURT OF SH. SUMEDH KUMAR SETHI
ACJ-cum-ARC-cum-CCJ (WEST) THC, DELHI
UID No. 02401C0376372012
E No.63/2012 U/s 14(1)(e) of DRC Act
Date of institution: 17.08.2012
Date of Order: 04.01.2016
Smt. Sawaran Kanta
W/o Sh. Surinder Pal
R/o. 5880, New Chandrawal
New Delhi. ....... Petitioner
Versus
Sh. Ram Phal
S/o. Sh. Trikha Ram
Back Side/Portion of the Ground Floor
of the Property bearing no. BE-389
Gali No. 7, Hari Nagar, Delhi. ....Respondent
Order deciding Leave to Defend in Eviction petition
U/sec. 14(1)(e) r/w Section 25-B of DRC Act, 1958
1)Vide this order the Court shall dispose of the application U/s 25-B (4 & 5) of DRC
Act of the respondent seeking leave to defend the eviction petition, filed on
20.02.2013
2)The eviction petition U/sec. 14(1)(e) Section 25-B of the Delhi Rent Control Act,
1958 (hereinafter referred to as DRC Act) was filed by the petitioner against the
respondent on 17.08.2012.
FACTS
3)The averments made in the petition are that:-
3.1 Back side portion of the shop measuring 8ft X 16ft., at the ground floor of the property bearing no. BE-389, Gali No.7, Hari Nagar, Delhi. (herein after called tenanted premises/shop in question), as shown in red colour in the site plan, was let out by the previous owner i.e. Smt. Bhagwanti, of the property in question to the respondent and presently the rate of rent is Rs.
5,50/- per month excluding water and electricity charges.
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3.2 The petitioner is a senior citizen. The petitioner is passing through the old age ailments.
3.3 The petitioner had purchased the property bearing plot no. BE-389, admeasuring 60 sq. yards. from Smt. Bhagwanti daughter of Sh. Lila Ram against the lawful sale consideration to the tune of Rs. 25,000/-.
3.4 Smt. Bhagwanti after accepting and acknowledging the lawful consideration to the tune of Rs. 25,000/- from the petitioner had executed the Agreement to Sell and Purchase, General Power of Attorney, Affidavit, Receipt and Regd. Will dated 01.08.1980. The xerox copies of the same are annexed herewith. On the basis of the documents/title deeds executed by Smt. Bhagwanti in favour of the petitioner, petitioner became the owner and came in possession of the aforesaid property.
3.5 The previous owner of the tenanted premises had inducted the respondent as a tenant in respect of the front side of the shop measuring 8'x16' at the ground floor of the property bearing no. BE-389, Gali No.7, Hari Nagar, New Delhi. Now the respondent is a tenant of the petitioner in respect of back side portion of the shop measuring 8'x16' at the ground floor of the property bearing no. BE-389, Gali No.7, Hari Nagar, New Delhi at the monthly rent of Rs. 550/- excluding and water and electricity charges.
3.6 The petitioner is having the three sons namely Rajinder Kumar, Ashok Kumar and Deepak Kumar. The two sons namely Rajinder Kumar and Ashok Kumar of the petitioner are married and another son of the petitioner is unmarried one.
3.7 Two sons of the petitioner namely Rajinder Kumar and Ashok Kumar are running the electricity shop at the premises in Chandrawal near Subji Mandi Ghanta Ghar, Delhi whereas the other son namely Deepak Kumar is unemployed. That after marriage of the two sons of the petitioner namely Rajinder Kumar and Ashok Kumar, some differences in the family have also arisen. Now it has become very difficult for them to work in one shop whereas the other son of the petitioner namely Deepak Kumar is unemployed.
3.8 All three sons of the petitioner are dependent upon the petitioner for E. No. 63/2012 Swaran Kanta Vs Ram Phal Page no. 3 of 21 space/accommodation.
3.9 The petitioner and her sons are not owning and possessing any accommodation/premises in Delhi for running their business at Delhi to earn their livelihood for living their life with dignity, honour and reputation and they are in urgent and dire need of the tenanted premises as the rental value of the property is increasing day by day. The sons of the petitioner are not having the financial means and sources to purchase the accommodation in Delhi for running their business.
3.10 The petitioner for her daily needs and other necessaries of the life is entirely dependent upon the income from the business of her two married sons. In this manner, the petitioner requires the tenanted premises for personal bonafide use and running business of electricity shop and any other business.
3.11 The two married sons of petitioner are in urgent need of the tenanted shop for running the shop of electricity or other kind of business. The unmarried son of the petitioner also requires the tenanted shop from the respondent for earning his livelihood by running some business therein.
3.12 The petitioner had sent the legal notice dated 16.07.2012 upon the respondent through regd. A/D courier. The petitioner through her legal notice had called upon the respondent to handover and deliver the physical and vacant possession of the shop bearing measuring 8'x16' on the back side of the floor of the property bearing no. BE-389, Gali No.7, Hari Nagar, New Delhi to the petitioner within a period of 15 days from tendering of the legal notice. The said legal notice was duly received by the respondent. The respondent has not complied with the demand of the legal notice till date.
4)The respondent has filed application for leave to defend along with affidavit wherein he admitted the following fact:
4.1 The applicant/deponent took the tenanted premises/shop from Smt. Bhagwanti Devi in the year 1979 after being paid a sum of Rs. 10,000/- to her with the condition that the respondent enjoys the suit premises for his life time E. No. 63/2012 Swaran Kanta Vs Ram Phal Page no. 4 of 21 and thereafter his legal heirs will continue in the same manner. It is pertinent to mention here that the agreement is done orally and is in good faith so no documentation was done by either party not even for the security paid by the respondent herein.1
5)Respondent has raised certain defenses in the application for leave to defend and the same are as under:
5.1 The petitioner is neither the owner nor the landlord of the suit property and has not filed any documents for the same. Besides, the petitioner has supplied the photocopy of the identity card and the address mentioned in the same is different from the address mentioned in the Memo of Parties and the affidavit.
5.2 The petitioner also failed to tender any document in respect to her family members and family trade.
5.3 The site plan is wrong and incorrect and the petitioner also failed to tender the valid authenticated plan before this Court. In this respect it is specifically submitted that the suit property is multi-storied building consisting of Ground Floor, First Floor, Second Floor and Third Floor. It is submitted that out of the said, the first floor is already vacant from long time rest and all the floors are occupied by several occupants.
5.4 The petition of the petitioner is completely silent in respect to the accommodation and portion available with the petitioner besides measurement and other necessary details are also missing from the petition.
5.5 That the petitioner is residing at house no. 5380, New Chandrawal Nagar, Delhi and his son is running electrical shop in the name and style of Rajindra Electricals at 5380/7, New Chandrawal, Jawahar Nagar, Delhi and a shop in the same name and style is also running at WZ-480/1, Tyagi Market, Basai Darapur, Delhi. It is necessary here to mention that the above shops are run by the sons of the petitioners mentioned the petition and the same fact are concealed by the petitioner.
5.6 All the three sons are fully independent and carrying on their own 1 Point (iii) of Para 3 of the affidavit under consideration.
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business at their own. Besides the petitioner is a pensioner and having several properties and from there she is getting unbelievable income.
6)The petitioner has filed a reply to the application for Leave to Defend along with counter affidavit and in the counter affidavit the petitioner has denied the defences taken by the respondent.
7) No rejoinder to the reply to the application was filed by the respondent.
8)Vide order dated 06.09.2014, the application filed by the petitioner for bringing on record copies of documents of ownership was allowed.
9) Arguments were heard on the application under consideration on behalf of both the parties. Material on record has been perused. Submissions considered.
REQUIRMENTS
10) In order to succeed in a petition for eviction filed under section 14(1)(e) of the Delhi Rent Control Act the petitioner must establish that:
i.He is the owner and landlord in respect of the tenanted premises. ii.That he requires the premises bonafide for himself or for any member of his family dependent upon him.
iii.That he has no other reasonably suitable accommodation
11)The scope of the section has been enlarged in view of the judgment of the Hon'ble Supreme Court titled as Satyawati Sharma v. Union of India: AIR 2008 SUPREME COURT 3148 so as to include premises let out for commercial purposes also within the scope and ambit of a petition under section 14(1)(e) of DRC Act. The defences which are taken by respondents are discussed below and the same are as under:-
DEFENCES
12) Petitioner has not filed any documents of ownership:
12.1 The respondent has contended that the petitioner is neither the owner nor the landlord of the suit property and has not filed any documents for the same. Besides, the petitioner has supplied the photocopy of the identity card E. No. 63/2012 Swaran Kanta Vs Ram Phal Page no. 6 of 21 and the address mentioned in the same is different from the address mentioned in the Memo of Parties and the affidavit.
12.2 The present litigation is for eviction of an admitted tenant and as such the Court is not required to give a finding as regards absolute ownership of the property. In rent control legislation, the landlord can be said to be owner, if he is entitled in his own legal right, as distinguished from for and on behalf of someone else, to evict the tenant and then to retain, control, hold and use the premises for himself.
12.3 In M.M.Quasim Vs Manohar Lal Sharma: (1981) 3 SCC 36 it was observed by the Apex Court that an "owner-landlord" can seek eviction on the ground of his personal requirement is one who has a right against the whole world to occupy the building in his own right and exclude anyone holding a title lesser than his own.
12.4 It was observed in Shanti Sharma Vs Smt Ved Prabha: AIR 1987 SC 2028 that the term "owner" has to be understood in the context of the background of the law and what is contemplated in the scheme of the Act. The Act has been enacted for protection of the tenants. But, at the same time, it has provided that the landlord under certain circumstances will be entitled to eviction and bona fide requirement is one of such grounds. Ordinarily, the concept of the ownership may be absolute ownership in the land as well as of the structure standing thereon. But in the modern context, where all lands belong to the State, the persons who hold properties will only be lessees or the persons holding the land on some term from the Government or the authorities constituted by the State. The legislature, when it used the term "owner" in s. 14(1)(e), did not think of ownership as absolute ownership. The meaning of the term "owner" is vis-a-vis the tenant i.e. the owner should be something more than the tenant. In cases where the plot of land is taken on lease, the structure is built by the landlord and he is the owner of the structure.
12.5 In the present case the defence raised by the respondent as regards ownership is not tenable even prima facie for the simple reason that the E. No. 63/2012 Swaran Kanta Vs Ram Phal Page no. 7 of 21 respondent has admitted that he was inducted as tenant by the one Bhagwanti.2 Vide order dated 06.09.2014, the application filed by the petitioner for bringing on record copies of documents of ownership was allowed. While allowing the said application, the Court has already observed that the respondent cannot be allowed to convert these proceedings into a title suit. Moreover, reference to these documents has already been made in the petition. A bare perusal of these copies would show that the petitioner is the successor in interest to the said Bhagwanti and now when eviction petition has been filed by petitioner, the respondent cannot challenge/deny the relationship between the parties. Provisions of Section 116 of the Evidence Act are also attracted; the tenant is stopped from questioning the ownership or title of the landlord. The respondent has not stated that if the petitioner landlord is not the owner of the tenanted premises, then, who is.
12.6 Thus, the petitioner is having a right against the whole world to occupy the tenanted premises in her own right and exclude anyone holding a title lesser than her own. Consequently, she is entitled to file the present petition.
12.7 Thus, this defence raised by the respondent is a vague and sham defence and it does not raise any triable issue.
13)Alternative accommodation:
13.1 The respondent has contended that the petition of the petitioner is completely silent in respect to the accommodation and portion available with the petitioner besides measurement and other necessary details are also missing from the petition.
13.2 He further contended that the petitioner is residing at house no. 5380, New Chandrawal Nagar, Delhi and his son is running electrical shop in the name and style of Rajindra Electricals at 5380/7, New Chandrawal, Jawahar Nagar, Delhi and a shop in the same name and style is also running at WZ-480/1, Tyagi Market, Basai Darapur, Delhi. It is necessary here to mention that the above shops are run by the sons of the petitioner mentioned the petition and the same fact are concealed by the petitioner.
2 Point (iii) of Para 3 of the affidavit under consideration.
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13.3 It has been observed in judgment titled as Rajender Kumar Sharma & Ors. Vs. Leela Wati & Ors.: 155 (2008) DLT 383 by Hon'ble Delhi High Court as under:
"11)....Thus, the affidavit filed by the tenant was shown to be false by the landlady on the basis of documents placed by it. No Rent Controller is supposed to grant leave to the tenant on the basis of a false affidavit and false averments and assertions. Such affidavit should be outrightly rejected by the Rent Controller. Only those averments in the affidavit are to be considered by the Rent Controller which have same substance in it and are supported by some material. Mere assertions made by a tenant in respect of landlord's ownership of other buildings and in respect of alternate accommodation are not to be considered sufficient for grant of leave to defend."
13.4 In his application, the respondent has merely stated that the petitioner has not mentioned about the other properties which she is having at different places. There is nothing on record to support these bald averments.
13.5 Moreover, in the judgment titled as Ragavendra Kumar v. Firm Prem Machinary: AIR 2000 SUPREME COURT 534 the Hon'ble Supreme Court held that it is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter. Moreover, as has been held in a plethora of cases, neither the Court nor the tenant can dictate terms to the landlord regarding the suitability of the premises or even the extent of the business proposed to be carried out.
13.6 In the present case, it is not for the respondent to judge the suitability of the shop in question with respect to the requirement of the petitioner for her sons' business.
13.7 In this regard, it has been held in the case of Krishan Lal vs R N Bakshi decided by our own Hon'ble High Court on 19 May, 2010 that:
"8. It is settled law that it is not for a tenant to dictate the terms to the landlord as to how and in what manner he should adjust himself, E. No. 63/2012 Swaran Kanta Vs Ram Phal Page no. 9 of 21 without calling upon the tenant to vacate a tenanted premises. While deciding the question of bonafides of requirement of landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted. When the landlord shows a prima facie case, a presumption that the requirement of the landlord is bonafide, is available to be drawn. It is also settled position of law that the landlord is the best judge of his requirement for residential or business purpose and he has got complete freedom in the matter and it is no concern of the courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own. The tenant cannot compel a landlord to live in a particular fashion and method until and unless the requirement shown is totally mala fide or not genuine."
13.8 Thus, the respondent cannot dictate whether the petitioner's sons should carry out business in the tenanted shop or any other shop. Moreover, the petitioner has already stated that the two of her sons are already running an electrical shop and her third son is unemployed. It is for the petitioner to decide the manner in which she want to use various portions of her property. The legal position, as it stands today, is that the arrangement of living and business has to be judged solely by the petitioner as per her family's subjective living standard and the respondent cannot dictate such living standard to the petitioner and tell him how her sons should squeeze into upper floors or other portions. The Court can also not force the petitioner to use other properties for her sons' independent businesses as this would put an embargo over the plans of the petitioner that she might have qua the other properties. What are those plans is solely for the petitioner to see and the neither the Court not the respondent should interfere with them.
13.9 It is also noteworthy that the extent of the petitioner's residential properties are wholly irrelevant for considering her requirement of non- residential property. Therefore, it does not matter how much residential property the petitioner or her family owns or whether she has mentioned the same or no.
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13.10 In the case of Aero Traders Pvt. Ltd. vs Mohan Singh And Anr. Decided by Hon'ble High Court of Delhi on 2 January, 2014 in RC. Rev. No.391/2011 it was observed:
"13. Financial status of the landlord not relevant. In Shamshed Ahmad & Ors. vs. Tilak Raj Bajaj (deceased), 152 (2008) DLT 301 (SC), the Supreme Court affirmed the order of the trial court which was reversed by the HC, that "The requirement of section 14(1)(e) is 'bonafide requirement' and it has to be seen as per the requirement of the petitioner(landlord) , even if the petitioner is very rich and having other properties at different places that does not affect his requirement of the premises, as alleged in the petition." And the leave to defend application was dismissed."
13.11 It has also been held in the case of Raj Kumar Khanna vs. Parduman Singh: 204 (2013) DLT 312 that:
"8. It has rightly been decided by the Apex Court in the case of Shamshed Ahmad & Ors. Vs. Tilak Raj Bajaj (deceased) 152 (2008) DLT 301 (SC), wherein the Apex Court affirmed the order of the trial court which was reversed by the HC, that the requirement of section 14(1)(e) is "bonafide requirement‟ and it has to be seen as per the requirement of the petitioner(landlord), even if the petitioner is very rich and having other properties at different places that does not affect his requirement of the premises, as alleged in the petition. And the leave to defend application was dismissed."
13.12 Thus, even a rich landlady having numerous properties can have bonafide requirement and merely because she is rich and having numerous properties is not a reason to doubt her requirement. Therefore, even if the petitioner is owning various properties, the same does not negate her bonafide requirement as it is not for the respondent to dictate the living standards of the petitioners or to say that the existing income of the petitioners' family is sufficient or that she should remain dependent on pension being received by her.
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13.13 It has also been held in the case of Royal Nepal Airlines Corporation vs Shrishti Properties Pvt Ltd: 2012 RLR 28 that:
"19. The Apex Court has time and again noted that it is prerogative of the landlord to decide whether the premises are required for expansion of his business or not; in this context the observations of the Apex Court in the case of Sait Nagjee Purushotam & Co. Ltd. Vs. Vimalbai Prabhulal and Others (2005) 8 SCC 252 is relevant; it reads as under:-
"It is always the prerogative of the landlord that if he requires the premises in question for his bona fide use for expansion of business this is no ground to say that the landlords are already having their business at Chennai and Hyderabad therefore, it is not genuine need. It is not the tenant who can dictate the terms to the landlord and advise him what he should do and what he should not. It is always the privilege of the landlord to choose the nature of the business and the place of business."
20. In Sarla Ahuja Vs. United Insurance Company Limited VIII (1998) SLT 374, the Apex Court had observed as under:-
"The crux of the ground envisaged in Clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide."
When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord in bona fide. It is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the E. No. 63/2012 Swaran Kanta Vs Ram Phal Page no. 12 of 21 question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself."
13.14 Accordingly, this defence raised by the respondent as regards bonafide requirement and as regards alternate accommodation is a sham defence and it does not raise any triable issue
14)The petitioner's sons are not dependent upon her and are running independent business:
14.1 The respondent has contended that all the three sons of the petitioner are fully independent and carrying on their own business at their own. Besides the petitioner is a pensioner and having several properties and from there she is getting unbelievable income. The petitioner also failed to tender any document in respect to her family members and family trade.
14.2 In a recent judgment it has been observed by our own High Court that it is the moral duty of a father (parent) to help establish his son. The relevant portion of the judgment titled Pawan Kumar Vs Sant Lal R.C.Rev 303/2012 decided on 6.8.2012 by Honorable Mr Justice M.L.Mehta is as under:-
"16. Further, submissions of learned counsel for the petitioner that Dr. Ankit was not financially dependent upon his father and so the tenanted premises could not be got vacated for his requirement, is also only noted for rejection. It is trite that the landlord is entitled to help his son, establish his business. In Labhu Lal Vs. Sandhya Gupta 2011(1) RCR, (Rent) 231 (Delhi), it has been held by this Court that the children are very much dependant on the landlord for the purpose of setting up their business and such a requirement is a bonafide one. The right of the landlord for possession of his property for setting up a business for his son has been also recognized by the Apex Court in Ram Babu Aggarwal Vs. Jay Kishan Das 2009(2) RCR
455. The moral duty of a father to help establish his son was also recognized by the Apex Court in Joginder Pal Singh Vs. Naval Kishore Behal AIR 2002 SC 2256 in the following words:
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"24........Keeping in view the social or socio-religious milieu and practices prevalent in a particular section of society or a particular region, to which the landlord belongs, it may be obligation of the landlord to settle a person closely connected with him to make him economically independent so as to support himself and/or the landlord. To discharge such obligation the landlord may require the tenancy premises and such requirement would be the requirement of the landlord. If the requirement is of actual user of the premises by a person other than the landlord himself the Court shall with circumspection inquire: (i) whether the requirement of such person can be considered to be the requirement of the landlord, and (ii) whether there is a close inter-relation or identify nexus between such person and the landlord so as to satisfy the requirement of the first query. Applying the overlaid tests to the facts of the present case it is clear that the tenancy premises are required for the office of the landlord's son who is a chartered accountant. It is the moral obligation of the landlord to settle his son well in his life and to contribute his best to see him economically independent."
14.3 In the present case, it has been clearly stated by the petitioner in her petition that two of her sons are running electrical shop from one premises and the third son is unemployed. She has also stated that the two sons working together on the shop want to conduct business independently. The respondent on the other hand has made a bald submission that even the third son is doing business from another shop. There is nothing on record to support this assertion and thus, it cannot be relied upon. Further, even the respondent has made reference to the petitioner's submissions that two of the petitioner's sons are working on one shop. Surely the petitioner cannot be expected to wait till serious disputes arise between her sons and only then they be allowed to separate their businesses.
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14.4 Further, even if it is assumed that all the petitioner's sons are in fact earning then it may be noted that in Joginder Pal Singh Vs. Naval Kishore Behal: AIR 2002 SC 2256 (as referred to in aforesaid judgment) the situation was similar to the present case, as in the said case before the Apex Court the landlord had filed eviction petition for the office of his son who was a chartered accountant who was residing with him. Honorable Mr. Justice R.C. Lahoti observed in the said judgment that such a requirement of the landlord is a genuine requirement. In the said case the Apex Court evicted the tenant from the premises for the said requirement of the landlord.
14.5 Assuming the aforesaid averment of the respondent to be true would make the present case similar to the case of Joginder Singh (supra) as in the present case the tenanted premises is required by the landlady petitioner for business of her third son, separation of business of her other two sons and also for herself so as to augment her financial resources. Thus, this defence of the respondent does not raise any triable issue.
14.6 Every parent wants to settle his children in the best possible manner and if the petitioner has found it proper to help her third son to start his electrical business at the tenanted premises or to give her other two sons two separate shops, then it would not be proper for the Court to interfere in such decision of the petitioner, as the petitioner is the best judge of her own requirements and that of the requirements of her family.
14.7 In the opinion of the Court it is the right of every person to excel in life. If the son of the petitioner and the petitioner is of the opinion that it would be better in life to start a business from the tenanted premises, then it would not be just for this Court to direct the petitioner otherwise and thereby stop the financial growth of the family of the petitioner. The Court cannot ask the son of the petitioner to give up his dreams of excelling in life and to establish his own business from a premises owned by his mother. Though the success of the business to be established by the son of the petitioner is not guaranteed, but, at the same time the Court cannot predict the failure of the same and thereby decline the petitioner and her family an opportunity to E. No. 63/2012 Swaran Kanta Vs Ram Phal Page no. 15 of 21 establish their own business from a premises owned by them. Thus, the requirement of the petitioner is a bona fide requirement and there is no reason for the Court to find any malafide intention behind the same.
14.8 It is also noteworthy that the petitioner in her petition has categorically stated that her third son is unemployed and her other two sons are also having disputes amongst themselves. She has also categorically stated that all three sons of the petitioner are dependent upon the petitioner for space/accommodation. In this regard it has been held by the Honorable High Court of Delhi in Inderjeet Singh vs Harish Chandra Bhutani: in R.C.REV. 98/2010 decided on 06.07.2012 that:
"6. On the perusal of record, it is evident that the Ld. ARC has opined that the son of the petitioner is financially independent on the basis of his credit card statements. In my opinion such an observation was patently erroneous. Holding a credit card is a common practice and not a yard stick to the financial status of a person. In any case, this issue is irrelevant to the current proceedings due to the fact that even if the son of the petitioner is carrying on his business still as a father the petitioner is obliged to make efforts for setting up a business in a suitable place for his son. Such a requirement is quite reasonable and justified and cannot be termed as malafide. It is not the case of the respondent that the petitioner is in possession of any alternate accommodation from where his son could carry his business. If a person is owner of a commercial property, but is forced to pay rent towards a tenanted premises, then his requirement for possession of his property is bonafide and must be recognized. The respondent has failed to show as to how the son of the petitioner is not dependent on him for the requirement of the premises for carrying his business. I find no merit in this plea taken up by the respondent and admitted by the ARC. Such unfounded pleas cannot become a reason for denying the petitioner the right to use his property for setting up a shop for his son. In Labhu Lal Vs. Sandhya Gupta 2011(1) RCR,(Rent) 231 (Delhi), it has been held by this Court that the children are very much E. No. 63/2012 Swaran Kanta Vs Ram Phal Page no. 16 of 21 dependant on the landlord for the purpose of setting up their business and such a requirement is a bonafide one. The right of the landlord for possession of his property for setting up a business for his son has been also recognized by the Apex Court in Ram Babu Aggarwal Vs. Jay Kishan Das 2009(2) RCR 455.
7. Regarding the bald plea of the respondent that there is discrepancy in the amount of rent payable for the tenanted premises and the payer of the rent, it is sufficient to say that these minor discrepancies are not fatal to the case of the petitioner and not patently germane to the case. It is immaterial that who pays the rent for the tenanted shop being used by the petitioner's son. The fact of bonafide requirement and lack of any other accommodation for business purposes has been amply established by the petitioner. His son is in fact carrying out his business from a tenanted accommodation; he has no other alternate suitable accommodation. In this view of the matter, this submission of the tenant is clearly without force."
14.9 Thus, it is for the respondent to show that the sons of the petitioner are not dependent on her and there is nothing pertinent on record to show the same. Moreover, the petitioner has already mentioned that her two sons are carrying on electrical business and her third son is unemployed. Thus, merely not writing in the petition that her sons are residing with her or not giving the exact details of the business would not be fatal to the case of the petitioner as the same is nothing by a minor discrepancy, especially in view of the fact the petitioner has categorically averred that her sons are wholly dependent upon her for the purpose of accommodation.
14.10 Thus, this defence raised by the respondent does not raise any triable issue.
15)Site Plan - Incorrect:
15.1 The respondent has stated that the site plan is wrong and incorrect and the petitioner also failed to tender the valid authenticated plan before this Court. In this respect it is specifically submitted that the suit property is multi-
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storied building consisting of Ground Floor, First Floor, Second Floor and Third Floor. It is submitted that out of the said, the first floor is already vacant from long time rest and all the floors are occupied by several occupants.
15.2 In application for leave to defend, respondent has taken objection that petitioner has not filed the correct site plan of the tenanted premises and he has filed the correct site plan. However, it has not been stated as to how the site plan of the petitioner is not correct.
15.3 This Court fails to understand what the respondent wants to show by bringing out minor discrepancies in the site plans of the property. This Court has compared the site plans filed by both the parties and finds that there is no material difference in the two site plans. Thus, the minor technical discrepancies in the site plans sought to be pointed out by the respondent are not germane to this case.
15.4 Moreover, it is observed here that the upper floors of a property are not comparable to the ground floor as regards commercial viability.
15.5 Thus, this defence raised by the respondent does not raise any triable issue.
16)The lease was for unlimited period:
16.1 The respondent alleged that he paid a sum of Rs. 10,000/- security amount to Smt. Bhagwanti Devi at the time of letting. It was orally agreed between the parties that the deponent would enjoy the property for commercial purpose for unlimited period.
16.2 The said defence seeks to raise doubt against the bonafide of the landlord's requirement. In the judgment titled as Sarwan Dass Bange Vs. Ram Prakash: 167 (2010) DLT 80 the Hon'ble High Court of Delhi referring to the judgment of Baldev Singh Bajwa v. Monish Saini: (2005) 12 SCC 778 observed in para 17 as under:
"..It was held that the legislative intent is of expeditious disposal of the application for ejectment of tenant filed on the ground of requirement by the landlord of the premises for his own occupation;
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a special category of landlords requiring the premises for their own use has been created; if there is any breach by the landlord, the tenant is given a right of restoration of possession; the landlord who evicts a tenant on the ground of own requirement is not only prohibited from letting out the premises or disposing of the same but also required to use the same for his own residence only..."
16.3 Thus, it is clear that the special summary procedure provided for u/s 25B of the DRC Act is an exception to the general intent to the Act. The intention of the legislature is to provide an expeditious remedy to landlords who seek eviction on the ground of bonafide requirement under the stringent conditions imposed in the special procedure. Thus, the mere bald averment of the respondent to the effect that the lease was in perpetuity cannot disentitle the petitioner from relief that she is entitled to get after fulfilling the stringent requirements provided for in the special procedure. Thus, this submission of the respondent is found to be untenable.
16.4 It is well settled law that bald allegation without any material on record to substantiate the same could not be looked into as the mere bald allegations are not enough for grant of leave to defend. It is held by the Hon'ble High Court of Delhi in Rajinder Kumar Sharma and Ors. Vs. Leelawati and Ors. (supra) that:
11....."Only those averments in affidavit are to be considered by Rent Controller which have some substance in it and are supported by some material."
16.5 Moreover, it is held by the Hon'ble High Court of Delhi in a case tiled as Hari Shanker Vs. Madan Mohan Gupta: 111 (2004) DLT 534 that:
"Summary procedure in Section 25-B of Delhi Rent Control Act, 1958 cannot be defeated by merely making frivolous and vague allegations which can never be substantiated."
16.6 Thus, the mere submission that the respondent had paid security to the previous owner is also highly untenable. Moreover, the sum of Rs. 10,000/- was a big amount in the year in 1979 and it is highly inconceivable that no E. No. 63/2012 Swaran Kanta Vs Ram Phal Page no. 19 of 21 receipt or document would have been executed when such a big amount exchanged hands. Further, the practice of pagri or payment thereof has been termed illegal by the law itself. A tenancy under the DRC Act enjoys protection under the Act but is also strictly bound by the statute. The protection to the tenants cannot go beyond the provisions of the Act. The oral contract for perpetual tenancy, if at all it ever transpired, cannot have overriding effect on the provisions of the Act and cannot negate the grounds of eviction provided by the Act. Even more so, the respondent has himself stated that the security was paid to the previous owner and there is nothing to show that the money was transferred to the petitioner when she became the owner of the property. Thus, there is no privity between the petitioner and the respondent as far as the alleged security money is concerned. The respondent has his remedies against the previous owner for recovery of such money, if at all it was paid. However, this would not disentitle the petitioner from the relief of eviction.
16.7 It is noteworthy that after an order of eviction is passed under section 14 (1)(e), the tenant is granted six months time to vacate the premises and the landlord is required to occupy the same within two months and the landlord is further dis-entitled for re-letting or alienating the whole or any part of the premises within three years from the date of obtaining possession from the tenant. Thus, the landlord is not in a position either to sell or re-let the tenanted premises for a period of three years and if a landlord does sell or re- let the premises within the said period then the tenant may proceed against the landlord for restoration of the possession under section 19 of the Act.
16.8 If the petitioner seeks to lie about her requirement or props up a false requirement, protection/remedy available/provided for such tenants under the DRC Act itself as they can file petition for repossession if the premises are re- let or transferred by the landlord after evicting the tenant, but certainly the leave cannot be granted solely on this ground.
16.9 Thus, this defence raised by the respondent is a sham defense and it does not raise any triable issue.
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CONCLUSION
17)It is well settled that leave to defend is granted to the tenant in case any triable issue is raised by him, which can be adjudicated by consideration of additional evidence. The mere existence of any triable issue is not sufficient. The nature of the triable issue raised by the tenant must be such that it will disentitle the landlord from obtaining the eviction order.
18)In the judgment titled as Sarwan Dass Bange Vs. Ram Prakash (supra) the Hon'ble High Court of Delhi referring to the judgment of Baldev Singh Bajwa v. Monish Saini (2005) 12 SCC 778 observed in para 17 as under:
"...the landlord who evicts a tenant on the ground of own requirement is not only prohibited from letting out the premises or disposing of the same but also required to use the same for his own residence only. It was held that these restrictions and conditions inculcate in built strong presumption that the need of the landlord is genuine; the conditions and restrictions imposed on the landlord make it virtually improbable for the landlord to approach the Court for ejectment of tenant unless his need is bona fide - no unscrupulous landlord in all probability, under this Section, would approach the Court for ejectment of the tenant considering the onerous conditions imposed on him. It was further held that this inbuilt protection in the Act for the tenants implies that whenever the landlord would approach the Court his requirement shall be presumed to be genuine and bona fide. It was further held that a heavy burden lies on the tenant to prove that the requirement is not genuine.." (emphasis supplied)
19)The whole purpose and import of summary procedure under Section 25B of the Act would otherwise be defeated. The prayer for leave to contest should be granted to the tenant only where a prima facie case has been disclosed by him. In the absence of the tenant having disclosed a prima facie case i.e. such facts which disentitles the landlord from obtaining an order of eviction, the Court cannot mechanically and in routine manner grant leave to defend. In the light of the aforesaid facts, circumstances and legal propositions, all the pleas taken by the respondent have failed to raise any triable issues regarding the ownership of the petitioner or the land E. No. 63/2012 Swaran Kanta Vs Ram Phal Page no. 21 of 21 lord-tenant relationship; the bonafide requirement of the landlord; or the availability of any alternative suitable accommodation. The contents of the application for leave to defend have failed to rebut the presumption of bonafide qua the requirement of the petitioner. The application for leave to defend filed by the respondent is thus rejected.
20)As a consequence thereof, an eviction order is passed U/s. 14 (1) (e), DRC Act against the respondents regarding the tenanted premises i.e Back side portion of the shop measuring 8ft X 16ft., at the ground floor of the property bearing no.
BE-389, Gali No.7, Hari Nagar, Delhi, as shown in red colour in the site plan.
21)However, in light of Section 14 (7) DRCA, the aforesaid eviction order shall not be executable for a period of six months from today.
22)The parties are left to bear their own costs.
23)File be consigned to Record Room after due compliance.
Announced in the open Court
on 04h day of January, 2016 (SUMEDH KUMAR SETHI)
ACJ/ARC/CCJ(West)/04.01.2016
E. No. 63/2012 Swaran Kanta Vs Ram Phal