Delhi District Court
Sh. Sheikh Sultan Ahmed vs Sh. Amarjit Singh on 3 July, 2012
IN THE COURT OF SH. VINOD KUMAR GAUTAM:
ADMINISTRATIVE CIVIL JUDGEcum ADDITIONAL RENT
CONTROLLER : (NORTH) DELHI.
In Re : E. No. 83/10
Unique ID No.02401C0304032010.
Sh. Sheikh Sultan Ahmed
S/o Late H. H. Rehmat Elahi
Through General Attorney
M. Salim,
R/o 1512, Kashmere Gate
Delhi110006 ...............Petitioner.
Versus
1. Sh. Amarjit Singh
2. Sh. Jaspal Singh
3. Mrs. Manjeet Chawla
4. Ms. Devender Kaur
All LRs. Late Sh. Rajinder Singh,
All of of Shop no. 5732, Nai Sarak
Delhi110006 ..............Respondents.
Date of Institution of Petition : 19/07/2010
Date on which Order was reserved : 05/06/2012
Date of Pronouncement of Order : 03/07/2012
O R D E R
By this order, I shall dispose of the applications for Leave to Defend under Section 25B(4) of the Delhi Rent Control E. No. 83/2010 1 of 22 Act, 1958 and under Order 11 Rule 1 & 2 CPC which have been moved on behalf of the respondents.
The brief facts relevant for the disposal of the present application are that the petitioner has filed the present eviction petition under section 14 (1) (e) read with section 25 B of DRC Act on the ground that the petitioner is the owner and landlord of the the respondents in respect to the shop bearing no. 870, Nai Sarak, Delhi110006 (hereinafter referred as suit property). The respondents are joint tenants in the suit property and the suit property is required by the petitioner bonafidely for carrying on business from the same. The petitioner who is a senior citizen is not in possession or occupation of any other commercial property in Delhi from where he can carry out his professional/business activities. The petitioner has prayed that a decree of eviction along with cost be passed in favour of the petitioner and against the respondents in respect of the suit property.
Upon service of summons respondents filed leave to defend application along with supporting affidavits alleging and deposing therein that the petitioner is not the owner of the suit E. No. 83/2010 2 of 22 property and he is merely a rent collector and the present petition is not filed by the petitioner himself or through his legally appointed attorney thus the present petition is not maintainable. It is further deposed that the petitioner does not require the suit property for his bonafide use and it is his unauthorized attorney who is all the time threatening the respondents to vacate the suit property. It is further deposed that the petitioner is aged about 75 years and his wife is about 70 years and the petitioner is not able to move properly and is mostly confined to bed due to various ailments and old age and he is not in a fit condition to run any business and even today also he is not doing any business due to the aforesaid reasons. The other ground taken by the respondents is that the present petition seeking the eviction of the respondents is vague and the petitioner has not established or pleaded his need rather has shown only his desire. The respondents have further deposed that the site plan filed by the petitioner is not correct and the petitioner has not shown the correct measurement of the suit property and the suit property in fact is not a shop but a side window erected outside the regular shop on the government land and the petitioner has no right or authority over the same. The respondent has further deposed that the petitioner had recently E. No. 83/2010 3 of 22 sold a shop which is also close to the suit property and has concealed the properties owned by him and by his wife some of which are lying vacant and are more comfortable to the petitioner and the petitioner has concealed shop no. 2169 which is adjacent to the suit property and the petitioner is having much more than his requirement and the respondents have prayed that their leave to defend application may kindly be allowed to contest the present case on merits.
Reply to the leave to defend application along with counter affidavit has been filed by the petitioner raising preliminary issue that the respondents have failed to raise any triable issue, therefore, leave to defend application is not maintainable and on merits denied all the allegations further deposing that the respondents have admitted that they had sent rent and the relationship of landlord and tenant between the parties has been impliedly admitted. The petitioner has deposed that he is the owner/landlord of the suit property which fact has been admitted by the respondents and has denied that the petitioner is merely a rent collector. It is further deposed that the averments made by the respondents with regard to the petition being not maintainable E. No. 83/2010 4 of 22 are vague. It is further deposed that the respondents are not able to tell who else is the owner of the suit property and the respondents have also failed to disclose as to how the petition has not been properly filed. It is further deposed that the present petition has been filed by the petitioner under his instructions through his General Power of Attorney who is his real nephew. The petitioner has denied that his attorney is threatening the respondents to vacate the suit property. The petitioner has further deposed that the respondents have admitted that he is not doing any business and that the old age does not in any way debars the petitioner to seek eviction of his tenant from the suit property for his bonafide purpose of carrying on his business from the suit property. The petitioner has denied that he is not able to move properly or is mostly confined to bed due to various ailments. The petitioner has further deposed that he has filed the site plan which is correct according to the site and has denied that the suit property is just a side window and is a government land. The petitioner has further deposed that the respondents have failed to disclose the address of the shops alleged to be sold by the petitioner and to whom the alleged shop was sold. The petitioner has reiterated that except the suit property he is not the owner of E. No. 83/2010 5 of 22 any other shop in the locality or has sold any shop in the said locality. It is further deposed that the respondents have failed to disclose as to which properties of the petitioner are lying vacant or are more comfortable to the petitioner. It is further deposed that the petitioner is not the owner or landlord of the premises bearing no. 2169 adjacent to the suit property or has any concern with it. The petitioner has further deposed that the respondents have failed to disclose any triable issues and has prayed that the present application be dismissed with exemplary costs.
Rejoinder to the reply of leave to defend application alongwith rejoinder affidavit filed on behalf of the respondents denying the preliminary objection as well as facts upon the merits and reiterating moreover the same facts as alleged in the leave to defend application.
The respondents in the application under Order 11 Rules 1 & 2 CPC for seeking leave to deliver interrogatories to the petitioner to be relied in person, have averred that the petitioner has nowhere mentioned or shown other properties owned by him in Delhi and has also concealed the other cases E. No. 83/2010 6 of 22 filed by him which are pending in different Courts and also before the Slum Clearance Court. Therefore, the respondents have prayed that the respondents be permitted to deliver interrogatories for the examination of the petitioner in accordance with law.
No reply has been filed to the present application on behalf of petitioner and arguments were advanced on the same.
I have given my thoughtful consideration to the submissions advanced on behalf of the parties and have perused the record carefully and the authorities relied on behalf of the parties.
Petitioner has placed reliance upon the judgment reported in 186 (2012) DLT 186, 186 (2012) DLT 185, 183 (2011) DLT 686, 184 (2011) DLT 103, 184 (2011) DLT 362 and RC.REV.36/2012 and CM Nos.142829/2012.
On the other hand, respondents have placed reliance upon the judgment reported in 184 (2011) DLT 590 and (2003) 9 E. No. 83/2010 7 of 22 SCC 151.
Before I advert to the respective contentions of learned counsel appearing for either parties, let us discuss the essential ingredients of Sec. 14(1)(e) of D.R.C. Act on which the petitioner may be entitled to an order of eviction, as under: A. That petitioner is a landlord and an owner of the said premises, B. The premises in question were let for residential purposes.
C. The premises are required bonafide by the petitioner for use and occupation for himself or for any member of his family dependent upon him or for any person for whose benefit the premises are held; and D. That the petitioner has no other reasonably suitable accommodation.
A. That petitioner is a landlord and an owner of the said premises: The respondents have deposed that the petitioner E. No. 83/2010 8 of 22 has nowhere shown or placed on record any document showing that he is the owner of the suit property. The respondents have taken a ground that the petitioner is merely a rent collector. However, the relationship of landlord and tenant between the parties has not been denied by the respondents. Now, having admitted the petitioner to be the landlord, the respondent is estopped from denying the title of the petitioner to the suit property as per Section 116 of Evidence Act. Reference in this context may be made to the judgments in Amar Kaur v. Naresh Kumar 97 (2002) DLT 772 and Rital Lal v. Raj Kumar Singh (2002) VIII AD (SC) 43. Also in a recent ruling of Ramesh Chand v. Uganti Devi 157(2009) DLT 450, our own Hon'ble High Court has specifically held that:
"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 E. No. 83/2010 9 of 22 else. If the landlord was receiving rent for himself and not on behalf of someone else, he is to be considered as to 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 estoppal against such 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, qua the premises, to whom he is paying rent, acts dishonestly. I, therefore, find that there was no infirmity in the order of learned ARC in this respect."
E. No. 83/2010 10 of 22 Moreover, the respondents have failed to disclose the name of the person who according to them is the owner of the suit property, it is therefore, cannot be said that any triable issue qua the ownership of property has been raised. Here, I am fortified with the case law of Meenakshi v. Ramesh Khanna & Anr. 60 (1995) DLT 524, in which it was held as under: "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 the tenant say who else is the owner of the premises if not the petitioner? In the present case, the tenant does not say 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 plea, it will encourage the tenants to deny ownership of the petitioners in every case. The tenants are well aware that once leave to contest is E. No. 83/2010 11 of 22 granted, the cases go on for trial for years. Their purpose is achieved. Keeping this in mind, the Controllers should rather have positive approach in such matters so as to discourage such vague and frivolous pleas which are most of the time false to the knowledge of persons raising them."
It is also a well settled law that mere denial of ownership is no denial at all as also been held in a case titled Meenakshi Vs. Ramesh Khanna and another 60 (1995) DLT 524 by the Hon'ble High Court of Delhi relied on behalf of the petitioner. Even the payment of rent by the respondents to the petitioner has been admitted. It is a well settled law that the tenant can not challenge the title of the landlord during the occupation of the tenanted premises and if he wants to challenge the title, he has to vacate the tenanted premises. Moreover, the petitioner has shown that he is more than the tenant in the suit property. Therefore, In the light of above cited case authorities, the plea of the respondents with regard to the ownership of the premises in question is untenable and it appears that this ground has been taken by the respondents just for the sake of defence E. No. 83/2010 12 of 22 without having any substance in it and the same is rejected accordingly.
B. The premises in question were let for residential purposes.
It is not disputed that the suit property was let for non residential purposes. Even otherwise, this issue in controversy has been set at rest by the Hon'ble Apex Court in a leading case of Satyawati Sharma Vs. Union of India and Anr. 2008(5) SCC 287 wherein it was held that the premises let out either for residential or commercial purposes can be got vacated by the landlord for bonafide requirements.
C. The premises are required bonafide by the petitioner for use and occupation for himself or for any member of his family dependent upon him or for any person for whose benefit the premises are held.
The petitioner has contended that he requires the suit property for his bonafide purpose of carrying on business from the same and he is not in possession of any other commercial property E. No. 83/2010 13 of 22 in Delhi from where he can carry out his professional or business activities. There is also no ground taken by the respondents in their leave to defend application that the petitioner is doing his business activities from any other property. The respondents have rather admitted in the present application that the petitioner at present is not doing any business. The ground taken by the respondents is that the petitioner being an old aged person of 75 years is mostly confined to bed due to various ailments and due to his old age, he is not in a fit condition to run any business. The aforesaid ground taken by the respondents has no merit and the same does not raise any triable issue as it can not be presumed that the petitioner is unable to do any business merely because he is an old aged person. Moreover, when it is an admitted fact that the petitioner is not doing any other business etc. and he requires the suit property for his professional or business activities. The allegations of the respondents that the petitioner is not able to move properly and is mostly confined to bed due to various ailments, are merely a vague and general allegations without any document to substantiate the same. Even the respondents have not mentioned about any specific ailment of the petitioner and that how the petitioner is not able to move properly. The respondents have also not specified how and in what manner E. No. 83/2010 14 of 22 the petitioner is not in a fit condition to run any business as merely an old age is not a ground for assuming that a person cannot run any business. Therefore, the said ground taken by the respondents has no merits and the same is rejected accordingly.
The other ground taken by the respondents is that the petition has not been filed by the petitioner and the same is filed by his General Power of Attorney. The petitioner has submitted in his reply that the present petition has been filed on his behalf by his General Power of Attorney holder under his instructions who is otherwise his real nephew and the same has been signed by him. The copy of the same is placed on record by the petitioner. The perusal of the same also shows that the General Power of Attorney has been executed by the petitioner in favour of Sh. M. Salim. Therefore, there is no merit in the contention of the respondents that the petition is not maintainable as the same is not filed by the petitioner himself or through his legally appointed attorney. Hence, the aforesaid ground taken by the respondents is also rejected accordingly.
The other ground taken by the respondents is that the E. No. 83/2010 15 of 22 petitioner has not given the measurement of the suit property and the site plan filed by the petitioner is not correct as the suit property is not a shop but a side window erected outside the regular shop on the government land and the petitioner has no right or authority over the same. The petitioner in his reply has denied that the suit property is a side window or constructed on the Government land and has stated that the same is according to the site plan and the site plan is correct. The aforesaid ground taken by the respondents is a vague ground as the respondents have not specified as to what is the measurement of the said shop or how and in what manner the said site plan is not correct. The respondents have not filed any site plan to show the correct position of the site or to controvert the site plan filed by the petitioner. The respondents have also not filed any document to show that the suit property is on the government land. Therefore, the aforesaid assertion of the respondents is merely a bald assertion without any document to substantiate the same and the same is rejected accordingly.
In a case titled as Tarsem Singh vs. Gurvinder Singh 173 (2010) DLT 379 it was held by the hon'ble High Court of Delhi that where the property was let out for non residential purpose and E. No. 83/2010 16 of 22 the landlord wants to start his own business in premises owned by him, by no stretch of imagination it can be said that requirement of landlord for premises is neither genuine nor bonafide.
Therefore, the petitioner has been successful in showing that he requires the suit property for his bonafide need of professional or other business activities. D. That the petitioner has no other reasonably suitable accommodation.
The respondents have taken the ground that the petitioner has recently sold the shop which is also close to the suit property. The petitioner has denied that any shop has been sold by him recently. The said ground taken by the respondents is a vague ground as the respondents did not disclose the number or any other particulars of the said shop like the date of the sell or the name and address of the person to whom it was sold by the petitioner as alleged by the respondents. Therefore, the aforesaid ground taken by the respondents has no merit and the same is merely a bald assertion without any document to substantiate the same. Hence, the same is rejected E. No. 83/2010 17 of 22 accordingly.
The other ground taken by the respondents is that the petitioner has concealed the properties owned by him and by his wife and some of which are lying vacant and are more comfortable to the petitioner and the petitioner has concealed shop number 2169 which is adjacent to the suit property and the petitioner is having much more than his requirement. The aforesaid ground taken by the respondents regarding the concealment of the properties by the petitioner is a vague ground as the respondents have not disclosed the details of the properties which are owned by the petitioner or his wife and it seems that the said ground is taken by the respondents just for the sake of taking defence which is without any document to substantiate the same. The respondents have also not averred that the property number 2169 is owned by the petitioner and only averment of the respondents is that the petitioner has concealed the shop bearing number 2169. The petitioner in his reply has submitted that he is not in possession or occupation of any other commercial property in Delhi from where he can carry on his professional or business activities. The petitioner E. No. 83/2010 18 of 22 has further stated that he is not the owner or landlord of the premises number 2169 which is adjacent to the suit property or has any concern with the same. Therefore, the aforesaid ground taken by the respondents has no merit and the same is rejected accordingly.
Now coming to the application filed under Order 11 Rules 1 & 2 CPC by the respondents is concerned, the same is not maintainable as the present petition is being filed under Section 14 (1) (e) of DRC Act and the procedure which is to be followed in respect of the same is contained in Section 25B of Delhi Rent Control Act, 1958. There is no stage prescribed in the aforesaid section for the filing of the aforesaid application and the same is also not maintainable at the stage of consideration by the court to grant leave to the respondent to defend the case of the petitioner for his bonafide requirement of the tenanted property. Therefore, so far the maintainability of the aforesaid application is concerned, the same would have been maintainable if would have been filed after the leave to defend application filed by the respondents would have been allowed.
E. No. 83/2010 19 of 22 The petitioner in support of his contention has relied on the case titled as Madhu Gupta Vs Gardenia Estates (P) Ltd. 184 (2011) DLT 103, wherein it has been held by the Hon'ble High Court of Delhi that after insertion of Section 25 B of the Act, any application for granting eviction by special kind of landlord shall be dealt with strictly in accordance with procedure as contained in Section 25 B of the Act. It was further held that if the application under Order 6 Rule 17 CPC is permitted, then the whole purpose and intent of provisions of Section 25 B (4) would be given a goby.
In the present case, the facts mentioned in the application are not the facts which are of subsequent events or would not have been in the knowledge of the respondents at the time of the filing of the present leave to defend application. Moreover, the contention of the petitioner is that he is not in possession of any property as the property in respect of which he had filed the other eviction petition against the tenant Sh. Jamil Ahmad, has been stayed by the Hon'ble High Court of Delhi and the other petition filed by the petitioner against the other tenant Sh. Mohd. Ahmed was dismissedindefault. The E. No. 83/2010 20 of 22 petitioner in support of his contention has also filed the copy of the order dated 24/01/2012 of the Hon'ble High Court of Delhi and the copy of the order dated 29/01/2011 of the learned ARC, Central, Delhi. The said contention of the petitioner is also not been controverted on behalf of the respondents. Moreover, it is settled law that it is a choice of the landlord to choose the property which is suitable for his bonafide need and tenant cannot dictate terms in this regard to the landlord.
A case titled as Mohd. Illyas Vs. Nooruddin & Ors., 184 (2011) DLT 590 and Kishan Chand Vs. Jagdish Pershad & Ors., 2003 9 SCC 151 relied by the respondents are of no help to the respondents as the application under Order 11 CPC itself is not maintainable and the facts and circumstances of aforesaid both the cases are not applicable in the facts and circumstances of the present case as in the present case the requirement of the petitioner of the suit property is for carrying the professional or business activities and it is a settled law that the landlord is the best judge to decide the suitability of the premises for his bonafide need and the petitioner has deposed that he is not in possession of any other property. Therefore, the application E. No. 83/2010 21 of 22 filed by the respondents under Order 11 Rule 1 & 2 CPC is dismissed.
In view of the aforesaid discussions, the respondents have failed to raise any triable issue. On the other hand, the petitioner has successfully established that he has no other reasonably suitable alternative accommodation and he requires the suit property to carry out his professional or business activities. Hence, the petitioner is entitled for an eviction order under section 14 (1) (e) read with section 25B of DRC Act in favour of the petitioner and against the respondents in respect of shop bearing no.870, Nai Sarak, Delhi110006 as shown in red colour in the site plan Ex.C1 (exhibited today while passing the order). However, it is made clear that the petitioner shall not be entitled to get execute this eviction order before the expiry of 6 months running from today.
Announced in the open court on this 03 Day of July, 2012 rd (VINOD KUMAR GAUTAM) ACJcumARC (NORTH) DELHI.
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