Delhi District Court
Sh. Atal Behari Sharma vs Sh. Nitin Kakkar on 19 January, 2015
IN THE COURT OF SHRI SANDEEP GARG: ADMINISTRATIVE
CIVIL JUDGE CUM ADDITIONAL RENT CONTROLLER
(CENTRAL) : DELHI
E409/2013
Unique ID No : 02401C0517802013
In the matter of:
Sh. Atal Behari Sharma,
S/o Late Sh. Laxmi Niwas Sharma,
R/o 492, Esplanade Road,
Cycle Market,
Chandni Chowk,
Delhi110006.
....Petitioner
Versus
Sh. Nitin Kakkar,
S/o Late Sh. Prabha Shankar @ Guddi Babu,
available at:
477, Esplanade Road,
Cycle Market,
Chandni Chowk,
Delhi110006.
Address of the demised premises:
432, Kucha Bulaqi Begum,
Cycle Market,
Chandni Chowk,
Delhi110006.
.....Respondent
O R D E R:
E409/2013 Page 1/28
1. Vide this order, an application for leave to defend, filed on behalf of the respondent under Section 25B (4) of The Delhi Rent Control Act, 1958 (hereinafter referred to as DRC Act, 1958) seeking leave to contest the present eviction petition is disposed of.
2. The present eviction petition has been filed by the petitioner namely Sh. Atal Behari Sharma against the respondent namely Sh. Nitin Kakkar. It is averred that the petitioner is one of the coowners of the tenanted premises. The other coowners of the petitioner in respect of the tenanted premises have voluntarily authorized the petitioner to institute these proceedings against the respondent/tenant. The respondent is a tenant in respect of one room and one kitchen on the first floor (lastly used as a 'godown') alongwith the user of common W.C. and the common lobby of the building commonly known as 'Rath Khana' bearing municipal no. 432, Kucha Bulaqi Begum, Cycle Market, Esplanade Road, Chandni Chowk, Delhi110006, as shown in red colour in siteplan attached alongwith the petition, at a monthly rent of Rs. 20/ excluding property taxes, electricity and/or water charges. The tenanted premises is sandwiched between the E409/2013 Page 2/28 Main Esplanade Road (on one side; rear side) as also Kucha Bulaqi Begum (which is on the 'other' side of the building in reference).
3. The respondent is one of the legal heirs of the original tenant, Sh. Prabha Shanker @ Guddi Babu (now deceased). The respondent claims to be the only legal heir of his father/predecessor in interest and he is in actual physical possession, use, occupation and enjoyment of the tenanted premises. The tenanted premises was let out to the father/predecessor in interest of the respondent for residential purposes and was being originally used by the tenant for residential purposes. For the last several months and in particular, since the death of the said tenant, Sh. Prabha Shanker @ Guddi Babu (now deceased), the respondent, who claims to be the sole tenant in the tenanted premises, has been using the same as a godown for keeping his surplus stocks in trade i.e. for nonresidential purposes. Rentals in respect of the tenanted premises have neither been tendered, nor paid or deposited by the said tenant, Sh. Prabha Shanker @ Guddi Babu (deceased) or by the respondent/tenant for the last couple of decades. No written agreement, if any, evidencing the terms of the demise is available with the petitioner or E409/2013 Page 3/28 even his coowners/family members. Two eviction petitions instituted inter alia by the petitioner for two different shops located on the front side of the building bearing no.492, Esplanade Road, Cycle Market, Chandni Chowk, Delhi110006 (which building is commonly known as Mandir Lod Jagannathji Maharaj) are pending adjudication in the court of Sh. Siddharth Mathur, Ld. ARC (Central), Tis Hazari Courts, Delhi.
4. The petitioner and his family are living within the precincts of the building commonly known as Mandir Lord Jagannathji Maharaj situated at the premises bearing Municipal No. 492, Esplanade Road, Cycle Market, Chandni Chowk, Delhi110006. The family of the petitioner comprises of petitioner himself (photographer), aged about 55 years; his wife viz. Smt. Prabha Sharma (housewife), aged about 48 years; his son viz. Sh. Amit Sharma (private service), aged about 22 years and his married daughter viz. Ms. Neha Sharma, aged about 24 years. The accommodation available with the petitioner for the residential use of the petitioner and the members of his family comprises of one bed room (10' X 9'' - 8.5' height), one kitchen (7'4'' X 4'2'' 7' height) and one bathroom (5'0.'' X 2'6'' - 6' height), only, as shown E409/2013 Page 4/28 in greed colour in the site plan. No other accommodation is available to the petitioner and/or the members of his family for their own use and occupation, much less for their own residential use and occupation.
5. The accommodation available with the petitioner for residential purposes is grossly short for decent and comfortable living by the petitioner and his family members. The petitioner and his family members bonafide requires the tenanted premises for their own residential needs and requirements. The petitioner (or even his wife and son, jointly or severally) does not own or possess any other suitable or even reasonably residential accommodation for purposes of housing the minimum needs of the members of his family. The need of petitioner qua the tenanted premises is just, genuine, honest and bonafide. The petitioner requires the tenanted premises bonafide not only for himself, but also for his family members including his son who is now of marriageable age. The petitioner requires accommodation not only for his own and his wife's decent living, but also for his son who is likely to be married soon. The petitioner also requires some accommodation for his married daughter and her husband as and when they visit the E409/2013 Page 5/28 petitioner. The petitioner necessarily requires space of atleast two cots for the overnight stay of his married daughter and soninlaw. It is prayed that an eviction order may be passed in respect of the tenanted premises as shown in red colour in the site plan.
6. The respondent has filed an application for leave to defend U/s 14 (1) (e) r/w Section 25B of DRC Act to defend and contest the eviction petition. The respondent has contended that even as per the averments made in the petition and documents filed therewith, the petitioner has no right, title or interest exclusively and he has no right to file the present petition. There is no relationship of tenant and landlord between the respondent and the petitioner. The respondent or his predecessor neither attorned in favour of the petitioner, nor paid any rent to him at any point of time. Initially, father of the respondent viz. Sh. Guddu Babu was tenant in respect of the tenanted premises for commercial purposes. Sh. Guddu Babu expired on 05.08.2011 living behind his widow, Smt. Sadhna Kakkar, the respondent and another son, Sh. Rajat Kakkar. After the death of Sh. Guddu Babu, all the aforementioned legal heirs had become tenants in the tenanted premises. All E409/2013 Page 6/28 the three legal heirs of Sh. Guddu Babu are in possession of the tenanted premises and are carrying on business under the name and style of M/s Kanhaiya Lal Bhawani Shankar, a partnership firm. Therefore, the petition is not maintainable only against the respondent and is bad on account of non joinder of necessary parties i.e. cotenants/joint tenants.
7. It is averred that the petitioner is not owner/coowner of the tenanted property. No document showing ownership of the petitioner and his coowners have been filed. Copy of decree sheet passed by Hon'ble High Court does not in any manner establish ownership of the petitioner and other coowners. Even report of the Local Commissioner, which was made part of the final decree for partition, has not been filed with ulterior motive to conceal material facts. The actual fact is that the tenanted property is part and parcel of Mandir of Jagannath Swamiji, which was constructed by Sh. Ghassi Ram and Sh. Kunya Lal somewhere in the year 1864/6 and the property of the temple vested in its deity. The entire property in dispute of which the tenanted premises forms part, was used for keeping rath used in annual rath yatra of Lord Jagannathji. There is a stone affixed in front of E409/2013 Page 7/28 temple of Sh. Jagannath Swamiji, bearing property no. 492, Esplanade Road, Delhi wherein it is inscribed that the temple was erected in 1864/6 by Sh. Ghassi Ram and Sh. Kunya Lal. The forefather of petitioner was appointed as Mahant/Care Taker of the deity. The said Mahant was only having right of management, worship, collection of offerings and realization of rent. Ownership of the property did not vest in the Mahant.
8. It is averred that earlier, there was litigation between Sh. Batto Mal and Sh. Laxmi Niwas, predecessor of the petitioner and other branch of petitioner's family in which a compromise was arrived at on 19.07.1954. A perusal of the compromise reflects that the premises in dispute belonged to the deity and it was dedicated by Sh. Ghassi Ram and Sh. Kunya Lal for the benefit of the deity. Subsequently, the legal representatives of Sh. Laxmi Niwas including the present petitioner filed an application for amendment of decree in the Civil Suit between Sh. Batto Mal and Sh. Laxmi Niwas. The application was allowed and decree was amended vide order dated 09.05.1967. The present petitioner and Sh. Satya Narain, elder brother of the petitioner and other heirs of Sh. Laxmi Niwas had filed a suit against Sh. E409/2013 Page 8/28 Kishan Lal & Anr., bearing no. 224/1974 in Hon'ble High Court of Delhi wherein Sh. Kishan Lal had taken the defence that the property in dispute was owned by the idol of Sh. Jagannathji and he (Sh. Kishan Lal) was its Mahant/Shebait. The said suit was decided vide judgement dated 20.12.1982 wherein it was observed that no opinion is being expressed regarding right of the parties to transfer the property as owners of the shares got by them under the decree as none of the parties have claimed any right to transfer the share got by them.
9. It is averred that the issue of ownership of the property in dispute was left open in the aforementioned suit for rendition of accounts and partition. It was rather observed by the Hon'ble High Court that none of the parties are owner of the property in dispute which vests in the deity and the parties to the suit were at the most Manager/Shebait. Therefore, the petitioner and his coowners were given rights to realize the rent only. An execution petition for execution of the decree passed in suit for partition was filed by the petitioner and his predecessor in interest wherein they had sought possession of the tenanted premises from Sh. Guddu Babu, father of E409/2013 Page 9/28 the respondent. The execution petition was adjourned sine die and therefore, till the execution petition is decided and petitioner and his coowners are given right to attorn the respondent and realize rent from him, the present petition is not maintainable. In the execution petition, the petitioner and his coowners had described the predecessor in interest of the respondent to be unlawful occupant having being inducted by Sh. Kishan Lal. However, it is not in dispute that Sh. Guddu Babu was inducted in the tenanted premises by Sh. Kishan Lal.
10. It is averred that the tenanted premises is being used as a godown of the firm M/s Kanhaiya Lal Bhawani Shanker, which was let out by Sh. Kishan Lal to Sh. Guddu Babu. It is denied that the other alleged coowners have authorized the petitioner to institute eviction petition against the respondent. As a matter of fact, the respondent met some of the alleged co owners of the petitioner who stated that they were not in favour of filing any eviction petition by the petitioner. Had the petitioner sought to join other alleged coowners as a party to the present petition, they would have declined their consent to file an eviction petition against the respondent. It is E409/2013 Page 10/28 denied that the accommodation available with the petitioner and his family members is only bed room, one kitchen and one bathroom. The petitioner and his family members are in possession of sufficient accommodation. The site plan filed by the petitioner showing accommodation in his possession is not correct and the alleged requirement of the petitioner is not bonafide. In earlier eviction petition filed by the petitioner against M/s Ratan Studio and Sh. Ankit Sharma, application for leave to defend filed by the tenants were allowed on the grounds stated above.
11. The petitioner filed his reply alongwith counter affidavit to the application for leave to defend, filed by the respondent and has denied the allegations leveled by the respondent in his application for leave to defend and reaffirmed his stance, as averred in the petition.
12. Respondent filed rejoinder and allegations leveled by the petitioner have been controverted and rebutted. The averments made in application for leave to defend have been reiterated and reaffirmed. E409/2013 Page 11/28
13. The court has heard submissions advanced on behalf of both the parties and have perused the material on record.
14. While deciding the question as to whether leave to defend should be granted or refused, the Court is required to examine the case on the following aspects :
(a) That the petitioner is owner of the suit premises;
(b) Purpose of letting;
(c) That the premises is required bonafide by the petitioner; and
(d) That the petitioner has no other alternative suitable accommodation in Delhi.
15. In Precision Metal & Engg. Works Vs. Prema Deva, Niranjan Deva Tayal, AIR 1982 SC 1518, it has been 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 E409/2013 Page 12/28 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 gist of the various decisions is that if any triable issue is raised in the application which can not be decided unless the parties lead evidence, leave to contest should be granted. In all other cases, the leave has to be refused.
16. In Rita Lal Vs. Raj Kumar Singh (2002) 7 SCC 614, 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 can not be held to be raising a 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." E409/2013 Page 13/28 Ownership
17. It has been emphatically contended on behalf of the respondent that the petitioner is not coowner of the tenanted premises. He alone has no right, title or interest to institute the present petition. The respondent neither attorned in favour of the petitioner, nor paid any rent to him at any point of time. No document to establish ownership of the tenanted premises has been filed alongwith the petition. Copy of the decree sheet passed by Hon'ble High Court does not reflect the ownership of the petitioner in respect of the tenanted premises. Report of Local Commissioner which was made part of final decree for partition has also not been filed with ulterior motive to conceal material facts. The actual fact is that the tenanted property is part and parcel of Mandir of Jagannath Swamiji, which was constructed by Sh. Ghassi Ram and Sh. Kunya Lal somewhere in the year 1864/6 and the property of the temple vested in its deity. The entire property in dispute of which the tenanted premises forms part, was used for keeping rath used in annual rath yatra of Lord Jagannathji. There is a stone affixed in front of temple of Sh. Jagannath Swamiji, bearing property no. 492, Esplanade Road, E409/2013 Page 14/28 Delhi wherein it is inscribed that the temple was erected in 1864/6 by Sh. Ghassi Ram and Sh. Kunya Lal. The forefather of petitioner was appointed as Mahant/Care Taker of the deity. The said Mahant was only having right of management, worship, collection of offerings and realization of rent. Ownership of the property did not vest in the Mahant.
18. Earlier, there was litigation between Sh. Batto Mal and Sh. Laxmi Niwas, predecessor of the petitioner and other branch of petitioner's family in which a compromise was arrived at on 19.07.1954. A perusal of the compromise reflects that the premises in dispute belonged to the deity and it was dedicated by Sh. Ghassi Ram and Sh. Kunya Lal for the benefit of the deity. Subsequently, the legal representatives of Sh. Laxmi Niwas including the present petitioner filed an application for amendment of decree in the Civil Suit between Sh. Batto Mal and Sh. Laxmi Niwas. The application was allowed and decree was amended vide order dated 09.05.1967. The present petitioner and Sh. Satya Narain, elder brother of the petitioner and other heirs of Sh. Laxmi Niwas had filed a suit against Sh. Kishan Lal & Anr., bearing no. 224/1974 in Hon'ble High Court of Delhi wherein Sh. Kishan Lal E409/2013 Page 15/28 had taken the defence that the property in dispute was owned by the idol of Sh. Jagannathji and he (Sh. Kishan Lal) was its Mahant/Shebait. The said suit was decided vide judgement dated 20.12.1982 wherein it was observed that no opinion is being expressed regarding right of the parties to transfer the property as owners of the shares got by them under the decree as none of the parties have claimed any right to transfer the share got by them.
19. The issue of ownership of the property in dispute was left open in the aforementioned suit for rendition of accounts and partition. It was rather observed by the Hon'ble High Court that none of the parties are owner of the property in dispute which vests in the deity and the parties to the suit were at the most Manager/Shebait. Therefore, the petitioner and his coowners were given rights to realize the rent only. An execution petition for execution of the decree passed in suit for partition was filed by the petitioner and his predecessor in interest wherein they had sought possession of the tenanted premises from Sh. Guddu Babu, father of the respondent. The execution petition was adjourned sine die and therefore, till the execution petition is decided and petitioner and his coowners are given right to attorn the E409/2013 Page 16/28 respondent and realize rent from him, the present petition is not maintainable. In the execution petition, the petitioner and his coowners had described the predecessor in interest of the respondent to be unlawful occupant having being inducted by Sh. Kishan Lal. It is denied that the other alleged coowners have authorized the petitioner to institute eviction petition against the respondent. As a matter of fact, the respondent met some of the alleged coowners of the petitioner who stated that they were not in favour of filing any eviction petition by the petitioner. Had the petitioner sought to join other alleged coowners as a party to the present petition, they would have declined their consent to file an eviction petition against the respondent.
20. Per contra, it is contended on behalf of the petitioner that the respondent had become tenant under the petitioner by operation of law after the death of his father. The title of the petitioner and his coowners was recognized/acknowledged by Division Bench of Hon'ble High Court on 11.08.1986 when the first appeal filed by the defendants was dismissed. Sh. Guddu Babu, father of respondent was a party to the said suit and appeal, which had attained finality as father of respondent never assailed order dated E409/2013 Page 17/28 11.08.1986 before higher forum. It is asserted that the petitioner has the requisite authority from other coowners to institute the present petition against the respondent. The petitioner is not aware that Sh. Guddu Babu has left behind three legal heirs. The respondent is solely in possession of the tenanted premises, which is lying locked. Neither Smt. Sadhna Kakkar, nor Sh. Rajat Kakkar have come forward to claim/assert any right, title or interest in the tenanted premises and therefore, they are neither necessary, nor proper parties. It is evident from the documents filed by the petitioner that the tenanted premises alongwith other immovable properties had fallen into the share of the petitioner and he had become one of the coowner of the same. It is emphatically denied that the entire property in dispute including the tenanted premises belonged to the deity.
21. The decree/order dated 09.05.1967 ceases to be of any consequence in view of decree dated 24.04.1985. In execution proceedings bearing no. 163 of 1986, Sh. Guddu Babu had specifically averred that he is a tenant in the tenanted premises since December, 1973 and the DH is entitled to symbolic possession alone. He used to pay rent of the tenanted E409/2013 Page 18/28 premises to Mehant Kishan Lal and therefore, the respondent being successorininterest of Sh. Guddu Babu is bound by the admission made by his predecessorininterest and he cannot dispute that he is not tenant of the tenanted premises which had fallen into the share of the petitioner and his coowners. Sh. Kishan Lal who had inducted Sh. Guddu Babu as a tenant was having no right, title or interest in respect of the tenanted premises which had fallen into the share of the petitioner and his coowners. The report of Local Commissioner was never made part of the decree. In any case, certified copy of report of Local Commissioner in Suit No. 224 of 1974 has already been filed alongwith reply to application for leave to defend. Merely because leave to defend was granted in other eviction petitions in respect of premises situated away from the tenanted premises, that by itself does not constitute to be a triable issue. The orders passed by court of co ordinate jurisdiction are not binding upon this court.
22. Ld. Counsel for petitioner places reliance upon judgments delivered by Hon'ble Supreme Court of India in the cases of Smt. Shanti Sharma & Ors. Vs. Smt. Ved Prabha & Ors., IX1987 (2) All India Rent E409/2013 Page 19/28 Control Journal; Sheela & Ors. Vs. Firm Prahlad Rai Prem Prakash, (2002) 3 SCC 375; Pushpa Rani & Ors. Vs. Bhagwanti Devi & Anr., AIR 1994 SC 774; Harish Tandon Vs. Addl. District Magistrate, Allahabad, U.P. & Ors., (1995) 1 SCC 537; Kanji Manji Vs. The Trustees of the Port of Bombay, AIR 1963 SC 468 (V 50 C 68); N.K. Mohammad Sulaiman Vs. N.C. Mohammad Ismail & Ors., 1966 (1) SCR 937; Kamal Tanan (deceased) by LRs. Vs. M.L. Vasishta (deceased) by LRs., (2001) 9 SCC 263; L.C. Goyal Vs. Suresh Joshi (Mrs) & Ors., (1999) 3 SCC 376 and judgments delivered by Hon'ble High Court of Delhi in the cases of T.C. Rekhi Vs. Smt. Usha Gujral, 1971 RCJ 322; Sudhir Kumar Gupta Vs. Varshawati Sharma & Ors., 1995 (35) DRJ; Sushil Kumar Vs. Bhagwanti Devi & Anr., 1989 (16) DRJ; Sh. Rakeshwar Narain (deceased) Vs. Smt. Sarla Sarin, DRJ 1992 (22); Prakash Wati Bali & Anr. Vs. Manish Dewan, 62 (1996) DLT 475; K.L. Diwan & Ors. Vs. Mohan Malhotra & Anr., 158 (2009) DLT 442; Delhi Cloth Market Trust Committee Vs. Sheila Devi, 2001 RLR 63; Inder Pal Khanna (Sh.) Vs. Commander Bhupinder Singh Rekhi (Rtd.), 2008 VIII AD (Delhi) 328; The Ganesh E409/2013 Page 20/28 Flour Mills Company Ltd. Vs. Ramesh Chand (H.U.F.), 1979 (2) All India Rent Control Journal 418; Sanjay Mehra & Ors. Vs. Sunil Malhotra & Anr., C.M. (M) No. 1518 of 2009, decided on 12.07.2010; Ram Sarup Sant Ram Aggarwal Vs. Chanan Singh Arjan Singh & Ors., AIR 1964 Punjab 525 (V 51 C 171) and Bharat Bhushan Vij Vs. Arti Teckchandani, 153 (2008) DLT 247.
23. It is no longer res integra that the word 'owner' used in Section 14 (1) (e) of the DRC Act does not postulate absolute ownership over the tenanted premises. The term 'owner' is intended to include a person receiving or entitle to receive the rent of the tenanted premises. The term 'owner' visavis the tenant means that the owner should something more than the tenant. Reference can be made to judgments delivered by Hon'ble Supreme Court of India in the cases of Smt. Shanti Sharma & Ors. Vs. Smt. Ved Prabha & Ors., IX1987 (2) All India Rent Control Journal; Sheela & Ors. Vs. Firm Prahlad Rai Prem Prakash, (2002) 3 SCC 375 and judgments delivered by Hon'ble High Court of Delhi in the cases of T.C. Rekhi Vs. E409/2013 Page 21/28 Smt. Usha Gujral, 1971 RCJ 322 and Bharat Bhushan Vij Vs. Arti Teckchandani, 153 (2008) DLT 247. Even though the petitioner and his co owners may not be absolute owners of the tenanted premises, but they are owners/landlords qua the respondent who is bound by the admission of his predecessorininterest Sh. Guddu Babu in execution petition no. 163/1986 wherein it was specifically averred that he is a tenant of Mahant Kishan Lal since December, 1973. It is not in dispute that the tenanted premises had fallen into the share of the petitioner and other coowners/their predecessors ininterest by virtue of judgment and decree dated 24.04.1985 which has already attained finality. Therefore, the court holds that the petitioner is co owner of the tenanted premises and he is one of the landlord in respect of the tenanted premises, qua the respondent.
Purpose of Letting
24. Purpose of letting has become redundant as in Satyawati Sharma Vs. Union of India 148 (2008) DLT 705 Supreme Court, it has been held that the premises let out either for residential or for commercial purposes can be got vacated by the landlord for bonafide requirements. E409/2013 Page 22/28 Availability or NonAvailability of alternative suitable accommodation in Delhi
25. The respondent has not claimed that the petitioner is having alternative suitable accommodation with him. In the absence of any prima facie evidence or record to establish availability of alternative reasonably suitable accommodation with the petitioner, the court holds that the petitioner is not having any other reasonably suitable accommodation for use by him and his family members for residential purposes and the respondent has not been able to raise any triable issue on this aspect. Bonafide requirement
26. It is contended on behalf of the respondent that initially, father of the respondent viz. Sh. Guddu Babu was tenant in respect of the tenanted premises for commercial purposes. Sh. Guddu Babu expired on 05.08.2011 living behind his widow, Smt. Sadhna Kakkar, the respondent and another son, Sh. Rajat Kakkar. After the death of Sh. Guddu Babu, all the aforementioned legal heirs had become tenants in the tenanted premises. All the three legal heirs of Sh. Guddu Babu are in possession of the tenanted E409/2013 Page 23/28 premises and are carrying on business under the name and style of M/s Kanhaiya Lal Bhawani Shankar, a partnership firm. Therefore, the petition is not maintainable only against the respondent and is bad on account of non joinder of necessary parties i.e. cotenants/joint tenants. The respondent met some of the alleged coowners of the petitioner who stated that they were not in favour of filing any eviction petition by the petitioner. Had the petitioner sought to join other alleged coowners as a party to the present petition, they would have declined their consent to file an eviction petition against the respondent. It is denied that the accommodation available with the petitioner and his family members is only bed room, one kitchen and one bathroom. The petitioner and his family members are in possession of sufficient accommodation. The site plan filed by the petitioner showing accommodation in his possession is not correct and the alleged requirement of the petitioner is not bonafide. In earlier eviction petition filed by the petitioner against M/s Ratan Studio and Sh. Ankit Sharma, application for leave to defend filed by the tenants were allowed on the grounds stated above.
E409/2013 Page 24/28 27 Per contra, it is emphatically contended by ld. Counsel for the petitioner that admittedly, respondent is one of the legal heir of Sh. Guddu Babu, the original tenant. It is well settled proposition of law that it is not essential to implead all the legal heirs of the deceased tenant. It is sufficient if one legal heir of the deceased tenant is impleaded as heirs of the deceased tenant are joint tenants and not tenants in common. No document has been filed by the respondent to establish that the copetitioners have not authorized the petitioner to institute the present petition. Similarly, no document has been filed to establish that the petitioner is in possession of more accommodation than averred in the petition. Mere denial is of no consequence. No site plan has been filed by the respondent to contradict the site plan filed by the petitioner. The mere fact that application for leave to defend was allowed in another petition filed by the petitioner on the same grounds also does not constitute a triable issue. Therefore, there is no merit in the application for leave to defend and the same deserves to be dismissed. 28 The court is of the considered view that it is no longer res integra that heirs of a deceased tenant are joint tenants and not tenants in common. E409/2013 Page 25/28 Therefore, it is not essential to implead all the heirs of the deceased tenant. Reference can be made to judgment of Hon'ble Supreme Court in the case of Harish Tandon Vs. Addl. District Magistrate, Allahabad, UP and others (1995) 1 SCC 537 and judgment of Hon'ble High Court of Delhi in the case of Delhi Cloth Market Trust Committee Vs. Sheila Devi 2001 RLR 63. No document has been filed by the respondent to establish that the copetitioners had not authorized the petitioner to institute the present petition. Similarly, no document has been filed to establish that the petitioner is in possession of more accommodation than averred in the petition and mere denial is of no consequence. No site plan has been filed by the respondent to contradict the site plan filed by the petitioner. The mere fact that application for leave to defend was allowed in another petition filed by the petitioner on the same grounds also does not constitute a triable issue, more particularly when the pleadings and order passed in said case has not been placed on record. Therefore, the court holds that the respondent has failed to raise any triable issue regarding the bonafide requirement of the petitioner, whereas the petitioner has been able to establish that the tenanted premises is bonafidely required by him for his own use and use by his family.
E409/2013 Page 26/28 29 In view of the above discussion, the Court is of the view that the respondent has failed to set up any triable issue which requires inquiry or trial. In other words, primafacie there is nothing on record which would disentitle the petitioner of the right of immediate possession in respect of the tenanted premises.
30 Accordingly, the application under Section 25B (4) of Delhi Rent Control Act, 1958, filed by the respondent is dismissed. The petition is allowed and eviction order is passed in favour of the petitioner and against the respondent in respect of one room and one kitchen on the first floor (lastly used as a 'godown') alongwith the user of common W.C. and the common lobby of the building commonly known as 'Rath Khana' bearing municipal no. 432, Kucha Bulaqi Begum, Cycle Market, Esplanade Road, Chandni Chowk, Delhi110006, as shown in red colour in siteplan attached alongwith the petition. This order shall not be executable before expiry of six months from the date of this order. Parties to bear their own costs.
File be consigned to Record Room.
E409/2013 Page 27/28
Announced in the open court (SANDEEP GARG)
on 19.01.2015 Administrative Civil Judge cum
Additional Rent Controller (Central)
Delhi/19.01.2015
E409/2013 Page 28/28
E409/13
19.01.2015
Present : Petitioner in person.
Proxy Counsel for counsel for respondent.
Vide separate order of even date, application for leave to defend, filed by the respondent is dismissed. The petition is allowed and eviction order is passed in favour of the petitioner and against the respondent in respect of one room and one kitchen on the first floor (lastly used as a 'godown') alongwith the user of common W.C. and the common lobby of the building commonly known as 'Rath Khana' bearing municipal no. 432, Kucha Bulaqi Begum, Cycle Market, Esplanade Road, Chandni Chowk, Delhi110006, as shown in red colour in siteplan attached alongwith the petition. This order shall not be executable before expiry of six months from the date of this order. Parties to bear their own costs.
File be consigned to Record Room.
(Sandeep Garg) ACJcumARC (Central) Delhi/19.01.2015 E409/2013 Page 29/28