Delhi District Court
Smt. Sharda Devi Goyal & Anr. vs . M/S Rameshwar Dass & Ors. on 27 August, 2011
Smt. Sharda Devi Goyal & Anr. Vs. M/s Rameshwar Dass & Ors.
IN THE COURT OF DEVENDRA KR. SHARMA,
ADDL. RENT CONTROLLER, DISTRICT: NORTH. DELHI.
E No. 06/2010
Unique Case ID No: 02401C0028982010
1. SMT. SHARDA DEVI GOYAL
W/o Sh. Gopal Krishan Goyal,
2. SMT. SITA DEVI
W/o Sh. Shiv Prakash,
Both R/o
C-2/9, Ashok Vihar, Phase-II,
Delhi-110052.
Through their Power of Attorney
Sh. Nirmal Kumar Goyal,
S/o Sh. Gopal Krishan Goyal,
R/o C-2/9, Ashok Vihar, Phase-II,
Delhi-110052. ...Petitioners.
Versus
1. M/S RAMESHWAR DASS NAVEEN KUMAR
Through its partner,
Sh. Ram Niwas, Situated at 3996-A,
Naya Bazar, Delhi-110006.
2. SMT. GANGA DEVI
Partner of M/s Rameshwar Dass Naveen Kumar,
C/o M/s Rameshwar Dass Ram Niwas,
Anaj Mandi, Gannaur, Distt. Sonepat, Haryana.
...Respondents.
E no. 06/2010 Page 1/21
Smt. Sharda Devi Goyal & Anr. Vs. M/s Rameshwar Dass & Ors.
Date of institution of the petition : 12/01/2010
Date on which order was reserved : 20/08/2010
Date of Decision : 27/08/2011
ORDER
27.08.2011 Vide this order, I shall dispose of the leave to defend application filed on behalf of respondent U/s 25-B (5) of the Delhi Rent Control Act, 1958 (herein after referred to as D.R.C. Act, 1958) for seeking leave to contest the present eviction petition on merits.
Relevant facts for disposal of the present application are as follows:-
1. That the present petition was filed with the allegations that petitioners are the owners of the major portion of the property bearing no. 3996, Naya Bazar, Delhi-110006 by virtue of a registered Will dated 19/04/1976 executed by the father-in-law of petitioners Shri Vishwanath who was the owner of the property aforesaid vide Sale Deed dated 28/02/1957 and the property has already been mutated in the name of petitioner and out of the said property a portion bearing shop no. 3996-A, Naya Bazar, Delhi-110006 i.e. a part and parcel of the aforesaid property was let out to respondent nos. 1 & 2 and the said portion is shown in red E no. 06/2010 Page 2/21 Smt. Sharda Devi Goyal & Anr. Vs. M/s Rameshwar Dass & Ors.
colour in the site plan attached with the petition (hereinafter referred to as the suit property).
2. It is further alleged that the the present petition has been filed through attorney of the petitioners Shri Nirmal Kumar Goyal vide GPA dated 02/06/2009 who is the son of the petitioner no. 1 and nephew of the petitioner no. 2. Petitioner no. 1 has been suffering with the disease of paralysis and brain Hemorrhage since 1998 and, therefore, he is not able to look after the case and petitioner no. 2 is also suffering from disease of pain in leg because of increase of bone in the leg and otherwise also, Mr. N.K. Goyal is well aware of the facts and circumstances of the present case.
3. It is further alleged that respondent no. 1 is the real tenant and respondent no. 2 is one of the partner and rent receipt is being issued in the name of respondent no. 1 but no rent has been paid since 01/02/2004 and the petitioners require the suit property bonafidely for themselves and their other family members and the family of petitioner no. 1 is consisting of petitioner herself, her husband Mr. Gopal Krishan Goyal, petitioner's son namely N.K. Goyal aged about 36 years, his wife and his two sons aged about 10 years and 09 years, another son of the petitioner no. 1 namely Mukul Goyal who is unmarried aged about 29 years and unmarried E no. 06/2010 Page 3/21 Smt. Sharda Devi Goyal & Anr. Vs. M/s Rameshwar Dass & Ors.
daughter Ms. Meenakshi Goyal aged about 27 years and the family of petitioner no. 2 consists of herself, her husband Shri Shiv Prakash Goyal, her son namely Mr. Deepak Kr. Goyal aged about 34 years, his wife and one son aged about 02 years and daughter aged about 04 years and two married daughters.
4. On the ground floor of the aforesaid property, there are three tenants and one portion is being used by the petitioner's husband for last more than thirty years under the name and style of M/s Gopal Krishan Goyal & Co., partnership firm of petitioner's husband, one shop was let out to respondent no. 1, another shop is under tenancy of Sh. Sunil Kumar Pansari and third shop is under the tenancy of Mr. Vineet Narula and two shops on the ground floor were sold by the petitioner about more than five years back i.e. in the year 2001 & 2003.
5. On the first floor, there are one hall and two rooms, covered balcony and toilet and hall is in use and occupation of M/s Gopal Krishan Goyal & co. and one shop is in the use and occupation of M/s Mangaliwala Steel Tubes (Pvt.) Ltd. and another room is being used by M/s Goyal Industries and and rooms are being used by the said firm for the office purpose only and husband of both the petitioners are operating these firms.
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6. On the second floor, three are two barsati rooms, one kitchen and one bathroom and the same are in use and occupation of M/s Goyal Industries and same are being used for residential purpose of the labour of the said firm who used to stay their day and night and there is no other room upon the terrace floor.
7. It is further alleged that the petitioners are in dire need of commercial space on the ground floor for their sons as they have no independent business in their names and further they are not even Partners or Directors in any other business and sons of the petitioner no. 1 namely Nirmal Kr. Goyal and Mukul Goyal are getting salary of Rs. 8,000/- per month each from M/s Gopal Krishan Goyal & Co. situated at the said property and, thus, they are dependent upon the said salary and son of petitioner no. 2 Mr. Deepak Kr. Goyal is also getting monthly salary of Rs. 8,000/- from M/s Goyal Industries situated at 3995, Naya Bazar, Delhi-06 and Mr. Nirmal Kr. Goyal and Deepak Kr. Goyal are married and are having their own families and they can not bear their expenses with said meager salary, therefore, petitioners want to open for them a separate business to assist for their basic needs and for better future prospect and Mr. Mukul Goyal is also of marriageable age and, thus, requires a separate business place to stand on his own legs.
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8. It is further alleged that the husbands of petitioners are running their business under the name and style of M/s Gopal Krishan Goyal & Co. from the premises no. 3995-3996, Naya Bazar, Delhi-110006 and is in the trade of selling food grains, cereals, wheat etc. and, thus, require more space for storing purpose which are in packaging of 50 kg. Or 25 kg. and the said firm is authorised to to store 2000 quintal of cereals and 500 quintal of wheat but in the space available to them, they can store only 200 quintal of total items/goods on ground floor and one room on first floor is being used for office purpose and the husbands of the petitioners have taken some space also at 10, Rajasthani Udyog Nagar, G.T. Karnal Road, Delhi-33 where they can store only 250 quintal goods and said godown has been reflected in Sales Tax Registration Certificate of M/s Gopal Krishan Goyal & Co. and husband of the petitioners want to expand their business and want to add and transact the business of rice which require further space for storing bags of rice of different qualities, therefore, they also need extra space on the ground floor for the said purpose.
9. It is further alleged that the petitioner are running a firm under the name and style of M/s Goyal Industries and are selling wheat flour and its bye-product etc. and is operating from 10, Rajasthani Udyog Nagar (supra) and office of the said firm is E no. 06/2010 Page 6/21 Smt. Sharda Devi Goyal & Anr. Vs. M/s Rameshwar Dass & Ors.
situated on the first floor of the property in dispute and the said property was also bequeathed by the father in law of the petitioners by registered Will dated 19/04/1976 in favour of the petitioners and the said firm of the petitioners M/s Goyal Industries also requires prime location/commercial space for selling their band name 'Globe' items in open market and the said firm have no available retail space in entire Delhi and all the goods are sold on credit basis and the petitioners have limited capital and in the absence of free flow of money, many problems have occurred in their business which can be sorted out by selling goods/items to the public at large directly and, thus, they require space for the same and thereby children of the petitioners will also get job/work by operating a retailer shop.
10. The petitioners are residing in the property no. C-2/9, Phase-II, Ashok Vihar, Delhi-110052 and the said property belongs to Sh. Gopal Krishan Goyal i.e. the husband of petitioner no. 1 and is being used for residential purpose only by the large number of family members of both the petitioners and, thus, there is no reasonable suitable commercial space available in Delhi and moreover the respondent are not in need of the suit premises as they have already handed over the exclusive and legal possession to M/s Ambika Enterprises and Sh. Gaurav Goel and are settled at outside Delhi and said M/s Ambika Enterprises and Gaurav have E no. 06/2010 Page 7/21 Smt. Sharda Devi Goyal & Anr. Vs. M/s Rameshwar Dass & Ors.
other properties in Delhi.
11. Upon service of summons, respondent filed his leave to defend application along with supporting affidavit of Mr. Avneet Goel alleging and deposing that the deponent is the attorney of respondent no. 2 vide G.P.A dated 06/07/2005 and respondent no. 1 was a partnership concern and respondent no. 2 was one of his promoter partner and this firm was dissolved from 31/03/1997 in terms of Dissolution Deed dated 04/04/1997 and respondent no. 2 became the sole proprietor of the said firm and continued the business and at present respondent no. 1 is a partner with Smt. Veena Goyal and carrying the business under the name and style of M/s Ambika Enterprises in terms of Partnership Deed dated 05/07/2005 in the suit premises and the petition has been filed without any cause of action and the petitioner granted lease of the suit property to the respondent for a period of 30 years commencing from 20/10/1995 which is to be expired on 19/10/2025 in view of registered Lease Agreement and, thus, petitioners have no right to seek eviction of the respondents before expiry of agreed/fixed period of lease on the ground of their requirement and this fact was deliberately concealed and sufficient accommodation is available with the petitioners and their family members on all the floors of the building where suit property is situated besides the property at 10, E no. 06/2010 Page 8/21 Smt. Sharda Devi Goyal & Anr. Vs. M/s Rameshwar Dass & Ors.
Rajasthani Udyog Nagar and there is no bonafide requirement of either the petitioners or their alleged dependent family members and the allegation pertaining to salary and employment of Mr. Nirmal Kr. Goyal and Mukul Kr. Goyal is false but it is these persons who are managing entire business of these firms for their parents and so is the case with Mr. Deepak Kr. Goyal and neither of the family members are dependent upon petitioners rather it is petitioners who are dependent on them and they also sold two shops forming part of the property recently and had there been any requirement much less bonafide requirement, the said shops would not have been sold by the petitioners and a shop on the ground floor had been let out about one year ago on a monthly rent of Rs. 15,000/- to one Mr. Vineet Narula who is running the business under the name and style of M/s Narula Overseas, other shop was let out to one Sh. Sunil Kr. Pansari at a monthly rent of Rs. 13,000/- who is carrying the business under the name and style of M/s Dhanmantri Trading Company and this fact has not been disclosed intentionally and even some of the premises are lying vacant for last many years and the petitioners have been dependent upon the rental income and an earlier suit was filed only with a view to harass the respondents and petitioners themselves are not sure as to who would be requiring premises and for what purpose and there is contradictory statement in respect of the user of the property at 10, E no. 06/2010 Page 9/21 Smt. Sharda Devi Goyal & Anr. Vs. M/s Rameshwar Dass & Ors.
Rajasthani Udyog Nagar and M/s Gopal Krishan Goyal is not authorised to store 2000 quintals of cereals and 500 quintals of wheat and details of the family members are not correct and petitioners are not even owners of the suit property and has no locus standi to file the present petition and the property was let out for commercial purpose, therefore, present petition is not maintainable and there being number of triable issues, leave to defend application may kindly be allowed to contest the present case on merits.
12. Reply to leave to defend application along with counter affidavit of Mr. Nirmal Kr. Goyal was filed denying all the material facts alleged in the leave to defend application as well as supporting affidavit and he has further deposed that the attorney of respondent no. 2 has not disclosed his relation with petitioner no. 2 nor has disclosed as to why respondent no. 2 has executed a Power of Attorney in his favour and M/s Ambika Enterprises has filed certain documents in other court in a Civil Suit bearing no. 515/2009 showing the partnership firm and the present affidavit has been filed with a game plan of sub-tenant though he has no locus standi to file leave to defend application on behalf of respondent no. 2 and respondent no. 2 is an old day of 75 years and is permanently residing at Gannaur, Sonepat (Haryana) and intentionally E no. 06/2010 Page 10/21 Smt. Sharda Devi Goyal & Anr. Vs. M/s Rameshwar Dass & Ors.
partnership deed dated 05/07/2005 has been concealed and there was no dissolution of the earlier partnership firm namely M/s Rameshwar Dass Naveen Kumar nor any bank statement of the said firm M/s Ambika Enterprises, statement of account, profit & Loss Account, Ledger etc. has been filed to show about the share of Smt. Ganga Devi and no leave to application can not be filed by the attorney which is against provision of Rule 7 of the Delhi Rent Control Rules, 1959.
13. It is further deposed that in the said Lease Deed executed on 20/10/1995 there were certain clauses and, terms and conditions were violated as it was agreed that the tenant will pay the rent @ Rs. 1,000/- during this period and would not sublet assign or part with the possession and will not make any additions or alteration but these terms have been violated and no rent has been paid since 01/06/2006 and even respondent no. 1 has sublet the suit premises and since there was unauthorised construction on behalf of sublettee, therefore, the property was sealed by the MCD and the provision under D.R.C. Act will over ride the provision of Registration Act and, therefore, the registered Lease Deed is no bar to file the present petition and even the children of the petitioner are studying and now the circumstances have been changed during for last 14-15 years and so far as letting to different persons is E no. 06/2010 Page 11/21 Smt. Sharda Devi Goyal & Anr. Vs. M/s Rameshwar Dass & Ors.
concerned, that is a matter of record and since the said portion was in back portion of the property in the service lane/gali and was cut off from the main portion by a partition wall of bricks and also could not be used for storage of the goods being in service lane/gali and the suit premises is on the front side and suitable for storage of goods with easy access and said shop is situated at lessor side and suit premises is on larger side and no portion is lying vacant in the said premises.
14. It is further deposed that the pendency of the earlier suit in the Court of Ld. Senior Civil Judge has no bearing with the present proceedings and there is no contrary avernment in the pleadings and some part of the premises at 10, Rajastahni Udyog Nagar is being used for running the flour mills and some part for storing goods and the respondent can not challenge the title of the petitioners and there being no triable issue leave to defend application may kindly be dismissed and eviction order may kindly be passed.
15. Rejoinder to the reply alongwith the supporting affidavit of Mr. Avneet Goyal was filed wherein respondent has denied all the material allegations and reiterated moreover the same facts as alleged in the leave to defend application and supporting affidavit E no. 06/2010 Page 12/21 Smt. Sharda Devi Goyal & Anr. Vs. M/s Rameshwar Dass & Ors.
and has further deposed that there is no sub tenancy and there is no violation of any condition of lease deed dated 20/10/1995.
16. I have given my thoughtful consideration to the submissions advanced on behalf of the parties and have perused the record carefully.
17. Petitioner has placed reliance upon the judgment reported in 1994 RLR 556, AIR 1987 (2) 580, AIR 1999 SC 100, 2010 (1) RCR 571, 135 (2006) DLT 265.
18. On the other hand respondent has relied upon the judgment reported in (2001) 7 SCC 409, Order passed by the Hon'ble High Court in Revision no. 126/2011 dated 09/05/2011 in case titled as Laxmidas Bapudas Darbar and Anr. v. Rudravva (Smt.) and Ors., order passed by the Hon'ble High Court in RCR no. 120/2011 dated 11/07/2011 in case titled as Vijay Nayyar vs. Om Prakash Malik, order passed in RCR no. 18/2010 dated 12/07/2011 in case titled as jatinder Singh Nanra vs. Sarita Rani, order passed in CM (M) no. 1164/2009 dated 23/10/2009 passed by the Hon'ble High Court in case titled as Nitin Garg vs. Naresh Kumar and (2001) 1 SCC 255.
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A. The first question for consideration in the present petition is maintainability in view of the ground taken that there was a fixed term tenancy between the parties by registered Lease Deed dated 27/10/1995 for a period of 30 years and in this regard the relevant clauses of the said Lease Deed are referred here in under:-
Clause-6. That the Lessee shall not sublet, assign or part with the possession of the premises to anyone without prior consent of the lessor.
Clause-7. That the Lessee shall not made any addition or alteration in the Lease premises without the written consent of the Lessor.
Clause-8. That the Lessor will not have any right to initiate the eviction proceedings against the Lessee during the terms of this Lease Agreement until and unless the Lessee violated any terms of the Lease Deed.
Thus, from the said Clauses it is clear that the petitioner has right to file an eviction petition only when there is violation of the terms of the Lease Deed as contained in the Lease Deed and thus, now question remains to be decided as to whether there was any violation terms of the Lease Deed and if so whether an eviction petition can be filed against the respondent on the ground mentioned in the Lease Deed before the expiry of the Lease period or even on the grounds which are not mentioned in the Lease Deed.E no. 06/2010 Page 14/21
Smt. Sharda Devi Goyal & Anr. Vs. M/s Rameshwar Dass & Ors.
B. Admittedly, the present petition has been filed on the ground of bonafide requirement and the alleged violation of the terms of the Lease Deed is regarding non payment of rent, subletting and addition/alteration in the suit property. In this regard the petitioner has placed reliance upon the judgment reported in AIR 1980 SC 1756 but, with due respect, the case law relied upon by the petitioner has no application to the facts and circumstances to the present case as the said case was in respect sub tenancy by the tenant without any authorisation on behalf of landlord and while dealing the question the Hon'ble Supreme Court has held that subletting of premises without consent of landlord gives right to she under Lease Deed and eviction petition can be maintained on the ground of subletting and rights U/sec. 108 (j) of T.P.I. Act has no defence.
On the other hand respondent has placed reliance upon the judgment reported in (2001) 7 SCC 409 wherein in the first paragraph, the Hon'ble High Court has observed as under:-
"The question that directly falls for consideration in this appeal is whether or not, a petition under Sec. 21(1) (h) of the Karnataka Rent Control Act, for eviction of a tenant under a contractual fixed-term lease, would be maintainable on the ground of reasonable and bonafide requirement of the landlord. On certain occasions earlier, the question has been considered by this Court as well as High Courts, including Full Benches of the Karnataka High Court but there does not seem to be a cohesion of views."E no. 06/2010 Page 15/21
Smt. Sharda Devi Goyal & Anr. Vs. M/s Rameshwar Dass & Ors.
C. In the said case tenancy was also for the period of 99 years and the eviction petition was filed after giving the notice to the tenant calling upon him to vacate the premises on the ground that Lessee did not pay the rent for the period 01/03/1985 to 31/03/1986 and that the property was also bonafidely required for occupation and respondent/tenant has taken the stand that there is no default in payment and Lessor had no right to terminate the lease in view of 99 years fixed term lease under the agreement and no petition can be filed on the ground of bonafide requirement which was contested by the parties and Ld. Trial Court allowed the petition and passed the eviction order on the ground of bonafide requirement holding that it was not a permanent lease and that the Provision under Karnataka Rent Control Act would be applicable to the lease in question and matter went in revision before the Ld. District Court by the Lessors against the part of the order rejecting their petition under clause (p) of Sec. 21 (1) of the Karnataka Rent Control Act whereas the lessees against the part of the order of evicting them under clause (h) of sub-section (1) of Sec. 21 of the Act and the Ld. District Court had held that it is a lease of permanent nature and, therefore, Provision of the Rent Control Act will not be applicable while the other revision filed on behalf of lessor was dismissed and matter further went in the revision before the Hon'ble High Court wherein Hon'ble High Court has held that the Ld. District Court E no. 06/2010 Page 16/21 Smt. Sharda Devi Goyal & Anr. Vs. M/s Rameshwar Dass & Ors.
wrongly held that the lease was perpetual in nature and further held that the Provision of Karnataka Rent Control Act is applicable, dehors the contract of lease and the lessor has been found to be entitled to move a petition for eviction of the Lessor U/Sec. 21 (1)
(h) of the Act, even before the expiry of fixed term of 99 years and further observed as under:-
" In view of what is stated above, we are clearly of the opinion that the decision of the Full Bench of this Court in Sri Ramakrishna Theatres case is no longer good law in the light of the decision of the Supreme Court in Shri Lakshmi Venkateshwara Enterprises case. Accordingly, we hold that a landlord is entitled to an order of eviction if he satisfies one or other conditions mentioned in Sec. 21 of the Karnataka Rent Control Act notwithstanding the fact that the lease under which the tenant is in possession of the premises is for a term and that it has not expired on the date when the application for eviction is filed."
Hon'ble Supreme Court while dealing the scope of applicability of provision in the aforesaid judgment has observed in para 17 as under:-
" It may have to be scrutinized as to what extent the provisions of Sec. 21 of the Karnataka Rent Act shall have an overriding effect over any other law or a contract. The Rent Acts have primarily been made, if not wholly, to protect the interest of tenants, to restrict charging of excessive rent and their rampant eviction at will. In that view of the matter, Section 21 of the Karnataka Rent Act provides that notwithstanding anything to the contrary E no. 06/2010 Page 17/21 Smt. Sharda Devi Goyal & Anr. Vs. M/s Rameshwar Dass & Ors.
contained in any contract, no order for eviction of a tenant shall be made by the court or any other authority. Undoubtedly, it is a provision providing statutory protection to the tenants as it is also evident from the heading of Sec. 21 of the Act. This prohibition is however relaxed under the proviso saying that an order for recovery of possession of the premises can be made on an order for recovery of possession of the premises can be made on an application made on that behalf only on the grounds as enumerated in clauses (a) to (p) to the proviso. The non obstante clause contained under Sec. 21 of the Act, will override any condition in any contract which may provide a ground for eviction other than those enumerated in clauses (a) to
(p) of sub-section (1) of Sec. 21. Such an additional ground in a contract shall be rendered ineffective. The use of the word 'only' in the proviso is significant to emphasise that it relates to grounds alone which can not be added over and above as provided. The whole contract or other conditions not related to eviction or grounds of eviction shall not be affected. So far as a fixed-term lease is concerned, it shall be affected only to the extent that even after expiry of period of the lease the possession can not be obtained by the lessor unless one or more of the grounds contained in Sec. 21 of the Act are available for eviction of the tenant. There is nothing to indicate nor has it been held in any case that in view of Sec. 21 of the Karnataka Rent Act a contract of fixed-term tenancy stands obliterated in totality. As indicated in the earlier part of this judgment in the case of Dhanapal Chettiar it has been observed in para 5 that none of the State Rent Acts have abrogated or affected the provisions of Sec. 107 of the Transfer of Property Act which provides for lease of immovable property from year to year or for a term more than a year or reserving a yearly rent. As indicated earlier, the provisio to sub-E no. 06/2010 Page 18/21
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section (1) of Sec. 21 of the Karnataka Rent Act limits the grounds on which a landlord can seek eviction of a tenant. Nothing has been indicated by reasons of which it can be concluded that a contract of tenancy loses significance on coming into force of the Karnataka Rent Act. The effect of the non obstante clause, in our view has been rightly explained in the Full Bench decision in the cases of Sri Ramakrishna Theatres Ltd. v. General Investments and Commercial Corpn. Ltd. In one of the decisions of this Court reported in Modern Hotel v. K. Radhakrishnaiah it has been held that period of a subsisting lease for fixed term could not be curtailed in the absence of a forfeiture clause in the lease.
It has been further observed by the Hon'ble Supreme in para 18 as under:-
"The effect of the non obstante clause contained U/sec. 21 of the Karnataka Rent Act on the fixed term contractual lease may be explained as follows:-
(i). On expiry of period of the fixed term lease, the tenant would be liable for eviction only on the grounds as enumerated in clauses (a) to (p) of Sub-Sec. (1) of Sec. 21 of the Act.
(ii). Any ground contained in the agreement of lease other than or in addition to the grounds enumerated in clauses (a) to (p) of Sub-Sec. (1) of Sec. 21 of the Act shall remain inoperative.
(iii). Proceedings for eviction of a tenant under a fixed -term contractual lease can be initiated during subsistence or currency of the lease only on a ground as may be enumerated in clauses (a) to (p) of Sub-Sec. (1) of Sec. 21 of the Act and it is only provided as one of the grounds for E no. 06/2010 Page 19/21 Smt. Sharda Devi Goyal & Anr. Vs. M/s Rameshwar Dass & Ors.
forfeiture of the lease rights in the lease deed, not otherwise.
(iv). The period of fixed term lease is ensured and remains protected except in the cases indicated in the preceeding paragraph."
19. Thus, from the aforesaid discussion, it is clear that an eviction petition under the Rent Control Act can be maintained under a fixed term contrary tenancy on the ground enumerated under the Rent Control Act, if there is forfeiture clause in the Lease Deed and not otherwise and since in the lease agreement between the parties there was forfeiture clause that the tenancy will come to an end in case there is any violation of terms and petitioner has alleged the violation of terms and respondent has denied the same and even if it is assumed that there was violation of terms of lease agreement but in view of clause (iii) in para 18 of judgment relied upon by respondent, it gives right to the petitioner to initiate proceeding for alleged ground of violation and there was no stipulation in the lease agreement between the parties that petitioner will be at liberty to maintain eviction petition on the ground of personal bonafide requirement and therefore, relying upon the said judgment wherein Hon'ble Supreme Court has set aside the eviction order passed on the ground of bonafide requirement, it can be safely held that the respondent has been able to raise the triable issue as well as have been successfully to establish on record even E no. 06/2010 Page 20/21 Smt. Sharda Devi Goyal & Anr. Vs. M/s Rameshwar Dass & Ors.
the present petition is not maintainable.
20. One objection has been taken on behalf of the petitioner that the leave to defend application has not been filed by either of the respondent personally but has been filed through Attorney against the Rules, therefore, leave to defend application filed on behalf of respondent is liable to be rejected. However, there is no such law that the leave to defend application can not be filed by the Attorney and moreover since, it has been held hereinabove that the petition itself is not maintainable, therefore, said issue become infructous.
21. In consequence of the aforesaid discussion the application filed on behalf of respondent for leave to contest the present petition is allowed and since, the present petition itself is held not to be maintainable hence, petition is dismissed. No order as to costs in the circumstances mentioned hereinabove. This order be sent to the server (www.delhidistrictcourts.nic.in).
File be consigned to Record Room.
Announced in open court on 27th August 2011. Devendra Kr. Sharma A.R.C.(North)/Delhi.
(1+2 separate copies are attached).
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E no. 06/2010SMT. SHARDA DEVI GOYAL & ANR. VS. M/S. RAMESHWAR DASS & ORS.
27/08/2011 Present: None.
Vide separate order of even date, the application filed on behalf of respondent for leave to contest the present petition is allowed and since, the present petition itself is held not to be maintainable hence, petition is dismissed. No order as to costs in the circumstances mentioned hereinabove. This order be sent to the server (www.delhidistrictcourts.nic.in).
File be consigned to Record Room.
Devendra Kr. Sharma A. R. C. (North)/Delhi. 27.08.2011 E no. 06/2010 Page 22/21