Delhi District Court
Sh. Mohan Babu Sharma vs Sh. Prabhu Dayal on 22 July, 2013
IN THE COURT OF MS. SHUCHI LALER, ADMINISTRATIVE
CIVIL JUDGE-CUM-ADDITIONAL RENT CONTROLLER
(NORTH-EAST), COURT NO. 60, KKD COURTS, DELHI.
E No.143/11 (Old No.E No.08 of 2010)
Unique Case ID No.: 02402C065652010
In the matter of :
1. Sh. Mohan Babu Sharma
S/o Late Sh. Balbir Dayal
2. Sh. Mukesh Babu Sharma
S/o Late Sh. Balbir Dayal
Both presently R/o K-311,Chajju Pur Gate,
Babarpur Road,
Delhi - 110 032. ....Petitioners
Versus
Sh. Prabhu Dayal
S/o Sh. Kanchid Singh
Shop No.1, in Premises No.1/2766,
Main Mandoli Road, Near Shanti Building,
Ram Nagar, Shahdara,
Delhi - 110 032 ....Respondent
Date of Institution : 07.01.2010
Date of Final Argument : 22.07.2013
Date of Pronouncement : 22.07.2013
APPLICATION FOR EVICTION OF TENANT UNDER SECTION
14 (1) (e) r/w SECTION 25 B OF THE DELHI RENT CONTROL
ACT, 1958
JUDGMENT :
1. Eviction has been sought in respect of the tenanted shop No.1, forming part of Ground Floor of property bearing No. 1/2766, Main Mandoli Road, Near Shanti Building, Ram Nagar, Shahdara, Delhi - 110 032 as shown in red colour in the Site Plan annexed along with the petition on the ground of bonafide E No.143/11 (Old No.E No.8/10) Page 1 to 15 requirement of the petitioners.
2. Brief resume of the facts is desirable, same is as under:
The father of the petitioners, Sh. Balbir Dayal, was the sole and absolute owner of the property bearing No.1/2766, Main Mandoli Road, Near Shanti Building, Ram Nagar, Shahdara, Delhi - 110032 (hereinafter referred to as property in question) who expired on 20/12/1993 leaving behind his wife Smt. Prakasho Devi, his four sons namely Madan Kishore, Ashok Kumar, Mohan Babu and Mukesh Babu and two married daughters namely Smt. Santosh and Smt. Saroj Bali as his Legal Representatives. Sh. Balbir Dayal had let-out the tenanted shop to the respondent at monthly rent of Rs.120/- excluding other charges.
A Family Settlement in August, 2000 was executed between the legal representatives of deceased Sh. Balbir Dayal whereby the petitioners became the co-owners / co-landlords of the property in question.
The grounds which have been delineated in Para 18
(a) of the petition are that the petitioners have no other alternative accommodation in the entire territory of Delhi for doing the business of commercial shop except the tenanted shop. The petitioners are unemployed and previously they were doing commercial activities on the back portion of the premises, but on 20/11/2009, the MCD demolished the same. The petitioners have stated that the size of the shops is small, hence, they want to convert three shops on the ground floor into two shops, so that they can run their business. It has been averred that the tenanted shop is urgently required by the petitioners and is the most suitable accommodation for them. Hence, the E No.143/11 (Old No.E No.8/10) Page 2 to 15 present petition.
3. Summons of the petition were directed / served in the prescribed proforma.
4. Leave to defend was filed. Ld. counsel for the petitioners conceded that he has no objection, if the respondent is granted leave to defend, accordingly, vide order dated 20/07/2010, the Ld. Predecessor has been pleased to allow the leave to defend application.
5. Written statement has been filed. The case of the petitioners has been denied in toto. The respondent has raised Preliminary Objections such as, the petitioners have not come to the court with clean hands and concealed material facts and the present petition is bad for misjoinder of necessary parties. The respondent has challenged the ownership of the petitioners on the ground that the family settlement of August, 2000 is a manipulated and fabricated document and it is not registered and does not bear requisite stamp. It has been alleged that the petitioners want to get the tenanted shop vacated by hook or crook and the petitioners had with-held the electricity supply of the respondent and the petitioners in connivance with MCD, had got the property in question demolished. It has been averred that the petitioners family members have four other shops in the property in question which are still lying vacant, two of which are on the front side and two are in the gali side. It has been claimed that the petitioners have been allotted an alternative site at Bawana as per the Scheme of the Government and they also possess factory premises at Seema Puri, Delhi where they have been carrying on their business. Hence, the respondent prayed for the dismissal of the present petition with special compensatory costs.
E No.143/11 (Old No.E No.8/10) Page 3 to 15
6. Replication has been filed on behalf of the petitioners wherein the allegation to the contrary have been controverted and averments made in the petition have been re-affirmed and reiterated.
7. Parties were directed to lead evidence. Petitioners examined the petitioner no.2 Sh. Mukesh Babu Sharma as PW
1. He deposed by way of affidavit in lieu of examination-in-chief as Ex. PW 1/A. He relied upon the documents such as, Affidavit / No Objection of Smt. Santosh as Ex. PW 1/1, Affidavit / No Objection of Smt. Saroj Bala as Ex. PW 1/2, Affidavit / No Objection of Sh. Madan Kishore as Ex. PW 1/3, photocopy of Family Settlement Deed as Mark A, Photocopies of Counter- Foils of Rent Receipts as Mark B to F, Photocopy of Voter I Card of Sh. Mohan Sharma as Mark G, Photocopy of Electricity Bill as Mark H, Photocopy of two Ration Cards Mark I and J, Photocopy of Water Bill as Mark K, Photocopy of Property Tax Bill as Mark L, Photocopy of Election Voter ID Card of Sh. Mukesh Babu Panchal as Mark M, Photocopy of Electricity Bill as Mark N and Site Plan as Ex.PW1/19 respectively. He was duly cross- examined on behalf of the respondent. Thereafter, petitioners closed their evidence.
8. On behalf of the respondent, Sh. Brahmanand, LDC, MCD Shahdara (North), Delhi appeared as RW 1 and he proved the Vacation Notice under Section 349 dated 19/11/2009 Mark A. No cross-examination of the said witness has been conducted.
The respondent stepped into the witness box as RW 2 (inadvertently examined as RW1) and he deposed by way of affidavit in lieu of examination-in-chief which is Ex. RW1A/A. RW 2 relied upon the copy of Order dated 22/01/2008 of the Hon'ble High Court in Writ Petition (C) No.4922/2007 as E No.143/11 (Old No.E No.8/10) Page 4 to 15 Ex.RW1/1, Notice issued by MCD, Dated 19/11/2009 as Ex.RW1/2 and copy of Order of Hon'ble High Court dated 10/02/2010 as Ex.RW1/3. He was duly cross-examined by the ld. counsel for petitioners.
The respondent has also examined his neighbouring tenant, Mohd Zafar, as RW 3 (inadvertently mentioned as RW 2). He tendered his evidence by way of an affidavit which is Ex. RW 2/1. He has been cross-examined on behalf of the petitioners. Thereafter, the respondent closed his evidence.
9. I have heard the Ld. counsels for the parties and perused the record.
10. Clause (e) of proviso to Sub-section (1) of Section 14 of DRC Act postulates following conditions which must be satisfied:
(i) that the landlord must be the owner of the premises.
(ii) that the premises must be required bonafide by the owner.
(iii)non-availability of any reasonably suitable accommodation.
OWNERSHIP OF LANDLORD / PETITIONERS It is an admitted case of the parties that the father of petitioners had inducted the respondent as tenant in respect of the tenanted premises. The ownership of petitioners has been stoutly resisted.
The petitioners have stated that their father Sh. Balbir Dayal was the absolute owner of the property bearing No. 1/2766, Main Mandoli Road, Near Shanti Building, Ram Nagar, Shahdara, Delhi - 32 and after the death of their father, in August, 2000, a Memorandum of Family Settlement was E No.143/11 (Old No.E No.8/10) Page 5 to 15 executed whereby the aforesaid property came in the share of the petitioners.
The respondent has challenged the ownership of the petitioners on the ground that only a photocopy of Family Settlement of August, 2000 has been filed on record which is neither registered nor bears requisite stamp, thus, on the basis of such a family settlement, no title has been transferred in favour of the petitioners.
11. The first and foremost is the ownership. The word "owner" has not been defined in the DRC Act. It is settled law that in a petition under Section 14 (1) (e) DRC Act, the landlord is not required to prove absolute ownership as required under Transfer of Property Act. The legislature has used the word "owner" in Section 14 (1) (e) DRC Act in contradistinction with a landlord as defined in the Act who is not an owner but holds the property for the benefit of another person and merely collects the rent. Reliance in this regard is placed upon the Judgment titled as Sushil Karta Chakravorty V. Rajeshwar Kumar AIR 2000 Delhi 413 and Shanti Sharma & Ors. V. Ved Prabha & Ors. (1987) 4 SCC 193.
12. It is, therefore, evident that the landlord / petitioners herein, were not supposed to prove absolute ownership. They were only to prove that they were something more than a tenant. The tenant / respondent has challenged the family settlement Mark A on the ground that it is a photocopy and is not registered and does not bear requisite stamp.
13. In A.K. Nayar V. Mahesh Prasad 153 (2008) DLT 423, the same issue came up for consideration before Hon'ble Delhi High Court and it was observed as under :-
"It was not for the tenant to challenge the family settlement E No.143/11 (Old No.E No.8/10) Page 6 to 15 arrived at between landlord and his elder brother. Only Sh. J.P. Srivastava, the elder brother of the landlord could have challenged the family settlement and plea of ownership taken by the landlord".
14. Similarly, in the instant case, the tenant / respondent cannot raise any objection with respect to the family settlement arrived between the petitioners and their siblings. Even otherwise, the sisters of the petitioners Ms. Santosh and Ms. Saroj Bala and their brother Mr. Madan Kishore have filed their no objections in favour of the petitioners Ex. PW-1/1 to Ex. PW-1/3 respectively on record. It is not the case of the respondent that the brothers or sisters of the petitioners staked their claim over the property and asked the respondent to pay rent to them directly or not to vacate the property. In the family settlement Mark A, in Para 3, it has been specifically mentioned that the property in question shall be owned by the petitioners collectively and jointly. Though, the property has not been mutated in their name, but the electricity connection installed in the premises is in the name of PW-1 as is apparent from electricity bill Mark N.
15. Ld. counsel for respondent strenuously urged that the present eviction petition is bad for non-joinder of necessary parties as the co-owners i.e., the mother, brothers and sisters have not been impleaded as petitioners, hence, the petition is liable to be dismissed.
16. This contention is devoid of merits as it is well-settled that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners. Reference can be made to Judgments titled as M/s India Umbrella Manufacturing Co. vs Bhagabanda Aggarwal (Dead) by LRs (2004) 3 SCC E No.143/11 (Old No.E No.8/10) Page 7 to 15 178,; Sri Ram Pasricha vs Jagganath & Ors )1976) 4 SCC 184; Dhanndu v. Kalawati bai & ors (2002) 6 SCC 16.
17. It is apparent from the evidence adduced and from the documents proved on record that the petitioners are the owners of the premises and the plea raised by the respondent regarding ownership is a bogus plea and has no substance.
BONAFIDE REQUIREMENT AND NON AVAILABILITY OF REASONABLY SUITABLE ACCOMODATION
18. These two ingredients are dealt with together as they are inter related to each other. The petitioners have claimed that they are unemployed and they require the tenanted premises to run their business.
19. The respondent has asserted that the petitioners family members have vacant four other shops at the suit property and a tin shed from where factory was being run by the father of the petitioners. It has also been asserted that the petitioners have a factory premises at Seema puri and have been alloted a site at Bawana as per the Scheme of the Government.
20. In support of their case, the petitioner no. 2 donned the witness box as PW-1 and testified that they have no shop in their possession and there have always been three shops at the property in question and same are occupied by three tenants. PW-1 admitted in his cross examination that after the death of his father for two years he carried the business in the name and style of M/s Panchal Auto Repair & Manufacture at the back portion of the property.
21. PW-1 also stated that after the year 1995, they started residing at the ground floor portion where the factory was being E No.143/11 (Old No.E No.8/10) Page 8 to 15 run. PW-1 deposed that after demolition by MCD, there are three shops on the front portion of the suit property, two galleries and one room in the back portion and on the first floor there are two toilets, one room and a tin shed in demolished condition.
22. PW-1 admitted in his cross examination that after demolition of property in question by MCD, the petitioners along with their family members are residing at property bearing no. K-31L, Chajjupur Gate, Babarpur, Shahdara, Delhi -32. PW-1 denied the suggestion that he is conducting his own business and he has no bonafide requirement and for that reason he has not filed the documents to show the nature of business to be carried or extent of investment to be made or the said amount to be available with him. PW-1 further denied the suggestion that there is vacant suitable space available at the property in question for carrying out the business. PW-1 also denied the suggestion that the petitioners have accommodation available at Bawana and Seemapuri.
23. In rebuttal, RW-1 Sh. Brahmanand, LDC, MCD, Shahdara, North proved the notice under section 349 dated 19.11.09 Mark B.
24. The respondent stepped into the witness box as RW-2. RW-2 deposed in his examination-in-chief that the petitioners have been alloted an alternative site at Bawana and they also possess a factory premises at Seemapuri where they are running their factory and carrying on their business. In cross examination of RW-2, a specific question was put to him whether the petitioners have any commercial property at Delhi to which he replied that the petitioners have two houses at Babarpur and a factory at Kasana, Greater Noida, U.P. RW2, in his cross examination, denied the suggestion that there are three shops at E No.143/11 (Old No.E No.8/10) Page 9 to 15 the property in question and all three are in occupation of tenants. RW2 volunteered and stated that there are five shops facing the main road and a shutter towards the back lane wherein earlier factory was being run.
25. The respondent also examined another tenant of petitioner, Mohd Jaffar, in occupation of shop opposite to the tenanted shop, as RW-3 (inadvertently mentioned as RW-2). RW-3 deposed that petitioners are having five shops on the front side and two other shops in the gali side and at the back portion of the property in question, the factory which was lying closed has been restarted by the petitioners. RW-3 has also deposed in his examination-in-chief that petitioner no. 2 has independent factory at H-15, Site V, Industrial Area, Kasna, Greater Noida, UP and petitioner no. 1 has an independent factory at Babarpur.
26. Ld counsel for the respondent argued that in the absence of disclosure of any business details which the petitioners propose to start; the need of petitioners cannot be termed bonafide, but in fact, it is a malafide need.
27. PW 1 has specifically testified that both petitioners are unemployed. It is always the privilege and prerogative of the landlord to choose the nature of the business and the place of business. It is settled principle of law that landlord is the best judge of his requirements and neither the court nor the tenant can dictate terms to the landlord. In Tarsem Singh Vs. Gurvinder Singh 173 (2010) DLT 379, it was held that if the landlord wants to start his own business from the premises owned by him, by no stretch of imagination, it can be said that the requirement of the landlord for the premises is neither genuine nor bonafide.
28. Merely, because, the nature of business which the E No.143/11 (Old No.E No.8/10) Page 10 to 15 petitioners propose to carry out has not been specified, will not, per-se, convert the need of the landlord from bonafide to malafide need. Reliance in this regard is also placed upon the Judgment Bata India Ltd., Vs. Anil Kumar Bahl CM No. 11467/2011 dated 01/03/2012. Thus, the petitioners cannot be non-suited on the ground that they have not been able to establish their requirement for shop as bonafide for their failure to disclose the nature of business propose to be carried in that shop.
29. The case of the respondent is that the petitioners have sufficient vacant space available at the property in question and also factory premises at Bawana and Seemapuri, thus, the petitioners have suitable alternative accommodation for running their business.
30. The plea of existence of sufficient vacant portion available at the property in question could not be established. Both RW2 and RW3 have deposed that two shops on the front side and two shops at the gali side of the property in question are lying vacant. PW-1 has categorically stated that there are only three shops in existence at the property in question which all are in occupation of the tenants. In the cross examination of PW1, no specific question or suggestion has been given to him regarding existence of two vacant shops at the front side or two vacant shops at the gali side of the property in question. The Site Plan Ex. PW 1 / 19 filed by the petitioners wherein only three shops have been depicted at the property in question has not been challenged by the respondent. The respondent has not preferred to file his own site plan of the property in question. As regards the plea of running of the factory at the property in question by the petitioners, RW2, in his cross examination, categorically E No.143/11 (Old No.E No.8/10) Page 11 to 15 stated that there is a shutter towards the back lane wherein earlier factory was being run. RW2, nowhere in his evidence, deposed about the factory being presently run at the property in question. In case, the petitioners had been running a factory at the back portion of the property in question as testified by RW3, it would not have been difficult for the respondent to examine any employee or to produce the relevant documents in support thereof, however, the same has not been done. Thus, the respondent has failed to establish availability of suitable vacant shops and the existence of factory at the back portion of the property in question.
31. Now, coming to the plea of the respondent regarding availability of sufficient commercial accommodation at Bawana and Seemapuri. Apart from contending that the petitioners have factory premises at Bawana and Seemapuri, respondent has failed to produce any material whatsoever in support of this submission. RW2, in his cross-examination, was confronted with a specific question whether the petitioners have any commercial property at Delhi, to which he replied that the petitioners have two houses at Babarpur and a factory at Kasana, Greater Noida, U.P. RW2 did not mention about existence of factory premises at Bawana or Seemapuri. Merely, a bald assertion has been made by the respondent that the petitioners have their factories at Bawana and Seemapuri. If the relief is granted merely on assertions that the landlord is the owner of some premises at some place, of which, he is not, then in every case the tenant would get the relief by just naming any premises with which the landlord has no concern. The respondent has falsely alleged that the petitioners are the owners of factory premises at Bawana and Seemapuri without placing on record any document E No.143/11 (Old No.E No.8/10) Page 12 to 15 and without adducing any evidence in support thereof.
32. Further, RW-3 has taken a contradictory stand by deposing that the petitioners have a factory at H-15, Site V, Industrial Area, Greater Noida and another factory at Babarpur. In the evidence of RW-3, there is no mention of suitable alternative accommodation being available with the petitioners at Bawana and Seemapuri. For the first time in the examination-in-chief of RW-3, the respondent has raised the plea of existence of factories at Noida and Babarpur. The said plea is not incorporated in their Written Statement. No party can be allowed to travel beyond his pleadings and no amount of evidence in respect of such a plea, which has not been incorporated in the pleadings, can be taken into consideration. The respondent subsequently at the stage of evidence cannot be allowed to change his version and allege a completely new fact regarding existence of factory at Greater Noida and Babarpur. The question of having factory at Greater Noida and Babarpur is immaterial in view of specific pleadings. Even otherwise, the existence of factory at H-15, Site V, Industrial Area, kasana, Greater Noida is of no relevance as it cannot be said to be a suitable alternative accommodation within the territory of Delhi.
33. It has been further argued by Ld. counsel for respondent that the petitioners have deliberately not disclosed about the residential accommodation available at Babarpur Road, Delhi and they have never resided at the premises in question.
34. PW-1 has deposed that after demolition of the premises in question, they had shifted to K-31L, Chajju Gate Gali, Babarpur Road, Delhi. The petitioners were not obliged to discuss in their eviction petition, the manner in which the residential property of Babarpur is being used as it is being used for totally different E No.143/11 (Old No.E No.8/10) Page 13 to 15 purpose than the purpose for which they require the tenanted shop. The bonafide requirement set-up by the petitioners is the running of their business. A landlord while seeking eviction of a tenant on the ground of bonafide requirement, is not expected to disclose the manner in which he is utilizing the accommodation available with him, if the accommodation with the tenant in respect of which he files the eviction petition is required by him for the purpose different from the purpose he is occupying and using the accommodation available with him. The extent of residential accommodation available with a landlord who seeks eviction of the tenant from commercial premises is wholly irrelevant.
35. Ld. counsel for respondent lastly submitted that the petitioners illegally want to enhance the rent and expressed the apprehension that the petitioners would re-let the tenanted premises after getting the same vacated from the respondent. The apprehension of the respondent is without any justification. Section 19 of DRC Act specifically takes care of this apprehension in as much as it provides that landlord after getting the premises vacated u/s 14 (1) (e) DRC Act cannot sell or let out the same for a period of three years without obtaining the permission of the Controller.
36. Therefore, judged from any angle, the requirement of the petitioners for the tenanted premises for starting their business cannot be termed malafide or with oblique motives.
37. Consequently, in view of the aforesaid discussion, eviction order is passed in favour of the petitioners and against the respondent.
Respondent is directed to hand over vacant and peaceful possession of the tenanted Shop No.1, forming part of E No.143/11 (Old No.E No.8/10) Page 14 to 15 Ground Floor of property bearing No.1/2766, Main Mandoli Road, Near Shanti Building, Ram Nagar, Shahdara, Delhi - 110 032 as shown in the site plan Ex. PW 1 / 19 in red colour which is annexed along with the petition. Further, the petitioners shall not be entitled to obtain the possession of the aforesaid tenanted shop from the respondent before expiry of period of six months from the date of passing of this order as prescribed u/s 14 (7) of the DRC Act. The eviction petition under Section 14 (1) (e) r/w section 25-B DRC Act is accordingly disposed off. No order as to costs.
File be consigned to Record Room.
Announced in the open court (SHUCHI LALER)
Dt.22.07.2013 ACJ/ARC (NE),
KKD COURTS,
DELHI.
E No.143/11 (Old No.E No.8/10) Page 15 to 15