Delhi District Court
Kushagr Ansal vs M/S Vinod Industries P. Ltd on 26 April, 2018
IN THE COURT OF SUSHANT CHANGOTRA,
ACJ/ARC/CCJ (NEW DELHI), PATIALA HOUSE COURTS
NEW DELHI
E. NO. 9/08
Case no. 5591/16
KUSHAGR ANSAL
S/o Sh. Deepak Anasal
R/o 6B, Aurangjeb Road, New Delhi110001
.......... Petitioner
Versus
M/S VINOD INDUSTRIES P. LTD
FFJor Bagh, New Delhi.
...........Defendant
PETITION UNDER SECTION 14(1) (e) READ WITH SECTION 25B of
DELHI RENT CONTROL ACT, 1958
Date of Institution of the petition : 10.03.2008
Date of Pronouncement of Judgment : 27.04.2018
JUDGMENT
1. The brief facts of the case of petitioner are that property in dispute i.e. 82 Jor Bagh, New Delhi is a residential property and was let out to respondent for residential purpose by his predecessor in interest i.e. his grandmother namely Smt. Suraj Kumari in the year 1973 on the basis of oral E. NO. 9/08 Case no. 5591/16 Kushagr Ansal V. M/s Vinod Industries Pvt. Ltd. 1 of 31 agreement. Respondent used to pay rent in the sum of Rs. 500/ per month exclusive of other charges through cheques to the predecessor in interest of petitioner. Smt. Suraj Kumari expired on 15.11.2000 and bequeathed the aforesaid premises in favour of petitioner through a will dated 11.05.1999.
2. The petitioner alongwith his wife was residing with his parents at Flat no. 101102 (B), 6 Aurangzeb Road, New Delhi, but he shifted to the ground floor of suit property i.e. 82Jor Bagh, New Delhi on 10.10.2010. The petitioner shifted from 6 Aurangzeb Road as his parents started looking for a girl for the marriage of his younger brother, whose roka ceremony was also performed in February, 2010. On some occasions hot words were exchanged between wife and mother of petitioner respectively. Ultimately, the relations became so bad that it became impossible for them to live in same house. On the mediation of his father, the petitioner alongwith his wife shifted to the aforementioned premises and got the said portion repaired and renovated so as to make it habitable for immediate shifting.
3. The petitioner has studied upto MBA and his wife is also a graduate from Wharton School of Business, USA. Both of them need separate study rooms. They are also maintaining good library and need a room for the library as well. The petitioner is a religious minded person and he needs separate pooja room in the family. He needs separate and independent residential accommodation according to his own personal status and in order to fulfill his further needs.
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4. The petitioner is the director of M/s Ansal Housing and Construction Company Ltd. and his total yearly emoluments are Rs. 68 Lacs approximately. He deposits the yearly income tax of Rs. 20,00000/. The company has provided chauffeur driven cars to the petitioner. His wife is also maintaining her own car. The petitioner is having one chef, two maid servants, four drivers, three gardeners, two chowkidars and two guards etc. He does not own any other residential property of his own in Delhi or in any other part of India, except the suit property.
5. The property was constructed about 60 years ago. Its normal life is over. Its construction is so old that it lacks all modern amenities, facilities, utility and elevation etc. All its sanitary, electric and water amenities need replacement. In view of the status of petitioner, he will be able to occupy the property only after the same is demolished as a whole from the ground level.
6. The petitioner has regular guests, relatives and visitors who normally stay with him and his family for about a week and sometimes for a fortnight. The petitioner needs accommodation for guests according to his own status and status of his family.
7. Thus, the petitioner prayed that an order of eviction of the tenanted premises i.e. 1st floor comprising of four rooms, one pooja room, two toilets, open terrace, passages, balcony, stairs leading to first floor to second floor comprising of two rooms, bath, latrine, store and terrace forming part of property no. 82 Jor Bagh, New Delhi may be passed.
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8. Respondent filed written statement and took preliminary objections. He pleaded that present petition is not maintainable in view of order of Hon'ble Apex Court, passed in SLP No. 871213/14, on 21.09.1995, wherein it was held that "No decree for eviction shall be passed before the disposal of the pending civil suit for specific performance". The said civil suit is pending adjudication. Petition is bad for non joinder of parties as Smt. Suraj Kumari had entered into an agreement to sell of the suit premises with Smt. Urvashi Aggarwal and her two children by virtue of agreement to sell dated 05.10.1974. As such purchasers are necessary parties for adjudication of present petition.
9. On merits, respondent denied that petitioner is owner/landlord of the suit premises. It was also pleaded that petitioner has no locus standi to file the present petition. Smt. Suraj Kumari entered into an agreement to sell of property no. 82, Jor Bagh, New Delhi consisting of ground floor and 2nd floor vide agreement to sell dated 05.10.1974 with the prospective buyers i.e. Smt. Urvashi Aggarwal, Rajeev Aggarwal and Sanjeev Aggarwal for sum of Rs. 1,85,000/. It was agreed that after the receipt of first two installments of Rs. 20,000 and Rs. 50,000/, the vendor Smt. Suraj Kumari shall not be entitled to receive the rent from the tenants in the said property. After the purchasers start receiving rent, the house tax, ground rent and all other outgoing had to be borne by the purchasers. Smt. Suraj Kumar received Rs. 20,000/, 50,000/, Rs. 40,000/ and Rs. 10,000/ from the buyers. The sale deed was to be executed by 31.03.1975, but due to lack of permission from the office of L&DO and due to E. NO. 9/08 Case no. 5591/16 Kushagr Ansal V. M/s Vinod Industries Pvt. Ltd. 4 of 31 failure on the part of Smt. Suraj Kumari, the sale deed could not be executed. The purchasers filed suit for specific performance. There is no privity of contract between respondent and petitioners.
10. The respondent admitted that the respondent company is a tenant in respect of entire first and second floor of aforementioned property and Sh. Sanjeev Aggarwal is one of the directors of respondent company. The property was let out to the company for the residence of its directors and for running the office of company. It has been used for both the said purposes since the inception of tenancy. The respondent company denied the correctness of site plan filed by the petitioner.
11. The respondent company denied the fact that demised premises is required for the bonafide need of the petitioner. The respondent denied all the averments of petition with respect to requirement of property for the bonafide need of the petitioner as were pleaded in the petition. It also denied that petitioner is the director of M/s Ansal Housing Construction Company Ltd. The respondent pleaded that present petition is an attempt on the part of petitioner to give colour to his greed for money and also denied the averments qua income of petitioner as well as about the staff employed for his residence. The respondent also stated that the petitioner has sufficient and surplus accommodation on the ground floor of suit property comprising of four bedrooms, one drawingcumdining room besides bathroom, kitchen and store etc. The villa no. 6B, Aurangzeb Road is owned by petitioner and it has five bedroom sets on both the floors alongwith drawingcum E. NO. 9/08 Case no. 5591/16 Kushagr Ansal V. M/s Vinod Industries Pvt. Ltd. 5 of 31 dining room, kitchen, store, bathroom etc. He is also owner of property no. 57, Jor Bagh, New Delhi which is also residential property consisting of eight bedrooms, one drawingcumdining room besides bathroom, kitchen and store etc.
12. The respondent also denied that the property was constructed 60 years ago or the fact that it has completed his normal life and also the assertion in petition that it needs replacement of sanitary, electric and water amenities. Thus, the respondent prayed that the petition may be dismissed with costs.
13. The petitioner filed replication and thereby denied the averments of written statement and reiterated the averments of petition.
14. After completion of pleadings, matter was fixed for petitioner's evidence. Petitioner examined himself as PW1. He tendered his affidavit Ex. P1 and relied upon documents Ex. PW1/1 to PW1/25. Petitioner also examined PW2 Sh. Deepak Ansal and PW3 Ms. Divya Ansal. They tendered their affidavits Ex. PW2/A and PW3/A respectively. They were crossexamined and then counsel for petitioner closed petitioner evidence on 24.08.2013. Thereafter, petitioner was once again reexamined with the permission of court as PW1. On this occasion, he tendered his additional affidavit Ex. PW1/A. He also relied upon documents Ex. PW1/26 i.e. birth certificate of Ms. Ayesha Ansal.
15. Respondent company examined its director Sh. Sanjeev Aggarwal as RW1. He tendered his affidavit Ex. RW1/A and relied upon documents Ex. RW1/1 to RW1/8 and Ex. PW1/R1. RE was closed on 01.08.2014.
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16. I have heard the arguments of ld. counsel for petitioner and also of the Ld. counsel for respondent. I have also gone through the written submissions and several judgments filed on record by each of the parties and have also gone through the evidence on record very carefully.
17. Before proceeding further with the adjudication of controversy, first of all, I will deal with the argument raised by ld. counsel for respondent to the effect that this court cannot decide the present petition because of direction given by the Hon'ble Apex Court in its order dated 21.09.1995.
18. Ld. counsel for respondent submitted that as per aforementioned order Ex. RW1/PA, the decree for eviction shall not be passed before disposal of the suit by the High Court. He has argued that though the suit for specific performance titled as Smt. Urvashi Aggarwal and other V. Suraj Kumari (through LR) and others has been decided by the court of Ld. ADJ, Delhi, but the appeal is pending. He has argued that appeal is continuation of suit and thereby he relied upon law laid down in Hasmat Rai & Anr. V. Raghunath Prasad (1981) 3 SCC 103 and Nachiappa Chettiar V. Subramaniam Chettiar AIR 1960 SC 307.
19. On the other hand, the ld. counsel for petitioner has vehemently argued that as per the order of Hon'ble Supreme Court the decision of this case was stayed till the civil suit was decided by the High Court. However, due to change in jurisdiction on the basis of pecuniary limits, the suit was transferred to the court of Ld. ADJ. The said case has been decided. He further argued that the Hon'ble High Court of Delhi vide its order dated 31.03.2016 in case titled as E. NO. 9/08 Case no. 5591/16 Kushagr Ansal V. M/s Vinod Industries Pvt. Ltd. 7 of 31 Urvashi Aggarwal & Ors V. Kushagr Ansal & Ors in RFA 100/2016 had directed that the eviction petition may continue, however, in the event of any decree of eviction being passed against the said tenant, the same shall not be executed without seeking permission of the Hon'ble High Court. Thus, this court is bound to decide this matter.
20. I have considered the submissions, in this regard at first, it is necessary to reproduce the relevant portions of the orders passed by the Hon'ble Supreme Court and Hon'ble High Court as have been argued above. Order of the Hon'ble Supreme Court in Smt. Suraj Kumar V. Vinod Industries dated 21.09.1995:
"After hearing the counsel for the parties, it appears that an application for eviction filed on behalf of the petitioner against the respondent is still pending before the rent controller. A suit for specific performance of contract, filed on behalf of Smt. Urvashi Aggarwal and her two sons in respect of the same premises is also pending before the High Court of Delhi. We do not consider it desirable to express any opinion on the merit of the petition for eviction or the suit because it is likely to prejudice one party or the other. According to us the best course under the circumstances is to request the High Court to dispose of O. S. No. 2296/87 before 31st March, 1996. Both the parties have assured us that they will cooperate in early disposal of the said suit. We also direct the rent controller to proceed with the hearing of the application for eviction filed on behalf of the petitioner against the respondent.E. NO. 9/08
Case no. 5591/16 Kushagr Ansal V. M/s Vinod Industries Pvt. Ltd. 8 of 31 However, no decree for eviction shall be passed before the disposal of the suit by the High Court."
Order passed by the Hon'ble High Court of Delhi in case titled as Urvashi Aggarwal & Anr. V. Kushagr Ansal and Ors RFA 100/2016:
"So far as the eviction proceedings against M/s Vinod Industries Pvt. Ltd. are concerned, they may continue; however, in the event of any decree of eviction being passed against the said tenant, the same shall not be executed without seeking permission of this Court."
21. It is admitted fact that earlier the suit for specific performance filed by Smt. Urvashi Aggarwal was pending in the Hon'ble High Court, but subsequently it was transferred to the court of Ld. ADJ. Thereafter, the court of M/s Preeti Aggarwal Gupta, Ld. ADJ, Central10, Delhi vide judgment dated 23.12.2015 dismissed the said suit. In the appeal filed in the Hon'ble High Court, the aforementioned order dated 31.03.2016 was passed.
22. It is necessary to mention that on 19.04.2016, the aforementioned argument was raised before the Ld. predecessor of this court. On that day, the ld. counsel for respondent submitted that the final arguments may be heard with a right to argue on legal and factual issues. Thereafter, the following order was passed:
"In view of the order of the Hon'ble High Court of Delhi and the submissions of ld. counsels of both the parties, matter is now fixed for final arguments. The respondent will be at liberty to raise all legal and factual issues E. NO. 9/08 Case no. 5591/16 Kushagr Ansal V. M/s Vinod Industries Pvt. Ltd. 9 of 31 available to him under the law."
23. The aforementioned order shows that the ld. predecessor of this court had taken into consideration the order passed by the Hon'ble High Court dated 31.03.2016 and thereafter proceeded to hear final arguments. Therefore, the issue as raised above was decided then and therein. The respondent did not choose to challenge the said order due to which it has attained finality.
24. In Ramadhar Shrivas V. Bhagwan Dass (2005) 13 SCC 1, it has been held that, "Where, between the parties to the eviction petition there is a dispute with regard to the title and a civil suit with regard to title is pending between them, the eviction proceedings should not be stayed. However, in case of a threat of immediate eviction from the premises while the title suit is still pending, the aggrieved party may seek appropriate relief at that stage."
25. The perusal of the order of the Hon'ble Apex Court dated 21.09.1995 shows that the passing of final order in this case was stayed till the decision of civil suit by the High Court (which ultimately stood transferred to the court of Ld. ADJ). Thereafter, vide order dated 31.03.2015, the Hon'ble Delhi High Court specifically directed that this court may proceed further and decide the case, but the same cannot be executed without seeking permission of the Hon'ble High Court. Thus, the question of interpretation of the order passed by Hon'ble Apex Court does not arise, therefore, the judgments so relied upon by the ld. counsel for respondent are not applicable to the present case.
26. Now, I will proceed further to deal with the main issues involved E. NO. 9/08 Case no. 5591/16 Kushagr Ansal V. M/s Vinod Industries Pvt. Ltd. 10 of 31 in the petition. The present petition has been filed u/s 14 (1) (e) DRC Act. Section 14 (1) (e) DRC is reproduced below: "Section 14 (1) (e): Notwithstanding anything to the contrary contained in any other law or contract, no order of decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant:
Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:
(e) That the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonable suitable residential accommodation."
27. In order to succeed in the case u/s 14 (1) (e) of DRC Act, the petitioner is required to prove the following ingredients:
(a) Ownership in respect of tenanted premises;
(b) Relationship of landlord and tenant between the parties;
(c) Petitioner requires the tenanted premises for his E. NO. 9/08 Case no. 5591/16 Kushagr Ansal V. M/s Vinod Industries Pvt. Ltd. 11 of 31 bonafide need and necessity or for the necessity of his family members;
(d) Petitioner does not have any other alternative accommodation with him.
Now, I will deal with all the above mentioned ingredients separately in the following order:
OWNERSHIP IN RESPECT OF TENANTED PREMISES AND RELATIONSHIP OF LANDLORD AND TENANT BETWEEN THE PARTIES:
28. It is admitted case that the respondent company was inducted as tenant in the demised premises by Smt. Suraj Kumari. The respondent has disputed the ownership of the petitioner on two accounts i.e. (i) Smt. Suraj Kumari was left with no interest in the property which could be bequeathed upon the petitioner herein & (ii) the petitioner has failed to prove that a will was executed by Smt. Suraj Kumari in his favour.
29. As regards, defence no. (i) as mentioned above is concerned, it is admitted fact that Smt. Suraj Kumari i.e. grandmother of the petitioner entered into agreement to sell Ex. RW1/5 i.e. dated 05.10.1974 with Smt. Urvashi Aggarwal and Master Sanjeev Chander Aggarwal with regard to property situated in 82Jor Bagh, New Delhi. Smt. Urvashi Aggarwal and others filed suit for specific performance which came to be dismissed vide judgment dated 23.12.2015. The respondent company had also pleaded that Smt. Suraj Kumari E. NO. 9/08 Case no. 5591/16 Kushagr Ansal V. M/s Vinod Industries Pvt. Ltd. 12 of 31 was the original owner and since the suit for specific performance filed by prospective buyers was dismissed, therefore, the title of the property continued to vest in the legal heirs of Smt. Suraj Kumari (as she had died during the pendency of suit for specific performance).
30. Section 50 (4) of Delhi Rent Control Act provides that the civil court is competent to decide any question of title of any premises to which this act applies or any question as to the person or persons who are entitled to receive the rent of such premises.
31. In Kanchan Kapoor V. Sarwan Kumar, RCR No. 338/11, the Hon'ble Delhi High Court held that, "Therefore once the civil court has decided the issue of title against the respondent holding that the respondent is not the owner of the suit property, then by virtue of Section 50 of the DRC Act, that judgment of the civil court will prevail and it has to be held that respondent is not the owner of the suit premises. In a bonafide necessity eviction petition under Section 14 (1) (e) of the DRC Act, a person who files the eviction petition not only has to be the landlord, but he also has to be the owner, and once the respondent herein, petitioner in the eviction petition, is not the owner of the suit property, not only the leave to defend application has to be allowed but in fact the eviction petition has to be dismissed."
32. Thus, as per ratio of the aforementioned proposition of law, since the finding of civil court qua the issue of title is binding on the rent controller, therefore, it has to be held that the predecessor in interest of the petitioner namely E. NO. 9/08 Case no. 5591/16 Kushagr Ansal V. M/s Vinod Industries Pvt. Ltd. 13 of 31 Smt. Suraj Kumari was the owner of the demised premises.
33. As far as the other limb of the argument of the ld. Counsel for respondent (defence no. (ii) as mentioned above) is concerned, it has to be borne in mind that the respondent company admits that Smt. Suraj Kumari was the owner and landlord of the premises. Hence, as per section 116 of the Indian Evidence Act, the tenant is estopped from denying the title of its landlord. Moreover, it has already been held above that Smt. Suraj Kumari was the owner of the property in dispute.
34. In the present case, the ld. Counsel for respondent has vehemently argued that the petitioner has failed to prove the will allegedly executed by Smt. Suraj Kumari in his favour by examining the attesting witnesses. He placed reliance on Bharpur Singh & Ors V. Shamsher Singh, (2009) 3 SCC 687, Anil Kak V. Kumari Sharada Raje & Ors (2008) 7 SCC 695, Plastichemicals Company V. Ashit Chadha 114 (2004) DLT 408 and Ram Lal V. Hari Kishan ILR (1986) II DEL. 69. In Bharpur's case, it has been held that, "It may be true that the will was a registered one, but the same by itself would not mean that the statutory requirements of proving the will need not be complied with. In terms of Section 6 (c), Succession Act, 1925 and Section 68, Evidence Act, 1872, the propounder of a will must prove its execution by examining one or more attesting witnesses. Where, however, the validity of the will is challenged on the ground of fraud, coercion or undue influence, the burden of proof would be on the caveator."
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35. The ld. Counsel for respondent also argued that the order passed under Order 22 rule 4 of CPC in the civil suit cannot operate as res judicata in the other case. In this regard, he placed reliance on Mahender Kaur & Anr. V. Piara Singh and Ors AIR 1981 P&H 130, Govindan Nair V. Janki Amma Manu/Ke/0183/2001 and Parvati Bai v. Ram Rao Barikrao Lahane 2002 (5) MHLJ 515.
36. In Dr. Jain Clinic Pvt. Ltd. Vs. Sudesh Kumar Dass in RCR No. 136/12, it has been held that, "It is settled law that in the context of Delhi Rent Control Act, what appears to be the meaning of the term 'owner' is that vis avis the tenant i.e. the owner should be something more than the tenant." The position in law is that "The ownership" of the landlord for the purpose of maintaining a petition U/Sec. 14(1)(e) of the D.R.C. Act is not required to be a absolute ownership of the property and it is sufficient if the landlord is a person who is collecting the rent on his own behalf. The imperfectness of the title of the premises can neither stand in the way of an eviction petition U/Sec. 14(1)(e) of the Act, nor can the tenant 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." Further, in Meenakshi vs. Ramesh Khanna & Anr., 60 (1995) DLT 524, it has been held that, "Mere denial of ownership is no denial at all. It has to be something more. For this, first and foremost thing which has always been considered as a good guide is does that tenant say who else is the owner of the premises if not the petitioner? In the present case, the tenant does not say E. NO. 9/08 Case no. 5591/16 Kushagr Ansal V. M/s Vinod Industries Pvt. Ltd. 15 of 31 anything except denying petitioner's ownership. The tenant is completely silent on this aspect. Merely by saying that the petitioner is not the owner, the tenant is trying to ensure that the case drags on for years for trial. If leave is granted on the basis of such vague pleas, it will encourage the tenants to deny ownership of the petitioners in every case." Similarly in Ramesh Chand vs. Uganti Devi, 157 (2009) DLT 450, it has been specifically held 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 D.R.C. 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 estoppel against such tenant. A tenant can challenge the title of landlord only after vacating the premises and not when he is occupying the premises".
Therefore, the parameters for adjudicating the defence of lack of title of the petitioner has to be adjudicated on the touchstone of the law as referred above.
37. Though the respondent has the right to challenge the title of the E. NO. 9/08 Case no. 5591/16 Kushagr Ansal V. M/s Vinod Industries Pvt. Ltd. 16 of 31 subsequent transferee of his landlord, but the standard of proof required for establishing title in the eviction petition varies from the standard of proof required in the civil suit. In Rajender Kr. Sharma & Ors. Vs. Leela Wati & Ors. 155 (2008) DLT 383; it was held "For the purpose of Sec. 14(1)(e) of the D.R.C. Act, the landlord is not supposed to prove absolute ownership as required under Transfer of Property Act. He is required to show only that he is more than a tenant." It has been further held by the Hon'ble Supreme Court in Smt. Shanti Sharma & Ors. Vs. Smt. Ved Prabha & Ors. AIR 1987 SC 2028; "For the purpose of Sec. 14(1)(e) of the Act, ownership is not to be understood as absolute ownership but only a title better than the tenant. So what is to be seen is whether on the basis of aforesaid facts it can be said that the petitioner has any title to the property better than the respondent."
38. In the case of Bharat Bhushan Vij v. Arti Techchandani, 153(2008) DLT 247 in paras 4 & 5, it was held that, "The concept of ownership in a landlordtenant litigation governed by the Delhi Rent Control Act, has to be distinguished from the one in a title suit. If the premises was let out by a person and after his death, the premises has come in the hands of beneficiary under a Will, the the tenant has no right to challenge the title of such a beneficiary. If on the death of the original owner the tenant has any doubt as to who was the owner of the premises, he is supposed to file an interpleader suit impleading all the legal heirs of the deceased and ask the Court to decide as to who shall be the landlord/owner after the death of the original owner. Where no interpleader suit E. NO. 9/08 Case no. 5591/16 Kushagr Ansal V. M/s Vinod Industries Pvt. Ltd. 17 of 31 is filed by the tenant and the tenant continues in possession after death of the original owner without demur and without raising an objection against the person, who claims to have inherited the property under the Will, he later on cannot challenge the ownership of such a person. It is not the domain of the tenant to challenge the Will of the deceased landlord. If a landlord is able to show that there is a testament in his/her favour, he/she is deemed to have discharged his/her burden of proving the ownership under the Act. If the tenant takes a frivolous objection about ownership, such an object cannot be entertained unless the tenant comes forward as to who was the landlord/owner of the premises and whom he has been paying rent after the death of the original owner."
39. Moreover, in Ram Chander v. Ram Pyari, 109 (2004) DLT 388 and Plashchemicals Company v. Ashit Chadha and Anr., 114 (2004) DLT 408 it has been held that, "It was not for the tenant to challenge the Will of the landlord and any such challenge made by the tenant is a baseless and frivolous challenge."
40. Admittedly in the present case, the respondent has not filed any interpleader suit. The perusal of the written statement as well as respondent evidence shows that there is no averment to the effect regarding the person to whom the respondent had paid the rent after execution of agreement to sell.
41. As mentioned above, the respondent admits that Smt. Suraj Kumari had inducted the respondent as a tenant. The petitioner in his affidavit E. NO. 9/08 Case no. 5591/16 Kushagr Ansal V. M/s Vinod Industries Pvt. Ltd. 18 of 31 Ex. P1 categorically deposed that Smt. Suraj Kumari had executed a will in his favour. Similarly, PW2 Sh. Deepak Ansal i.e. father of petitioner also deposed that his mother Smt. Suraj Kumari had executed a will in favour of petitioner. However, no suggestion was given to them in their crossexaminations specifically to the extent that no such will had been executed in favour of the petitioner.
42. Even otherwise, it is not disputed that petitioner is the grandson of Smt. Suraj Kumari. In M/s Indian Umbrella Manufacturing Co. & Ors. vs. Bhagabandei Agarwalla (Dead) by LRs Smt. Savitri Agarwalla & Ors., AIR 2004 1321; it was held that, "The consent of other coowners is assumed to be taken unless it is shown that the other coowners were not agreeable to the ejectment of the tenant and suit/petition for their eviction was filed despite their disagreement." It has also been held in a catena of judgments of the Hon'ble Supreme Court and more specifically in Sri Ram Pasricha vs. Jagannath 1976 RCR (Rent) 832, (1976) 4 Supreme Court cases 184, Kanta Goel vs. D.P. Pathak, 1979 (1) RCR (Rent) 485; (1977) 2 Supreme Court cases 814 and Pal Singh vs. Sunder Singh 1989 (2) RCR (Rent) 331; : (1989) 1 Supreme Court cases 444; that "One of the coowners can alone and in his own right file a suit for ejectment of the tenant and it is no defence open to the tenant to question the maintainability of the suit on the ground that the other coowners were not joined as parties to the suit. When the property forming the subject matter of the eviction E. NO. 9/08 Case no. 5591/16 Kushagr Ansal V. M/s Vinod Industries Pvt. Ltd. 19 of 31 proceedings is owned by several owners every coowner owns every part and every bit of the joint property along with others and it can not be said that he is only a partowner or a fractional owner of the property so long as the property has not been partitioned. He can alone maintain a suit for eviction of the tenant without joining the other coowners if such other coowners do not object......".
Hence, in view of the aforementioned settled proposition of law, the present petition is maintainable on this score as well.
43. The ld. Counsel for respondent also argued that as per clause 4 of the agreement to sell Ex. RW1/5, Smt. Suraj Kumari was not entitled to receive rent after receiving two installments of Rs. 20,000/ and Rs. 50,000/ respectively. He further argued that the said fact has also been upheld in the judgment of the court of Ld. ADJ (Central) Delhi dated 23.12.2015. Hence, the relationship of landlord of tenant ceased to exist.
44. I have given my thoughtful consideration to this argument as well. In this regard, it has to be kept in mind once again that as per judgment dated 23.12.2015 passed in suit for specific performance, the title continued to vest in Smt. Suraj Kumari and after her death with her legal heirs. Moreover, it is essential to note that the aforementioned agreement Ex. RW1/5 was between the owner and Smt. Urvashi Aggarwal & Ors, meaning thereby that the respondent i.e. tenant was not a party to it. Therefore, the terms and conditions of the said agreement could not have been binding on the respondent and petitioner interse each other.
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45. In the entire written statement as well as respondent evidence there is no averment to the effect that the petitioner had attorned to the respondent that it will be required to pay rent to the prospective at any point of time. The respondent has not led any evidence to the effect that it had paid the rent of the demised premises to the prospective purchaser at any point of time. Therefore, the respondent cannot take advantage of a clause which was not binding between the petitioner and the respondent, specially when there was no attornment to that effect.
46. I also do not find any force in the argument of the ld. Counsel for respondent to the effect that the finding arrived at in the judgment dated 23.12.2015 passed by civil court regarding the fact that the prospective buyers had paid two installments to petitioner is binding upon this court. The complete perusal of the aforementioned judgment shows that there was no issue with regard to entitlement of any person to receive rent of the suit property. Hence, the finding of civil court was also not to the effect that either the petitioner herein or the subsequent purchaser were entitled/not entitled to receive the rent.
47. Moreover, for any decision to operate as res judicata, the lis should be between the same parties and it should relate to the matter which was directly and substantially in issue in the earlier decided case. However, in the present case the parties to lis are not the same as the respondent herein was not a party in the civil suit nor the prospective purchasers are the parties in the present case.
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48. In Sajjandanasthin Sayed Vs Musa Dadabhai Ummer & ors AIR 2000 SC 1238, the Hon'ble Supreme Court held that, "....The test to determine whether an issue was directly and substantially in issue is earlier proceedings or collaterally or incidentally, is that if the issue was 'necessary' be decided for adjudicating on the principal issue and was decided, it would have to be treated as 'directly and substantially' in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case. One has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue. It is not to be assumed that matters in respect of which issues have been framed are all of them directly and substantially in issue. Nor is there any special significance to be attached to the fact that a particular issue is the first in the list of issues. Which of the matters are directly in issue and which collaterally or incidentally must be determined on the facts of each case. A material test to be applied is whether the Court considers the adjudication of the issue material and essential for its decision."
Therefore, I do not find force in the argument of ld. Counsel for respondent to this extent.
49. Hence, in view of the aforementioned discussion it has to be concluded that petitioner has proved to the preponderance of probability that he is the owner and landlord of the suit premises.
PETITIONER REQUIRES THE TENANTED PREMISES FOR HIS E. NO. 9/08 Case no. 5591/16 Kushagr Ansal V. M/s Vinod Industries Pvt. Ltd. 22 of 31 BONAFIDE NEED AND NECESSITY
50. The petitioner has setup his case for bonafide need and necessity for occupying the tenanted portion of the premises on the ground that the space available with him is not sufficient for him to lead a convenient life according to his status in society.
51. In Shiv Sarup Gupta V. Dr. Mahesh Chand Gupta, AIR 1999 SC 2507, the Hon'ble Supreme Court dealt with the meaning and scope of the term bonafide need. The relevant portion of the judgment is reproduced below: "Chambers 20th Century Dictionary defines bonafide to mean 'in good faith: genuine'. The word 'genuine' means 'natural': not spurious: real: pure :sincere'. In Law Dictionary, Mozley and Whitley define bonafide to mean 'good faith, without fraud or deceit'. Thus the term bonafide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by 'requires' is much more higher than in mere desire. The phrase 'required bonafide' is suggestive of legislative intent that a mere desire which is outcome of whim or fancy is not taken note of by the Rent Control Legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of landlord and its bonafides would be capable of successfully withstanding the test E. NO. 9/08 Case no. 5591/16 Kushagr Ansal V. M/s Vinod Industries Pvt. Ltd. 23 of 31 of objective determination by the court. The Judge of facts should place himself in the arm chair of the landlord and then ask the question to himself whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bonafide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the Court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord. Once the court is satisfied of the bonafides of the need of the landlord for premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the court. The Court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the Court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bonafide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or two conservative or pedantic must be guarded against."
Thus, the question of bonafide need and necessity will be adjudicated E. NO. 9/08 Case no. 5591/16 Kushagr Ansal V. M/s Vinod Industries Pvt. Ltd. 24 of 31 on the basis of the aforementioned proposition of law.
52. The petitioner has set out his ground for bonafide need and necessity on various accounts. The petitioner as well as PW2 Sh. Deepak Ansal and PW3 Ms. Divya Ansal deposed that the petitioner was staying with his parents at B6, Aurangzeb Road till 10.10.2010. Due to discord between the wife of petitioner and his mother (i.e. PW3 Smt. Divya Ansal), he had to shift to the ground floor of the property in dispute. They were also crossexamined at length, but nothing material came out in their crossexaminations so as to create doubt about the veracity or truthfulness of their depositions. The ground so taken by the petitioner is also not improbable as there can be matrimonial discords between the family members in any family.
53. In Sohan Singh & Ors V. Prakash Devi & Ors, 2004 SCC Online Delhi 603 : (2004) 77 DRJ 1 : (2004) 113 DLT 527, it has been held that, "Landlord and wife of advanced age were residing in a house owned by their son. Differences between landlady and daughter in law arose. Held that requirement of shifting to own house let out for residential purposes to tenant found by Rent Controller as bona fide need and necessity. Landlord was not having suitable alternative accommodation. Thus, eviction order was not to be interfered with."
54. The petitioner has also orally deposed that he is occupying the position of director in a reputed company and is earning Rs. 68 Lacs approximately and his family has increased and he has whole lot of employees in the form of maid servants, guards, drivers etc who have to be accommodated in E. NO. 9/08 Case no. 5591/16 Kushagr Ansal V. M/s Vinod Industries Pvt. Ltd. 25 of 31 the premises. He has also pleaded and deposed that he needs a pooja room and separate libraries for himself and his wife as both of them are well qualified and have the desire to maintain separate studies. He has also deposed that the present accommodation is not sufficient for him to accommodate his guests and relatives who come to stay with him for sometime.
55. The petitioner has proved the copy of his income tax return for the assessment year 200607 Ex. PW1/9 and for the year 2010 as Ex. PW1/10. The said returns show that the petitioner is having high annual income. The petitioner has also proved the copy of his masters degree Ex. PW1/7 and the bachelors degree of his wife i.e. Ex. PW1/8. These documents have gone unimpeached. The aforementioned documents show that the petitioner as well as her wife are well qualified.
56. The petitioner has categorically deposed that at present he is having two bedrooms and a dining room. He was crossexamined at length visa vis his requirement of space. The ld. counsel for respondent also emphasized that the petitioner had brought about structural changes and reduced the number of rooms. He also demolished the study room and made it a part of drawing/dining room. He therefore argued that if the petitioner really wanted study room and guest room, he would not have changed the structure so as to reduce the number of rooms or would have removed the study room.
57. In this regard, it is necessary to note that the case of petitioner is that he had to shift to the ground floor, 82Jor Bagh, New Delhi due to discord E. NO. 9/08 Case no. 5591/16 Kushagr Ansal V. M/s Vinod Industries Pvt. Ltd. 26 of 31 between his family members. The petitioner had always set up a case that his requirement was much more, but he is living in restricted space due to lack of sufficient accommodation required for himself according to his status in the society.
58. In M/s John Impex Pvt. Ltd. Vs. Dr. Surender Singh & Ors. 135 (2006) DLT 265), it has been held that, "The landlord is the best judge of his requirements and a tenant cannot dictate the terms on which the landlord should live." Further, in Adarsh Electricals & Ors. vs. Dinesh Dayal 173 (2010) DLT 518, it has been held that, "It is settled law that, "the question of accommodation, actually in possession of the landlord, being 'reasonably suitable' is to be judged solely in the context of physical sufficiency of the accommodation and that the Court may hold that accommodation is insufficient having regard to various circumstances, such as, the social status of the family or traditions and customs observed by it. As long as the landlord is able to establish that he in good faith and genuinely wishes to occupy the premises in possession of the tenant and that good faith or genuineness is of a reasonable man, it would not be open to the Controller to weigh the claim of the landlord in a fine scale. The law does not require the landlord to sacrifice his own comforts and requirements merely on the ground that the premises is with a tenant."
59. The petitioner has also proved the attendance register of the employees hired by him Ex. PW1/15 as well as the verification forms of the E. NO. 9/08 Case no. 5591/16 Kushagr Ansal V. M/s Vinod Industries Pvt. Ltd. 27 of 31 domestic servants etc hired by him as Ex. PW1/17 to PW1/20.
60. It has been argued by ld. counsel for the respondent that documents Ex. PW1/18 and PW1/19 show that the concerned employees are resident of 6, Aurangzeb Road and the attendance register does not show the whereabouts of employees.
61. In this context, it is necessary to note that the documents Ex. PW1/17 and PW1/20 relate to employees with address of 82, Jor Bagh, New Delhi. Moreover, if a person has the financial capacity to hire number of employees according to his status, but is not able to hire them due to lack of space or otherwise, it cannot lead to conclusion that such person does not have necessity of hiring such maid servants/employees.
62. In Dr. Des Raj Bhasin V. M. G. Khanna, 1999 SCC Online Del 776 : (1999) 51 DRJ 641 : (1999) 82 DLT 74, Hon'ble High Court held that, "Additional premises were required by the landlord for domestic servants. Considering the life style of the landlord. The requirement of additional accommodation was held to be bona fide necessity. Therefore, eviction of tenant was ordered."
63. The petitioner has also deposed that he is a religious person and needs a pooja room in his house. His testimony to that effect has gone unimpeached. In Ram Partap Sharma V. Rukmani Devi, 1999 SCC Online Del 921: (1999) 82 DLT 878 : PLR 2000 124 Del 13, Hon'ble High Court held that, "In the society in which we live, religious and social ethos make it necessary E. NO. 9/08 Case no. 5591/16 Kushagr Ansal V. M/s Vinod Industries Pvt. Ltd. 28 of 31 to have a pooja room separately. A landlord cannot be compelled to have a pooja room in a dining room or bed room. Therefore, it was not necessary that a landlord must have to show that he was having a separate pooja room at the time of filing of petition in order to establish the requirement of a pooja room."
64. Thus, in view of the aforementioned discussion, it has to be held that the petitioner has proved to the preponderance of probability that the present accommodation available with him is not sufficient for him according to his needs with respect to his status in society. He has also successfully established that he requires the tenanted premises for his bona fide need and necessity. ALTERNATIVE ACCOMMODATION
65. The petitioner has pleaded and averred that he does not have any other residential property in Delhi or even in India. On the contrary, the respondent has taken a defence that the petitioner is owner of 6Aurangzeb Road, New Delhi as well as of 57Jor Bagh, New Delhi. The petitioner has pleaded that his father Sh. Deepak Ansal is owner of property no. 6Aurangjeb Road, New Delhi. He also examined him as PW2. In his crossexamination, PW2 stated that he is the owner of property no. 6, Aurangzeb Road, New Delhi. On the other hand, RW1 in his crossexamination (conducted on 01.08.2014) stated that some persons had told him that the petitioner is owner of properties no. 57, Jor Bagh and 6B Aurangzeb Road. Therefore, the aforementioned deposition of sole respondent witness shows that the defence so taken and the deposition of RW1 were based on hearsay evidence.
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66. The ld. counsel for respondent has argued that as per Section 106 of Indian Evidence Act, the petitioner was under obligation to produce the title documents and the burden lied on the petitioner to establish that the property no. 6Aurangzeb Road did not belong to him.
67. I have given thoughtful consideration to the aforementioned argument. Section 106 of Indian Evidence Act provides that when any fact is specially within the knowledge of any person, the burden of proving that fact is upon him. It does not lay down the burden to prove the evidence in negative.
68. The respondent could have led evidence by summoning relevant record from the office of concerned subregistrar to establish the aforementioned aspect of ownership of abovementioned properties. However, the respondent did not take the steps in this regard for reasons best known to it. The initial onus to establish the fact as alleged rested on the respondent. The burden to rebut the onus was to shift upon the petitioner only after respondent was able to discharge the initial burden. Since, the deposition of RW1 to this effect was based on hearsay evidence, therefore, it is inadmissible. Hence, the respondent failed to discharge the initial burden. Moreover, the petitioner could not have led negative evidence to the effect that he is not the owner of particular properties.
69. Therefore, it has to be concluded that the petitioner has proved to the preponderance of probability that he does not have reasonably suitable alternative accommodation.
70. Thus, in view of the aforementioned discussion, it has to be held E. NO. 9/08 Case no. 5591/16 Kushagr Ansal V. M/s Vinod Industries Pvt. Ltd. 30 of 31 that the petitioner has proved all the ingredients of section 14 (1) (e) of the D.R.C. Act and he is entitled for an eviction order. An eviction order is passed in favour of petitioner and against the respondent in respect of tenanted premises of property no. 82Jor Bagh, New Delhi. This order shall not become operative before the passage of six months from today. It is needless to mention that even after the lapse of period as mentioned above, the execution will be carried out only with the permission of Hon'ble High Court of Delhi as per order dated 31.03.2016 in case titled as Urvashi Aggarwal & Ors V. Kushagr Ansal & Ors in RFA 100/2016. File be consigned to record room after due compliance.
Digitally signed by SUSHANT SUSHANT CHANGOTRA
CHANGOTRA Date: 2018.04.27
15:58:39 +0530
Announced in open court (SUSHANT CHANGOTRA)
on 26th April, 2018 ARC/ACJ/CCJ(New Delhi)
Patiala House Courts/New Delhi
E. NO. 9/08
Case no. 5591/16 Kushagr Ansal V. M/s Vinod Industries Pvt. Ltd. 31 of 31