Delhi District Court
Dev Partap Seoni & Ors vs Manju Mehra And Anr. on 3 July, 2013
E23/12 Dev Partap Seoni & ors v/s Manju Mehra and anr. 03/07/13 ORDER
1. Vide this order, I shall dispose of the leave to defend application filed by both the respondents.
2. The case of the petitioners in brief is that all the three petitioners are the owners/landlords of shop no.9, Block 171, Sunder Nagar Market, New Delhi-03 as shown in red in the site plan (hereafter called suit property), which was let out to Sh. J. K. Mehra who was the husband of respondent no.1 and father of respondent no.2, in the year 1963 and after death of Sh.J. K. Mehra, both the respondents have inherited the tenancy. It is stated that the rent of the suit premises is Rs.1100/- per month excluding Electricity and water charges.
3. It is stated that suit shop is bonafide required by the petitioner no.1 for his son Sh.Sanjay Seoni and daughter in law Mrs. Sakshi who are dependent upon petitioner no.1 for accommodation so that both could set-up boutique business from the suit premises. They also stated that Mrs. Sakshi is qualified in the field of Fashion Retail Management and Technology and obtained a certificate in this regard from National Institute of Fashion Technology, Ministry of Textiles, govt. of India. It is stated that the said boutique could not be opened earlier as there was no accommodation to start the business. It is further stated that petitioner no.1 does not own any other property from where his son and daughter in law can do the said D.P. Seonie & ors v/s Manju Mehra & Anr Page No 1/12 business. The said son is stated to have two minor children. Hence the present eviction petition was filed on the ground of bonafide requirement.
4. Respondents in their leave to defend application have opposed the petition on the ground that other legal heirs of original tenant late Sh.J. K. Mehra particularly his daughters Ms.Ritika Khosla and Ms.Aparna Soni who are also joint tenants have not been impleaded and therefore, the petition is bad for non joinder of necessary parties.
5. Respondents also disputed the genuineness of the copies of the documents filed by the petitioners. It is further stated that suit premises was let out for commercial purposes and therefore, the same cannot be got vacated under the provisions of section 14 (1) (e) of DRC Act.
6. Respondents also disputed the genuineness of the certificate issued by NIFT in the year 1999-2000 purported to be issued in the name of the daughter in law of the petitioner no.1 wherein the name has been written as Sakshi Pal whereas the petitioners claimed her name to be Mrs.Sakshi Seoni.
7. It is further stated that petitioner no.1 is the landlord of the suit shop only to the extent of one half share and petitioner no.2 is the brother and petitioner no.3 is the nephew of petitioner no.1 who are entitled to 1/4th share each and the suit shop is still being undivided and therefore, the petitioners could not file the present petition.
8. It is further stated that the daughter in law of petitioner no.1 is dependent upon her husband and not on her father in law. It is stated that need of the petitioners is not bonafide as petitioners are Real Estate Agents/ Property Dealers and deal in sale/ purchase of the property since 1936 and it is their ancestral business for the last more than 50years and therefore, their intention has always been to get vacated one property or the other after getting premium the same from landlord and to re-sell the same and therefore, this false need has been created by relying on a 13years old certificate. It is stated that the said son of petitioner namely Sh. Sanjay Seonie is a hard core Real D.P. Seonie & ors v/s Manju Mehra & Anr Page No 2/12 Estate Businessman and therefore, the need is not bonafide.
9. Respondents further stated that petitioners have sufficient residential cum commercial accommodation at 37, Hanuman Road, New Delhi to carry out the business of boutique which has area of around 4050 sqr. ft. with basement. It is stated that petitioner no.1 and his son Sanjay Seoni own 811 Tolstoy House, New Delhi, wife of petitioner owns B-32A, Himalaya House and Flat No.506, Mohandev Building, New Delhi and 104A, Arunachal, New Delhi. It is stated that petitioner no.1's son Sanjay Seoni owns commercial cum residential property No.212 and 2/212 at Nangal Raya, New Delhi. It is stated that petitioners no.1 and 2 jointly own another shop no.9A, ground floor, Sunder Nagar Market, New Delhi and also first and second floor of shop no.9 and 9A which are residential cum commercial in nature, comprising three floors.
10. It is further stated that petitioner no.2 owns 104 Arunachal, New Delhi and recently purchased a building in occupation of Capital Surgical at Darya Ganj, New Delhi. It is stated that daughter of petitioner no.2 also owns lower basement at 31 Tolstoy House, New Delhi and Sh.Sanjay Seoni who is son of petitioner no.1 is a Director of a company Capital Constructions, running his office from Connaught Place, New Delhi and also owns a company called Capital Sales Corporation dealing in import of Chinese goods, furnitures, constructions material etc. and also running an office from G-58, Connaught Place, New Delhi which is on rent and therefore, he is doing independent business and is not dependent upon his father in any manner. Similarly his wife is also not dependent upon petitioner no.1. It is further stated that petitioner no.1 and 2 run a company by the name of Capital Estate Agency and Capital Real Estate Services of which Sanjay Seonie is an integral part as reflected from his mobile number on the signboard of the petitioners whose photographs are enclosed.
11. Respondent at other places in the application also denied the ownership of the petitioners to the suit premises. Respondents also stated that at the time of taking the D.P. Seonie & ors v/s Manju Mehra & Anr Page No 3/12 shop on rent in the year 1961 @ Rs.150/- per month, the husband of respondent no.1 paid Pagri of Rs.1lakh to the father of petitioner no.1 for which no receipt was given. It is stated that he even received Rs.5lakhs for issuance of rent receipt in the year 2001 and even that was not issued. Respondent also disputed the Gift Deed on the basis of which the present petition has been filed.
12. Petitioner filed the reply to leave to defend application wherein they reiterated their stand as made out in the petition and controverted the pleas of the respondents as raised in the application. Petitioners stated that Sakshi Pal and Sakshi is the same person and Sakshi Pal was the name of the daughter in law of petitioner no.1 before marriage which changed to Mrs. Sakshi Seonie after marriage and her father's name is Sh.Satpal Arora and reiterated the genuineness of the certificate of the daughter in law. . It is stated that the respondents only are joint tenants after the death of Sh. J.K.Mehra and denied that the two daughters of the Late Sh.J. K. Mehra are also tenant in the suit premises and that this fact was admitted by the respondents their written statement in another eviction petition filed by the petitioners u/s 14 (k) of the DRC Act in the year 2002. It is further stated that the eviction petition against the adjoining tenant is not for the requirement of petitioner no.1 or his family and it has no relevance in the present case.
13. They further admitted that their ancestral business has been property dealing since 1936 They further stated that property no.37, Hanuman Road is a residential house and business cannot be carried out from a residential house and denied that it has a newly constructed basement. It is further stated that the suit premises is a D.P. Seonie & ors v/s Manju Mehra & Anr Page No 4/12 shop and is situated in a market which is suitable for the business to be done by the petitioner's son and daughter in law. They further stated that other properties are either residential or office properties situated on upper floors of multi storied buildings and are office flats where offices are being run by different tenants and these are not shops and therefore not suitable for requirement of petitioners.
However, they admitted that the property no. B32A, Himalaya House, & flat no.
506, Mohan Dev building are in the name of the wife of petitioner no.1 and property no. 811, Tolstoy House is in the name of petitioner no.1 and his son Sanjay Seonie. They admitted that the property no.202 Nangal Raya, New Delhi is owned by his son Sh.Sanjay Seonie and Bharat Seonie which is a flat on the second floor under the tenancy of a tenant more than last four years and is unsuitable for running any shop. Further they admitted that they own shop No.9A on the ground floor, first and Barsati floor of shop No.9 and 9A and stated that the first and Barsati floors are residential in nature and under the tenancy of Sh.Surender Kumar Jain since 1987. They further admitted that flat no.104, Arunachal is an office flat owned exclusively by petitioner no.2 and is also occupied by the tenant and petitioner no.1 and his family has nothing to do with the said flat.
14. They further stated that property of Capital Surgical on the ground floor was purchased by the petitioner no.2 along with his partner Sh.Vijay Lakra which was further sold about one year back and is still in the occupation of the tenant Capital D.P. Seonie & ors v/s Manju Mehra & Anr Page No 5/12 Surgical and petitioner no.1 and his family has nothing to do with it. They further stated that petitioner no.1 has nothing to do with the property no.104A, Arunachal and lower basement of 31 Tolstoy House, New Delhi. They further denied that there is any company by name of Capital Construction run by Sanjay Seonie as its Director. They also denied that Sanjay Seonie owns a company Capital Sales Corporation though stated that many years ago, Sanjay Seonie wanted to start business and posted the advertisement on internet but it did not work and therefore no business or work has ever been done. They stated that premises No.G58, Connaught Place is under the tenancy of petitioner no.1 and 2 who run their business under the name of Capital Real Estate business and Capital Estate Agency and denied that son of petitioner no.1 has any right in it or is an integral part of it and is also doing his independent business. Petitioner denied the allegation of paying Pagri but admitted that the rate of rent Rs.1100/ per month and also denied payment of Rs.5lakh by the respondents to the father of petitioner no.1.
15. Respondents filed rejoinder to the reply and reiterated his case as made out in the leave to defend application and controverted the stand as taken by the petitioner in the petition and also challenged the gift deed executed by Sh.
S.P.Seoni in favor of the petitioners and further took the stand that the L&DO has reentered the suit property and respondents were made to pay Rs. 5.14 lakhs as misuser charges.
16. It is stated that petitioners are carrying on property business in the NCR region and that petitioner no.1 tried to sell the suit premises to them at an exorbitant D.P. Seonie & ors v/s Manju Mehra & Anr Page No 6/12 rate.
17. I have heard the arguments of counsels for both the parties and gone through the record carefully.
FINDINGS OF THE COURT:
18. First of all the preliminary objections taken by the respondents are taken up. It was contented by Ld counsel for respondents that other legal heirs of original tenant late Sh J.K.Mehra, i.e. his two daughters Ms Ritika Khosla and Ms Aparna Suri have not been impleaded as parties though they also inherited the tenancy. In this regard, the contention of the Ld counsel for respondents is misplaced and does not hold any merit as law is well settled that in case of joint tenancy, the notice to one of the Legal heirs of the deceased tenant is treated as a proper notice to all the LRs. Reliance in this regard can be placed on Inderpal Khanna v/s Commander Bhupender Singh Rekhi (retd.) MANU/DE/1090/2008. In the present case, the petitioners have also placed on record certified copy of written statement filed by the present respondents in the suit no. E-282/2002 wherein para 9 thereof, the respondents themselves admitted that they both are the join tenants in the suit premises. Therefore, this plea of the respondents is not tenable and sham and does not raise any triable issue in this regard necessitating leading of any evidence.
19. Further Ld Counsel for the respondents have raised a legal issue regarding the applicability of provisions of Section 14 (1)(e) of DRC Act to the suit premises which was let out for commercial purposes. It is argued that the petition is not maintainable as the suit premises was commercial in nature and therefore provisions of Section 14 (1)(e) of DRC Act are applicable to the present case. This issue is no longer Res Integra in view of the judgment of the Hon'ble Supreme Court in Satyawati Sharma Vs Union of India ; 148 (2008) DRT 705 (SC) wherein it was held that provisions of Section 14 (1)(e) of DRC Act are equally applicable to commercial D.P. Seonie & ors v/s Manju Mehra & Anr Page No 7/12 premises as well and the purpose for which the premises was let out is not an obstacle for invoking the provisions of the Section 14 (1)(e) of DRC Act. Therefore, no triable issue is raised in this regard as well.
20. Though respondents have admitted the petitioners as the landlords of the suit premises in para 7 of the leave application but in para 26, they disputed the ownership of the petitioners to the suit premises. It is argued that L & DO has re entered the suit premises and therefore petitioners are not the owners of the suit premises. This plea has been vehemently opposed by the ld. Counsel for petitioner stating that the respondents themselves are paying rent to the petitioners and are blowing hot and cold in the same breath. He further argued that even for a while if this contention of the respondents is admitted for the sake of arguments, even then, despite determination of lease where the possession has not been taken by the government, the lessee is entitled to maintain eviction petition. Petitioners relied on Smt Shanti Sharma and Ors. Vs Smt Ved Prabha and Ors. 20 (1981) DLT 127. Perused the same wherein it has been held that despite determination of lease by the government where possession was not taken, lessee still remains owner of premises and is entitled to seek eviction of his tenant U/S 14 (1)(e) of DRC Act. In the present case, respondents have admitted themselves to be the tenants under the landlordship of the petitioners and paying rent to the petitioners. Further, the concept of ownership under Delhi Rent Control Act is a limited one and it is settled law that for the purposes of Section 14 (1) (e) of DRC Act, landlord is not supposed to prove absolute ownership as required under Transfer of Property Act. He is required to show only that he is more than a tenant. Reliance in this regard can also be placed on Rajender Kumar Sharma & Ors v/s Smt. Leelawati and Ors.; RCR 23/2007 DOD 23.09.2008, (Delhi). In the present case, since the respondents admittedly are paying rent of Rs.1100/- per month to the petitioners and admitted themselves to be tenants under the Landlordship of the petitioners. Therefore it is held D.P. Seonie & ors v/s Manju Mehra & Anr Page No 8/12 that petitioners are the owners/landlords of the suit premises and in my considered opinion, no triable issue is raised in this regard as well necessitating leading of any evidence.
21. Coming to the question of bonafide requirement of the petitioner no. 1 for the suit premises for opening of a boutique by Sh Sanjay Seoni the son of the petitioner no.1 and his daughter in law Ms Sakshi. As per petitioners, the suit premises is required by the petitioner no. 1 for the need of his son and daughter in law to open a boutique business who are stated to be dependent upon the petitioner no. 1 for accommodation. In this regard, petitioners have relied upon a 13 year old Diploma Certificate issued by the NIFT to the daughter in law of the petitioner no.1 to justify that his daughter in law is qualified in the field of fashion retail management and technology.
22. Ld counsel for respondents has vehemently denied that there is any bonafide need of the petitioners to open the boutique business and argued that family of the petitioner is in the business of Real Estate for more than seven decades and are property dealers and has no intention to do any such business. Petitioners admitted that they are in the business of Real Estate/property dealers and it is their ancestral business since 1936. Therefore, the so called need of the petitioner no. 1 for the suit premises is required to be objectively assessed by giving opportunity to the respondents to cross examine the petitioner. Law is well settled that though landlord is the best judge of his own requirements and neither the courts nor the tenant can dictate terms to him but it cannot be said that everything landlord states should be taken as gospel truth. Therefore, the need of the petitioner has to be objectively assessed by granting opportunity to the respondent to cross examine the petitioner.
23. Petitioners in their petition has not given details of any of the other properties held by them. On the other hand, respondents in their leave to defend application have D.P. Seonie & ors v/s Manju Mehra & Anr Page No 9/12 mentioned about number of properties owned /held by the petitioners. Petitioners on their part have admitted to be owner of few of the properties and denied about the others. Petitioners have also filed documents pertaining to those properties to support their stand.
24. Petitioners have stated that property No. 37 Hanuman Road, New Delhi is a residential house owned by them where from business cannot be carried out whereas as per the respondents the said property is having area of around 4050 Sq. Feet which is stated to be commercial cum residential in nature. Petitioners also admitted that property No. 811 Tolstoy House, New Delhi is owned by petitioner no.1 and his son Sh.Sanjay Seonie and property No. B-32A Himalya House and Flat No. 506 Mohan Dev Building are owned by the wife of petitioner no.1 but claimed that all these are office flats where offices are being run by different tenants and these are situated on upper floors of multi storied buildings and are not suitable for the present requirement. Similarly petitioners admitted in their reply that property No.202, Nangal Raya, New Delhi is owned by petitioner no. 1's son Sh.Sanjay Seonie and Sh.Bharat Seonie which is a flat on the second floor and is under the tenancy of tenant for the last more than 4years. However, the petitioners are silent as to who is the tenant in the said property. Petitioners also admitted that they owned ground floor of shop no. 9A Sunder Nagar Market and first and second floor of shop no.9 and 9A, Sunder Nagar, New Delhi and stated that first floor and Barsati thereof are residential and under the tenancy of Sh.Surender Kumar Jain since 1987.
25. Petitioners also admitted that petitioner no. 2 owns office flat No.104 Arunachal, New Delhi which is occupied by the tenant whose name has not been disclosed. However, they contended that petitioner no.1 has nothing to do with the said property. Petitioners also admitted that petitioner no.2 along with his partner Sh.Vijay Lakra purchased the building in which Capital Surgical is the tenant and which was D.P. Seonie & ors v/s Manju Mehra & Anr Page No 10/12 subsequently sold one year back with the premises still being in the possession of Capital Surgical but it is argued that petitioner no.1 has nothing to do with the said property.
26. However, the petitioners stated that petitioner no.1 and his family has nothing to do with property no.104A Arunachal, New Delhi and lower basement at 31 Tolstoy House, New Delhi but it has not been denied by the petitioners that these two properties are owned by wife and daughter of petitioner no.2 respectively.
27. Further, though the petitioners denied that Sanjay Seonie owns a company Capital Sales Corporation but admitted that many years ago Sanjay Seonie wanted to start business and posted the advertisement on internet but no business work was ever done. In this regard, the contentions of the respondents that Sh.Sanjay Seonie is doing indepdent business, owning companies and having offices gains relevance as respondents have placed on record internet print out of a company Capital Sales Corporation wherein Sanjay Seonie has been shown as a contact person and the company is running the business of import of Chinese Goods as alleged by the respondents. Not only that, respondents have also placed on record an internet print out to show that Sanjay Seonie is in the business of property dealer and a Director in Capital Construction. Further, the petitioners also admitted that premises no.G-58 Cannought place is under the tenancy of petitioner no.1 and 2 where they run their business under the name of Capital Real Estate Services and Capital Estate Agency. But as per the respondents Sh.Sanjay Seonie is integral part of the said business.
28. Non disclosure of any of the properties by the petitioners in their petition but at the same time admitting themselves to be the owner of a number of properties as mentioned above and in view of the stand of the respondents that Sh.Sanjay Seonie is doing independent business and non disclosure of the details of the tenants and considering the fact that petitioners are dealing in Real Estate Business for more than D.P. Seonie & ors v/s Manju Mehra & Anr Page No 11/12 seven decades and relying on a 13year old certificate of NIFT to show the need of daughter in law and son of petitioner no.1, all this necessitates that opportunity be given to the respondents to cross examine the petitioners and to test the veracity of the claims of the petitioners regarding bonafide requirement and non availability of suitable alternative accommodation. The bonafide requirement of petitioners need to be assessed objectively in view of the number of properties held by the petitioners. Reliance in this regard can also be placed on Prahlad Rai Mittal v/s Rita Devi ; 196 (2013) DLT 703. Law is also well settled that if the facts disclosed in the affidavit seeking leave to defend prima facie show that landlord would be disentitled from obtaining order of eviction and not whether at the end defence may fail, the leave has to be granted. Reliance can also be placed on Sudhakar Singh v/s Sunil Batra & Ors; 192 (2012) DLT 491. In view of the above, leave to defend application is allowed.
29. Respondents are directed to file written statement within 30days with advance copy being supplied to opposite counsel. Subject to completion of pleadings, put up for PE on 30/09/13.
Announced in open court
Dated : 03/07/13 (Munish Markan)
Additional Rent Controller,
South, Distt. Courts, Saket,
New Delhi
D.P. Seonie & ors v/s Manju Mehra & Anr Page No 12/12