Delhi District Court
Sh. Narender Kumar Jain vs Sh. Surender Kumar Jain on 16 November, 2018
In the Court of Sh. Puneet Pahwa : Additional Rent Controller-02, Central
District, Tis Hazari Courts, Delhi.
E-207/15
New no.80251/16
In the matter of:
1. Sh. Narender Kumar Jain
2. Sh. Shaileder Kumar Jain
All S/o Late Sh. K.C. Jain.
3. Sh. Sanjay Jain
S/o Late Sh. Vijender Kumar Jain
All R/o 981, Bhojpura, Maliwara, Delhi-06. ............... petitioners
VERSUS
Sh. Surender Kumar Jain
S/o Late Sh. Mohar Singh
R/o H. no. 981, Portion, First Floor, Bhojpura,
Maliwara, Delhi-06. .................respondent
Date of Institution : 28.07.2015
Date of Arguments : 05.06.2018
Date of Order : 16.11.2018
ORDER:
1. This order shall decide the question whether the respondent be granted leave to contest the present application under clause (e) of proviso to sub-section (1) of section 14 of the Delhi Rent Control Act, 1958 (hereinafter referred to as '' DRC Act'').
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2. The brief facts for the decision of the application as per the petition is that the petitioners are co-owners/landlords of the entire property no. 981, Bhojpura, Maliwara, Delhi-06 including the tenanted premises i.e. Two room set including, two rooms, Varandah, Store, latrine-bathroom & kitchen on the first floor of the said property. The respondent is the tenant in the aforesaid tenanted premises at a monthly rent of Rs.500/- p.m excluding electricity charges and other charges. The father of the petitioner no. 1 and 2 before his demise, executed a Will. In view of this Will, the petitioners became the co-owners and landlords of the said tenanted premises. That the entire property is consisted of ground, first, second and third floors including the barsati floor above the third floor. The entire ground floor of the said property is totally commercial and cannot be used as residential purposes. Only one small shop remained under the ownership of the petitioners, other portion have already been sold as being commercial and the same cannot be used for residential purposes. The petitioners are having big joint family who are living jointly in the said entire property by adjusting themselves in paucity of space and thus need the demised premises for their residence for the entire family of the petitioners. The details of all family members of the petitioners are as under:-
A). That the petitioner no.1 is having his wife Smt. Saraswati Jain and his married daughter namely Ms. Sapna Jain W/o Sh. Deepak Jain residing at H.No. C-165, Ashok Vihar Phase-I, New Delhi, who usually and on most of the festivals visit her parental home to meet her parents in the said property. The petitioner no. 1 is occupying the portion in the said premises which is shown in Brown colour. B). The petitioner no.2 is having his wife namely Smt. Rekha Jain and two sons, one of them is married namely Mr. Ashish Jain. Mr. Ashish Jain is residing with his wife namely Ms. Nidhi Jain and another son namely Mr. Piyush Jain, who is doing job and as per the petition, was to get married in the month of December, 2015. The petitioner no.2 is occupying the portion in the said premises which is shown in Blue E-20715 Narender Kr. Jain & ors. Vs Surender Kr. Jain Page no.2/9 colour.
C). The petitioner no.3 is the son of Sh. Vijender Kumar Jain. The petitioner no.3 is married with Mrs. Ruchi Jain and he is having one son Master Krish Jain. The petitioner no.3 is 75 % handicap person and is residing with his family members on the second floor. The petitioner no. 3 is occupying the portion in the said premises which is shown in green colour.
It has been submitted that the petitioner no. 1 is aged about 67 yrs and is a senior citizen. The petitioner no.1 is under ailment of Orthopedics and had been operated last year and was admitted on 20.03.2014 to 03.04.2014. Due to which the petitioner no.1 and his wife who is also under old age, cannot climb stairs. So the petitioner no.1 is in urgent need of vacant space on the first floor so that the petitioner no.1 may not face joint pain at the time of going up and climbing upto the second and third floor daily.
The petitioner no.3 is a 75 % handicap person who cannot climb stairs on his own and the petitioner no.2 helps him to go upstairs. Due to which the petitioner no.3 is totally dependent upon petitioner no.2. It has been submitted that the petitioner no.3 would adjust himself in one room in the tenanted premises on the first floor.
3. The petitioner no. 1 and 2 are also having other two brothers namely Sh. Pushpender Kr. Jain and Sh. Jinender Kumar Jain, who are also the co-owners in the said entire property, who are residing in the other portion of the house, by maintaining separate Kitchen, Rooms & Latrine Bathroom. Sh. Pushpender Kr. Jain is in portion which is shown in yellow colour and Sh. Jinender Kumar Jain is in portion which is shown in pink colour in the site plan attached herewith. For some period on temporary basis, Mr. Jinender Kumar Jain shifted on rented house in Model Town-III, Delhi-09 in the month of May, 2015. It has been submitted that on 02.05.2011 the petitioner no.1 purchased two rooms set at fourth floor measuring E-20715 Narender Kr. Jain & ors. Vs Surender Kr. Jain Page no.3/9 19.50 sq. mts in property no. 1053 (part), Gali Hira Nand, Maliwara, Delhi-6 but the same is occupied by the tenant and on 02.05.2011 the petitioner no.2 purchased one room set at fourth floor measuring 14.56 sq. mts in property no. 1053 (part), Gali Hira Nand, Maliwara, Delhi but the same is also occupied by the tenant. That in such circumstances, the petitioners require the demised / tenanted premises to be vacated bona-fidely and suitably, if this tenanted premises is vacated, the petitioners and their family members can live peaceful life and they can live properly and comfortably. Hence this petition.
4. By filing leave to defend application filed by respondent, it has been contended by applicant/respondent that the petitioners converted the entire ground floor for commercial purposes and did not occupy the entire ground floor before converting the same into commercial premises which shows that premises were not required by them. The petitioner no.3 did not occupy the ground floor even though the said portion was vacant and was residential at that time. The petitioner no.3 is using the second and third floors for the last more than two decades and he never claimed any difficulty and now he is estopped by his conduct and acquiescence to plead the fact as alleged. The requirement pleaded is not bona-fide. The accommodation available with the petitioners i.e. pink portion is lying locked which is more than sufficient and the said accommodation is available to them. Moreover, the site plan is not correct. The site-plan filed by the petitioners is not of the entire property which exists in property bearing no. 981, Bhojpura, Maliwara, Delhi.
It has been alleged that the respondent has never acknowledged and accepted himself as tenant under the petitioners. The rent was being received by Sh. Pushpender Kumar and he is the landlord for all purposes. There does not subsist relationship as landlord and tenant in between the parties as contemplated under the DRC Act as such. The petitioners are having sufficient accommodation and premises are not required and the claim for the tenanted premises as alleged, requires E-20715 Narender Kr. Jain & ors. Vs Surender Kr. Jain Page no.4/9 evidence and also to test their bona-fide. As the need of the petitioners are not bonafide & genuine, the respondents have, therefore, requested that the application be allowed.
5. The application is contested by the petitioners by way of a written reply and counter affidavit, wherein the contents of the petition have been re-iterated and re-affirmed and the petitioners prayed for the dismissal of the application for the want of triable issues.
6. I have heard counsel for the parties and gone through the material on record carefully. I have given my thoughtful consideration to the submissions made on behalf of the parties.
As per the law laid down by the Hon'ble Supreme Court in Satyawati Sharma v. Union of India and another, 148 (2008) DLT 705 (SC) clause (e) of proviso to sub-section (1) of section 14 of Act 59 of 1958 is also applicable to the premises let out for purpose other than residential purpose The present petition for eviction is under clause (e) of proviso to sub- section (1) of section 14 of Act 59 of 1958 which after the judgment of Hon'ble Supreme Court in Satyawati Sharma's case reads as under :-
14.(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by and court or Controller in favour of the landlord against a tenant:
Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely: * * *
(e) that the premises are required bona fide by the landlord for occupation for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation :
7. It is now well settled that while deciding the question of the grant of leave to contest under the provisions of section 25B of Act 59 of 1958, the Rent E-20715 Narender Kr. Jain & ors. Vs Surender Kr. Jain Page no.5/9 Controller should see the affidavit filed by the tenant and the counter affidavit filed by the landlord. It is also now well settled that while deciding the question of the grant of leave, the Controller is not required to conduct a full fledged trial and should only see that if the affidavit of the tenant raise any triable point the decision on which may disentitle the landlord from recovering possession of the premises. At the time of the decision on the question of leave, the Controller is not required to seek the proof of the defence of the tenant.
8. Now coming to the facts of the present case under consideration. The respondent has disputed the ownership of the petitioners qua the demised premises and he has also disputed the relationship of landlord and tenant between the parties. Although, he has admitted himself to be a tenant yet he has denied the title of the petitioners qua the suit property. As per the respondent, the rent was received by Sh. Pushpender. However, not even a single document has been filed by the respondent in support of this submission. At least he has admitted himself to be a tenant under Sh. Pushpender, who as per the petitioners is their brother. Moreover, the petitioners have filed documents in support of their claim. It is now well settled that in an eviction petition, the petitioner need not to prove his absolute ownership and he has to show just that his right is more than that of the respondent which the petitioners have been able to show by bringing cogent documentary evidence on record.
9. Therefore, in the light of the pleadings of the parties and other material placed before this court, in so far as the purpose of clause (e) of sub-section (1) of section 14 of Act 59 of 1958 is concerned, the petitioners are found to be the owner of the premises and it is also found that there exists relationship of landlord and tenant between the parties.
10. According to the respondent, the petitioners are in possession of sufficient alternate accommodation more than their requirements. However, the respondent has failed to support his averments with any supporting document.
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11. On the other hand, the petitioners have very categorically denied the availability of any alternative accommodation as alleged by the respondent. The petitioners have been able to bring supporting documents on record to discard the grounds raised by the respondent in his leave to defend application whereas the respondent has failed to file any supporting documents so as to disbelieve the bona- fide need of the petitioners. Admittedly, petitioners family is a huge family as disclosed in the petition itself, which fact has not been disputed even by the respondent.
12. As per respondent there is no bona-fide need of the petitioners as already sufficient alternative accommodation is available with the petitioners as shown in pink colour in the site plan filed by the petitioners. The case of the petitioners is that petitioner no.1 and his wife being senior citizens need some accommodation on the first floor as they are unable to climb the stairs. Moreover, petitioner no.3 is 75 % handicapped and premises is required for him also as he has unable to move properly and climb stairs. Out of the pink colour portion shown in site-plan, only one small room is located on the first floor and rest of the portion lies on the second and third floor of the property. As per the claim of the petitioners the room available on the first floor is already in use for the office purposes. No supporting document has been filed on behalf of respondent and even if it is assumed that the portion shown in pink colour is available, the same is of no use for the purpose of present petition as the petitioners have very categorically stated that they need accommodation on the first floor and not on the second and third floor of the property. Thus, in the considered opinion of this court it does not raise any triable issue, and leave to defend cannot be granted on this ground alone.
The respondent has also disputed the site-plan filed on behalf of petitioners but no counter site-plan has been filed on behalf of respondent and it has not been been shown as to in what manner the site-plan is incorrect.
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13. It is now well settled law that it is the petitioners themselves, who are the best person to explain as to what is their bona-fide necessity. As per the petitioners, in the case in hand, the suit premises are required bonafidely, they are not having any other suitable and reasonable accommodation available with them throughout Delhi.
Moreover, it is also now well settled that the leave to defend not to be granted to the tenant on the basis of bald affidavit and bald averments and assertions. Only those averments in the affidavit are to be considered by the Rent Controller which have some substance in it and are supported by some material.
A bald statement without supporting material does not give rise to a triable issue entitling tenant for leave to defend.
14. In my considered opinion, the plea of the respondent is without merit and cannot be sustained as the petitioners are the owner and landlord of the premises. In so far as the question of necessity is concerned, the law is well settled that the landlord is the best judge of his necessity and they have got complete freedom in the matter. Therefore, a tenant cannot dictate the terms to the landlord regarding his necessity.
It was held by the Hon'ble High Court of Delhi in Gopal Kishan Vs. Ram Saroop RC Rev. No. 443/17 & CM No.34870/17 decided on 22.09.17 that the legislative intent behind Section 25B of the Act being to provide a prescribed summary procedure for petitions for eviction on the ground of self requirement of the premises, the same parameters as of a written statement cannot apply and the tenant cannot be granted leave to defend for the asking and without the tenant placing before the Rent Controller even a semblance of proof of what is pleaded, leave to defend cannot be granted.
15. In the absence of any substantial material brought before the court or pointed out by the respondent in the affidavit, it cannot be said that the present E-20715 Narender Kr. Jain & ors. Vs Surender Kr. Jain Page no.8/9 petition for eviction is actuated by mala fide and has not been made with bona fide intention. Merely stating in the affidavit that the petition for eviction has been made with mala fide intention is not sufficient to sustain the contention of the respondent. The court is satisfied that there is no triable point between the parties.
16. As per the provisions of section 25-B of Act 59 of 1958 a tenant shall be entitled to leave to contest the petition for eviction if the affidavit filed by him discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the grounds specified in clause (e) of proviso to sub-section (1) of section 14 of Act 59 of 1958.
17. In view of above discussion and the documents filed by the parties, this court is of the considered view that there is no triable issue between the parties which entitles the respondent for leave to contest the present application for eviction. The application for leave to contest is without merit and the same is dismissed.
18. As an off shoot of the dismissal of the application for leave to contest made by the respondent, the petitioners are found entitled to recover the possession of premises no. 981, First Floor, Bhojpura, Maliwara, Delhi-06 as shown in red colour in the site plan annexed with the application for eviction.
The petition for eviction is allowed. In the facts and circumstances of the case there shall be no order as to costs.
In view of the provisions of sub-section (7) of section 14 of Act 59 of 1958 this order for recovery of possession of premises shall not be executed before the expiration of a period of six months from this date.
Digitally
signed by
PUNEET
PUNEET PAHWA
PAHWA Date:
2018.11.16
15:42:06
+0530
(Puneet Pahwa)
Announced in the open court Additional Rent Controller-02
on this 16th November, 2018 Central/Tis Hazari Courts/Delhi
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