Delhi District Court
M/S. Jagan Nath Hari Ram (Huf) vs Sh. Arjun Dass on 31 January, 2013
IN THE COURT OF SH. SANJAY BANSAL: SENIOR CIVIL
JUDGECUMRENT CONTROLLER (NORTH) DELHI.
E. No.33/11
Case ID No. : 02401C0252722011
M/s. Jagan Nath Hari Ram (HUF)
Through its Karta & Manager
Sh. Anil Kumar Gupta
191, Katra Nawab Sahib, Chandni Chowk
Delhi 110006
..... Petitioner
Vs.
1. Sh. Arjun Dass
2. Sh. Ved Prakash
3. Sh. Prakash Chand
4. Sh. Chander Prakash
All sons of Late Seth Ram Chand,
All C/o M/s. Thakur Dass Ram Chand
Shop No.4816, Katra Subhash, Chandni Chowk
Delhi - 110006
5. Smt. Sheela Mitra
W/o Late Sh. Hari Chand
6. Smt. Vandana
D/o Late Sh. Hari Chand
Both R/o Giriraj Building, 5th Floor,
Flat No.D, Altamount Road, Mumbai
And also at : Shop No.4816, Katra Subhash
Chandni Chowk, Delhi - 110006
E.No. 33/11 Page 1 of 12
7. Mrs. Rekha @ Mrs. Jagdish Chand (now deceased)
W/o Late Sh. Jagdish Chand
S/o Late Seth Ram Chand
Represented through her daughter
Ms. Archana @ Baby, respondent no.8.
8. Ms. Archana @ Baby
D/o Late Sh. Jagdish Chand
S/o Late Seth Ram Chand
R/o A128, Ashok Vihar, PhaseI
Delhi - 110052
9. Smt. Vimla Devi
D/o Late Seth Ram Chand
R/o K44, Sector12, Pratap Vihar
Ghaziabad, U.P.
10. Smt. Kaushalya Rani
D/o Late Seth Ram Chand
W/o Sh. T.D. Kumar
R/o 1A/11, Model TownI
Delhi - 110001
Also all C/o M/s. Thakur Dass Ram Chand,
Shop No. 4816, Kara Subhash, Chandni Chowk
Delhi 110006
..... Respondents
E.No. 33/11 Page 2 of 12
ORDER
31.01.2013
1. By this order, I shall decide applications of various respondents i.e. respondent no.1 to 4 and 8 to 10/tenants u/s 25B (4) & (5) of Delhi Rent Control Act, 1958 (DRC Act) for grant of leave to contest the eviction petition.
2. The petitioner which is an HUF has filed this petition for eviction of the respondents from tenanted premises i.e. one shop measuring 26 Sq. mtrs. on the ground floor bearing private no. 4 and 5, Shop No.4186 inside Katra Subhash, Chandni Chowk, Delhi6 as shown in red colour in the site plan. Petition has been filed u/s. 14(1)(e) i.e. on ground of bona fide requirement.
3. The case of the petitioner is that the petitioner HUF is the sole and absolute owner of property no.48134823, Ward No.VI, Katra Subhash, Chandni Chowk, Delhi6 except property no. 4818, 4819 and 4820 which have already been sold. The tenanted premises were given on rent originally to Seth Ram Chand and after his death his LRs i.e. all the respondents are in occupation of the same. Monthly rent is Rs.58.43P. It is stated that tenanted premises are required by the petitioner for use and occupation of Sh. Utsav Gupta who is son of Sh. Anil Kumar Gupta. The said Anil Kumar Gupta is one of the coparcener of the petitioner HUF. It is stated that Sh. Utsav Gupta has completed his studies in business management from U.K. and now wants E.No. 33/11 Page 3 of 12 to start his own consultancy business besides doing his own business of sale and purchase of shares. Presently Sh. Utsav Gupta is operating from 191, Katra Nawab Sahib, Chandni Chowk, Delhi. It is pleaded that the said space is not comfortable due to paucity. Nature of the business of Sh. Utsav Gupta requires confidentiality. Lot of space is also required to accommodate staff and clients. Petitioner submits it does not own any other suitable accommodation to offer the same to Sh. Utsav Gupta. Hence, the petition.
4. Summons as per prescribed form under Schedule III of DRC Act were served upon all the respondents. As noted above, only respondent no.1 to 4 and 8 to 10 have filed the present applications for leave to contest alongwith their affidavits. Respondent no.7 has already expired. Respondent no.5 and 6 did not file any application for leave to contest.
5. The petitioner has filed replies alongwith counter affidavit. The respondents have filed rejoinders.
6. I have heard Sh. Girish Malhotra, Ld. Counsel for the petitioner and Sh. D.P. Minocha, Ld. Counsel for the respondents no. 1 to 4 and Sh. Vineet Hans, Ld. Counsel for respondents no. 8 to 10. I have perused the record. I have also perused the written submissions.
7. The principles of law relating to grant of leave to contest to tenant have been well settled. In the judgment reported as AIR 1982 Supreme Court 1518 titled as "Precision Steel & Engineering Works and another E.No. 33/11 Page 4 of 12 V. Prem Deva Niranjan Deva Tayal.", it was held that, "while deciding the application for leave to contest, the controller has to confine himself to the affidavit filed by the tenant under sub section (4) and the reply if any. On perusing the affidavit filed by the tenant and the reply if any filed by the landlord, the controller has to pose to himself the only question, "Does the affidavit disclose, not prove, facts as would disentitle the landlord from obtaining an order for the recovery of possession on the ground specified in clause of the proviso to Section 14 (1) ?". The controller is not to record a finding on disputed questions of facts or his preference of one set of affidavits against the other set of affidavits." The law was further elaborated in judgments such as JT 2001 (1) SC 308 titled "Inderjeet Kaur Vs. Nirpal Singh"; and 1982 Rajdhani Law Reporter SC 243 titled "Charan Das Vs. Brahma Nand". The gist of the decisions is that if any triable issue is raised in the application which cannot be decided unless the parties lead evidence, leave to contest should be granted. In all other cases, the leave has to be refused. In the case reported as (2002) 7 SCC 614 titled "Rital Lal Vs. Raj Kumar Singh", Hon'ble Supreme Court has observed as under :
"If the Court is satisfied that though in the pleadings an issue is raised but that is not a triable issue then the Court is justified in refusing the leave to defend. A defence, which is practically moonshine, sham or illusory cannot be held to be raising a E.No. 33/11 Page 5 of 12 triable issue. Else the whole purpose behind enacting a provision for granting leave to defend, and not permitting a contest unless leave was granted, would stand defeated."
8. The grounds taken by the contesting respondents are almost common. The respondents contend that petition is not legally maintainable; that petition is bad for misjoinder/nonjoinder of parties; that petition has been filed with ulterior motive to harass them as rate of rent is low; that petitioner HUF is not the sole and absolute owner of the premises and has no locus standi to file the petition; that tenanted premises are not required for any need by the petitioner; that there are vacant shops in the same building which are available to the petitioner; that petitioner did not disclose about sale of shop no.4823 sold recently; that it is a case of additional accommodation; that petitioner has been selling shops continuously over preceding years and it is self created shortage of space.
9. Petitioner has filed reply countering the contentions of respondents. Petitioner reasserts that the tenanted premises is owned by petitioner HUF. Petitioner replies that shop no. 4823 has been sold on 28.2.2012 to M/s. S.G. Knitfab Pvt. Ltd. Shop No. 4818 was sold to Smt. Neelam Bagai on 28.10.2009. Shop No. 4819 to 4820 were sold to M/s. Dharam Pal Prem Chand Ltd. on 23.4.2007. First floor of property no. 4820 and major part of third floor was sold to Satnam Singh on 20.11.2009. Remaining part of the E.No. 33/11 Page 6 of 12 third floor was sold to Shyam Sunder Gupta and Ashwani Kumar Gupta on 20.9.2006.
10. Ld. Counsels for respondents argued that there is no document showing that petitioner HUF is owner. They argued that petitioner has continuously sold other shops and has thus created paucity of space to serve its goals. They submitted that so much so that one of the shop was sold after filing of the petition. Ld. Counsels highlighted that there is no evidence of existence of any HUF nor of Anil Kumar Gupta being Karta of the said petitioner. They vehemently argued that Sh. Utsav Gupta is already doing business from other property and requires tenanted premises as additional accommodation. They thus pray that leave to contest has ordinarily to be granted. They referred to
(i) 68 (1997) DLT 430 titled "Raj Kumar Bansal Vs. Dina Nath";
(ii) III (2001) SLT 493 (SC) titled "Manoj Kumar Vs. Bihari Lal";
(iii) 98 (2002) DLT 464 titled "Niranjan Lal Vs. Ved Kumari";
(iv) 1 (2002) SLT 25 titled "Kishan Chand Vs. Jagdish PD & Ors.";
(v) 184 (2011) DLT 590 titled "Mohd. Ilyas Vs. Neeruddin & Ors.";
(vi) 1994 Supp. (1) SCC 729 titled "D.Devaji Vs. Sudershan Rao";
(vii) 113 (2004) DLT 421 titled "Puran Chand Vs. Yash Pal"; E.No. 33/11 Page 7 of 12
(viii) 2000 (1) JT (SC) 308 titled "Inderjeet Kaur Vs. Nirpal Singh";
(ix) 2000 (3) JT (SC) 397 titled "Santosh Devi Vs. Chand Kiran";
(x) 2003 (1) RCJ 105 titled "B.R. Anand Vs. Prem Sagar";
(xi) CM(M) 1164/2009 titled Nitin Garg Vs. Naresh Kumar Arora"; and
(xii) 99 (2002) DLT 608 titled "Banarsi Dass Vs. Om Prakash".
11. On the other hand Ld. Counsel for petitioner argued that the various shops were sold to persons who were already tenants in those shops. He pointed out that status of HUF has been admitted in documents itself. He submitted that payment of rent was made to the said HUF. Ld. Counsel for the petitioner highlighted that accommodation available at 191, Katra Nawab Sahib, Chandni Chowk, Delhi6 is not sufficient for doing business by Sh. Utsav Gupta.
12. Ld. Counsels for the respondents in rebuttal submitted that shops were sold to private persons and not to tenants.
13. Ld. Counsel for petitioner relied upon :
(i) AIR 1987 SC 2028 titled "Smt. Shanti Sharma & Ors. Vs. Smt. Ved Prabha & Ors.";
(ii) 1995 Rajdhani Law Reporter 162 titled "Jiwan Lal Vs. Gurdial Kaur & Ors.";
(iii) 124 (2010) DLT 328 titled "Viran Wali Vs. Kuldeep Rai Kochhar";E.No. 33/11 Page 8 of 12
(iv) (2005) 8 SCC 252 titled "Sait Nagjee Purushottam & Co.
Ltd. Vs. Vimalabai Prabhulal and Ors.";
(v) 155 (2008) DLT 383 titled "Rajender Kumar Sharma & Ors.
Vs. Leela Wai & Ors.";
(vi) 184 (2011) DLT 130 titled "Kishori Lal Krishan Kumar Vs. Ankit Rastogi"
14. As far as ownership is concerned, it is settled law that the petitioner has to show that he is something more than tenant. Absolute ownership is not required to be established in an eviction petition under the DRC Act. If the tenant denies ownership of petitioner, then tenant has to specify himself as to who else is the owner. In the present case respondents are merely denying ownership of petitioner without disclosing any name of any other person as the owner.
15. As far as status of petitioner HUF is concerned, Ld. Counsel for petitioner referred to proceedings to one earlier case which was filed by petitioner HUF for recovery of arrears of rent. In those proceedings Sh. Anil Kumar Gupta appeared as member of petitioner HUF and had received the suit amount from the defendants i.e. respondents herein. This shows that respondents at that time had accepted existence of an HUF. Now the respondents cannot question the existence of the HUF. Ld. Counsels for the respondents referred to rent receipts and submitted that no HUF is mentioned on those receipts. However, in my view when already in recovery E.No. 33/11 Page 9 of 12 suit proceedings, status of HUF was acknowledged by the respondents who were defendants, now there can be no question about the same. Ld. Counsels for the respondents referred to a letter dt. 4.4.2012 purportedly sent by Sh. Anil Gupta to the President of Wholesale Club Merchants' Association, Katra Subhash, Chandni Chowk. In this letter Sh. Anil Gupta described himself as proprietor of M/s. Jagan Nath Hari Ram. It is contended on behalf of petitioner that this letter is forged one. Ld. Counsel for the petitioner referred to letter dt. 14.3.2011 sent by Sh. Chandra Prakash/respondent no. 4, for himself and on behalf of other respondents, and sent to petitioner. In this letter the respondent no.4 has referred to Sh. Anil Kumar as "Karta of M/s. Jagan Nath Hari Ram HUF". Ld. Counsel for petitioner thus submitted that there is no doubt about status of HUF. I am in agreement with the contention of Ld. Counsel for petitioner. The letter dt. 4.4.2012 relied upon by respondents, in view of ample material available on record, has no relevance.
16. It is a fact that petitioner had sold some shops before filing the petition and one shop after filing of the petition. Ld. Counsel for petitioner submitted that the shops were sold to existing tenants. This fact is disputed by Ld. Counsels for respondents. Copies of the sale deeds are on record. Ld. Counsel for the petitioner contended that the shops were sold to meet out educational needs of the son of Sh. Anil Kumar Gupta. He highlighted that the shops were sold at a very low price and were sold to tenants. E.No. 33/11 Page 10 of 12
17. The shops were sold in 2006, 2007, 2009 and 2012. Sh. Utsav Gupta completed his studies from U.K. in 2010. It must be presumed that petitioner was aware of the requirement of extra space. It was logically expected that extra space would be required after completion of studies. Still petitioner chose to sell of the shops rather than getting them vacated. This is quite strange. The shops were sold recently. In my view, petitioner will be required to prove that shops were sold to tenants which fact cannot be accepted without evidence. It may be that in some of the sale deeds, the purchaser has been mentioned as existing tenant but still petitioner will be required to establish the same. Self serving statements in the sale deeds will not be accepted. If it comes out that shops were sold to strangers, then it is a pure case of self created paucity of space and this will disentitle petitioner to obtain eviction order. The petitioner will be further required to prove that the shops were sold to meet educational needs. If it is found that shops were sold with some other objective, that will adversely affect case of the petitioner.
18. It is also worth noting that the said Utsav Gupta is already doing business from 191, Katra Nawab Sahib alongwith his father Sh. Anil Kumar Gupta. The said premises is owned by them. As stated in the petition itself, the said Utsav Gupta wants to settle his own consultancy business and portfolio management services in addition to doing his business of sale and purchase of shares. As Utsav Gupta is already operating from 191, Katra E.No. 33/11 Page 11 of 12 Nawab Sahib, the requirement of the petitioner, in that context, becomes requirement for additional space. It is settled law that in case of additional accommodation, leave to contest has to be granted ordinarily. In the present case, in my view, the need is for additional space and petitioner will be required to prove his bona fide requirement by leading cogent evidence. This exercise cannot be done by way of summary procedure. The said Utsav Gupta wants to expand his business activities. There is no material brought on record that respondents are carrying on business from any other premises. Thus after weighing the scales, in my view, this is a fit case for grant of leave to contest.
19. In view of the above, applications of respondents no. 1 to 4 and 8 to 10 are allowed and they are granted leave to contest. Respondent no.7 has already expired. Respondent no.5 and 6 did not file any application seeking leave to contest. However, eviction order cannot be passed against them at this stage since leave has been granted to other respondents. Appropriate orders will be passed later on against them.
Announced in the open Court on 31.01.2013 (SANJAY BANSAL) SCJ/RC/North/Delhi E.No. 33/11 Page 12 of 12