Delhi District Court
Harminder Singh Chowdhary vs Joginder Singh on 30 September, 2014
Page no. 1 of 45
IN THE COURT OF SH. SUMEDH KUMAR SETHI
ACJcumARCcumCCJ (WEST) THC, DELHI
UID No. 02401C0439252013
E No.45/2013 U/s 14(1)(e) of DRC Act
Date of institution: 03.09.2013
Date of Order: 30.09.2013
1. Harminder Singh Chowdhary
S/o Late Sh. Pritpal Singh
R/o WZ199, Street No.17
GBlock, Hari Nagar,
New Delhi110058
2. Satinder Singh Chowdhary
S/o Late Sh. Pritpal Singh
R/o WZ199, Street No.17
GBlock, Hari Nagar,
New Delhi110058
....... Petitioners
Versus
1. Joginder Singh
S/o Late Sh. Kirpal Singh
M/s. Singh Sons
Ground Floor, Shop No.2
WZ199, GBlock, Jail Road,
Hari Nagar, New Delhi110058
R/o. DB85, Janak Puri, New Delhi.
2. Sukhvinder Kaur Kwatra
D/o Late Sh. Prit Pal Singh
W/o. Sh. Harjeet Singh Kwatra
R/o. BL80, Anand Vihar
LBlock, Hari Nagar
New Delhi110064
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 2 of 45
Business Address
M/s. Furniture Gallery
Shop No. 3 &4, WZ199,
GBlock, Jail Road,
Hari Nagar, New Delhi58. ....Respondents
Order deciding Leave to Defend in Eviction petition
U/sec. 14(1)(e) r/w Section 25B of DRC Act, 1958
1) Vide this order the Court shall dispose of the application U/s 25B (4 & 5) of DRC
Act of the respondents seeking leave to defend the eviction petition, filed on
18.09.2013.
2) The eviction petition U/sec. 14(1)(e) Section 25B of the Delhi Rent Control Act,
1958 (hereinafter referred to as DRC Act) was filed by the petitioner against the
respondents on 03.09.2013.
FACTS
3) The averments made in the petition are that:
3.1 One shop bearing private no. 2 measuring 10ft X 15 ft., situated on the
ground floor of the property No. WZ199, GBlock, Jail Road, Hari Nagar,
New Delhi110058 (herein after called tenanted premises/shop in question), as
shown in red colour in the site plan, was let out by the late father of the
petitioners and respondent no.2, Sh. Prit Pal Singh to the respondent no. 1
since 1986 and presently the rate of rent is Rs.375/ per month exclusive of
other charges.
3.2 The father of the petitioners died on 29.08.1995 leaving behind his wife
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 3 of 45
Smt. Gurbachan Kaur, 2 sons and 1 daughter, namely Harminder Singh
Chowdhary (Petitioner no.1), Satinder Singh Chowdhary (petitioner no.2) and
Sukhvinder Kaur Kwatra (respondent no.2) as his legal heirs.
3.3 After the death of the father of petitioners, the respondent no. 1 kept on
paying rent to Smt. Gurbachan Kaur who expired on 15.05.2012 and
thereafter, the respondent no. 1 became a tenant under the petitioners.
3.4 The petitioners and respondent no.2 are the lawful owners/ landlords of
the above mentioned property.
3.5 The tenanted shop no.2 is required by the petitioners for running their
professional office both of them being advocates as they do not have any
chamber either in the District Courts or the Hon'ble High Court of Delhi or
any other place. They do not own any other property in whole of Delhi in their
names. At present the petitioners sit in chamber no. 85, Western Wing, Tis
Hazari Courts which belongs to Sh. V. M. Issar, Advocate. His two sons and
daughter in law are also advocates and sit in the said chamber. Hence, the
petitioners do not have any space in the chamber. Even respondent no. 2 is not
owning any other property in whole of Delhi in her name.
3.6 In fact, the petitioner no.1 and 2 require the shop no.2 for running their
professional office. Since the shop in question is about 10ft. X 15ft.
3.7 That late Sh. Pritpal Singh was lawful owner of one half of the property
bearing no. WZ199, GBlock, Jail Road, Hari Nagar, New Delhi110058 by
virtue of Civil Court decree dated 08.10.1985 in suit no. 79/85 titled as Pritpal
Singh vs Surat Singh. Earlier there were some disputes between Pritpal Singh
and his real elder brother Sh. Jagdish Singh in respect of the property in
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 4 of 45
question however, in Hon'ble High Court of Delhi, in FAO No. 205/2003
dated 23.07.2007 all disputes between the legal representatives including Sh.
Jagdish Singh were amicably settled in writing by a memorandum of
understanding filed in the said FAO No. 205/2003. Copy of the MOU and the
decree dated 08.10.1985 were enclosed. By virtue of the said MOU the father
of the petitioners were admitted to be the owner of one half of the property in
question.
3.8 The said half portion earlier owned by the petitioners' father and now
owned by the petitioners and respondent no. 2 is shown in green colour in the
site plan. The said portion of Property no. WZ 199, GBlock, Jail Road, Hari
Nagar, New Delhi110058 consists of 4 shops facing the main jail road and
other portion in the backside is residential where the petitioners are residing.
3.9 Out of the four shops bearing private no.1 to 4 situated in the property no.
WZ199, GBlock, Jail Road, Hari Nagar, New Delhi, Smt. Gurbachan Kaur
was in possession of two shops bearing private no. 3 and 4 alongwith
courtyard behind shop no.1 to 4 and the rear residential portion. The shop
no.2 is with respondent no.1 and shop no.1 is with another tenant Ravi Kumar,
who is an old tenant.
3.10 Both petitioners need one separate office each for their professional
work. Petitioner no. 1 has been a practicing advocate since 2003 and his
enrolment no. is D/1935/03. Petitioner no. 2 has been a practicing advocate
since 1998 and his enrolment no. is D/734/98.
3.11 The shop in question is situated at the main road leading to Jail Road and
the said commercial road is fit and suitable for running their professional
office being advocates also convenient for the petitioners as they are residing
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 5 of 45
in the back portion of the same property.
3.12 The petitioners require the shop in question for their professional office
as they are facing acute hardship in the absence of any office with them. The
petitioners have no space to keep their professional books, no room to keep
the Court files and no room to keep computer. Further, there is no separate
space for their clients.
3.13 That the respondent no.2 who was made a proforma party being co
owner of the shop in question is the married sister of the petitioners and is
residing near the property. The late mother of the petitioners was running
business of furniture goods in shop no. 3 and 4 of the property during her
lifetime. The respondent no.2 used to assist her in running the said business
from the said shop and from a portion of rear Courtyard covered with tin shed
behind shop no. 1 to 4 with the help of one employee. At present, the
respondent no.2 is exclusively carrying on the said business after the death of
their mother on 05.05.2012 under the name and style of M/s. Furniture Gallery
with the help of one employee (the petitioners being practicing advocates have
nothing to do with the said business).
3.14 That the late mother of the petitioners had filed eviction petition against
the respondent no.1 Under Section 14D of the DRC Act in 2007 bearing no.
E110/2008. However, after her death, respondent no.1 took a technical
objection about the cause of action not surviving and the said petition was
dismissed on 16.07.2013.
3.15 The petitioners do not have any other shop or suitable accommodation
available with them for running their professional office except the said shop.
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 6 of 45
4) The respondents have filed application for leave to defend along with affidavit
wherein they admitted the following facts:
4.1 That the respondent no.1 is the tenant with respect to the premises
comprising one shop at ground floor, including terrace thereupon, bearing
shop no.2, WZ199, GBlock, Jail Road, Hari Nagar, Opposite Rajiv Motors,
New Delhi.1
4.2 That after the demise of late Sh. Prithpal Singh, the respondent no.1 to
avoid any dispute and to complete his part regularly started paying rent to the
mother of the petitioners and other legal heirs, who made assurance to him
that she will do everything and will obey the terms as settled for the present
premises between the respondent no.1 and S. Surat Singh.2
4.3 That the husband of the married daughter i.e. respondent no.2 is working
as Sr. Assistant/Govt. Incharge, with State Bank of India, Branch Nangal Rai,
New Delhi42 and obtaining salary more than Rs. 70,000/ per month.3
5) Respondents have raised certain defenses in the application for leave to defend and
the same are as under:
5.1 There is no relationship of tenant and landlord between the respondent
no.1 and the petitioners.
5.2 The premises in question was initially let out by S. Surat Singh, in the
year 1986, he also issued rent receipts. After his demise, there was a dispute
between the legal heirs of late S. Surat Singh. A case was also filed by Sh.
Jagdish Singh (one of the legal heir of late Sh. S. Singh), in the Hon'ble
1
Para 7 of the application under consideration.
2
Para 4 of the affidavit under consideration.
3
Para 14 of the affidavit under consideration.
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 7 of 45
Commercial Civil Judge, Delhi, in which the respondent no.1 was also one of
the party. S. Prithpal Singh was LLB and good knowledge of law. The
respondent no.1 was very afraid of all of their families. When Shri Jagdish
Singh had filed the matter, then S.Prithpal Singh approached him, and got
signed some papers saying that it is dispute between them and he has nothing
to do with the same. Sh. VM Issar, advocate and S. Prithpal Singh told
respondent no.1 that the dispute about ownership between the legal heirs of
late Sh. S.Surat Singh with respect to the suit premises is still pending and
subjudice in the Hon'ble High Court and at Tis Hazari Courts, Delhi, thus till
the final decision comes, the rent will be payable to S. Prithpal Singh.
5.3 Sh. Jagdish Singh had also filed a suit for permanent injunction titled as
Jagdish Singh Vs. Joginder Singh, bearing no. 1376/93, in the Court of Sh. VP
Khandpal Sub Judge, Delhi with respect to the premises in question, in that
matter also same advocate Sh. VM Issar, appeared on behalf of respondent
no.1 and conducted the matter. To avoid dispute about the payment of rent the
respondent deposited rent by impleading all Sh. Jagdish Singh as landlord,
under the petition under Section 27 of DRC Act, pending in the Court of Sh.
TR Naval, ARC, Delhi, bearing DR No. 208/99.
5.4 There is not a partition till date, as S. Prithpal Singh, and other legal heirs
claim that they are the owner and landlord with respect to the shop no.The DR
petition titled as Hansraj Thukral Vs. Prithpal Singh, DR No. 267/91, was
decided by Court of Ms. Neena Bansal, ARC, Delhi on 15.1.99. Till 1999, the
ownership and landlordship was still under dispute and cases are pending in
this respect in the Hon'ble High Court and at Tis Hazari Courts. The
petitioners stated here about a decree passed by Sh. RK Sain, ADJ, Delhi and
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 8 of 45
kept silent about the further proceedings that the same is challenged and still
subjudice in the Civil Court at Tis Hazari Courts and till the same is
adjudicated then till then, how one can rely on it.
5.5 With regard to the documents relied upon the petitioner, it is mandatory
that the same be registered in consonance of Section 17 of the Registration
Act, and in absence of the same, the same would not constitute ownership and
one cannot be allowed to have the benefit of the same.
5.6 The premise in question is situated on government land after encroaching
over the government land, thus the ownership of the petitioners in respect of
the premises is denied.
5.7 The petitioners have one more brother who is residing at Ambala and the
respondent no.1 denies that petitioners are the owners of the suit premises.
5.8 The summons issued in the present matter is not in consonance of the
IIIrd Schedule. Thus, the present matter is in itself barred by law.
5.9 Respondent no.1 has deposited a sum of Rs. 1.5 Lacs with S. Surat Singh
in the year 1986 at the time of taking present premises on rent, on account of
pagri with agreement that rent will not be increased in future and it is the
market value of the property and they will also not evict the respondent no.1 in
any case and the tenancy is forever. Because of this agreement, the rent till
date is not increased and the back side of the rent receipts issued to the
respondent no.1 has terms thereof canceled.
5.10 The present eviction petition is not filed in respect of the complete
tenanted premises and is against a part of the tenanted premises. The
respondent has filed earlier as suit for permanent injunction and in the same
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 9 of 45
the respondent no.1 specifically stated the complete details of the tenanted
premises, he had also filed site plan.
5.11 The site plan filed by petitioners is also not complete and also not giving
full description of the whole property and is total silent.
5.12 S. Prithpal Singh died on 29.7.95, thereafter one of his legal heirs filed
two petitions under Section 14D, DRC Act with respect two separate premises,
both are as follows:
(a) Gurbachan Kaur Vs. Sh. Ravinder Singh; E. No. 107/98, G.No.
377/RC, DOD. 02.11.1998, decided by the Hon'ble Court of Sh. V.K.
Maheshwari, ARC, Delhi.
(b) Gurbachan Kaur Vs. Mrs. Pavinder Kaur Sehgal; E No. 30/2000,
decided on 28.05.2003, decided by the Hon'ble Court of Sh. V.K. Sharma,
ARC, Delhi.
In both the petitions the possession of both the premises was handed
over to the petitioners. Thereafter one more, i.e. the third petition filed under
Section 14D of the DRC Act, and in the same the leave to defend was granted,
and thereafter the petitioner approached the Hon'ble High Court, the challenge
was also dismissed and thereafter the main petition was also dismissed. One
more petition under Section 14D of DRC Act was filed and in the same leave
to defend granted and thereafter the same was dismissed.
5.13 It is specifically denied that the petitioners are advocates; they are not
advocates, but business men running shops no. 3 and 4 for furniture. Both
shops were got vacated from earlier tenants on the same ground and thereafter
the same were converted into shops.
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 10 of 45
5.14 A quarrel occurred with the petitioners in which all facts were disclosed
about running of shop by them and an MCD challan dated 27.06.2007 shows
the same.
5.15 The respondent no.2 herein is residing at BL80, Anand Vihar, LBlock,
Jail Road, Hari Nagar, New Delhi 64. It is a two storey, very big and lavishly
built up Bungalow, measuring 200 sq. yards. She has now been granted
permanent resident VISA at Canada.
5.16 The petitioners are only interested in selling the said property after
getting the same vacated from respondent no.1.
5.17 The petitioners being sons of late. Sh. Pritpal Singh started looking after
the properties and acting as landlord of the properties left behind by their
deceased father, which are as under:
i.WZ199, GBlock, Jail Road, Hari Nagar, New Delhi110058.
ii. Shop at Moti Nagar, New Delhi.
iii. Built up commercial property at Kamla Nagar and Hari Kishan Nagar,
Near Paschim Vihar, Delhi.
iv. Property at Shiv Nagar, Delhi and Tagore Garden Delhi and other
properties.
A number of other properties were allotted to petitioners, the respondent no.2,
her spouse and her kids at Mohali and a number of other places.
5.18 The basic ingredients of the Section 14(1)(e) of Delhi Rent Control Act
are as follows:
(i) Premises must be let for residential purpose.
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 11 of 45
(ii) Requirement of the same must be bonafide.
(iii) The requirement must be of the landlord.
(iv) The requirement of the landlord to occupy the same for his residence.
(v) The requirement of the landlord or in otherwise for any member of his
family dependent on him.
(vi) The landlord must be the owner of the premises.
(vii) The landlord or such person has no other reasonable suitable other
residential accommodation.
(viii) There must be the relationship of landlord and tenant between the parties
to the present matter and the relief paid thereof.
(ix) The Delhi Rent Control Act, must be appliacable over the property. The
same is not applicable to the premises in question. This Court is not having the
territorial jurisdiction over the premise involved in the present matter.
5.19 The respondent no.1 has children and ailing wife and he with the help of
small earning is able to have livelihood and the present premises is the source
of his livelihood and of his family.
6) The petitioner no.1 has filed a reply to the application for Leave to Defend along
with counter affidavit and in the counter affidavit the petitioner has denied the
defences taken by the respondents. The petitioner further submitted as under:
6.1 As per Court decree dated 08.10.1985 in Suit No. 79 of 85 titled as
"Pritpal Singh Vs. Surat Singh" a consent decree was passed by Sh. R.K. Sain
then Ld. ADJ, Delhi holding that petitioner's father late Pritpal Singh is the
owner of half of the portion of the property in question which include shop no.
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 12 of 45
1 to 4, courtyard and the rear residential portion. The certified copy of the said
decree dated 08.10.1985 in suit no.79/85 alongwith site plan is annexed with
the petitioner no.2's counter affidavit. Respondent no.1 himself admitted the
same in written statement filed in the suit no. 120/91 titled as "Jagdish Singh
Vs. Pritpal Singh & Joginder Singh" and also in suit no. 1376/93 titled as
"Jagdish Singh Vs. Joginder Singh".
6.2 The respondent no.1 has mischievously, malafidely and falsely stated that
the petitioners have another brother who is residing at Ambala and failed to
disclose any name, address of the alleged brother or placed any document in
that regard.
6.3 It is specifically denied that respondent no.1 has open terrace above the
shop in question as part of tenancy. All the shops in this suit property facing
main jail road which had been with various tenants have no approach to the
open terrace above these shops. This plea has been raised for the first time by
respondent no.1 in suit no. 706/06 as in all earlier cases which the respondent
no.1 defended. He has never pleaded in his written statement that terrace
above his shop form part of the tenancy as mentioned above in suit no. 120/91
titled as 'Jagdish Singh Vs. Pritpal Singh and Joginder Singh. The rent
deposited by the respondent no.1 in DR No. 806/06 does not mention that the
disputed shop includes terrace. Certified copy of the DR No. 806/2006 of the
petition is enclosed with the petitioner no.2's counter affidavit.
6.4 It is also falsely alleged that respondent no.1 gave pagri of Rs. 1.5 Lakhs
in the year 1986 to Surat Singh. The petitioner's father was a government
employee and was posted at Chandigarh from 1984 to 1989 and he had
authorized his father late Sh. Surat Singh to collect rent of the four shops ( i.e.
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 13 of 45
shop no. 1 to 4) which had fallen to his share including the shop in question on
his behalf after the above Civil Court decree dated 08.10.1985 in suit no.
79/85. Surat Singh had admitted his son Pritpal Singh to be the owner of half
portion of the suit property.
6.5 It is the widow mother of the petitioners who had filed case under Section
14D of DRC Act i.e. eviction case E No. 107/98 and E No. 30/2000. It is
wrong that any benefit U/s. 14D of the DRC Act was ever availed by the
petitioners' mother in the above two eviction cases. In both the above cases
the respective tenants compromised with the petitioners' mother outside the
Court and as a result of compromise the above tenants vacated their respective
shops and delivered vacant peaceful possession to the petitioners' mother.
6.6 The respondent no.1 has falsely alleged that the petitioners are not
practicing as advocates and further falsely alleged that they are running
furniture business in shop no. 3 and 4. In this connection, it is submitted that
respondent no.1 had earlier filed a civil suit no. 706/2006 titled as "Joginder
Singh Vs. Gurbachan Kaur and Satinder Singh" which is enclosed with the
petitioner no.2's counter affidavit and in the above suit the respondent no.1
admitted that both the petitioners are advocates and also filed a copy of
complaint in PS Hari Nagar dated 21.01.2006 which is enclosed with the
petitioner no.2's counter affidavit wherein also he admitted that both the
petitioners are advocates. The petitioners have got certificate from the
Chairman of Bar Council of Delhi which is enclosed with the petitioner no.2's
counter affidavit.
6.7 The respondent no.2 is in exclusive possession of shop no. 3 and 4 and
doing furniture business. Sale tax number which is now called DVAT (Delhi
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 14 of 45
Value Added Tax) and TIN No./registration no. issued from the DVAT
Department is 07116896287 in favour of respondent no.2. Original certificate
issued under Delhi Shops and Establishment Act dated 01.08.2013, Original
MCD challan dated 23.08.2013 is in the name of M/s. Furniture Gallery, Prop.
Smt. Sukhvinder Kaur Kwatra (respondent no.2). Commercial Electric meter
of BSES earlier in the name of Smt. Gurbachan Kaur (mother of petitioners)
was transferred in the name of Smt. Sukhvinder Kaur Kwatra. MTNL
connection earlier in the name of Smt. Gurbachan Kaur mother of the
petitioners was transferred in the name of Smt. Sukhvinder Kaur Kwatra.
Original Bank Certificates from PMC Bank, Tilak Nagar Branch, New Delhi
and Dena Bank, Jail Road, Hari Nagar Branch, New Delhi, Current Bank
account no. 603110100000120 in PMC Bank, Tilak Nagar Branch, New Delhi,
various original bills (Tax invoices/retail invoices) and various original
purchase bills of M/s. Furniture Gallery are pertaining to respondent no.2. The
same is confirmed by letter dated 10.05.2007 issued in favour of both the
petitioners wherein it is confirmed that both the petitioners are practicing
advocates and they have nothing to do with the steel furniture items which is
being looked after by the petitioner's mother. Certified copy of the said writing
given by the Jail Road Shopkeepers Welfare Association (Regd. No.
S/23501/1992) dated 10.05.2007 is enclosed with the petitioner no.2's counter
affidavit.
6.8 The petitioners own no property other than the property in question in
whole of Delhi and thus question of giving description of other properties
does not arise.
6.9 The suit property is built up by sanctioned plan duly approved by the
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 15 of 45
MCD and there is no encroachment as falsely alleged.
7) The petitioner no.2 has filed a reply to the application for Leave to Defend along
with counter affidavit and in the counter affidavit the petitioner no. 2 has denied the
defences taken by the respondents. Petitioner no. 2 has averred on similar lines as
averred by petitioner no.1.
8) Rejoinder to the reply to the application was filed by the respondent wherein
respondent no. 1 denied all the contents of the reply and reiterated the defenses taken
in application for leave to defend. He submitted that Sardar Harvinder Singh (Raju)
son of late Smt. Gurbachan Kaur R/o. H. No. 1797W24, Kasai Mohalla, Ambala
Cantt., District Ambala near Annapurna Tent House, Haryana133001 is also called to
be as one of the legal heirs of late Smt. Gurbachan Kaur.
9) Arguments were heard on the application under consideration on behalf of both
the parties. Material on record has been perused. Submissions considered.
REQUIRMENTS
10) In order to succeed in a petition for eviction filed under section 14(1)(e) of the
Delhi Rent Control Act the petitioner must establish that:
i.He is the owner and landlord in respect of the tenanted premises.
ii.That he requires the premises bonafide for himself or for any member
of his family dependent upon him.
iii.That he has no other reasonably suitable accommodation
11) The scope of the section has been enlarged in view of the judgment of the
Hon'ble Supreme Court titled as Satyawati Sharma v. Union of India: AIR 2008
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 16 of 45
SUPREME COURT 3148 so as to include premises let out for commercial purposes
also within the scope and ambit of a petition under section 14(1)(e) of DRC Act. The
defences which are taken by respondents are discussed below and the same are as
under:
DEFENCES
12) No relationship of landlordtenant between petitioners & respondent no. 1;
Ownership of the petitioners denied; Disputes between petitioners & other legal
heirs; shop in question being govt. land; and another brother of the petitioners
being not made a party:
12.1 All the aforesaid defences pertain to ownership of the premises and
relationship between the petitioners and respondent no. 1 qua the premises;
hence the same are being taken up together.
12.2 The respondent no. 1 has alleged that there is no relationship of tenant
and landlord between the respondent no.1 and the petitioners as the premises
in question was initially let out by S. Surat Singh, in the year 1986, he also
issued rent receipts. After his demise, there was a dispute between the legal
heirs of late S. Surat Singh. A case was also filed by Sh. Jagdish Singh (one of
the legal heir of late Sh. S. Singh), in the Hon'ble Commercial Civil Judge,
Delhi, in which the respondent no.1 was also one of the party. S. Prithpal
Singh was LLB and good knowledge of law. The respondent no.1 was very
afraid of all of their families. When Shri Jagdish Singh had filed the matter,
then S.Prithpal Singh approached him, and got signed some papers saying that
it is dispute between them and he has nothing to do with the same. Sh. VM
Issar, advocate and S. Prithpal Singh told respondent no.1 that the dispute
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 17 of 45
about ownership between the legal heirs of late Sh. S.Surat Singh with respect
to the suit premises is still pending and subjudice in the Hon'ble High Court
and at Tis Hazari Courts, Delhi, thus till the final decision comes, the rent will
be payable to S. Prithpal Singh.
12.3 Respondent no. 1 has also alleged that Sh. Jagdish Singh had also filed a
suit for permanent injunction titled as Jagdish Singh Vs. Joginder Singh,
bearing no. 1376/93, in the Court of Sh. VP Khandpal Sub Judge, Delhi with
respect to the premises in question, in that matter also same advocate Sh. VM
Issar, appeared on behalf of respondent no.1 and conducted the matter. To
avoid dispute about the payment of rent the respondent deposited rent by
impleading all Sh. Jagdish Singh as landlord, under the petition under Section
27 of DRC Act, pending in the Court of Sh. TR Naval, ARC, Delhi, bearing
DR No. 208/99.
12.4 It has also been alleged by respondent no. 1 that there is no partition till
date, as S. Prithpal Singh, and other legal heirs claim that they are the owner
and landlord with respect to the shop no.The DR petition titled as Hansraj
Thukral Vs. Prithpal Singh, DR No. 267/91, was decided by Court of Ms.
Neena Bansal, ARC, Delhi on 15.1.99. Till 1999, the ownership and
landlordship was still under dispute and cases are pending in this respect in
the Hon'ble High Court and at Tis Hazari Courts. The petitioners stated here
about a decree passed by Sh. RK Sain, ADJ, Delhi and kept silent about the
further proceedings that the same is challenged and still subjudice in the Civil
Court at Tis Hazari Courts and till the same is adjudicated then till then, how
one can rely on it.
12.5 The petitioners have countered that as per Court decree dated 08.10.1985
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 18 of 45
in Suit No. 79 of 85 titled as "Pritpal Singh Vs. Surat Singh" a consent decree
was passed by Sh. R.K. Sain then Ld. ADJ, Delhi holding that petitioner's
father late Pritpal Singh is the owner of half of the portion of the property in
question which include shop no. 1 to 4, courtyard and the rear residential
portion. The certified copy of the said decree dated 08.10.1985 in suit no.79/85
alongwith site plan is annexed with the petitioner no.2's counter affidavit.
Respondent no.1 himself admitted the same in written statement filed in the
suit no. 120/91 titled as "Jagdish Singh Vs. Pritpal Singh & Joginder Singh"
and also in suit no. 1376/93 titled as "Jagdish Singh Vs. Joginder Singh".
12.6 The present litigation is for eviction of an admitted tenant and as such
the Court is not required to give a finding as regards absolute ownership of the
property. In rent control legislation, the landlord can be said to be owner, if he
is entitled in his own legal right, as distinguished from for and on behalf of
someone else, to evict the tenant and then to retain, control, hold and use the
premises for himself.
12.7 In M.M.Quasim Vs Manohar Lal Sharma: (1981) 3 SCC 36 it was
observed by the Apex Court that an "ownerlandlord" can seek eviction on
the ground of his personal requirement is one who has a right against the
whole world to occupy the building in his own right and exclude anyone
holding a title lesser than his own.
12.8 It was observed in Shanti Sharma Vs Smt Ved Prabha: AIR 1987 SC
2028 that the term "owner" has to be understood in the context of the
background of the law and what is contemplated in the scheme of the Act. The
Act has been enacted for protection of the tenants. But, at the same time, it has
provided that the landlord under certain circumstances will be entitled to
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 19 of 45
eviction and bona fide requirement is one of such grounds. Ordinarily, the
concept of the ownership may be absolute ownership in the land as well as of
the structure standing thereon. But in the modern context, where all lands
belong to the State, the persons who hold properties will only be lessees or the
persons holding the land on some term from the Government or the
authorities constituted by the State. The legislature, when it used the term
"owner" in s. 14(1)(e), did not think of ownership as absolute ownership. The
meaning of the term "owner" is visavis the tenant i.e. the owner should be
something more than the tenant. In cases where the plot of land is taken on
lease, the structure is built by the landlord and he is the owner of the structure.
12.9 In the present case the defence raised by the respondent no.1 as regards
ownership is not tenable even prima facie for the simple reasons that the
respondent no. 1 has admitted that he started making payment of rent to the
petitioners' father, although, he has attributed same to the advice given by the
petitioner's father and his advocate in previous litigation amongst the
petitioners' family members. Later, he has also admitted paying rent to the
LRs of the petitioners' father (including the petitioner no. 1) by virtue of
which, the respondent no. 1 admitted the petitioners as landlord and now when
eviction petition has been filed by petitioners, he cannot challenge/deny the
relationship between the parties. Provisions of Section 116 of the Evidence
Act are also attracted; the tenant is stopped from questioning the ownership or
title of the landlord.
12.10 The respondent no. 1 has referred to Sardar Jagdish Singh (relative of
petitioners) also being made party to the petition for deposit of rent being filed
on behalf of respondent no. 1. Be that as it may, even if it is the case of the
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 20 of 45
respondent that the petitioners do not have exclusive ownership of the
premises it amounts to indirectly admitting that the petitioners are the owner
of the premises but not exclusive owner of the premises. Thus, the petitioners
are having a right against the whole world to occupy the tenanted premises in
their own right and exclude anyone holding a title lesser than his own.
Consequently, they are entitled to file the present petition. Further, it is not
essential that the eviction petition is to be filed by all the coowners of the
property. As a coowner petitioner can file eviction petition without
impleading other coowners. Reliance is placed on judgments Kanta
Udharam Jagasia Vs C.K.S Rao: (1998)1 SCC 403; Surender Kumar
Jhamb Vs Om Prakash Shokeen: 2000(2) RCR 540; Mohinder Prasad
Jain Vs Manohar Lal Jain: (2006) 2 SCC 724; India Umbrella
Manufacturing Co Vs Bhagadandei Aggarwal: (2004) 3 SCC 178; Sri Ram
Pasricha Vs Jagannath: (1976)4 SCC 184.
12.11 With regard to the documents relied upon the petitioner, it has been
alleged on behalf of respondent no. 1 that it is mandatory that the same be
registered in consonance of Section 17 of the Registration Act, and in absence
of the same, the same would not constitute ownership and one cannot be
allowed to have the benefit of the same.
12.12 It has also been alleged by respondent no. 1 that the premise in question
is situated on government land after encroaching over the government land,
thus the ownership of the petitioners in respect of the premises is denied. In
their counter affidavits the petitioners have countered that the suit property is
built up by sanctioned plan duly approved by the MCD and there is no
encroachment as falsely alleged.
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 21 of 45
12.13 Respondent no. 1 has further alleged that the petitioners have one more
brother who is residing at Ambala and the respondent no.1 denies that
petitioners are the owners of the suit premises. The petitioners have countered
that respondent no.1 has mischievously, malafidely and falsely stated that the
petitioners have another brother who is residing at Ambala and failed to
disclose any name, address of the alleged brother or placed any document in
that regard.
12.14 In this regard, reliance is place on the case of Ramesh Chand Vs
Uganti Devi: 157 (2009) DLT 450, wherein it was held:
"7. It is settled preposition of law that in order to consider the
concept of ownership under Delhi Rent Control Act, the Court has to
see the title and right of the landlord qua the tenant. The only thing to
be seen by the Court is that the landlord had been receiving rent for
his own benefit and not for and on behalf of someone else. If the
landlord was receiving rent for himself and not on behalf of
someone else, he is to be considered as the owner howsoever
imperfect his title over the premises may be. The imperfectness of
the title of the premises cannot stand in the way of an eviction
petition under Section 14(1)(e) of the DRC Act, neither the tenant
can be allowed to raise the plea of imperfect title or title not vesting
in the landlord and that too when the tenant has been paying rent
to the landlord. Section 116 of the Evidence Act creates estoppels
against such a tenant. A tenant can challenge the title of landlord
only after vacating the premises and not when he is occupying the
premises. In fact, such a tenant who denies the title of the landlord,
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 22 of 45
qua the premises, to whom he is paying rent, acts dishonestly."
12.15 Reliance on the aforesaid decision has also been placed in the case of
Allahrakha & Anr. vs Allahwala & Anr. decided by the Hon'ble High Court
of delhi on 2 July, 2014 in RC. REV. 283/2010.
12.16 Thus, respondent no. 1 cannot be allowed to convert these proceedings
for eviction into a title suit, especially in view of the fact that he himself has
been filing petitions for deposit of rent in respect of the premises in question
while making the petitioners party thereto.
12.17 Moreover, even if the averment to the affect that the petitioners have
another brother who has not been made a party to these proceedings is to be
believed based on the submissions made in rejoinder filed by respondent no. 1,
the same would only imply that the petitioners have not impleaded one of the
coowners of the property in question which would not entitle respondent no.
1 to leave to defend.
12.18 Thus, this defence raised by the respondent is a vague and sham defence
and it does not raise any triable issue.
13) The summons issued are not in consonance of the IIIrd Schedule:
13.1 The said defence does not require detailed deliberation as the
respondent no. 1 has filed his application for leave to defend on 18.09.2013
and bare perusal of the process served upon the respondent no. 1 on
05.09.2013 clearly shows that it has been specified in the process itself that
the present petition has been filed u/s 14(1)(e) of the DRC Act calling upon
the respondent no. 1 to obtain leave to defend within 15 days. Thus,
substantial compliance of the provisions of the DRC Act has been affected.
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 23 of 45
13.2 Thus, this defence raised by the respondent is a vague and sham defence
and it does not raise any triable issue.
14) Deposit of pagri barring eviction of respondent no. 1
14.1 Respondent no. 1 has alleged that he has deposited a sum of Rs. 1.5 Lacs
with S. Surat Singh in the year 1986 at the time of taking present premises on
rent, on account of pagri with agreement that rent will not be increased in
future and it is the market value of the property and they will also not evict
the respondent no.1 in any case and the tenancy is forever. Because of this
agreement, the rent till date is not increased and the back side of the rent
receipts issued to the respondent no.1 has terms thereof canceled.
14.2 This has been countered on behalf of the petitioners who have stated
that it has been falsely alleged by respondent no.1 that he gave pagri of Rs.
1.5 Lakhs in the year 1986 to Surat Singh. The petitioner's father was a
government employee and was posted at Chandigarh from 1984 to 1989 and
he had authorized his father late Sh. Surat Singh to collect rent of the four
shops ( i.e. shop no. 1 to 4) which had fallen to his share including the shop
in question on his behalf after the above Civil Court decree dated 08.10.1985
in suit no. 79/85. Surat Singh had admitted his son Pritpal Singh to be the
owner of half portion of the suit property.
14.3 The present defence also does not require detailed deliberation as the
practice of 'pagri' has been rendered wholly illegal by the provisions of the
DRC Act itself. Moreover, the amount as referred to by respondent no. 1 was
a big amount in the year 1986 and it is highly inconceivable that no document
or receipt was executed for payment of such a big amount.
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 24 of 45
14.4 It has been observed in judgment titled as Rajender Kumar Sharma &
Ors. Vs. Leela Wati & Ors.: 155 (2008) DLT 383 by Hon'ble Delhi High
Court as under:
"11)....Thus, the affidavit filed by the tenant was shown to be false by
the landlady on the basis of documents placed by it. No Rent
Controller is supposed to grant leave to the tenant on the basis of a
false affidavit and false averments and assertions. Such affidavit
should be outrightly rejected by the Rent Controller. Only those
averments in the affidavit are to be considered by the Rent
Controller which have same substance in it and are supported by
some material. Mere assertions made by a tenant in respect of
landlord's ownership of other buildings and in respect of alternate
accommodation are not to be considered sufficient for grant of leave
to defend."
14.5 Thus, the mere bald averment of respondent no. 1 regarding payment of
pagri cannot be relied upon. Further, even if it is assumed for a moment that
respondent no. 1 had in fact paid the said amount for cancellation of terms of
the tenancy written at the back of the receipts, it is to be noted that the
tenancies under the DRC Act are strictly governed by the provisions of the Act
and neither the landlord nor the tenant can be allowed to waive off or
circumvent the provisions of the Act. Thus, the cancellation of the terms
behind the receipts, if made by the petitioners is wholly irrelevant.
14.6 Accordingly, this defence raised by the respondent is a sham defence and
it does not raise any triable issue.
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 25 of 45
15) Petition not filed in respect of complete tenanted premises and site plan of
the petitioner being incorrect:
15.1 Respondent no. 1 has alleged that the present eviction petition is not filed
in respect of the complete tenanted premises and is against a part of the
tenanted premises. Apparently, respondent no. 1 has claimed that the tenanted
premises includes the terrace thereof. He has also submitted that he has filed
earlier as suit for permanent injunction and in the same the respondent no.1
specifically stated the complete details of the tenanted premises, he had also
filed site plan. Thus, the site plan filed by petitioners is also not complete and
also not giving full description of the whole property and is total silent.
15.2 It has been specifically denied by the petitioners that respondent no.1 has
open terrace above the shop in question as part of tenancy. All the shops in
this suit property facing main jail road which had been with various tenants
have no approach to the open terrace above these shops. This plea has been
raised for the first time by respondent no.1 in suit no. 706/06 as in all earlier
cases which the respondent no.1 defended. He has never pleaded in his written
statement that terrace above his shop form part of the tenancy as mentioned
above in suit no. 120/91 titled as 'Jagdish Singh Vs. Pritpal Singh and Joginder
Singh. The rent deposited by the respondent no.1 in DR No. 806/06 does not
mention that the disputed shop includes terrace. Certified copy of the DR No.
806/2006 of the petition is enclosed with the petitioner no.2's counter
affidavit.
15.3 In this regard, it is manifestly apparent that the submission of respondent
no. 1 is merely a bald averment with nothing to support the same. Moreover,
this court can take judicial notice of the fact that in the order dated 31.07.2008
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 26 of 45
passed by the then ld. ARC Ms. Kaveri Baweja in E No. 70/07, it has been
specifically held that the submission of respondent no. 1 regarding the terrace
of the shop in question forming part of the tenanted premises is merely a bald
averment with nothing to support the same. A copy of the said order has
already been brought on record by the petitioners.
15.4 Moreover, it has already been stated by the petitioners that they are
owners of only a part of the property no. WZ199, GBlock, Jail Road, Hari
Nagar, New Delhi110058 which is apparent from the site plan filed by the
petitioners. Thus, it is not incumbent upon them that they file site plan of
property not owned by them. This also manifestly apparent from the bare
perusal of the site plan filed by the petitioners. Further, the respondent no. 1
cannot be allowed to go into the partition allegedly affected between the
petitioners and their family members.
15.5 Accordingly, this defence raised by the respondent is a sham defence and
it does not raise any triable issue.
16) Petitioners being in possession of other properties:
16.1 Respondent no. 1 has alleged that the petitioners being sons of late. Sh.
Pritpal Singh started looking after the properties and acting as landlord of
the properties left behind by their deceased father, which are as under:
i.WZ199, GBlock, Jail Road, Hari Nagar, New Delhi110058.
ii. Shop at Moti Nagar, New Delhi.
iii. Built up commercial property at Kamla Nagar and Hari Kishan Nagar,
Near Paschim Vihar, Delhi.
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 27 of 45
iv. Property at Shiv Nagar, Delhi and Tagore Garden Delhi and other
properties.
A number of other properties were allotted to petitioners, the respondent
no.2, her spouse and her kids at Mohali and a number of other places.
16.2 The petitioners have countered the allegation by saying that they own
no property other than the property in question in whole of Delhi and thus
question of giving description of other properties does not arise.
16.3 At the very outset, it is noteworthy that it is highly unlikely that the
petitioners would deny on oath ownership of properties referred to by
respondent no. 1 just to gain eviction of the tenanted premises, knowing well
the repercussions and ramifications that such denial may have. This averment
of respondent no. 1 is a mere bald averment with nothing to support it.
16.4 In his application, respondent no. 1 has merely stated that the petitioners
have not mentioned about the other properties which they are having at
different places. There is not a single averment in the application about how
the alleged alternative accommodation would be suitable for the purpose of
their alleged requirement. On the other hand the petitioners have come out
clean and denied having any other property and averred that only the shop in
question caters to their bonafide requirement.
16.5 It has been held in the case of Mukesh Kumar vs Rishi Prakash: 2009
(2) RCR 485 that:
"22. As the portion situated on the ground floor (the two shops) and
the first floor, the third floor and the terrace above the third floor in
property bearing no.3649 were being used by the petitioner for
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 28 of 45
stocking his own trading goods, it could not be said that the said
portions were "available" with the petitioner, as they were already
being utilized by him for his business. He was not obliged, in these
circumstances, to specifically make a disclosure with regard to these
portions as they were not "vacant" and "available" with him for the
purpose for which he required the tenanted premises. A landlord,
while seeking the eviction of a tenant on the ground of bona fide RCR
No.34/09 page 18 of 28 requirement for himself or his family members
dependant upon him, 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 a purpose different from the purpose he
is occupying and using the accommodation already available with
him. For instance, the extent of residential accommodation available
with the landlord who seeks the eviction of the tenant from a purely
commercial or industrial premises, is wholly irrelevant. Similarly,
when in the present case, the requirement of the petitioner was for the
purpose of setting up of the professional office of his son on the second
floor of property No.3649, it was not necessary for him to have
disclosed in the eviction petition the fact that the ground floor, first
floor, third floor and terrace floor portions of property no.3649 were
being utilised by him for the purpose of storing and stocking the goods
in which he trades. The failure of the petitioner to disclose in the
eviction petition itself, the manner in which the other portions of
property No.3649 were being occupied and used cannot ipso facto
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 29 of 45
lead to the conclusion that the requirement of the landlord is not bona
fide or that it raises a triable issue...."
16.6 In the judgment titled as Ragavendra Kumar v. Firm Prem Machinary:
AIR 2000 SUPREME COURT 534 the Hon'ble Supreme Court held that it is
settled position of law that the landlord is best judge of his requirement for
residential or business purpose and he has got complete freedom in the
matter. Moreover, as has been held in a plethora of cases, neither the Court
nor the tenant cannot dictate terms to the landlord regarding the suitability
of the premises or even the extent of the business proposed to be carried out.
16.7 Thus, the petitioners have the liberty to open their office in the shop in
question and neither respondent no. 1 nor the Court can interfere with the said
liberty. Likewise, the petitioners are not even required to disclose other
property available with them that does not suit the purpose for which they
require the tenanted premises.
16.8 For the aforesaid reasons, this defence raised by respondent no. 1 is a
sham defence and it does not raise any triable issue.
17) Petitioners' mother having taken benefit u/s 14D earlier:
17.1 Respondent no. 1 has further alleged that S. Prithpal Singh died on
29.7.95, thereafter one of his legal heirs filed two petitions under Section 14D,
DRC Act with respect two separate premises, both are as follows:
(a) Gurbachan Kaur Vs. Sh. Ravinder Singh; E. No. 107/98, G.No.
377/RC, DOD. 02.11.1998, decided by the Hon'ble Court of Sh. V.K.
Maheshwari, ARC, Delhi.
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 30 of 45
(b) Gurbachan Kaur Vs. Mrs. Pavinder Kaur Sehgal; E No. 30/2000,
decided on 28.05.2003, decided by the Hon'ble Court of Sh. V.K. Sharma,
ARC, Delhi.
17.2 In both the petitions the possession of both the premises was handed
over to the petitioners. Thereafter one more, i.e. the third petition filed under
Section 14D of the DRC Act, and in the same the leave to defend was granted,
and thereafter the petitioner approached the Hon'ble High Court, the challenge
was also dismissed and thereafter the main petition was also dismissed. One
more petition under Section 14D of DRC Act was filed and in the same leave
to defend granted and thereafter the same was dismissed.
17.3 The petitioners, in this regard have submitted that it is the widowed
mother of the petitioners who had filed case under Section 14D of DRC Act
i.e. eviction case E No. 107/98 and E No. 30/2000. It is wrong that any benefit
U/s. 14D of the DRC Act was ever availed by the petitioners' mother in the
above two eviction cases. In both the above cases the respective tenants
compromised with the petitioners' mother outside the Court and as a result of
compromise the above tenants vacated their respective shops and delivered
vacant peaceful possession to the petitioners' mother.
17.4 The said defence also does not need detailed deliberation as it is very
much apparent at the very outset that the previous petitions filed by the
petitioners' mother were settled out of Court. This, fact has not been denied by
respondent no. 1. Therefore, the question of availing benefits u/s 14D of the
DRC Act does not arise.
17.5 Even otherwise, if it is assumed for a moment that the petitioners'
mother availed benefit u/s 14D of the DRC Act, then this Court is unable to
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 31 of 45
comprehend how the same would bar the present petition as the present
petition has been filed u/s 14(1)(e) of the DRC Act. The petitioners, in their
own right are entitled to file this petition and they have not filed any other
petition under the same provision earlier. The right u/s 14D that possibly
accrued to the petitioners' mother (since deceased) is separate from the right
of the petitioners u/s 14(1)(e). The former cannot not be said to have curtailed
the latter.
17.6 Hence, the defence raised by respondent no. 1 is a sham defence and it
does not raise any triable issue.
18) Petitioners not advocates and running furniture business:
18.1 Respondent no. 1 seeks to take the defence that petitioners are not
advocates, but business men running shops no. 3 and 4 for furniture. Both
shops were got vacated from earlier tenants on the same ground and thereafter
the same were converted into shops. A quarrel occurred with the petitioners in
which all facts were disclosed about running of shop by them and an MCD
challan dated 27.06.2007 shows the same. Apparently, respondent no. 1 has
also relied upon letter from the Jail Road Shopkeepers Welfare Association
(the said letter does not bear any date; however, the subsequent pages allegedly
bearing signatures of association members are dated 27.04.2007) to show that
it is the petitioners and not respondent no. 2 (their sister) who are running
furniture business from shop no. 3 and 4.
18.2 The petitioners on the other hand have relied on another letter from the
same association dated 10.05.2007 from the same association which says that
the petitioners are advocates and have nothing to do with furniture business.
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 32 of 45
18.3 The petitioners have further countered that respondent no.1 had earlier
filed a civil suit no. 706/2006 titled as "Joginder Singh Vs. Gurbachan Kaur
and Satinder Singh" which is enclosed with the petitioner no.2's counter
affidavit and in the above suit the respondent no.1 admitted that both the
petitioners are advocates and also filed a copy of complaint in PS Hari Nagar
dated 21.01.2006 which is enclosed with the petitioner no.2's counter affidavit
wherein also he admitted that both the petitioners are advocates. The
petitioners have got certificate from the Chairman of Bar Council of Delhi
which is enclosed with the petitioner no.2's counter affidavit.
18.4 In this regard, it is noteworthy that for the purpose of deciding an
application for leave to defend filed against a petition u/s 14(1)(e) of the DRC
Act, the facts and circumstances that exist at the time of filing the petition
have to be considered. Reliance is placed on the case of Dharam Pal Gupta
Vs. Anand Prakash: 155 (2008) DLT 681 wherein it was held that in such
cases the Court has to stick to the cause of action which was there at the time
of filing of the petition.
18.5 The purported letter of the association or the challan sought to be relied
upon by respondent no. 1 holds no relevance as the same does not say that the
petitioners are not advocates. The said submission of respondent no. 1 is a
mere bald submission. Moreover, this Court is not concerned with what the
petitioners were doing in 2007 (the year to which the letter and challan
pertains to) as the present petition has been filed in the year 2013. Even
assuming that the petitioners had something to do with furniture business in
the past, a number of documents have been filed by them (Bar Council
certificates, etc.) to show that they were practicing advocates at the time of
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 33 of 45
filing of the petition and thereafter. On the contrary, nothing has been filed by
respondent no. 1 to show that the petitioners were not practicing advocates at
the time of filing the petition. It is clarified that documents filed by respondent
no. 1 to show that the petitioners were having some concern with furniture
business in the past does not in any manner negate that the petitioners were
practicing as advocates at the time of filing the petition.
18.6 Thus, the defence raised by respondent no. 1 is a sham defence and it
does not raise any triable issue.
19) Respondent no. 2 is shifting to Canada and scarcity of alternative
accommodation is being created by petitioners:
19.1 Respondent no. 1 has alleged that respondent no.2 is residing at BL80,
Anand Vihar, LBlock, Jail Road, Hari Nagar, New Delhi 64. It is a two
storey, very big and lavishly built up Bungalow, measuring 200 sq. yards. She
has now been granted permanent resident VISA at Canada.
19.2 The defence put up by respondent no. 1 has been assailed by the
petitioners who have averred that the respondent no.2 is in exclusive
possession of shop no. 3 and 4 and doing furniture business. Sale tax number
which is now called DVAT (Delhi Value Added Tax) and TIN No./registration
no. issued from the DVAT Department is 07116896287 in favour of
respondent no.2. Original certificate issued under Delhi Shops and
Establishment Act dated 01.08.2013, Original MCD challan dated 23.08.2013
is in the name of M/s. Furniture Gallery, Prop. Smt. Sukhvinder Kaur Kwatra
(respondent no.2). Commercial Electric meter of BSES earlier in the name of
Smt. Gurbachan Kaur (mother of petitioners) was transferred in the name of
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 34 of 45
Smt. Sukhvinder Kaur Kwatra. MTNL connection earlier in the name of Smt.
Gurbachan Kaur mother of the petitioners was transferred in the name of Smt.
Sukhvinder Kaur Kwatra. Original Bank Certificates from PMC Bank, Tilak
Nagar Branch, New Delhi and Dena Bank, Jail Road, Hari Nagar Branch, New
Delhi, Current Bank account no. 603110100000120 in PMC Bank, Tilak Nagar
Branch, New Delhi, various original bills (Tax invoices/retail invoices) and
various original purchase bills of M/s. Furniture Gallery are pertaining to
respondent no.2. The same is confirmed by letter dated 10.05.2007 issued in
favour of both the petitioners wherein it is confirmed that both the petitioners
are practicing advocates and they have nothing to do with the steel furniture
items which is being looked after by the petitioner's mother. Certified copy of
the said writing given by the Jail Road Shopkeepers Welfare Association
(Regd. No. S/23501/1992) dated 10.05.2007 is enclosed with the petitioner
no.2's counter affidavit.
19.3 It is noteworthy that during the course of arguments, the ld. Counsel for
respondent no. 1 has assailed the documents filed by the petitioners to show
that respondent no. 2 has been shown to be in possession of shops no. 3 and 4
in order to create an artificial scarcity of accommodation available. In this
regard, respondent no. 1 has raised doubts over various documents and
invoices filed by petitioners to show that respondent no. 2 is conducting
furniture business from shops no. 3 and 4.
19.4 With regard to this, the Court is of the opinion that respondent no. 1
cannot challenge the extent of business conducted by respondent no. 2 as it
may not necessarily be for a lavish earning but also for passing her time.
19.5 Moreover, it is ironical to say the least that on one hand, respondent no. 1
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 35 of 45
alleges that the husband of respondent no. 2 is in a settled job earning a good
salary and owning a lavish house in Delhi, while on the other hand respondent
no. 1 has contended that respondent no. 2 is leaving for Canada for good.
19.6 In this regard reliance is again placed on the case of Dharam Pal Gupta
Vs. Anand Prakash (Supra) to the effect that the circumstances as they exist
at the time of filing the petition have to be considered. A permanent visa is
akin to a green card allowing the holder to travel multiple times. While, even if
the submissions of respondent no. 1 are assumed to be true, it cannot be said
that respondent no. 2 may or may not continue to conduct business at shop no.
3 and 4, but there is no denying the fact that she was conducting such business
at the time of filing this petition, the extent of which is of no consequence.
19.7 Further, it has been held in the case of Subhash Chand vs Trilok Chand:
1997 RLR 464 that:
"9)....the landlord used one room for his commercial purpose on the
ground floor for earning his livelihood. It cannot be said that by
using a room for his livelihood the landlord created artificial
scarecity of accommodation. After all landlord has to make his
earning. If he uses a room on the ground floor for commercial
purpose, it cannot be said that that accommodation was available to
the landlord for his living or for the living of his family members
dependent upon him."
19.8 Likewise, it has been held in the case of Shyam Bihari Singh vs
Sushila Devi Mittal: 1982 RLR 97 that:
"(12) The shortage of residential accommodation with the landlady
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 36 of 45
may be due to various reasons. In deciding an application under
Section 14(l)(e) what is relevant to see is as to whether that shortage
was created with a view to oust the tenant. If the landlady alters the
use of the residential premises with her, for example by using them
for commercial purposes, and this has been done so as to create the
shortage of residential accommodation with her with a view to seek
the eviction of a tenant, then in such a case the landlady would not be
entitled to any relief. On the other hand, the change of user of the
residential premises for commercial or professional purposes may be
bona fide for the purposes of earning a livelihood If the changed user
is in accordance with law then, if the remaining residential
accommodation with the landlady is insufficient, the landlady can
justifiably move an application and seek the eviction of a tenant
under section 14(l)(e). Where the bona fides of the landlady are not
in doubt, the tenant will not be heard to say that the shortage of
accommodation is due to the landlady's own creation and the
tenant's eviction should not be ordered. A landlady is entitled to use
the accommodation with her in any way she pleases. If the use of
the accommodation for commercial purposes is bona fide and in
accordance with law then she would be entitled to plead that the
remaining accommodation with her is insufficient for residential
purposes."
19.9 In the present case, shop no. 3 and 4 are being used by respondent no. 2
being coowner thereof for running the furniture business started by her late
mother. The tenant cannot interfere in such use of the shops and thus, he
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 37 of 45
cannot be allowed to plead the defence of deliberate creation of shortage or
scarcity. Likewise, respondent no. 1 cannot dictate the petitioners that they use
shops no. 3 and 4 for their office and not allow respondent no. 2 (their sister)
to carry on her furniture business. Needless to say, the extent or details of such
business being done by a coowner is something that the tenant cannot be
allowed to dictate.
19.10 Therefore, the defence raised by respondent no. 1 is a sham defence and
it does not raise any triable issue.
20) Source of livelihood for respondent no. 1:
20.1 The respondent no.1 has contended that he has children and ailing wife
and he with the help of small earning is able to have livelihood and the present
premises is the source of his livelihood and of his family.
20.2 In the judgment titled as Sarwan Dass Bange Vs. Ram Prakash: 167
(2010) DLT 80 the Hon'ble High Court of Delhi referring to the judgment of
Baldev Singh Bajwa v. Monish Saini: (2005) 12 SCC 778 observed in para 17
as under:
"..It was held that the legislative intent is of expeditious disposal of
the application for ejectment of tenant filed on the ground of
requirement by the landlord of the premises for his own occupation;
a special category of landlords requiring the premises for their own
use has been created; if there is any breach by the landlord, the tenant
is given a right of restoration of possession; the landlord who evicts a
tenant on the ground of own requirement is not only prohibited from
letting out the premises or disposing of the same but also required to
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 38 of 45
use the same for his own residence only..."
20.3 Thus, it is clear that the special summary procedure provided for u/s 25B
of the DRC Act is an exception to the general intent to the Act. The intention
of the legislature is to provide an expeditious remedy to landlords who seek
eviction on the ground of bonafide requirement under the stringent conditions
imposed in the special procedure. Thus, the mere bald averment of the
respondent no. 1 to the effect that the tenanted premises is his sole source of
earning cannot disentitle the petitioners from relief that they are entitled to get
after fulfilling the stringent requirements provided for in the special
procedure.
20.4 Thus, this submission of the respondent no. 1 is found to be untenable
and does not raise any triable issue.
21) Petitioners want to sell the shop in question:
21.1 It is the submission of respondent no 1 that the petitioners are only
interested in selling the said property after getting the same vacated from
respondent no.1. The petitioners have denied the said contention.
21.2 It is held by the Hon'ble High Court of Delhi in a case tiled as Hari
Shanker Vs. Madan Mohan Gupta: 111 (2004) DLT 534 that:
"Summary procedure in Section 25B of Delhi Rent Control Act, 1958
cannot be defeated by merely making frivolous and vague allegations
which can never be substantiated."
21.3 It is also held by Hon'ble High Court of Delhi in Vinod Kumar Bhalla
Vs. Sh. Nanak Singh: 1982 (2) RCR (Rent) 715 that in all applications for
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 39 of 45
leave to defend the common defence raised by almost all the tenants, is that
the landlord wanted to enhance the rent or to sell the property after getting it
vacated. It was observed by the High Court that such types of allegations are
without any foundation and that after an order of eviction is passed under
section 14 (1)(e), the tenant is granted six months time to vacate the premises
and the landlord is required to occupy the same within two months and the
landlord is further disentitled for reletting or alienating the whole or any part
of the premises within three years from the date of obtaining possession from
the tenant. Thus, the landlord is not in a position either to sell or relet the
tenanted premises for a period of three years and if a landlord does sell or re
let the premises within the said period then the tenant may proceed against the
landlord for restoration of the possession under section 19 of the Act.
21.4 A similar observation was made in judgment titled Krishna Chopra &
Anr. Vs. Smt. Raksha: 2000 Rajdhani Law Reporter 83.
21.5 Thus, on the basis of the aforesaid legal propositions the contention of
the respondent no. 1 is rejected as the same is a mere assertion without any
substance. Moreover the contention of the respondent no. 1 is not tenable
because in such kind of cases protection/remedy available/provided for such
tenants under the DRC Act itself as they can file petition for repossession if
the premises are relet or transferred by the landlord after evicting the tenant,
but certainly the leave cannot be granted solely on this ground.
21.6 Thus, this defence raised by the respondents is a sham defense and it
does not raise any triable issue.
22) Basic ingredients of Section 14(1)(e) not stated; DRC Act not applicable; and
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 40 of 45
Court having no territorial jurisdiction:
22.1 In this regard it has been held by the Honorable High Court of Delhi in
Inderjeet Singh vs Harish Chandra Bhutani: in R.C.REV. 98/2010 decided
on 06.07.2012 that:
"7. Regarding the bald plea of the respondent that there is discrepancy
in the amount of rent payable for the tenanted premises and the payer
of the rent, it is sufficient to say that these minor discrepancies are
not fatal to the case of the petitioner and not patently germane to the
case. It is immaterial that who pays the rent for the tenanted shop
being used by the petitioner's son. The fact of bonafide requirement
and lack of any other accommodation for business purposes has been
amply established by the petitioner. His son is in fact carrying out his
business from a tenanted accommodation; he has no other alternate
suitable accommodation. In this view of the matter, this submission of
the tenant is clearly without force."
22.2 It has also been held in the case of Mukesh Kumar vs Rishi Prakash
(Supra) that:
"14. It has been held in K.K. Sarin (supra) that due to paucity of
accommodation the tenants are likely to plead facts with a view to
create triable issues even in a case where there may be none, so as to
seek leave to defend the eviction petition filed on the ground of bona
fide requirement of the landlord. This is so because upon grant of
leave to defend, the eviction proceedings are likely to take
considerable time for disposal as a regular trial would ensue.
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 41 of 45
Therefore, even if a tenant has no triable issue to raise, he still
endeavors to prolong the litigation so as to postpone the date when he
is faced with eviction...."
"25. The Courts have repeatedly held that mere failure to plead even
the necessary ingredients in an eviction petition is not fatal to its
maintainability [see Laxmi Kant Mukt V. Jitender Kumar Aggarwal,
1980(18) DLT 40; M.M.Mehta V. Chaman Lal Kapur, ILR 1980(1) Del
94; Amrit Lal V. Jagpal Singh Verma, 1996 (63) DLT 621; Ram Gopal
V. Basheshar Nath, 1979 (16) DLT 215; Mohan Lal Duggal V. Inder
Mohan Sharma, 1999(81) DLT 655 and Narain Devi V. Vinod Kumar,
1979 (16) DLT 258]."
"29. The tenant, no doubt, is entitled to raise all defences available to
him in his application seeking leave to defend, but he cannot be seen
to be shooting in the dark and raising all and sundry frivolous pleas
in an irresponsible manner, only with a view to somehow get the
desired leave to defend the eviction petition. Such conduct of the
tenant will certainly mar his credibility and the Controller will see
through such tactics on his part. He will not succumb to such moves of
the tenant. Else, the same would defeat the purpose of providing a
summary procedure for the disposal of such cases, and would lead to
miscarriage of justice."
22.3 Thus, in view of the aforesaid authorities, these minor discrepancies
would not affect the case of the petitioner in any manner. Even if evidence is
allowed to be lead on this point then also it would not affect the bonafide of
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 42 of 45
the landlords' requirements.
22.4 As regards applicability of the DRC Act and territorial jurisdiction of
this Court are concerned, it is noteworthy that the respondent no. 1 himself
has filed petitions for deposit of rent u/s 27 of the DRC Act on numerous
occasions. The Court can take judicial notice of the fact that one such petition
filed by respondent no. 1 with petitioners as party thereto bearing D.R. No.
217/2012 is still pending before this very Court and the next date of hearing in
the same is 03.11.2014.
22.5 Moreover, the Court can take judicial notice of the fact that the shop in
question is situated in Hari Nagar in village Tehar. The same is also apparent
from the ownership documents filed by the petitioners. By virtue of the
schedule to the notification of the Municipal Corporation of Delhi No. F.9 (2)
66Law. Corp. dated 28.05.1966 published in Part IV of the Delhi Gazette No.
dated 03.06.1966, the revenue estate of Tehar had seized to be a rural area.
Further, vide notification bearing no. S.O.1236 dated 27.03.1979 published in
Gazette of India Part II Sect. iii (ii) dated 14.04.1979, the Central Government,
in exercise of powers conferred by the proviso to Section 1(2) of the DRC Act
had extended the provisions of the Act to all the areas as mentioned in the
Schedule to the aforesaid notification of 1966, including Village Tehar.
22.6 Thus, the twin requirements for the applicability of the DRC Act as
propounded in the case of Mitter Sen Jain vs Shakuntala Devi: (2000) 9
SCC 720 stand fulfilled.
22.7 Therefore, the defence does not raise any triable issue.
CONCLUSION
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 43 of 45
23) It is well settled that leave to defend is granted to the tenant in case any triable
issue is raised by him, which can be adjudicated by consideration of additional
evidence. The mere existence of any triable issue is not sufficient. The nature of the
triable issue raised by the tenant must be such that it will disentitle the landlord from
obtaining the eviction order.
24) In the judgment titled as Sarwan Dass Bange Vs. Ram Prakash (supra) the
Hon'ble High Court of Delhi referring to the judgment of Baldev Singh Bajwa v.
Monish Saini (2005) 12 SCC 778 observed in para 17 as under:
"...the landlord who evicts a tenant on the ground of own requirement is not
only prohibited from letting out the premises or disposing of the same but
also required to use the same for his own residence only. It was held that
these restrictions and conditions inculcate in built strong presumption that
the need of the landlord is genuine; the conditions and restrictions imposed
on the landlord make it virtually improbable for the landlord to approach
the Court for ejectment of tenant unless his need is bona fide no
unscrupulous landlord in all probability, under this Section, would
approach the Court for ejectment of the tenant considering the onerous
conditions imposed on him. It was further held that this inbuilt protection
in the Act for the tenants implies that whenever the landlord would
approach the Court his requirement shall be presumed to be genuine and
bona fide. It was further held that a heavy burden lies on the tenant to
prove that the requirement is not genuine.." (emphasis supplied)
25) The whole purpose and import of summary procedure under Section 25B of the
Act would otherwise be defeated. The prayer for leave to contest should be granted to
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 44 of 45
the tenant only where a prima facie case has been disclosed by him. In the absence of
the tenant having disclosed a prima facie case i.e. such facts which disentitles the
landlord from obtaining an order of eviction, the Court cannot mechanically and in
routine manner grant leave to defend. In the light of the aforesaid facts, circumstances
and legal propositions, all the pleas taken by the respondent no. 1 have failed to raise
any triable issues regarding the ownership of the petitioners or the land lordtenant
relationship; the bonafide requirement of the landlords; or the availability of any
alternative suitable accommodation. The contents of the application for leave to
defend have failed to rebut the presumption of bonafide qua the requirement of the
petitioners. The application for leave to defend filed by the respondent no. 1 is thus
rejected.
26) As a consequence thereof, an eviction order is passed U/s. 14 (1) (e), DRC
Act against the respondent no. 1 regarding the tenanted premises i.e One shop
bearing private no. 2 measuring 10ft X 15 ft., situated on the ground floor of the
property No. WZ199, GBlock, Jail Road, Hari Nagar, New Delhi110058, as
shown in red colour in the site plan
27) However in light of Section 14 (7) DRCA, the aforesaid eviction order shall not
be executable for a period of six months from today.
28) The parties are left to bear their own costs.
29) File be consigned to Record Room after due compliance.
Announced in the open Court
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh &
Anr.
Page no. 45 of 45
on 30th day of September, 2014 (SUMEDH KUMAR SETHI)
ACJ/ARC/CCJ(West)/30.09.2014
.
E. No. 45/2013 Harminder Singh Chowdhary & Anr. Vs Joginder Singh & Anr.