Delhi District Court
Courts vs M/S Banarsi Das Bhalla & Sons on 8 March, 2011
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IN THE COURT OF SH. PRITAM SINGH, ARC (CENTRAL) TIS HAZARI
COURTS, DELHI.
E415/09
08.03.2011
Jagmohan Jain
S/o Late Sh. Jaggo Mal Jain,
R/o 3013, Masjid Khajoor,
Kinari Bazaar Chandani Chowk,
Delhi110002.
...Petitioner
VERSUS
M/s Banarsi Das Bhalla & Sons
through its proprietor,
Sh. Vijay Bhalla
At : 2891, Kucha Neelkanth,
Darya Ganj, Delhi110002.
...Respondent
Petition U/s 14 (1) (e) r/w section 25B of Delhi Rent Control Act.
1. Date of institution of the case : 27.04.2009
2. Date of Judgment Reserved : 28.02.2011
3. Date of Judgment pronounced : 08.03.2011
JUDGMENT
Vide this order I shall dispose of an application u/s 25B (4) of DRC Act for leave to defend filed by the respondent. The brief facts as stated in the petition are that the respondent is a tenant under the petitioner in respect of one shop situated at the front side of the premises bearing no. 2891, //2// Kucha Neelkanth, Darya Ganj, Delhi110002 @ Rs. 300/ per month excluding other charges. The petitioner has purchased the premises in question vide registered sale deed dated 08.04.1992 and has become the owner of the suit premises. Thereafter he is receiving the rent from the respondent against the receipt. The petitioner is living at the 3013, Masjid Khajoor, Kinari Bazaar, Chandani Chowk, Delhi having total area of about 100 sq. yards alongwith his family being a joint Hindu family ancestral property and the said property is also acquired by the five brothers and their respective family. The petitioner, apart from residing, is also running his business of jewellers from this premises and from this premises his other brothers are also running their respective business.
2. It is further stated that the petitioner is running his business from one small room of the said premises and now his son Sh. Nitin Jain aged about 31 years is also grown up and needs some space for running his business. The petitioner and his son are facing great difficulties due to paucity of accommodation mainly for storing of valuable goods, sitting & carrying on the business, getting the work done through the workers, entertaining the customers and keeping the records & accounts of the business. The petitoner has no other accommodation for running of their business and for this purpose the petitioner has filed an another eviction suit against the //3// tenant Sh. Sat Dev Saini.
3. Leave to defend application alonwith affidavits filed by the sons and daughter of Late Sh. Banarsi Dass wherein they have stated that after the death of their father, namely Sh. Banarsi Dass Bhalla, the tenancy rights have devolved upon his wife Smt. Pushapa Rani (mother of the respondents) and on them. It is further stated that they are doing the work of sale and service of gas stove, pressure cooker and other household appliances in the tenanted premises since very beginning of the tenancy.
4. The premises in question comprising of a shop with toilet and bath and was let out by the petitioner to M/s banarsi Dass & Sons in the month of January 1998 for the purposes of carrying commercial activities in the shop and also to use the premises for residential purposes. It is further statd that at the time of letting out the premises the petitioner had taken a sum of Rs. 3,65,000/ from them as refundable security but no receipt was issued by the petitioner despite request. It is further stated that their father Sh. Banarsi Dass was carrying on aforesaid business with them in the tenanted premises in his life time and after his death on 09.02.2009, they are carrying on the same business.
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5. It is further stated that the property was purchased by the petitioner for earning premium from the property without having any idea to occupy the same himself and this fact is evident from the past conduct of the petitioner who has sold out the portions of the property time to time. The first and second floor of the property were already sold out by the petitioner in recent past except four shops on the ground floor i.e two shops in front side of the gali and two shops at the backside. The shop adjacent to the shop of the respondents is occupied by some other tenant who has been using the same for storing and washing sugarcane. One backside corner shop is lying closed for a considerable time and it is reliably learnt that the petitioner has already bargained with the tenant of the said shop and also the shop adjacent to the shop of the respondents to get the two shops vacated. As regards remaining two shops, the petitioner has filed eviction petitions in respect of the same i.e the shops in possession of the respondents and one shop at the backside of the respondents occupied by one Sh. Kallu Pump wala. The sole object of the petitioner is to get the entire property vacated and to sell out the same to some builder on handsome amount as the prices of properties in the locality have escalated at higher side.
6. Reply to the application of leave to defend alongwith counter affidavit filed on behalf of petitioner wherein it is stated that all the legal //5// heirs of late Sh. Banarsi Dass Bhalla has been impleaded as respondents in the present case. Only Sh. Vijay Bhalla is carrying the business in the premises in question and all other legal heirs have already surrendered their tenancy rights. It is further stated that no security amount was ever given by Sh. Banarsi Dass Bhalla to the petitioner and hence, the question of issuing the receipt does not arise. It is admitted that the first and second floor has already been sold by the petitioner All other averments made in the leave to defend application were denied.
7. The respondents have filed rejoinder to the reply/counter affidavit of petitioner in which the respondents have reiterated and reaffirmed the averments made in the leave to defend application and those made in the reply had been controverted.
8. Arguments heard from both the Ld. Counsels for the parties. Record perused and considered.
9. Ld. Counsel for the petitioner relied upon the following rulings :
(i) Surinder Singh Vs. Jasbir Singh, 172 (2010) Delhi Law Times 611.
(ii) M/s Sait Nagjee Purushotham & Co. Ltd. Vs. Vimalabai Prabhulal & Ors, 2005 (2) RCR 436.
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(iii) M/s Bajaj Associates & Ors. Vs. Vinod Kumar and Ors., 2008 (2) RCR, 258.
(iv) Rajan Vs. Poil Raghavan, 2009 (1) RCR 429.
10. Ld. Counsel for the respondents relied upon the following rulings :
(i) A.K.K.Nambiar Vs. Union of India and anr., AIR 1970, SC 652 .
(ii) Subal Chandra Kundu Vs. State of West Bengal and others, AIR (39), 1952 Calcutta 255.
(iii) S.P.Chengalvaraya (D) Vs. Jaganath (D), 1994, RLR (SC) 102.
(iv) Prem Sagar Vs. Vijay Kumar, 1996, RLR 469.
11. The present petition has been filed u/s 14 (1 ) (e) r/w section 25B of DRC Act and in order to succeed in such a petition, petitioner has to prove
(i) Ownership of the suit premises ; (ii) Purpose of letting; (iii) Alternative accommodation; and (iv) bonafide requirement;. Let the same be discussed in detail.
Ownership & Purpose of letting
12. There is no dispute regarding the relationship of landlord and tenant between the parties. The respondents have also not disputed the ownership of the petitioner in respect of suit premises. So far the purpose of letting is //7// concerned, after the judgment of Hon'ble Apex Court in Satyawati Sharma Vs. Union Of India III (2008) SLT 553, an eviction petition is maintainable in respect of the commercial purposes also.
13. The respondents contended that earlier Sh. Banarsi Dass Bhalla was tenant in the suit premises and the rent receipt were issued in the name of M/s Banarsi Dass Bhalla & Sons. After death of Sh. Banarsi Dass, all his legal heirs became cotenants but the present petition was not filed against all the cotenants. On the other hand the petitioner stated that only Sh. Vijay Bhalla is carrying his business in the premises in question and all other legal heirs had already surrendered their tenancy rights. It is well settled law that after the death of tenant all his legal heirs become joint tenants only and not cotenants. It was held in Inderpal Khanna Vs. Commander Bhupinder Singh Rekhi, 2008 VIII AD (Delhi) 328 that "It is settled law that on death of tenant, tenancy devolves upon legal heirs as a joint tenancy. LRs are joint tenants and not tenants in common. Where out of many, only one or two LR of deceased tenant are in occupation of premises, an eviction petition by landlord against those who are in occupation of the premises is a valid petition. It is not necessary for landlord to implead all the legal heirs of the deceased tenant or to implead even those who are not in occupation and possession of the premises". Thus it is clear that as the present petition has //8// been filed against M/s Banarsi Dass Bhalla & Sons through its proprietor Vijay Bhalla, is maintainable. The respondents have not denied that Sh. Vijay Bhalla is not the proprietor of M/s Banarsi Dass Bhalla & Sons. The respondents have also not filed any document to show that all the legal heirs of the respondents are in occupation of the shop in question. Hence, the contention of the respondents that the present petition is not maintainable due to non joinder of necessary party has no substance and the same is declined.
Alternative accommodation and bonafide requirement
14. The respondents have contended that the petitioner had purchased the property with a purpose to earn premium and he had no idea to occupy the same. The petitioner has already sold the first and second floor of the property in recent past except the four shops on the ground floor. The respondents further contended that the petitioner has started bargaining with a tenant of shop which is on backside and lying locked for a considerable period and also with the tenant of shop adjacent to the shop of the respondents to get the shops vacated. The respondents have also filed an eviction petition in respect of shop which is at the backside of the respondents's shop. The respondents further contended that the petitioner is having sufficient accommodation for his jewellery work in property //9// no. 3013, Masjid Khajoor, Kinari Bazaar, Delhi. On the other hand the case of the petitioner is that he is a grown up son aged about 31 years and the petitioner needs the shop in question for running the business of his son who works with him. The petitoner needs the shop in question for storing of valuable goods and getting the work done through the workers etc.
15. The respondents have merely denied that the petitioner does not need the suit premises bona fidely. The respondents have not disclosed what alternative accommodation the petitioner is having. According to the respondents themselve, the petitoner has already sold the first and second floor of the suit premises and all the four shops on the ground floor are in occupation of the tenant. The petitioner has also disclosed in the petition that he has filed separate eviction petition against other tenant whose shop is behind the shop in question so that he can have property space for his workers to do their works. The petitioner also needs the premises to open a retail outlet/showroom. It was held in Surender Singh Vs. Jasbir Singh, 172 (2010) DLT that "Eviction of premises for extension of business by landlord and for his son who is dependent upon him for purpose of business is genuine and bona fide".
16. It was held in M/s Bajaj Associates & Ors., Vs. Vinod Kumar and //10// others, 2008 (2) RCR 259 that "Landlords running business of jewellery, watches and shirts, paper and stationery in grounds floor and basement of shop cum office in sector 17, Chandigarh. They wanted to shift paper and stationery business to their SCO in sector 26, as said business required enough space. Held, need of landlords was bona fide. It is not for the tenants to dictate to landlords as to how they have to run or adjust their business". It was held in M/s Sait Negjee Purushotham & Co. Ltd. Vs. Vimalabai Prabhulal & Ors, 2005 (2) RCR 437 that "Landlords doing business at place 'A'. They wanted to expand business at place 'B'. Need of premises at latter place bona fide. It is privilege of the landlord to choose the nature of the business and the place of business. Tenant cannot advise the landlord.
17. Considering all this aspects I am of the considered view that the petitioner bona fidely needs the tenanted premises in question. The respondent has failed to raise any tribal issue. Hence the petitioner is entitled for an eviction order u/s 14 (1) (e) r/w section 25B of DRC Act. The rulings relied upon by the Ld. Counsel of the respondents are not applicable to the facts of the present case.
18. Accordingly, the application seeking leave to defend moved by the //11// respondents is dismissed and an eviction order is passed u/s 14 (1) (e) r/w section 25B of DRC Act in favour of the petitioner and against the respondent in respect of one private shop situated in the front side of property bearing no. 2891, Kucha Neelkanth, Darya Ganj, Delhi110002 more specifically shown in red colour in site plan Ex. C1 (exhibited today while passing the order). However, it is made clear that the petitioners shall not be entitled to get the eviction order executed before expiry of 6 months running from today. No order as to costs.
File be consigned to Record Room.
(Announced in the open court
on 08.03.2011) (Pritam Singh)
ARC/Central/Delhi