Delhi District Court
Pawan Kumar Verma vs Surender Mohan And Anr. on 27 August, 2016
IN THE COURT OF SH NAVJEET BUDHIRAJA: ACJcumCC cumARC (SOUTHWEST): DWARKA COURTS: NEW DELHI. EP No. 10/13 Pawan Kumar Verma vs Surender Mohan and anr. 27.08.16 ORDER
1. By virtue of this order, application u/s 25B (4) and 5 Rule 4 r/w 14 (1) (e) of the Delhi Rent Control Act (henceforth referred to as 'the Act') seeking leave to defend moved on behalf of the respondents is being disposed of.
2. Briefly stated the case of the petitioner is that the tenanted premises in question i.e property bearing no. CB 384/1 (previously CB44/4 and 44/5), Near Indira Market, out of Khasra no. 1066, Naraina Vihar, New Delhi, as shown in red colour in the site plan, was let out by the predecessor in interest of petitioner namely late Sh. Ram Narain, Sh. Mohinder Singh and late Shri Sheo Ram, all sons of late Shri Ram Saran, who became owners of suit property after the death of their father namely Shri Ram Saran, to Sh. Arur Chand Arora, the father of respondent in the year 1980 who started business of paints titled as M/s M.M. Paints Industry and after his death, his two sons i.e respondent no.1 & 2 continued the said business in the said property and rent of Rs 150/ p.m was lastly paid in the year 2008. As per petitioners, petitioners being the successors in E.P. No. 10/13, Pawan Kumar Verma & ors vs Surender Mohan & anr.1 interest of late Sh Ram Saran comprised of huge joint family, who are carrying on various business activities to earn their livelihood. It is further averred that the suit property is bonafidely required by the petitioners for starting the business for Mr Arvind, petitioner no.5, married person, but unemployed and is having the responsibility to support his family and apart from the said bonafide reasons, the suit property was illegally and malafidely partitioned by the respondents without any oral and written permission of the petitioners or their predecessors in interest.
3. Respondent was served with the summons of the eviction petition and he filed the present application seeking leave to defend.
4. In the application seeking leave to defend which is supported with affidavits of respondents, it is stated that petitioner no.5 Sh. Arvind Verma does not require the tenanted premises i.e property bearing no. CB 384/1 (previously CB 44/4 and 44/5), Near Indira Market, out of Khasra no. 1066, Naraina Vihar, New Delhi, as shown in red colour in the site plan, for the purpose of opening a business of water dispensers distribution as he already has a shop of photostat (copying) business at Ground floor of the resident of petitioner no.5 at WZ13, Village Naraina, New Delhi by the name and style of PHOTOSTAT which is being run/operated by him alongwith his E.P. No. 10/13, Pawan Kumar Verma & ors vs Surender Mohan & anr.2 wife.
5. Further, it is stated that all the petitioners including petitioner no.5 are having various properties in and around the suit premises and elsewhere in Delhi and details of two properties of petitioners suitable for alleged requirement are as under:
i) Khasra no. 1067 CB386 Near Indira Market, Delhi Cantonment, Nariana, New Delhi approximately one acre land in which more than the tenanted land in question is vacant.
ii) Khasra no.1071 Near Indira Market, Delhi Cantonment, Nariana, New Delhi approximately two acre land in which more than the tenanted land in question is vacant.
6. It is further stated that premises in question was let out to M/s M.M Paint Industry through its proprietor Sh Arur Chand Arora at a month rent of Rs 305/ by Sh. Ram Saran in the year 1972 for running trade and manufacture of paints and other commercial and industrial purposes. As per respondents, petitioners have never kept maintenance/ repair, ever paid statutory dues of/ for the tenanted premises and same had to be carried out by respondents at their own expenses.
7. Further, it is averred that father of respondents was made to pay Rs 10,00,000/ to Sh. Ram Saran (original landlord for the tenanted premises) towards security deposit and Rs 12,00,000/ towards repair, interior, renovation etc. from time E.P. No. 10/13, Pawan Kumar Verma & ors vs Surender Mohan & anr.3 to time and it was agreed that the said amount shall form part of consideration for the tenancy of the said premises but shall be refundable by the landlord to the tenants upon the tenants willfully vacation the said tenanted premises.
8. It is further averred that respondents are regular tenant on a monthly rent of Rs 305/ exclusive of electricity and water charges and at the time of taking on rent in the year 1972, no agreement whatsoever to vacate the premises in dispute on any grounds as mentioned in the present petition, was executed between their father and erstwhile landlord.
9. Reply to the application for leave to defend filed. Thereafter rejoinder was filed on behalf of the respondent refuting the averments of the reply and reiterating the stand taken in leave to defend application.
10. Thereafter, petition was posted for arguments on leave to defend application.
11. During arguments on leave to defend application, Ld counsel for the respondent has argued that his application u/s 25(B) of the Act deserves to be allowed as triable issues have been raised in the application. First is that petitioner No. 5 Sh Arvind Verma, for whose requirement the present petition has been filed is already running a photostat shop at the ground E.P. No. 10/13, Pawan Kumar Verma & ors vs Surender Mohan & anr.4 floor of his residence by the name and style of PHOTOSATAT. The said shop is being run by him alongwith his wife. Secondly, petitioners are the owners of other properties i.e (1) Khasra No. 1067, CB386, near Indira Market, Delhi Cantonment, Naraina, New Delhi110028 and (2) Khasra No. 1071, near Indira Market, Delhi Cantonment, Naraina, New Delhi110028. Therefore, it cannot be said that the petitioners do not have any alternative accommodation for the purpose of starting the business for petitioner No. 5. Thirdly, the claim of the petitioners that petitioner No. 5 is suffering from acute depression since the year 2009 is false and ill founded as he is already running a business of photostat as stated above. Fourthly, the tenanted premises is situated in a Paint & Chemical Market and there is no water dispenser shop or similar nature shop. Therefore, the tenanted premises is not suitable for carrying out such a business. In support of leave to defend application, Ld counsel for the respondent has relied upon following judgments:
(i) Inderjeet Kaur vs Nepal Singh, Appeal (civil) 7385 of 2000
(ii)M/s Gopal Dass & sons vs Dineshwar Nath Kedar, R.C Rev. 240/2011
(iii)Rakesh Kumar vs Pawan Khanna, R.C.REV.277/211
(iv)Deepak Gupta vs Sushma Aggarwal, R.C REV.180/2013
12. On the other hand, Ld counsel for the petitioner has clamoured for the dismissal of the leave to defend application on the ground that the tenanted premises is required by E.P. No. 10/13, Pawan Kumar Verma & ors vs Surender Mohan & anr.5 petitioner No. 5 for starting the business of water dispenser and the photostat business as alleged by the respondent was used to run by the father of the petitioner in which the petitioner No. 5 was merely a helping had. Moreover, the said premises in which photostat machine has been installed is measuring 6x6 feet which is insufficient for carrying out full fledged business. Ld counsel for the petitioner has further argued that the other properties as spoken by Ld counsel for the respondent has also not been in possession of the petitioner. It has been specifically argued on the basis of the reply filed on behalf of the petitioner to leave to defend application that property Khasra No. 1067 CB 386, near Indira Market, Delhi Cantonment has already been sold by the predecessor in interest of the petitioner namely Sh. Ramsaran vide registered sale deed dt. 20.11.1967, copy of which has already been filed. Further Khasra property No. 1071 has unauthorizedly been occupied by J.J. Cluster for the last 3435 years and has not been in possession of the petitioner. Ld counsel for the petitioner has also alluded to the following judgments:
(i)Abdul Malik & ors. Vs Shashi Bhalla, 2012 (1) CLJ 20 Del.
(ii)S.Harbant Singh Sahni & Anr. Vs Smt Vinod Sikari, 189 (2012) Delhi Law Times 215
(iii)Inderjeet Singh vs Harish Chandra Bhutani, 192 (2012) Delhi Law Times 124
(iv)Parmanand vs Suman Sharma & Ors. 191 (2012) Delhi Law Times 539
(v)Gita Gupta vs Kailash Chand Dhingra, 199 (2013) Delhi Law Times 321
(vi)Rajiv Sandhwani vs Kishan Chand Saini, 190(2012) Delhi Law Times E.P. No. 10/13, Pawan Kumar Verma & ors vs Surender Mohan & anr.6 756
(vii)Shiv Sarup Gupta vs Dr. Mahesh Chand Gupta, (1999) 6 Supreme Court Cases 222
(viii)Rais Milan vs Abdul Samad, 215(2014) Delhi Law Times 558
(ix)Pawan Kumar Vs. Paramjit Singh Gill, 2015 IV (Delhi) 423, RC. REV. 50/2015 & CM1636/2015 (stay) 25.3.2015
13. I have heard the rival submissions of the parties and perused the material available on record.
14. Before deciding upon the question whether leave to defend ought to be allowed, it would be apposite to briefly recapitulate the underlying intendment behind adopting a summary procedure under Section 25B of the Act and the underlying philosophy behind granting leave to defend. Section 25 B provides for an efficacious and speedy remedy for the landlord who has a bonafide need for his property. Initial burden is placed upon the landlord to prove his bonafide requirement. This burden becomes more onerous when he has other alternative accommodation in his possession. In the latter case, the court can justifiably require the landlord to justify his decision to carry on his business only from the property from where the Tenant is sought to be evicted. Though the landlord is considered to be the best judge of his own requirement and neither the court nor the tenant can dictate terms to him, whatever the landlord says cannot be treated as gospel truth.
E.P. No. 10/13, Pawan Kumar Verma & ors vs Surender Mohan & anr.7
15. It is the duty of the Landlord to demonstrate that the projected need of Tenanted premises was genuine and authentic and was not a mere wish and desire. If on the mere asking of every landlord that he needs the premises for doing his business and if he was to be the sole judge and master of his choices/ decisions, the statutory provisions afforded to the Tenant would become meaningless. Dismissing the claims of the tenant at the very threshold without giving him a hearing would be contrary to the principles of natural justice.
16. Thus, whenever the tenant is able to raise triable issues, leave to defend application ought to be allowed. Ordinarily Principle requirements for grant of leave to defend have for exhaustively being laid down by Hon'ble Supreme Court in case titled as Charan Dass Duggal vs Braham Naryan (21) 1982 DLT 378 and have subsequently been reiterated in several judicial pronouncements. When leave to defend is sought, the tenant must make out a prima facie case, thereby raising triable issues. The test is a test of triable issue and not of final success in the adjudication. While deciding a leave to defend application what is to be kept in mind is whether triable issues are being disclosed and not whether they are being conclusively proved.
17. In a bonafide necessity eviction petition u/s 14 (1)
(e) of the Act, three aspects are required to be seen by the Court E.P. No. 10/13, Pawan Kumar Verma & ors vs Surender Mohan & anr.8 for decreeing the eviction petition:
(i) Firstly, there must be relationship of landlord and tenant between the parties and the landlord must be the owner of the tenanted premises.
(ii) Second aspect which has to be seen is whether the landlord requires the tenanted premises for his bonafide need and/or the need of his family members.
(iii) Thirdly, it has to be seen whether the landlord has alternative suitable accommodation.
18. Regarding the relationship of landlord and tenant between the parties, there has not been any remonstrance on the part of the respondents. Para 13 of the rejoinder filed on behalf of the respondent is worth noting which is reproduced as below: '' I state that the contents of para 11 are wrong and denied. It is denied that the respondents have made any false allegations. It is submitted that the name Mr. Ram Saran is only a typographical error and it should be Mr Ram Narain as is disclosed by the rent receipts filed by the Respondents and since the tenancy is not disputed between the parties, the same is of not much consequence to the present case. It is denied that the respondents are trying to grab the property of the petitioners by making false averments. It is submitted that the respondents are legal tenants to the suit property as admitted by the petitioners and thus, their contention is ill founded and baseless. It is denied that the respondents have illegally partitioned the property, the petitioners be put to strict proof of the same. It is denied that the petitioners or the erstwhile landlords ever carried out their duties. The petitioners are making frivolous and baseless submissions, which are false to their own knowledge. The contents of the E.P. No. 10/13, Pawan Kumar Verma & ors vs Surender Mohan & anr.9 corresponding para of the affidavit are reiterated''.
19. Further, in leave to defend application, in paragraph 14, respondent has avouched that he is a regular tenant on the monthly rent of Rs. 305/ exclusively of electricity and water charges. As per the petitioner, the tenanted premises was let out by the predecessor in interest of the petitioner namely late Sh Ramnarain, Sh Mohinder Singh and late Sh Sheoram, all sons of late Sh Ramsaran, who became the owners of the premises after death of their father namley Sh Ramsaran. The father of the respondent namely Sh Arur Chand Arora was inducted as tenant in the year 1980 who started the business of Paints in the name and style of M/s M.M Paints Industries. After his death, his two sons namely Sh Surender Mohan Arora and Sh Manmohan Arora continued the said business in the tenanted premises. As per the petitioners, their family comprised of huge joint family wherein all the family members are carrying on various business activities in order to earn their livelihood. Thus, the relationship of landlord and tenant between the petitioner and the respondent is not the bone of contention.
20. Now, zeroing in on the issue of the bonafide requirement as cited by the petitioner I.e the requirement of the tenanted premises for starting the business of water dispenser by petitioner No. 5 Sh Arvind Verma who has been unemployed and is suffering from acute depression since the year 2009. In E.P. No. 10/13, Pawan Kumar Verma & ors vs Surender Mohan & anr.10 counter to this, the case of the respondent is that Sh Arvind Verma is already running a photostat shop at the ground floor of his residence at WZ13, village Naraina, New Delhi, alongwith his wife and therefore, this bonafide requirement is entirely concocted and ill founded.
21. As per the petitioners, the tenanted premises is required by petitioner No. 5 Sh. Arvind Verma for setting up business of water dispenser distribution. At the outset, it is mentioned that it is the settled position that the plea of any person for setting up a new business cannot be spurned on the premise of want of any experience in the said business. The premises can be required by the landlord for starting a business even if he has no experience in the field.
22. To fortify my abovesaid view, reliance is placed upon judgment of Hon'ble Delhi High Court in Manjeet Singh vs Vani Jain, 2015 (1) RLR 331, in para 7, Hon'ble Justice Mukta Gupta has observed:
''As regards the bonafide requirement of the respondent in the leave to defend application it is not disputed that the son of the respondent was doing graduation or that he was not required to be settled in a vocation. The vocation in which the respondent wanted to settle herself and her son cannot be dictated by the petitioner/tenant. A person can start a new business even if he has no experience. That does not mean that the claim in an eviction petition for starting the new business must be rejected on the ground that it is a false claim. Many people start new businesses even if they do not have experience in the new business, and sometimes E.P. No. 10/13, Pawan Kumar Verma & ors vs Surender Mohan & anr.11 they are successful in the new business also.''
23. In view of the aforenoted judgment of Delhi High Court, the plea of petitioner No. 5 for setting up business of water dispenser distribution cannot be discarded. The contention of the respondent that there is no other water dispenser shop in and around the tenanted premises which makes it unsuitable for carrying on business of water dispenser is also specious as there is no requirement of certain number of shops of a particular business in any area to make it suitable for running the said business. On the contrary, absence of any other shop of water dispenser in the said area would go in favour of the petitioner as the scope of carrying out the business of water dispenser is increased to a great extent.
24. Furthermore, it has also been clarified by the petitioner that the said photostat machine has been placed in area measuring 6x6 feet at the entrance of residential premises bearing No. WZ13, Naraina village, which fact has not been refuted by the respondent. It is not the case of the respondent that there are more number of photostat machines which can be said to be providing sufficient income to the petitioner No. 5 for his family's sustenance. The photographs filed by the respondents also reveal very small area in which one photostat machine has been kept at the entrance of the respondent. Even if it is assumed that petitioner No. 5 is incharge of the photostat machine, he cannot be denied the right of enhancing his E.P. No. 10/13, Pawan Kumar Verma & ors vs Surender Mohan & anr.12 standard of living by pursuing some other business which may be more profitable for him. Thus, the bonafide requirement as stated by the petitioner requiring the tenanted premises for setting up the business of water dispenser cannot be denied.
25. As regards the third plank of the argument of the respondent that there are two alternative plots for setting up the business is concerned, in my considered opinion, petitioners have successfully refuted this by placing on record the documentary evidence in the form of registered sale deed dt. 20.11.1967 vide which property khasra No. 1067, CB 386, near Indira Market, Delhi Cantonment, Naraina has already been sold. As regards the property Khasra No. 1071, as per the petitioner, the same is in their possession for last 3435 years as the same has been unauthorizedly occupied by J.J. Cluster. In this regard, an affidavit has also been filed by petitioner Sh Vinay Kumar Verma. Paragraph 5 of which reads as under:
'' That out of the total land in Khasra No. 1071 admeasuring 7 bigha and 10 biswa, approximately 1 bigha of land was sold by the predecessor in interest of the petitioners namely Shri Ram Saran during his life time. The deponent has filed a suit for permanent injunction and eviction for land admeasuring 1000 sq. yds; situated in Khasra No. 1071, Village Naraina, New Delhi, pending in the Hon'ble High Court of Delhi titled as Vinay Kumar Verma Vs Beer Singh. The remaining land of the Khasra No. 1071 admeasuring approximately 5 bigha 10 biswa is covered by Jhuggi Cluster which is popularly known as Indira Colony Jhuggi Cluster. Hence the successor in interest of Shri Ram Narain, Shri Mahinder Singh and Shri Sheo Ram E.P. No. 10/13, Pawan Kumar Verma & ors vs Surender Mohan & anr.13 are not in the physical possession of a single sq. yard of land in Khasra No. 1071 as well ''.
26. Besides, the respondents have not filed any photographs of the aforesaid property khasra No. 1071 to bring home the point that the said property is vacant and can be used as suitable alternative for setting up the business of water dispenser. Merely mentioning of alternative properties available with the petitioner cannot be said to advance the cause of the tenant. The tenant has to place material on record to establish the commercial viability of the said alternative place for setting up the business establishment. Thus, it is concluded that the respondents have failed to establish that any alternative suitable accommodation is available with the petitioner for setting up the business of water dispenser.
27. Further in Gulshan Rai Monga Vs Sanjay Malhotra and Ors. 226(2016) DLT 611, para 17 is relevant which is reproduced as below: ''In Prativa Devi (Smt) v. T.V. Krishnan, (1996)5 SCC 353 on an observation of the High Court that the landlady therein being aged 70 years and as there was no one to look after her therefore she should continue to live as a guest with a family friend, the Supreme Court noted that the landlord is the best Judge of his residential requirement and he has complete freedom in the matter. 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.
In Ragavendra Kumar v. Firm Prem Machinery and Co., 1(2000)SLT 211AIR 2000 SC 534,the supreme E.P. No. 10/13, Pawan Kumar Verma & ors vs Surender Mohan & anr.14 Court repelling the contention that even if in evidence the plaintiff/landlord states that he has number of other shops and houses belonging to him but in a categorical statement being made that the said house and shops were not vacant and were not suitable and the suit premises was suitable for his business purpose, the Courts will not interfere because the landlord is the best Judge of his requirement for residential or business purpose and he has got complete freedom in the matter.''
28. Ld counsel for respondents have also argued that the father of respondents had paid a sum of Rs. Ten lacs to Sh. Ram Saran as security deposit and had also spent Rs. Twelve lacs towards repair/ renovation from time to time and it was agreed that the said amount shall form part of consideration for the tenancy of the said premises which shall be refundable by the landlord to the tenants upon willfully vacating the same. Ld counsel has further argued that in para 13 of leave to defend application, the above submissions have already been made. Petitioner on the other hand has vehemently denied all these submissions stating that the respondents have not filed any evidence in support of giving a sum of Rs. Ten lacs as consideration for the tenancy and also spending Rs. Twelve lacs towards repair/ renovation of tenanted premises. I am in respectful agreement with the submissions made on behalf of petitioner that in the absence of any documentary evidence to this effect, these issues can not be taken to be triable issues so as to accord opportunity to the respondents by allowing leave to defend application.
E.P. No. 10/13, Pawan Kumar Verma & ors vs Surender Mohan & anr.15
29. Further more the judgments relied upon by Ld counsel for the respondent are factual based judgments and in none of the judgments cited, the facts are similar to the one which are involved in the instant petition. While deciding application for leave to defend, it has to be seen whether respondent has been able to raise any triable issue so as to entitle him grant of leave to defend and to accord him an opportunity to substantiate the triable issues raised by adducing evidence. But it is also a settled law that in case, the issues raised in the leave to defend application are totally sham and moonshine, the application deserves to be discarded without protracting the case any further.
30. In the backdrop of above discussion, it is held that the respondent has failed to raise any triable issue so as to grant the indulgence of this Court by allowing the leave to defend application.Thus, the leave to defend application stands dismissed.
31. The instant petition under clause (e) of the proviso to section 14 (1) of the Act filed by the petitioner stands allowed. Tenant/respondent is directed to vacate the tenanted premises i.e. property No. CB 384/1( previously known CB44/4 and 44/5), near Indira Market, out of Khasra No. 1066, Naraina Vihar, New Delhi, within six months from the date of this order.
E.P. No. 10/13, Pawan Kumar Verma & ors vs Surender Mohan & anr.16
32. File be consigned to record room after due diligence.
Announced in open Court on 27.08.2016.
(Navjeet Budhiraja) ACJ/CC/ARC (SW)ND E.P. No. 10/13, Pawan Kumar Verma & ors vs Surender Mohan & anr.17