Delhi District Court
Sh. Jai Shankar Mehta vs Sh. Mohan Lal B. Moorjani on 26 February, 2015
IN THE COURT OF MS. RACHNA TIWARI LAKHANPAL,
SCJ/RC(WEST), TIS HAZARI COURTS, DELHI
Unique ID No. 02401C0363992013
E. No. 26/13
1. Sh. Jai Shankar Mehta
S/o Late Sh. H.S. Mehta
2. Sh. Vijay Shankar Mehta
S/o Late Sh. H.S. Mehta
Both resident of House No. J3/1
Rajouri Garden,
New Delhi110027. ............Petitioners/Landlords
Versus
Sh. Mohan Lal B. Moorjani
at Shop No. 2
out of property bearing no. J3/1
Rajouri Garden, New Delhi110027
Also residing at:
T76, Rajouri Garden,
New Delhi .............Respondent/Tenant
Date of filing of the application : 19.08.2013
Date of reserving order : 06.02.2015
Date of pronouncement : 26.02.2015
ORDER
1. Vide this order, I shall decide leave to defend application u/s 25B (4) of DRC Act filed by the tenant/respondent. E.No. 26/13 Page..1/15
2. Brief necessary facts for the disposal of the present application are herein under:
3. Petitioner / landlords has filed the present eviction petition u/s 14 (1) (e) of DRC Act. The tenanted premises is a shop and rate of rent is Rs.363/ per month excluding electricity charges. The tenanted premises is required for residential use of the petitioners as the families of the petitioners consist of nine adult members and the space under their possession is insufficient to reside. One of the family member Charu (daughter of the plaintiff no. 1) has taken premises on rent due to paucity of space.
Further, the wife of petitioner no.2 is suffering from various ailments. It has been further submitted that daughters and sons of the petitioner are of marriageable age and space would be required for their prospective daughters in law and sons in law. The tenanted premises is best suited property being situated at ground floor as the petitioners are of old age. The petitioners had no other suitable properties, hence bonafidely require the tenanted shop. There is no vacant property available with the petitioners.
4. FACTS IN BRIEF AS PER THE APPLICATION: In the present application seeking leave to defend, the landlord and tenant relationship is challenged by the respondent / tenant E.No. 26/13 Page..2/15 submitting that property was about 40 years back let by Sh. H.S. Mehta (father of the petitioner) to the respondent after receiving the huge amount of pagri and with undertaking that there will be no rent. The said Sh. H.S. Mehta was survived by Ms. Chetan Devi (second wife of Sh. H.S. Mehta) and the petitioners as well as two sons and one daughter from the first wife of Sh. H.S. Mehta. Ms. Chetan Devi also died subsequently and in these circumstances, petitioners and other two sons and daughters of late Sh. H.S. Mehta (from first wife), all became colandlords of premises by operation of law. Hence, without joining the other co landlords the present petition is not maintainable.
5. Earlier also an eviction petition was also filed by Ms. Chetan Devi against respondent herein u/s 14 (1) (c) of DRC Act and which was finally decided by the judgment dated 01.03.1995. During the pendency of eviction petition u/s 14 (1) (c) of DRC Act, Ms. Chetan Devi had expired and the petitioners joined on record and this eviction petition was held bad at that time for non joinder of other two sons and daughters of late Sh. H.S. Mehta. Petitioners filed an appeal which was dismissed in default. Hence, that judgment has become resjudicata.
6. Further, Sh. Ratan and Kapil are claiming themselves as owner of the property.
E.No. 26/13 Page..3/15
7. Further, as far as family members of the petitioners are concerned, it is submitted that elder daughter of petitioner no.1 namely Charu is living separately at her own tenanted premises and doing a job and earning handsomely and she is not dependent upon the petitioner residentially as well as financially. The younger daughter of petitioner no.1 is married and living at her matrimonial house.
8. Petitioner no.1 is having his job at Haridwar, lives with his wife and comes to Delhi casually for 23 days after 23 months period. He does not live in the property bearing no. J3/1, Rajouri Garden, Delhi.
9. The requirement of the petitioner with their future daughters and sons is hypothetical. The petitioners have not stated their specific need for their residence. The whole of the property i.e J3/1, Rajouri Garden, Delhi is two storied house on a plot of 200 sq. yards except the shop no. 2, 4 and 5 which are tenanted and rest of the portion at ground floor and the first floor are available with the petitioners. The petitioners are guilty for concealing the fact that there are having sufficient residential accommodation available with them. The site plan furnished by the petitioner is only with respect to ground floor and deliberately other floors have not been shown. There is a residential E.No. 26/13 Page..4/15 accommodation at the front side half portion of the ground floor which presently comprises of three rooms, kitchen, toilet and stair case lead to first floor. The shop no.6 and 7 and a veranda in front of shop no.6 and 7 have been converted into rooms. The backside of the ground floor comprises of three rooms, kitchen, toilet, bathroom, veranda and stair case to first floor. The shop no. 1 and 3 have been converted into rooms and connected to inner residential portion. The back portion of first floor comprises of two big rooms, toilet, terrace, etc and front portion of two residential unit with kitchen, toilet, store, etc. with open space and stair case to ground floor. Thus, except shop no.2, 4 and 5 which is tenanted portion, the rest of ground floor and first floor are available with the petitioner for residence. Petitioners are having surplus accommodation with them. It is further submitted that the petitioner no. 1 alongwith his family is residing at WZ139B, top floor, New Mahabir Nagar, Delhi18 and is owner of the same. The petitioners are also owners of Flat No. 9H, PocketB7, First Floor, Mayur Vihar, PhaseIII, Delhi. Petitioners's married daughter is also owner of Flat no. 17H, B16, Mayur Vihar, and residing there.
10. REPLY TO THE APPLICATION: In reply to this application, petitioners / landlord have denied the averments E.No. 26/13 Page..5/15 made in the application for leave to defend. It is further submitted that there is no legal heirs except the petitioners. However, in view of rent receipts, by way of principle of Estoppel, respondent is estopped from denying the relationship of landlord and tenant. There are nine adult members in the family and property of ground floor is best suited to them. The property from the very inception is in the name of mother of petitioners. There are only two sons who are legal heirs of Ms. Chetan Devi. Copy of registered title document have been annexed. Moreover, any co owner can file the suit for eviction and tenant cannot dispute the right of the petitioners as landlord. The tenant has admitted the relationship. He never sent any notice to the petitioners denying the payment of rent to them.
11. It is further submitted that daughter of petitioner no. 1 is living separately at the tenanted premises due to paucity of space and dependent for residence upon the petitioners being a family member. She has no immovable property in her name.
12. It is submitted that the married daughter of petitioner no.1 also visits and needs more privacy. Even she is also living in a rented accommodation.
13. There are total nine adult members in the family, two are living in a separate accommodation as the space in the ground E.No. 26/13 Page..6/15 floor is not sufficient. However, there is kitchen and bathroom in the first floor and the first floor is not habitable at all as it is in the bad condition. Petitioners are forced to keep their furniture and bed in the vacant shops. Two rooms constructed at the first floor is not habitable. Photograph have been filed. Petitioners are hand to mouth and do not have requisite fund to renovate the first floor. It is submitted that shop no.2, 6 and 7 have been converted into residential accommodation which clearly shows need of the petitioners which is bonafide and for extending their residential accommodation the tenanted shop is required. The shop no.1 and 3 have also been used for residential property. However, petitioners want to reside at ground floor due to their age and health and living at ground floor would always be convenient. There is no concealment on the part of the petitioners.
14. Further, the property allegedly owned by the petitioner no. 1, was rented accommodation from the period 201113, taken on rent by the daughter Charu Mehta, documents of which allegedly filed alongwith eviction petition. The married daughter is also residing in rented accommodation.
15. I have heard the parties and perused the record.
16. FINDINGS OF THE COURT: As far as the dispute with regard to relationship of the landlord and tenant is concerned, I E.No. 26/13 Page..7/15 am of the opinion that the previous judgment is not resjudicata because cause of action has been changed, much time has been elapsed thereafter and circumstances have been changed. Further, all the conditions of applying the principle of resjudicata have not been fulfilled. More so, the respondent has not denied that the petitioners are legal heirs of Smt. Chetan Devi and Late Sh. H.S Mehta. He has not disclosed that to whom he was paying the rent after the death Sh. H.S. Mehta/Chetan Devi. The challenge of title of petitioners by other alleged LRs has nowhere been brought on record. As on date, there is no judgment of Civil Court binding the parties giving its findings with regard to title of property. Reliance is placed upon 216 (2015) DLT 136. Petitioners's status as that of tenant is not denied.
17. Further, the tenant has not specifically denied the rent receipts except a bald denial that they are false and fabricated. The respondent has not denied his signatures on rent receipts. He has not mentioned as to how rent receipts are false and fabricated, whether signatures are denied or contents are denied or alternation or changes have been done etc. Mere bald denial of rent receipts does not ipso facto point towards their fabrication. Further, no date and amount of pagri has been mentioned. That again strengthen the case of the landlords/petitioners that no E.No. 26/13 Page..8/15 pagri amount was ever given. Further, no document or proof in respect of pagri amount has been shown. Hence, it is apparent that this false and frivolous plea has been taken to avoid the truth.
18. The rent receipts are pointing towards the relationship of the landlord and tenant. Hence, petitioners cannot now challenge the relationship of the landlord and tenant by challenging their title. Even otherwise a coowner can file a case for eviction and it would not result in splitting up the unity and integrity of tenancy. Only this is to be seen is that the landlord had been receiving rent for his own benefit not for and on behalf of someone else. The landlord considered to be owner, however, imperfect his title may be. The tenant cannot raise the plea of imperfect title or title not vested in landlord and that too when it had been paying the rent. If he challenges, he is acting dishonestly. Reliance is placed upon the cases cited as 157 (2009) DLT 450, 191 (2012) DLT 594, 148 (2008) DLT 580, AIR 2004 SC 1321 and 153 (2008) DLT 423.
19. Further, It is not disputed by the respondent that the persons mentioned as family members are not the daughters, sons and spouse of the petitioner no. 1. The respondent cannot dictate the petitioner to live at a particular place or to squeeze himself. If a landlord wishes to live with comfort in a house of his own, law does not command or compel him to squeeze himself E.No. 26/13 Page..9/15 into lesser premises.
20. It is not disputed by the respondent that Ms. Charu, the daughter of the petitioner no. 1, is living separately. The petitioner no. 1 has filed the Rent Deed with regard to the tenanted accommodation where she is residing. Hence, I am of the view that even if she cannot be treated as financially dependent upon the petitioner no. 1 but being the daughter of the petitioner no. 1 and for the purpose of accommodation, she is dependent upon the petitioner no. 1 for her residence as is evident from rent deed. No proof or document has been filed by the respondent to show that Ms. Charu is having her own residential accommodation. As a moral and social obligation, petitioner no. 1 has to think about safety, convenience, protection and comfort of his daughter. From the rent deed of daughter, it is apparent that due to shortage of space, she has been constrained to live in a separate rented accommodation. If she has shifted to a rented accommodation, that does not mean that her need has gone.
21. Further, it is well settled that married daughters need privacy and when they visit their matrimonial home, they need their separate space at their parental house and hence, the contention of the respondent has no basis that being married, the younger daughter of the petitioner no. 1 does not need any space E.No. 26/13 Page..10/15 at her parental house. Reliance is placed upon the case titled as Tilak Raj Vs. Krishan Lal, (1982) RLR Note 33 and J.K Saxena Vs. M.L. Khurana, 75 (1998) DLT 903.
22. Further, the petitioner no. 1 has filed his election Icard showing his residential address at the property no. J3/1, Rajouri Garden, Delhi, which proves that he is residing at this property. Even, if the contention of the respondent is taken to be correct that the petitioner no. 1 is having his job at Haridwar and visit casually, then also need of the petitioner no. 1 is bonafide because for his casual visits also, he will be needing a separate room. It is not for the tenant to dictate how the landlord should live. Convenience of landlord would be a relevant factor for deciding his bonafide need.
23. Further, the requirement of the petitioners with their future daughters and sons is not hypothetical. The age of daughters and sons of the petitioner is not disputed. They all are of marriageable age. Hence, for this requirement also, space is required for them and separate rooms are required for them.
24. Further, as far as construction at first floor is concerned, indisputably, in the photographs, first floor is in dilapidated condition. No one can be accepted to live there with dignity. As per the submission of the petitioners, financial status of the E.No. 26/13 Page..11/15 petitioners is not as such to get the construction done. This submission seems to be correct on the face of it because from the photographs, it is apparent that the construction is old and left in between. At the first floor, the construction is not habitable at all and the respondent cannot direct the petitioner to get it constructed, if he could not construct it in the past as well due to financial constraints More so, the photographs of inner rooms at ground floor also reveal the pitiable condition of plaster etc. Therefore, mere fact that the landlords did not disclose accommodation of first floor available with them, would not prove fatal under the circumstances discussed because that was not alternative suitable accommodation. Reliance is placed upon 172 (2010) DLT 611.
25. Further, at the time of filing of eviction petition, the landlord had filed photocopy of rent deed in favour of Charu Mehta ranging from the period 201113 with regard to property at Mahabir Nagar and Mayur Vihar. Respondent has not brought anything on record to show that these properties were owned by petitioner no. 1. Hence, it is apparent that the daughter of the petitioner no. 1 was constrained to live at rented accommodation due to space crunch.
26. Further, as per the submission of respondent himself, the E.No. 26/13 Page..12/15 petitioners are residing at some portion of the ground floor, which is comprising of three rooms, kitchen and toilet at front side. The back side of the ground floor comprising of three rooms, kitchen, toilet, bathroom and veranda. The shops no. 1, 3, 6 and 7 have been converted into rooms and connected to inner residential portion. Considering the need of the petitioners of separate rooms for the petitioner no. 1 and his wife and the petitioner no. 2 and six separate rooms for their children alongwith drawing room and guest rooms, it cannot at all be said that the petitioners are having surplus accommodation. The petitioners cannot be asked to squeeze themselves. Reliance is placed upon 153 (2008) DLT
652. Although, the site plan of the ground floor filed by the petitioner shows existence of two rooms, open space, four shops and and two store rooms in their possession. As already discussed, considering the size of family members, this space is insufficient for the purpose of residing with comfort, dignity and convenience. The act of the petitioners making use of shops for residence (storing furniture or rooms) further goes on to show that they have lacking space to live in.
27. It is not in dispute that the petitioners have filed the present eviction petition against the respondent as well as two other separate petitions with regard to the adjoining shops. E.No. 26/13 Page..13/15 Therefore, although the present tenanted shop is very small but this argument has no basis that this small space would be of no help to the petitioners under the circumstances when the petitioner has already filed petitions with regard to the adjoining shops and by combining them, it can be used as a bigger room.
28. Proceeding further, the petitioners have shown full ground floor and it was not incumbent upon the petitioners to show the site plan of whole of the property when the accommodation at other portion of the property was not habitable and not suitable for their living. The landlord does not have unfettered rights to choose the premises but merely showing that the landlord has some vacant premises in his possession may not be sufficient to negative the landlord's claim if the vacant premises were not suitable for the purpose for which landlord required the premises. Reliance is placed upon AIR 1981 SC 1113 titled as M.M. Qusaim Vs. M.L. Sharma and 172 (2010) DLT 611.
29. Hence, in view of the above discussion, I find that no triable issue has been raised by the tenant. Hence, leave to defend application is dismissed and an eviction order is passed in respect of the tenanted premised i.e a shop no. 2 measuring 8.4 X 9.10 feet out of the property bearing no. J3/1, Rajouri E.No. 26/13 Page..14/15 Garden, Delhi as shown in red colour in the site plan. This order, however, shall not be executable for the period of six months from today.
File be consigned to record room.
Announced in the open court (RACHNA TIWARI LAKHANPAL)
on 26.02.2015 SCJ/RC(WEST) / DELHI
E.No. 26/13 Page..15/15