Delhi District Court
Nirankar Nath Tandon & Ors. vs . Rajesh Kumar on 5 January, 2015
Nirankar Nath Tandon & Ors. vs. Rajesh Kumar
IN THE COURT OF SH. DEVENDER KUMAR GARG
ACJCCJARC(EAST), KARKARDOOMA COURTS, DELHI
Petition No.: E 86/2013
Case ID No.: 02402C0133352013
1.Sh. Nirankar Nath Tandon S/o Late Sh. Bahadur Lal Tandon
2.Sh. Naveen Tandon
3. Sh. Praveen Tandon
4.Sh. Atul Tandon
All ( S. No.2 to 4) sons of Sh. Nirankar Nath Tandon
5. Smt. Suman Tandon
W/o Sh. Sh. Nirankar Nath Tandon
All are resident of
R/o IX/1286, Bagichi Nand Kishore,
Gali Bhature Wali, Gandhi Nagar,
Delhi110031. ....Petitioners
VERSUS
Sh. Rajesh Kumar
Prop. M/s Rajesh Kumar & Sons
Private Shop No.6, in property No. IX/1286, Bagichi Nand
Kishore,
Gali Bhature Wali, Gandhi Nagar,
Delhi110031 ...Respondent
UNDER SECTION : 14(1)(e) DRC Act
DATE OF INSTITUTION : 01.05.2013
DATE OF RESERVING THE ORDER : 01.11.2014
DATE OF ORDER : 05.01.2015
APPLICATION FOR LEAVE TO DEFEND
MOVED BY THE RESPONDENT
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Nirankar Nath Tandon & Ors. vs. Rajesh Kumar
O R D E R
1. Vide this order, I shall decide the application filed by the respondent seeking leave to defend the eviction petition in hand. It is clarified that in the memo of parties Smt. Suman Tandon has been shown as petitioner no. 6, however, there are five petitioners in the present matter. The said details of five petitioners has been mentioned in the petition at its page no.3.
2. Briefly stated, the case of the petitioner is as follows: The petitioner no.1 is land lord for respondent and has let out shop no.6, in dispute to respondent and petitioner no.2 to 5 are owners of property no.IX/1286, Bagichi Nand Kishore,Gali Bhature Wali, Gandhi Nagar, Delhi31 by virtue of sale deed exeucted by petitioner no.1 in favour of petitioner no.2 to 5. All the shops situated at ground floor of the property in dispute are under tenancy of different tenants. The petitioners are running their business from 1st floor of property no.1276, Main Road, Gandhi Nagar, Delhi under the name and style of "Suman Tourist Bus Service" which is a tenanted premises in the name of petitioner no.5. The business being run by the petitioners from the tenanted premises and all the petitioner can not be adjusted in the said business and petitioner no.1 & 5 wants to settle their sons in their independent business of readymade garments. They want their son Sh. Parveen Tandon i.e. petitioner no.3 to run its independent business from shop no.6 i.e. shop in dispute.
3. It is prayed that a decree of eviction of the tenant be E No. 86/13 Page No. 2/13 Nirankar Nath Tandon & Ors. vs. Rajesh Kumar passed in favour of petitioners and against the respondent for the tenanted premises i.e. Shop No. 6 situated in property No. IX/1286, Bagichi Nand Kishore,Gali Bhature Wali, Gandhi Nagar, Delhi31.
4. In application and affidavit, respondent (hereafter referred to as the respondent) has taken following main pleas:
(I) The present petition has been filed by petitioners with the motive to harass and grab Pagri amount of Rs.20,00,000/ which was paid by respondent at the time of beginning of tenancy.
(II) Petitioner have no bonafide requirement of tenanted premises as they are owners of total 20 shops out of which 56 shops, including shop no.3, 4, 7 & 8 are lying vacant and in possession of petitioners.
(III) Premises bearing no. 1276, first floor, main road, Gandhi Nagar, Delhi, from where, the petitioners are running their business has been purchased by the petitioner and same is not a tenanted premise and said space is sufficient for running their business. The alleged rent receipt are forged and fabricated.
(IV) Site plan filed by the petitioners is incorrect and wrong and same has not been prepared properly.
(V) Petitioner no.3 & 4 are independent and not dependent upon the petitioners for the space of business as petitioner no.2 & 3 are jointly running their business of Tour and Travels from various places and petitioner no.4 is working in LIC and earning sufficiently.
Petitioners are owner and in possession of various other properties/shops in their name at prime location in the same locality E No. 86/13 Page No. 3/13 Nirankar Nath Tandon & Ors. vs. Rajesh Kumar which has not been disclosed by them.
5. Reply alongwith affidavit filed on behalf of petitioner discloses the following material grounds: (I) It is denied that at the time of creation of tenancy, the respondent has paid a sum of Rs.20,00,000/ towards Pagri. (II) It is denied that petitioner do not require tenanted premises bonafidely. It is admitted that there are 20 shops at ground floor, however, It is denied that out of 56 shops including shop no.3,4,7 & 8 are lying vacant and in possession of petitioners. (III) Premises No.1276, First Floor from where petitioners are carrying business is a tenanted premises.
(IV) The site plan filed by petitioners is correct. (V) It is wrong and denied that petitioner no.3 & 4 are running their independent business and are not dependent upon the petitioners for the space of business. It is admitted that petitioner no.4 is working as subagent of LIC. It is denied that petitioners are owners and in possession of various other properties and shops in their names at prime location in the same locality.
6. The Ld. counsel for the petitioner argued that none of the grounds raised by the respondent constituted a triable issue. Also, that the landlord was the best judge of his requirement for space and retained the prerogative to utilize his own property in a manner of his choice.
7. The Ld. counsel for the respondent argued that the E No. 86/13 Page No. 4/13 Nirankar Nath Tandon & Ors. vs. Rajesh Kumar present petition was only a ploy to evict tenant without any bona fide requirement of the petitioner who was in possession of alternative accommodation. The Counsel agitated that trial was required on the aspect of availability of alternative accommodation.
8. Petitioner has relied upon the case laws viz R.K. Bhatnagar Vs. Sushila Bhargav ( 1986 Rajdhani Law Reporter 232), Yadevendra Arya Vs. Mukesh Gupta ( 2008 Rajdhani Law Reporter 75 SC), Rajnder Kumar Sharma & Ors Vs. Leela Wati & Ors. , 155 (2008) Delhi Law Times 383, Glaxo Smith C H Ltd. Vs. PO Labour Court, ( 2010 Rajdhani Law Reporter 66), Hrash Kumar & Ors. Vs. Man Mohan & Ors. 188 (2012) Delhi Law Times 536, Raj Kumar Khanna Vs. Praduman Singh RC REV. 548/2012 & CM No. 18936/2012 .
9. The court has considered the respective affidavits of the parties and the submissions of Shri L.C. Singla , Ld. Counsel for petitioner and Sh. C. Prakash, Ld. Counsel for respondent and perused the material available on record carefully .
10. As per Section 14(1)(e) of Delhi Rent Control Act, the petitioner seeking eviction of a tenant, has to satisfy the following ingredients:
i) Petitioner has to be landlord as well as owner of the tenanted property.
ii) The premise should be required bona fide by the landlord for his occupation or for occupation of any E No. 86/13 Page No. 5/13 Nirankar Nath Tandon & Ors. vs. Rajesh Kumar member of his family dependent upon him.
iii) Landlord or such person dependent upon landlord should not have other reasonable or suitable accommodation in Delhi.
11. The aspect of ownership of the property in question may be taken up first. Respondent has not challenged the ownership of petitioners over the property in question. Hence, there is no dispute on this aspect between the parties and no triable issue arises on this aspect.
12. Ld. counsel for respondent contended that amount of Rs. 20 lac was paid by the respondent at the time of beginning of tenancy and present petition has been filed to harass the petitioner. On the other hand Ld. Counsel for petitioner contended that no such amount was paid by the respondent as alleged.
13. Perusal of the file would show that no proof has been filed by the respondent for showing that alleged payment was made by the respondent. Amount of Rs. 20 lacs is not a small amount and respondent was expected to produce some documentary evidence but no such evidence has been produced. Mere making averment of payment of above said amount does not make a triable issue.
14. The respondent has also taken the plea that site plan filed by the petitioners is incorrect and has not been properly prepared. On the other hand , the petitioners have taken the stand that they have filed proper site plan.
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Nirankar Nath Tandon & Ors. vs. Rajesh Kumar
15. Perusal of the file would show that the respondent has failed to show how the site plan filed by petitioner is not proper. Further no alternate site plan has been filed by the respondent disputing the site plan filed by respondent.
16. The Court may refer here to the decision in Mukesh Kumar v. Rishi Prakash 174(2010) Delhi Law Times 64, cited by the Counsel for the petitioner, wherein it was held by the Hon'ble High Court of Delhi that:
"A bald plea, without anything more, particularly when the nature of the plea in defence is such that, if true, it would leave a trail of evidence to establish its existence, and which would be easily available for everyone to see and pick up, cannot be accepted as prima facie disclosing a triable issue........."
17. Ld. Counsel for respondent contended that petitioners have no bona fide requirement of tenanted premises and the petitioners are having 56 shops which are lying vacant and in possession of petitioners. He has further contended that they also have alternate accommodation and hence the respondent is entitled for leave to defend. On the other hand, Ld. Counsel for petitioners contended that petitioners have no vacant place for adjustment of petitioner no. 3 and space is required bonafidely.
18. Perusal of the leave to defend application would show that it is stated by respondent that petitioners have got evicted shop no. 3 and 4 from its earlier tenant namely Mr. Ashok Kumar Rastogi which E No. 86/13 Page No. 7/13 Nirankar Nath Tandon & Ors. vs. Rajesh Kumar are still lying vacant and in possession of petitioners. In para no. 4 of leave to defend, it is mentioned that petitioners are owners of total 20 shops, out of which 56 shops including shop no. 3,4,7,8 are lying vacant and in possession of petitioners. The petitioners have not denied that at ground floor of the property, there are 20 shops. However they have denied that they have any vacant shop. The petitioners have stated in their counter affidavit that shop no. 3 and 4 are under the tenancy of Sh. Yashpal who is carrying on business of ready made garments and shop no. 7 and 8 are under the tenancy of Sh. Balbir Singh. They have further stated that above tenants are carrying on business since inception of their tenancy. The petitioners have also filed photo copy of rent receipt in respect of shop no. 3 and 4 as per which said shops have been given on rent to one Sh. Yashpal.
19. Ld. Counsel for respondent had contended that the above said rent receipt is forged and fabricated and cannot be relied. He further contended that no rent agreement has been placed on record by the petitioners for proving that said shops have been given on rent and not lying vacant.
20. Perusal of the file would show that the respondent has not placed on record any material showing that alleged shops are lying vacant and how the alleged rent receipts are forged. It is settled law that mere assertions are not sufficient for making triable issues in a petition on bona fide requirement.
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21. The court would rely upon the following judgment : Rajender Kumar Sharma & others Vs. Leela Wati and Others 155 (2008) DLT 383, the Court held that:
"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. If this is allowed, the whole purpose of Section 25B shall stands defeated and any tenant can file a false affidavit and drag a case for years together in evidence, defeating the very purpose of the statute."
22. Further it is not the prerogative of tenant to advice the landlord how the space is to be utilised by the landlord. It is settled law that tenant cannot dictate terms to the landlord in selection of manner of use of space of which he or she is landlord.
23. The Court refers to the observations of the Apex Court in Baldev Singh Bajwa Vs. Monish Saini (2005) 12 SCC 778, wherein it was observed that:
"The need of the landlord is to be presumed as genuine and bona fide and it is not for the tenant to prove that the need is not bona fide. Heavy burden lies on the tenant to prove that the need is not genuine."
24. The respondent is not entitled to leave to contest the petition on this ground.
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Nirankar Nath Tandon & Ors. vs. Rajesh Kumar
25. A tenant cannot dictate terms to a landlord in the matter of using his property in a particular manner.
26. The Court would cite here the decision of the Apex Court in Sait Nagjee Purushotham & Co. Ltd. v. Vimalabai Prabhulal & Ors. (2005) 8 SCC 252 wherein it was held that:
"It is always the privilege of the landlord to choose the nature of the business and the place of the business."
27. In Raghavendra Kumar Vs. Firm Prem Machinery & company(2001) 1 SCC 679, it was observed that:
"Landlord is the best judge of his requirement. It is not open to the Court to dictate him in what manner he should use his premises. He has got complete freedom in the matter."
28. Perusal of the leave to defend application would show that the respondent has taken the plea that petitioners are owner of premises bearing no. 1276, first floor, main road Gandhi Nagar, Delhi, and same is not a tenanted premises. On the other hand, the petitioners have stated that same is a tenanted premises.
29. Perusal of the file would show that petitioners have filed on record rent receipts in favour of petitioner no.5 Smt. Suman Tondon showing her as tenant in the said premises. On the other hand, no document has been filed on behalf of respondent for substantiating his averments. So far as the ground of respondent that petitioners are owner and in possession of various other properties/ shops in their names at prime locations in the same locality is E No. 86/13 Page No. 10/13 Nirankar Nath Tandon & Ors. vs. Rajesh Kumar concerned, no documentary evidence has been filed by the respondent. Further it is not the case of respondent that said properties are lying vacant.
30. Ld. Counsel for respondent contended that petitioner no. 3 and 4 are not dependent upon the petitioners for space of business as petitioner no. 2 and 3 are jointly running their business of tour and travels from various places and petitioner no. 4 is working in LIC. The petitioners have denied that petitioner no. 3 and 4 are not dependent upon the petitioners for space of business .
31. Perusal of the record would show that plea of petitioners is that petitioner no. 1 and 5 being parents of others petitioners want to settle their son Sh. Praveen Tondon I.e petitioner no. 3 to run its independent business from shop no. 6. It is considered moral duty of the parents to settle their children and hence it cannot be said that space is not bonafidely required by the petitioners. The respondent has failed to show any other alternate shop/space for the petitioner no. 3. The premises in which business is being run by the petitioners is tenanted premises. Thus, it cannot be said that petitioner no. 3 is not dependent on his parents for the purpose of space and it cannot be said that his needs is not bonafide.
32. It is seen that in leave to defend application, it is admitted by respondent that he received notice by post on 27.05.2013 and due to summer vacation, leave to defend has been filed on first working day after the summer vacation is over and hence same is E No. 86/13 Page No. 11/13 Nirankar Nath Tandon & Ors. vs. Rajesh Kumar within limitation period.
33. It is admitted fact that leave to defend application has been filed on 01.07.2013 and as per his own version, the respondent was served on 27.05.2013. The respondent has taken the plea that due to summer vacation, it was filed on first working day i.e. 01.07.2013. This court is of the view that the present leave to defend application has not been filed within 15 days of the service of notice as prescribed by DRC Act. It is fact of common knowledge that in summer vacation, either Rent Controller or Additional Rent Controller are assigned duty to attend urgent matters during the said period. Hence, it cannot be said that the respondent did not have occasion for filing leave to defend application.
34. Further, perusal of the file would show that rejoinder alongwith affidavit was filed on behalf of respondent which does not bear the signature of respondent and hence same cannot be considered for countering the averments of reply to leave to defend application.
35. None of the grounds asserted in the affidavit of the respondent seeking leave to contest disclose such facts as would disentitle the petitioner from obtaining an order with regard to the possession of the tenanted shop on the ground specified in clause (e) of the proviso of subsection (1) of Section 14 of the Delhi Rent Control Act.
36. The application for grant of leave to defend, filed on E No. 86/13 Page No. 12/13 Nirankar Nath Tandon & Ors. vs. Rajesh Kumar behalf of the respondent, is dismissed.
37. An eviction order is passed against the respondent in respect of shop no. 6 situated at ground floor of property no. IX/1286, Bagichi Nand Kishore, Gali Bhature Wali, Gandhi Nagar, Delhi 110031 as shown in the red colour in the site plan filed with the present petition.
38. The petitioner would not be entitled to obtain possession of the above shop before the expiration of a period of six months from the date of this order in terms of section 14(7) of the Delhi Rent Control Act, 1958.
39. File be consigned to Record Room.
Announced in open Court.
Delhi Dated the 05.01.2015 This Judgment contains 13 pages and each paper is signed by me.
(DEVENDER KUMAR GARG) ACJcumCCJcumARC(E) KKD Courts, Delhi E No. 86/13 Page No. 13/13