Delhi District Court
Kamal Kishor vs Narender Kumar on 3 July, 2018
In the Court of Sh. Puneet Pahwa : Additional Rent Controller-02, Central
District, Tis Hazari Courts, Delhi.
E-64/17/15
New no.80065/16
In the matter of:
Kamal Kishor
S/o Late Bhola Nath
R/o 6144-6146, Kucha Shiv Mandir,
Gali Batashan, Near Naya Bas,
Delhi-06. ............... petitioner
VERSUS
Narender Kumar
S/o Sh. Lal Chand
At 6145, Kucha Shiv Mandir,
Gali Batashan, Near Naya Bas,
Delhi-06.
Also at:
R/o 6435, Katra Bhavan,
Fateh Puri, Delhi-06. ..................respondent
Date of Institution : 22.08.2015
Date of Arguments : 07.05.2018
Date of Order : 03.07.2018
ORDER:
1. This order shall decide the question whether the respondent be granted leave to contest the present application under clause (e) of proviso to sub-section (1) of section 14 of the Delhi Rent Control Act, 1958 (hereinafter referred to as ''Act 59 of 1958'').
E-64/17/15 Kamal Kishor Vs Narender Kumar Page no.1/8
2. The brief facts for the decision of the application as per the petition is that the petitioner is the landlord/co-owner of the one shop at 6145, Kucha Shiv Mandir, Gali Batashan, Near Naya Bas, Delhi-06 and the respondent is the tenant in respect of same, at the rent of Rs. 332.75/- p.m. The property in question was in the name of Smt. Tara Devi who bequeathed the same in favour of the father of the petitioner. It has been submitted that there exists relationship of landlord and tenant between the petitioner and the respondent. The petitioner bona-fide requires the premises in dispute for opening a toffees shop as petitioner is selling the same from footpath in the area of khari Baoli. The petitioner has no other reasonable alternate commercial accommodation except the premises in dispute. The back portion of the premises in question have four shops on the ground floor out of which two shops had been sold as the money was required to raise construction upon the same and the four floors were raised from the said fund and the same is being used by the petitioners and his brothers for residence purpose. There is one room on the first floor and the same is also used by the mother of the petitioner. More over first floors and above are not suitable to run the toffee shop. It has further been submitted that shop in question is the only available, suitable accommodation to the petitioner as there is no other vacant or suitable premises at the disposal of the petitioner to be put to use for his business/shop as out of seven shops two has already been sold and four shops are in possession of two brothers and two nephews of petitioner who are running their respective shops of confectionery / toffee from the said fours shops.
3. By filing leave to defend application filed by respondent, it has been contended by applicant/respondent that the petitioner has not filed the correct site plan of the entire property. The petitioner has not filed the copy of the sale deed to show that the shops have been sold by the petitioner and further, has not filed his statement of account in which the consideration amount was credited. Moreover, the petitioner has not filed any family settlement/partition deed to show that four shops E-64/17/15 Kamal Kishor Vs Narender Kumar Page no.2/8 are in possession of two brothers and two nephews of the petitioner and further the petitioner has not disclosed their names as to who are in possession of the shops. It has been alleged that there are seven shops including the respondent's shop and six shops are lying vacant, hence, there is no bona-fide need and requirement to the petitioner in respect of the tenanted shop of the respondent. As the need of the petitioner is not bonafide & genuine, the respondent has, therefore, requested that the application be allowed.
4. The application is contested by the petitioner by way of a written reply and counter affidavit, wherein the contents of the petition have been re-iterated and re-affirmed and the petitioner prayed for the dismissal of the application for the want of triable issues.
5. To the reply of the petitioner, rejoinder / affidavit has been filed on behalf of the respondent wherein the contentions raised by way of the application for leave to defend have been reiterated and re-affirmed.
6. I have heard counsel for the parties and gone through the material on record carefully. I have given my thoughtful consideration to the submissions made on behalf of the parties.
As per the law laid down by the Hon'ble Supreme Court in Satyawati Sharma v. Union of India and another, 148 (2008) DLT 705 (SC) clause (e) of proviso to sub-section (1) of section 14 of Act 59 of 1958 is also applicable to the premises let out for purpose other than residential purpose The present petition for eviction is under clause (e) of proviso to sub- section (1) of section 14 of Act 59 of 1958 which after the judgment of Hon'ble Supreme Court in Satyawati Sharma's case reads as under :-
14.(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by and court or Controller in favour of the landlord against a tenant:
Provided that the Controller may, on an application made to him in the prescribed E-64/17/15 Kamal Kishor Vs Narender Kumar Page no.3/8 manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely: * * *
(e) that the premises are required bona fide by the landlord for occupation for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation :
It is now well settled that while deciding the question of the grant of leave to contest under the provisions of section 25B of Act 59 of 1958, the Rent Controller should see the affidavit filed by the tenant and the counter affidavit filed by the landlord. It is also now well settled that while deciding the question of the grant of leave, the Controller is not required to conduct a full fledged trial and should only see that if the affidavit of the tenant raise any triable point the decision on which may disentitle the landlord from recovering possession of the premises. At the time of the decision on the question of leave, the Controller is not required to seek the proof of the defence of the tenant.
7. Now coming to the facts of the present case under consideration. The respondent has not disputed the ownership of the petitioner qua the demised premises. Nor he has disputed the relationship of landlord and tenant between the parties. Although, the respondent has not disputed the ownership of the petitioner and relationship between the parties in his leave to defend application or affidavit yet he has disputed the same in his reply to the counter affidavit filed on behalf of petitioner. Since he has failed to raise this issue in his leave to defend application and affidavit the same cannot be said to raise any triable issue. Otherwise also, the respondent has himself admitted the petitioner to be a coowner and it is now well settled that a coowner can very well maintain an eviction petition against tenant. Moreover, the respondent has failed to disclose as to if not the petitioner then who is the owner of the demised premises.
E-64/17/15 Kamal Kishor Vs Narender Kumar Page no.4/8 Therefore, in the light of the pleadings of the parties and other material placed before this court, in so far as the purpose of clause (e) of sub-section (1) of section 14 of Act 59 of 1958 is concerned, the petitioner is found to be the owner of the premises and it is also found that there exists relationship of landlord and tenant between the parties.
8. The respondent has also disputed the site plan filed on behalf of petitioner and has also filed a counter site plan. After going through the same it can be said that the only difference between the two site plans is that the petitioner has filed the site plan only with respect to the ground floor of the property whereas the respondent has filed site plan of first, second, third and fourth floor of the property also. So far as the site plan of the ground floor is concerned, there is not much of a difference between the two site plans. Since, the demised premises is a shop which is required by the petitioner for his commercial purposes and it has been very categorically stated by the petitioner that the shop at the ground floor would be most suitable to fulfill his bona-fide needs, therefore, non-filing of site plan qua first, second, third and floor of the property which, otherwise also, are being used for residential purposes will not make it a triable issue.
9. According to the respondent, the petitioner is in possession of sufficient alternate accommodation more than his requirement. However, the respondent has failed to support his averments with any supporting document.
On the other hand, the petitioner has very categorically denied the availability of any alternative accommodation as alleged by the respondent. The petitioner has been able to bring supporting documents on record to discard the grounds raised by the respondent in his leave to defend application whereas the respondent has failed to file any supporting documents so as to disbelieve the bona- fide need of the petitioner.
E-64/17/15 Kamal Kishor Vs Narender Kumar Page no.5/8
10. So far as the availability of six shops is concerned, as alleged by the respondent, the petitioner has filed sale deed qua two shops which have been sold by the petitioner and remaining four shops are already in occupation and are being used by the brothers and nephews of the petitioner. The respondent has failed to bring any cogent document on record to show the availability of any such shop with the petitioner and in the absence of any such supporting document it cannot be said to raise any triable issue.
It is now well settled law that it is the petitioner himself, who is the best person to explain as to what is his/ her bona-fide necessity. As per the petitioner, in the case in hand, the suit premises is required bonafidely, he is not having any other suitable and reasonable accommodation available with him throughout Delhi.
Moreover, it is also now well settled that the leave to defend not to be granted to the tenant on the basis of bald affidavit and bald averments and assertions. Only those averments in the affidavit are to be considered by the Rent Controller which have some substance in it and are supported by some material.
It was held by Hon'ble High Court of Delhi in Mukesh Kumar Vs Rishi Prakash RCR 34/09 DOD 06.10.09 that a bald statement without supporting material does not give rise to a triable issue entitling tenant for leave to defend.
11. In my considered opinion, the plea of the respondent is without merit and cannot be sustained as the petitioner is the owner and landlord of the premises. In so far as the question of necessity is concerned, the law is well settled that the landlord is the best judge of his necessity and he has got complete freedom in the matter. Therefore, a tenant cannot dictate the terms to the landlord regarding his necessity.
It was held by the Hon'ble High Court of Delhi in Gopal Kishan Vs. Ram Saroop RC Rev. No. 443/17 & CM No.34870/17 decided on 22.09.17 that the legislative intent behind Section 25B of the Act being to provide a prescribed E-64/17/15 Kamal Kishor Vs Narender Kumar Page no.6/8 summary procedure for petitions for eviction on the ground of self requirement of the premises, the same parameters as of a written statement cannot apply and the tenant cannot be granted leave to defend for the asking and without the tenant placing before the Rent Controller even a semblance of proof of what is pleaded, leave to defend cannot be granted.
In the absence of any substantial material brought before the court or pointed out by the respondent in the affidavit, it cannot be said that the present application for eviction is actuated by mala fide and has not been made with bona fide intention. Merely stating in the affidavit that the application for eviction has been made with mala fide intention is not sufficient to sustain the contention of the respondent. The court is satisfied that there is no triable point between the parties.
12. As per the provisions of section 25-B of Act 59 of 1958 a tenant shall be entitled to leave to contest the petition for eviction if the affidavit filed by him discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the grounds specified in clause (e) of proviso to sub-section (1) of section 14 of Act 59 of 1958.
13. In view of above discussion and the documents filed by the parties, this court is of the considered view that there is no triable issue between the parties which entitles the respondents for leave to contest the present application for eviction. The application for leave to contest is without merit and the same is dismissed.
As an off shoot of the dismissal of the application for leave to contest made by the respondent, the petitioner is found entitled to recover the possession of premises, one shop on the ground floor, admeasuring 8'-6'' X 6'-0 at 6145, Kucha Shiv Mandir, Gali Batashan, Near Naya Bas, Delhi-06 as shown in red colour in the site plan annexed with the application for eviction.
E-64/17/15 Kamal Kishor Vs Narender Kumar Page no.7/8 The application for eviction is allowed. In the facts and circumstances of the case there shall be no order as to costs.
In view of the provisions of sub-section (7) of section 14 of Act 59 of 1958 this order for recovery of possession of premises shall not be executed before the expiration of a period of six months from this date.
Digitally signed by PUNEET PUNEET PAHWA
PAHWA Date:
2018.07.03
14:26:32 +0530
(Puneet Pahwa)
Announced in the open court Additional Rent Controller-02
on this 3rd July, 2018 Central/Tis Hazari Courts/Delhi
E-64/17/15 Kamal Kishor Vs Narender Kumar Page no.8/8