Delhi District Court
Esvinder Singh vs Sh. Suresh Kumar on 23 February, 2013
//1//
IN THE COURT OF SH. PRITAM SINGH, ARC (CENTRAL) TIS HAZARI
COURTS, DELHI.
E-99/11
23.02.2013
1. Esvinder Singh
s/o Late Sh. Ajit Singh
r/o A-34, Nanda Marg,
Adarsh Nagar, Delhi-33.
2. Sh. M.K.Baweja
s/o Sh. Chaman Lal Baweja
r/o 1/220, Janakpuri, New Delhi. ...Petitioners
VERSUS
Sh. Suresh Kumar
Proprietor of :
M/s Pradeep Automobiles
1584/31, Abdul Rehman Road,
Nai Wala, Karol Bagh, New Delhi-05. ...Respondent
Petition u/s 14 (1) (e) r/w section 25-B of Delhi Rent Control Act
1. Date of institution of the case : 29.01.2011
2. Date of order reserved : 13.02.2013
3. Date of order pronounced : 23.02.2013
ORDER
By this order, I shall dispose of the application u/s 25-B (4) of DRC Act filed by the respondent. The present petition was filed by the petitioners u/s 14 (1) (e) r/w section 25-B of DRC Act on the ground of bonafide requirements. The brief facts as stated in the petition are that predecessor-in- interest of the petitioners namely Sh. Kasturi Lal Puri being the owner of house no. 1584/31, Abdul Rehman Road, Nai Wala, Karol Bagh, New Delhi-05 had let out a shop admeasuring 14.36 sq. yards (9'3" x 13'9" approx.) to the respondent at a monthly rent of Rs. 80/- in October, 1981. However, the description of the premises in the said rent agreement was given as shop in E-99/11 Esvinder Singh & Anr. Vs. Suresh Kumar Page 1 of 14 //2// premises bearing municipal no. 1583. It is further stated that the then owner Sh. Kasturi Lal Puri upon having purchased and occupied the property bearing no. 1584/31, Abdul Rehman Road, Nai Wala, Karol Bagh, New Delhi-110005 was intimated by House Tax Department of Municipal Corporation of Delhi that the number of his property was as house no. 1583/31, Abdul Rehman Road, Nai Wala, Karol Bagh, New Delhi-110005. It is further stated that when the erstwhile owner/landlord inducted M/s Pradeep Automobile as tenant in the suit property the description of property was given as 1583/31, Abdul Rehman Road, Nai Wala, Karol Bagh, New Delhi-110005. However, thereafter the then owner Sh. Kasturi Lal Puri received another House Tax Bill showing that the property bearing no. 1583/31, Addul Rehman Road, Nai Wala, Karol Bagh, New Delhi-110005 belonged to one Gurdayal Singh. The then owner Sh. Kasturi Lal Puri made inquiries from the house tax department and it was revealed to him that he is the owner of the property bearing no. 1584/31, Abdul Rehman Road, Nai Wala, Karol Bagh, New Delhi-110005 while property bearing no. 1583/31, Abdul Rehman Road, Nai Wala, Karol Bagh, New Delhi-110005 belonged to Sh. Gurdayal Singh. Accordingly, the predecessor-in-interest of the petitioners, called upon the then tenant i.e M/s Pradeep Automobiles i.e partnership firm to pay the rent with description of suit property being part and parcel of property no. 1584/31, Abdul Rehman Road, Nai Wala, Karol Bagh, New Delhi-110005. It is further stated that when the partners of M/s Pradeep Automobiles refused to pay the rent with description of property being part of property no. 1584/31, thereafter the predecessor in interest of the petitioners served a legal notice upon the partnership firm for payment of outstanding rent. However, the partners of M/s Pradeep Automobiles sent a reply to the said legal notice contending that E-99/11 Esvinder Singh & Anr. Vs. Suresh Kumar Page 2 of 14 //3// they would not pay the rent of any portion.
2. It is further stated that the predecessor in interest filed a civil suit bearing no. 2025/1985 for recovery of Rs. 560/- as arrears of rent in respect of shop in question, pleading that the municipal number of suit premises is 1584/31 Abdul Rahma Road, Nai Walan, Karol Bagh, New Delhi against M/s Pradeep Automobiles, partnership firm and the said suit was decreed in favour of Sh. Kasturi Lal Puri, predecessor-in-interest of the petitioners by the court of Sh. S.K.Aggarwal, the then Civil Judge, Delhi on 15.03.1996. It is further stated that M/s Pradeep Automobiles challenged the said judgment. During the pendency of the said appeal, Sh. Kasturi Lal Puri expired leaving behind 12 legal heirs, who were accordingly brought on record by impleading them as parties. The petitioners filed the application u/o 1 rule 10 r/w section 151 CPC claiming that they be impleaded as respondent in the array of parties since they have purchased the shares of Lrs of Sh. Kasturi Lal Puri in property bearing no. 1584, 1606, 1607 in Khasra No. 926, Block-E, Gali No. 31, admeasuring 122 sq. yards situated at Nai Wala, Karol Bagh, New Delhi. The appeal of M/s Pradeep Automobiles was dismissed by Sh. Daya Prakash, Ld. ADJ, Delhi vide judgment dated 08.01.2007 and the application filed on behalf of the petitioners was allowed on 05.07.2006. It is further stated that the need to enter upon rectification deed had arisen when it was found that in the agreement to sell the description of the property was pertaining to house no. 16/1606 whereas the entire land admeasuring 122 sq. yards which was purchased by the petitioners constituted of plot bearing no. 1584, 1606 and 1607. Accordingly, the said agreement to sell were rectified vide rectification deed dated 14.10.2003 with respect to description of property as property bearing no. 1584, 1606, 1607 in Khasra No. 926, E-99/11 Esvinder Singh & Anr. Vs. Suresh Kumar Page 3 of 14 //4// Block-E, Gali No. 31, admeasuring 122 sq. yards situated at Nai Wala, Karol Bagh, New Delhi. The property has also been mutated in the house tax records of Municipal Corporation of Delhi in favour of the petitioners. After the judgment dated 08.01.2007 wherein M/s Pradeep Automobiles was held to be the tenant of property no. 1584/31, Abdul Rehman Road, Nai Wala, Karol Bagh, New Delhi-110005, the respondent filed a civil suit seeking a declaration to the effect that he be declared as a tenant of property no. 1583/31 under the Lrs of Late Sh. Kasturi Lal Puri. The respondent filed the said suit claiming that upon the dissolution of the partnership firm M/s Pradeep Automobiles, he has become the sole proprietor of M/s Pradeep Automobiles. The Lrs of Late Sh. Kasturi Lal Puri upon receiving the notice of the said suit from the court of Ms. Sugandha Goel, the then Civil Judge, forwarded the same to the petitioners. The petitioners once again filed the application u/o 1 rule 10 r/w section 151 CPC to be impleaded as parties in the said suit since they have become the owner-landlord of the suit property. The said application was duly allowed in favour of the petitioners.
3. It is further stated that from the above facts and circumstances, it is clear that the respondent is tenant in a shop which is a part and parcel of property bearing no. 1584/31, Abdul Rehman Road, Nai Wala, Karol Bagh, New Delhi-05 and the respondent is tenant under the petitioners since all Lrs of late Kasturi Lal Puri have sold their respective share to the petitioners except Sh. Kailash Chand Puri who is in occupation of his share in the property bearing no. 1584/31, Abdul Rehman Road, Nai Wala, Karol Bagh, New Delhi-110005. It is further stated that upon purchase of the property, the petitioners had reconstructed the property with minor additions and alterations to make it suitable for the purpose for which they had acquired the property. It E-99/11 Esvinder Singh & Anr. Vs. Suresh Kumar Page 4 of 14 //5// is further stated that over the period of time, the petitioner's business has flourished and the petitioners have considerably grown in their commercial venture. It is stated that where the gross sales in year ending on 31.03.2003 was Rs. 9,575,176/- the sales of the petitioners in the commercial venture has grown to Rs. 23,775,352/- and whereas the petitioners held the stock of Rs. 1,309,319/- in financial year ending on 31.03.2003 the petitioners held the stock of Rs. 2,661,463.68/- in year ending on 31.03.2009. It is further stated that due to expansion of the business, the petitioners require an additional space for carrying out their day to day business activities. Therefore, the petitioners, in view of their expanding business require the additional space and no alternate space is suitable for the petitioners expanding business except the suit property which is in possession of the respondent and if the petitioners look for the equivalent alternative space in the adjoining area, the petitioners shall have to shell out heavy rentals or purchase the property at a sky rocketing price. It is prayed that an eviction order in respect of the suit premises may kindly be passed in favour of the petitioners and against the respondent.
4. Leave to defend application alongwith affidavit was filed on behalf of the respondent wherein it is stated that the petitioners have no locus standi to file the present suit because they are not declared as landlord of the properties in question and even are not owners of the property and the suit for declaration and injunction for declaring the aforesaid property is pending in the civil court which have a competent jurisdiction to decide the title of the property, whether the petitioners having any right, title or interest in the tenanted shop of the respondent of property no. 1583/31, therefore, there is no relationship of landlord and tenant between the parties. It is further stated E-99/11 Esvinder Singh & Anr. Vs. Suresh Kumar Page 5 of 14 //6// that the premises in question are situated within the permissible commercial area according to building Bye-laws/MPD 2010 and as such, the need of the petitioners is malafide. It is further stated that as the petitioners were the tenants of the adjoining shop of the respondent and they have been claiming themselves to have entered into an agreement to purchase the said property from the Lrs of owner of property without declaring the property no. 1583/31 which is in occupation of the respondent. As per the documents, only sale agreement was executed by the Lrs of the LR of the owner and as per the said agreement the aforesaid property is stated to have been purchased by the petitioners from the original owner in a meager price because they knowing well that the entire properties is in occupation of the tenants. It is further stated that after entering with an agreement acquired the rear portion of the entire property i.e 1583 and 1584/31 as well as other adjoining properties in the year 1995 from one S.Sohan Singh Ji and also acquired adjoining shop in the year 1998 from the other tenant Sh. Topan Dass and further acquired the adjoining shop in the year 2001 from one Sh. Parmeshwar Dass and the entire roof of the aforesaid properties are in occupation and use of the petitioners. It is further stated that the petitioners have sufficient accommodation for their business and besides this, the petitioners have also having the joint property at 18, Rajasthani Udyog Nagar, C-7, Karnal Road, Delhi which is constructed on about 14,000 sq. yards of land. Besides the aforesaid property, the petitioners are having property no. 1617, Bank Street, Karol Bagh, New Delhi, A-41, Moti Lal Road, Manda Road, Adarsh Nagar, Delhi-33, 31/1606, Abdul Rehman Road, Karol Bagh, New Delhi-110005, Property in gali no. 20, Nai Wala, Karol Bagh, New Delhi. It is further stated that as the petitioners besides the business of spare parts are E-99/11 Esvinder Singh & Anr. Vs. Suresh Kumar Page 6 of 14 //7// also having the business of builder/collaborators and after purchasing the property in a throw away price, he used to raise the multi storey construction and sell it a very high rates. It is further stated that the petitioners, besides the other properties, also have other shops in the property in question, which have been got vacated from the other tenants on the same grounds. It is further stated that the site plan filed by the petitioners is not correct and the same is not as per the site. Even the site plan showing the room and kitchen are being used for commercial properties. All other averments made in the petition were denied.
5. Reply to the leave to defend application filed on behalf of the petitioners wherein it is denied that the suit for declaration and injunction qua the ownership is pending in civil court of competent jurisdiction. It is wrong and denied that there is no relationship of landlord and tenant between the parties. It is further stated that the suit premises under the tenancy of respondent is part and parcel of property bearing no. 1584/31, Abdul Rahman Road, Nai Walan New Delhi and it was already decided by Sh. S.K Aggarwal, the then Ld. Civil Judge vide judgment dated 15.03.1996 in Civil Suit no. 2025/1985. It is further stated that the appeal of the respondent was also dismissed vide judgment dated 08.01.2007. It is further stated that Sh. S. Sohan Singh and Sh. Parmeshwar Dass were occupants of the property purchased by the petitioners which was vacated by the said persons befor the registered agreement to sale had been entered between the LRs of original landlords and petitioners on 10.04.2003. The petitioners acting on behalf of the original landlord with whom they had oral agreement to sale, had got vacated the said property since it was an understanding between the original owner/landlord and the petitioners that the petitioners would finally purchase E-99/11 Esvinder Singh & Anr. Vs. Suresh Kumar Page 7 of 14 //8// the entire property upon having been vacated by the tenants. It is denied that the petitioner are owners of property no. 18, Rajasthani Udhyog Nagar, or C-7, Karnal Road, Delhi. The property no. 18, Rajasthani Udhyog Nagar belongs to M/s leen and Associates and falls in the industrial area and is being used for the manufacturing activity by a tenant M/s Swiz Auto Products, a proprietorship concern with which none of the petitioners have any concern. It is further stated that property no. 1617, BankStreet, Karol bagh does not belongs to any of the petitioners nor it under the use and occupation of the petitioner. The property no. A-41. Moti Lal Road, Nanda Marg, Adharsh Nagar is a residential property of petitioner no.1 and is being used for residential purposes. The property no. 31/1606 Abdul Rahman Road, Karol Bagh belongs to the petitioners and in self use and occupation of the petitioners from where they are running the commercial activity in the name and style of M/s Seaman Enterprises. The property in gali no.20., Nai walan Karol bagh belongs to S.N Promoters Pvt Ltd in which petitioner no.1 only was one of the directors but said property was already sold in the year 2008.It is further stated that the other properties of the petitioners do not meet the need of the petitioners as set out by the petitioners in the present petition and the respondent has not disclosed as to how other property are suitable to the petitioners. It is denied that the site plan filed by the petitioners are incorrect. All other averments made in leave to defend application denied.
6. Rejoinder to the reply of leave to defend application filed on behalf of the respondent. The averments made in the leave to defend application were reaffirmed and reiterated. The averments made in reply of leave to defend application were denied and controverted.
E-99/11 Esvinder Singh & Anr. Vs. Suresh Kumar Page 8 of 14//9//
7. Argument heard from both the sides. Record perused and considered.
Ld. Counsel for the petitioner relied upon following rulings:-
i) Royal Nepal Airlines Corporation Vs. Shrishti Properties Pvt. Ltd. 2011 (126) DRJ 483
ii) Metro Builders (Orissa ) Pvt. Ltd. Vs. Indian Oil Corporation Ltd. Ors 2011 (126) DRJ 495
iii) Viran Wali Vs. Kuldeep Rai Kochhar 2010 (120) DRJ 299
iv) Surinder Sigh Vs. Jasbir Singh 172 (2010) DLT 611
v) Rajender Kumar Sharma Vs. Leela Wati & Ors 155 (2008) DLT 383 Ld. Counsel for the petitioner relied upon following rulings:-
i) Kishore & Anr Vs. Prabodh Kumar & Ors 2012 (132) DRJ 562
ii) Sukh Dev Raj Sharma Vs. Kuljeet Singh Jass 2012 (132) DRJ 632
iii) Hindustan Zinc Ltd. Vs. Lt. Col. Satya Pal Wadhwa & Anr 194 (2012) DLT 244
iv) Vinod Ahuja Vs. Anil Bajaj & Anr 194 (2012) DLT 203
v) Bhauri Devi (deceased) through Lrs Vs. Mahender Kumar 146 (2008) DLT 117
8. The present petition has been filed U/s 14 (1) (e) r/w Section 25- B of DRC Act and in order to succeed in such petition, petitioner has to prove
(i) Ownership of the suit premises; (ii) Purpose of letting; (iii) Alternative accommodation; (iv) bonafide requirement;. Let the same be discussed in detail.
OWNERSHIP AND PURPOSE OF LETTING E-99/11 Esvinder Singh & Anr. Vs. Suresh Kumar Page 9 of 14 //10//
9. The respondent contended that he was a tenant in respect of a shop which was part of property no. 1583/31, Abdul Rahma Road, Nai Walan, Karol Bagh, New Delhi and not in property no. 1584/31 Abdul Rahma Road, Nai Walan, Karol Bagh, New Delhi. It is further contended that petitioners are neither owner nor landlord qua the shop in possession of the respondent. The respondent has filed a civil suit for declaration to the effect that he be declared as tenant in the shop in question which is part of 1583/31 Abdul Rahma Road, Nai Walan, Karol Bagh, New Delhi. On the other hand, the petitioners stated that earlier Sh. Kasturi Lal Puri was the owner of 1584/31 Abdul Rahma Road, Nai Walan, Karol Bagh, New Delhi and he let out the shop in question which is part of above said property to the respondent at monthly rent of Rs. 80/- in October, 1981. Sh. Kasturi Lal Puri was intimated by the House Tax Department of Municipal Corporation of Delhi that the number of his property was 1583/31 Abdul Rahma Road, Nai Walan, Karol Bagh, New Delhi. However, later on Sh. Kasturi Lal Puri received another house tax bill showing the property no. 1583/31 Abdul Rahma Road, Nai Walan, Karol Bagh, New Delhi belonged to Sh. Guru Dayal Singh. On inquiry from the House Tax Department the respondent came to know that the property owned by him was bearing no. 1584/31 Abdul Rahma Road, Nai Walan, Karol Bagh, New Delhi. It is further stated that Sh. Kasturi Lal Puri asked M/s Pradeep Automobiles, partnership firm, who was tenant in the shop in question to pay the rent with description of the property being part of property no. 1584/31 but partners of M/s Pradeep Automobile refused. On this civil suit for revocery of rent in respect of shop in question stating that it is a part of property no. 1584/31 was filed by Sh. Kasturi Lal Puri against M/s Pradeep Automobiles and finally the said civil suit was decreed by Sh. S.K E-99/11 Esvinder Singh & Anr. Vs. Suresh Kumar Page 10 of 14 //11// Agarwal, the then Civil Judge, Delhi, on 15.03.1996. M/s Pradeep Automobiles challenged the said judgment in appeal but their appeal was dismissed.
10. It is not in dispute that the court of Civil Juge vide its order dated 15.03.1996 had held that M/sPradeep Automobiles was tenant in the shop in question which was part of property no. 1584/31 Abdul Rahma Road, Nai Walan, Karol Bagh, New Delhi. It is also not in dispute that the appeal filed by the M/s Pradeep Automobiles against the said judgment of Civil court was dismissed by the appellate court vide order dated 08.01.2007. The petitioners have filed the copy of all the judgments. Both the petitioners were also impleaded as necessary party in the above said appeal on moving their application U/o 1 rule 10 CPC. Therefore, the contention of the respondent that the shop in question is a part of property no. 1583/31 Abdul Rahma Road, Nai Walan, Karol Bagh, New Delhi is devoid of any merit and is liable to be rejected. The petitioners have purchased the entire property bearing no. 1584/31 Abdul Rahma Road, Nai Walan, Karol Bagh, New Delhi except 10 % of it from the legal heirs of Late Sh. Kasturi Lal Puri vide registered agreement to sale. The petitioners have also been mutated in the MCD record for the purpose of paying house tax etc. No one else is demanding rent from the respondent except the petitioners. The respondent is also not paying any rent to any other person. In these circumstances, it is established that petitioners are landlord qua the shop in question and as respondent is a tenant in it therefore, there is relationship of landlord and tenant between the parties. It is held in Rajender Kumar Sharma & Ors Vs. Leela Wati & Ors 155 (2008) DLT 383, " that landlord is not supposed to prove absolute ownership as required under Transfer of Property Act. He is required to show only that he E-99/11 Esvinder Singh & Anr. Vs. Suresh Kumar Page 11 of 14 //12// is more than tenant." It is held in Shanti Sharma Vs. Ved Prabha, AIR 1987 SC 2028, "that for the purpose of Section 14 (1) (e) of the Act, ownership is not to be understood as absolute ownership but only as a title better than the tenant. So what has to be seen is whether on the basis of aforesaid facts it can be said that the petitioner has any title to the property, a title better than the respondents. So far as the purpose of letting is concerned after, the judgment of Hon'ble Supreme Court in Satyawati Vs. Union of India III (2008) SLT 553, an eviction petition is maintainable on the ground of bona fide requirement in respect of the property which was let out for commercial purposes. Hence, both the ingredients are decided in favour of the petitioner and against the respondent.
ALTERNATIVE ACCOMMODATION AND BONA FIDE REQUIREMENTS.
11. The respondent further contended that the petitioners acquired the rear portion of property no. 1583 and 1584/31 Abdul Rahma Road, Nai Walan, Karol Bagh, New Delhi as well as other adjoining properties in the year 1995 from Sh. S.Sohan Singh, and also acquired adjoining shop from other tenant sh. Topan Dass in the year 1998 and further acquired a shop in the year 2001 from Sh. Parmashwar Dass. The respondent further contended that the petitioners are owner of property no. 18, Rajasthani Udyog Nagar, C-7, Karnal Road, Delhi and various other properties as stated above in the leave to defend application of the respondent. The petitioners have denied that they are owner of the property no. 18, Rajasthani Udyog Nagar, C-7, Karnal Road, Delhi and various other properties except the property no. A-41, Moti Lal Road, Nanda Marg which is owned by the petitioner no.1 only but it is a E-99/11 Esvinder Singh & Anr. Vs. Suresh Kumar Page 12 of 14 //13// residential property and is being used for residential purposes. The petitioners have also admitted that property no. 31/1606, Abdul Rahma Road, Nai Walan, Karol Bagh, New Delhi is in self use and occupation of the petitioners from where they are running commercial activities in the name and style of M/s Seaman Enterprises. The petitioners have also not disputed that Sh. S.Sohan Singh and Sh. Parmeshwar Dass were occupants of the property purchased by the petitioners which was got vacated from the said occupants by the petitioners. It is also not in dispute that petitioners were also tenant in a portion of property no. 1584/31 Abdul Rahma Road, Nai Walan, Karol Bagh, New Delhi before purchase of said property by them and still in their occupation. The petitioners have shown three shops in front portion in their site plan and two rooms and a kitchen, bath and WC in the adjacent back portion. Only one shop i.e shown in red colour is in occupation of the respondent and all other portions are in possession of the petitioners. The respondent have also disputed that there is any kitchen or bath room on the ground floor portion and the two rooms are not used for residential purpose. The petitioners have stated that their business has been increasing and the accommodation already available with them is not sufficient to meet their requirement and they need the shop in question to expand their business. I am of the considered view that it is a triable issue whether the accommodation available with the petitioners is insufficient and they need the suit premises for the expansion of their business. It is held in Inderjeet Kaur Vs. Nirpal Sigh, CA No.7385/2000, decided on 15.12.2000 that where the landlord needs the tenanted premises for the expansion of his business then the leave to defend should ordinarily be granted. It is held in Santosh Devi Soni Vs. Chand Kiran, 2000 (2) RCJ 576 (SC) that in case of requirement of E-99/11 Esvinder Singh & Anr. Vs. Suresh Kumar Page 13 of 14 //14// tenanted premises as additional accommodation, the tenant is ordinarily to be granted leave to defend.
12. In view of the above discussions and relying upon the above said rulings, I am of the considered view that the respondent has succeeded to raise triable issues regarding the alternative accommodation available with the petitioners as well as bona fide requirement of the petitioners. The rulings relied upon by the Ld. Counsel for the petitioners regarding the alternative accommodation and bona fide requirement are not applicable, at this stage, to the facts of present case as respondent has raised triable issues which would dis-entitle the petitioners to get eviction of the respondent from the suit premises if proved. Accordingly the leave to defend application filed by the respondent is allowed.
(Announced in the open court on 23.02.2013) (Pritam Singh) ARC/Central/Delhi Tis Hazari Court E-99/11 Esvinder Singh & Anr. Vs. Suresh Kumar Page 14 of 14 //15// E-99/11 23.02.2013 Present: None.
Vide a separate order dated 23.02.2013 leave to defend application filed by the respondent is allowed.
Respondent is directed to file WS within 30 days from today. Put up for WS on 30.04.2013.
(Pritam Singh) ARC/Central/23.02.2013 E-99/11 Esvinder Singh & Anr. Vs. Suresh Kumar Page 15 of 14