Delhi District Court
Sh. Vaibhav Verma vs Sh. Vinod Kumar on 4 August, 2015
1
In the Court of Ms. Namrita Aggarwal
CCJ Cum Additional Rent Controller1 (Central)
Tis Hazari Courts, Delhi.
Case No. E 98/14
Unique I.D. No. 02401C0187302014
In the matter of :
Sh. Vaibhav Verma
S/o Late Sh. Surendra Verma
R/o A402, Taj Apartments, Ghazipur,
New Delhi110092. ...........Petitioner
Versus
1. Sh. Vinod Kumar
S/o late Sh. Desh Raj
2. Mrs. Rakesh Kumar
W/o Late Sh. Rakesh Kumar
Both at Shop no. 4019,
Bagichi Ram Chandra, Pahar Ganj,
New Delhi110055. ...........Respondents
ORDER
04.08.2015
1. Vide this order, I shall dispose off the application moved by respondent for grant of leave to defend the eviction petition filed by the Page 1 of 19 Vaibhav Verma Vs. Vinod Kumar & Ors. E - 98/14 2 petitioner u/s 14(1)(e) of the Delhi Rent Control Act, 1956 [in short, 'the DRC Act'].
2. An eviction petition has been filed by the petitioner Sh. Vaibhav Verma against the tenants/respondents no. 1 & 2 for vacation of the tenanted premises, i.e., initially one shop measuring 20' x 20' approx. which has now been divided illegally into two shops admeasuring 10' x 10', situated at ground floor in the property bearing no. 4019, Bagichi Ram Chandra, Paharganj, New Delhi110055 without roof, as shown in colour red in the site plan annexed alongwith the petition on the ground of bonafide requirement under Section 14 (1) (e) of the DRC Act.
3. The case of the petitioner is that the petitioner is one of the legal heir of late Sh. Surendra Verma and is the coowner/landlord of the tenanted premises. That the other coowners made as respondents no 3 to 8 have no objection to the filing of the present eviction petition and they have also filed No Objection Certificate to that effect. The tenanted shop was let out initially for the use of screen printing under the joint tenancy of Sh. Vinod Kumar and Sh. Rakesh Kumar. Later on, due to differences in the brothers, they, without the consent of the petitioner or his late father divided the suit shop which was earlier one shop into two Page 2 of 19 Vaibhav Verma Vs. Vinod Kumar & Ors. E - 98/14 3 parts by making permanent partition amongst themselves. One part is being used by Sh. Vinod Kumar and other part is being used by the legal heirs of Sh. Rakesh Kumar. That legal heirs of Sh. Rakesh Kumar further sublet the property to one Sh. Bittoo without the consent of the petitioner. That the petitioner is presently doing his M.Tech from a premier institute in Allahabad and is wellversed with all aspects of computers including hardware and software development etc.. He has done extensive research and studies in computer and thus, wants to start a business of computer hardware/cyber cafe/software support and technical support in the property in question. The shop in question being the corner shop on the ground floor in a busy commercial area of Pahar Ganj located in a huge market for computer accessories, hardware and software development and technical services and within walking distance from New Delhi Railway Station has immense business potential for a cyber cafe/software having high footfall and is having high visibility. It is further stated that the petitioner has no other source of income and the shop in question is best suited for the need of the petitioner. The petitioner also does not own and possess any other suitable commercial vacant premises for setting up his own business of computer hardware, accessories and software development. That the elder brother of the petitioner namely, Sh. Tapan Verma is doing private job which is only Page 3 of 19 Vaibhav Verma Vs. Vinod Kumar & Ors. E - 98/14 4 contractual in nature and another brother of the petitioner Sh. Ankur Verma is suffering from Cancer at advance stage and is dependent upon the family. The mother of the petitioner is an old lady requiring constant support and attention.
4. That the great grandfather of the petitioner had executed a registered Will in favour of the father and uncle of the petitioner. During his lifetime, the uncle of the petitioner had filed an eviction petition against one of the tenant M/s MM Rubber Co. Ltd. and after his death, his son Sh. Himanshu Verma had filed an execution petition against the said company and thereafter, got possession of the shop which is next to the shop in question. That the other portion of the property, i.e. first floor is residential portion, which is being used by all the legal heirs equally.
On the above stated grounds, the present eviction petition has been filed by the petitioner against the respondents for vacation of the tenanted premises.
5. Summons were served upon the respondents no. 1 & 2 who filed leave to defend application taking various grounds interalia :
a) That the present petition has been filed in respect to two different separate tenancies, one in the name of respondent no. 1 and Page 4 of 19 Vaibhav Verma Vs. Vinod Kumar & Ors. E - 98/14 5 other in the name of respondent no. 2. That there cannot be one eviction petition against two tenants and two different tenancies. The real facts are that Sh. Rakesh Kumar and respondent no. 1 were tenants in respect of the entire shop bearing no. 4019, Bagichi Ram Chander, Pahar Ganj, Delhi. Sh. Rakesh Kumar expired in the year 2000 and after his demise, the tenancy was bifurcated and his portion of tenancy was given in the name of his wife and separate rent receipts were issued in the name of respondent no. 1 and respondent no. 2.
b) It has been falsely stated that the legal heirs of late Sh. Rakesh Kumar had subletted the tenanted premises to one Sh. Bittoo.
c) That all the legal heirs of late Sh. Rakesh Kumar have not been impleaded as party by the petitioner and therefore, the present petition is not maintainable.
d) That the petitioner is seeking tenanted premises for his future needs which cannot be allowed as the need which is existing today only can be taken into consideration.
e) That the petitioner has intentionally and deliberately not disclosed the entire property in his possession. Petitioner is in possession of the entire ground floor which comprises of two shops and a big godown on the back side and entire first & second floor of the suit Page 5 of 19 Vaibhav Verma Vs. Vinod Kumar & Ors. E - 98/14 6 property.
f) That the petitioner has wrongly stated that the other coowners have no objection to the grant of eviction of the premises.
6. Reply to the application for leave to defend has been filed by the petitioner wherein the petitioner has denied all the averments made by the respondent in his leave to defend application stating that the tenanted premises was rented out to Sh. Vinod Kumar and Sh. Rakesh Kumar jointly for the use of screen printing business and after the demise of Sh. Rakesh Kumar, the tenancy was bifurcated without the permission of the petitioner. Further, separate rent receipts were issued to respondent no. 1 & respondent no. 2 on the request of the tenants themselves. It is further submitted that by not impleading other legal heirs of late Sh. Rakesh Kumar, no prejudice is being caused. Further, the petitioner has averred that at the time of filing of the present petition, the petitioner was a student of M.Tech (Final Year) and now he has completed his M.Tech but unable to secure any suitable job for himself and thus, there is bonafide requirement of the petitioner to start his own business from the shop in question. With regard to additional accommodation, it is submitted that the first floor of the suit property is residential accommodation which cannot be used for commercial purposes and that Page 6 of 19 Vaibhav Verma Vs. Vinod Kumar & Ors. E - 98/14 7 too the same fell into the share of all the legal heirs, as such, petitioner alone has no right, title or interest in the first floor of the suit property. Moreover, there is only one shop and one big godown on the ground floor which came into the share of Sh. Himanshu Verma, as has been stated in eviction petition as well. It is submitted that after the division of the property in the family of the petitioner, the tenanted premises, for which the present petition has been filed by the petitioner came into the share of the petitioner and rest of the premises went into the share of other legal heirs of late Sh. Surendra Verma.
7. Rejoinder to the reply to leave to defend application has been filed by the respondents no.1 & 2, wherein, the respondents have reaverred what was averred by them in their leave to defend application.
8. I have heard the arguments and perused the material available on record.
9. Proviso (e) to Section 14(1) is a special provision which has been enacted by the legislature for the class of landlords who require the premises genuinely and their requirement is bonafide and they do not have any suitable accommodation. The essential ingredients Page 7 of 19 Vaibhav Verma Vs. Vinod Kumar & Ors. E - 98/14 8 for attracting the proviso (e) of the Section 14(1) are :
a) The said premises are bonafide required by the landlord either for himself or for his family member.
b) The landlord or the family member has no other reasonable suitable accommodation.
These twin thresholds are to be satisfied conjunctively in order to attract the provisions of Section 14(1)(e) and the absence of even one of the said ingredients clearly makes the said provision inapplicable.
10. The satisfaction of the two requirements of bonafide need and no reasonably suitable accommodation has been time and again emphasized by the Supreme Court of India in several cases and more recently in the case Deena Nath Vs. Pooran Lal, (2001) 5 SCC 705 wherein the Supreme Court observed thus: "The Legislature in enacting the provision has taken ample care to avoid any arbitrary or whimsical action of a landlord to evict his tenant. The statutory mandate is that there must be first a requirement by the landlord which means that it is not a mere whim or a fanciful desire by him; further, such requirement Page 8 of 19 Vaibhav Verma Vs. Vinod Kumar & Ors. E - 98/14 9 must be bonafide which is intended to avoid the mere whim or desire. The 'bonafide requirement' must be in presenti and must be manifested in actual need which would evidence the Court that it is not a mere fanciful or whimsical desire. The legislative intent is made further clear by making the provision that the landlord has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. This requirement lays stress that the need is pressing and there is no reasonably suitable alternative for the landlord but to get the tenant evicted from the accommodation. Similar statutory provision is made in subsection (e) of Section 12(1) of the Act in respect of accommodation let for residential purposes. Thus, the legislative mandate being clear and unambiguous, the Court is dutybound to examine not merely the requirement of the landlord as pleaded in the eviction petition but also whether any other reasonably suitable non Page 9 of 19 Vaibhav Verma Vs. Vinod Kumar & Ors. E - 98/14 10 residential accommodation in his occupation in the city/town is available. The judgment/order of the court/authority for eviction of a tenant which does not show that the court/authority has applied its mind to these statutory requirements cannot be sustained and the superior court will be justified in upsetting such judgment/order in appeal/second appeal/revision. Bonafide requirement, on a first look, appears to be a question of fact. But in recording a finding on the question the court has to bear in mind that statutory mandate incorporated in Section 12(1)(f). If it is found that the court has not applied the statutory provisions to the evidence on record in its proper perspective then the finding regarding bonafide requirement would cease to be a mere finding of fact, for such erroneous finding illegally arrived at would vitiate the entire judgment."
11. Chambers 20th Century Dictionary defines bona fide to mean Page 10 of 19 Vaibhav Verma Vs. Vinod Kumar & Ors. E - 98/14 11 "in good faith and genuine i.e. without fraud or deceit". 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 the 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 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 the landlord and its bonafides would be capable of successfully withstanding the test of objective determination by the court. In short, the concept of bonafide need or genuine requirement needs a practical approach instructed by the realities of life. It is no concern of the Courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own.
12. The meaning of "bonafide" in the context appears to be in two Page 11 of 19 Vaibhav Verma Vs. Vinod Kumar & Ors. E - 98/14 12 folds. (a) the need of the landlord must be a genuine one and not a frivolous one. (b) landlord is not motivated by extraneous considerations in trying to recover the possession from the tenant with a view to let it out again to another tenant at a higher rent. Ownership as well as landlordtenant relationship :
13. The respondents have not disputed the ownership of the petitioner over the suit premises as well as existence of landlordtenant relationship between the petitioner and themselves. The only averment made by the respondents is that the petitioner is not the sole owner of the tenanted premises and that respondents no. 3 to 8 are also coowners of the tenanted premises and therefore, no eviction petition could have been filed by the petitioner in his individual capacity. It is further submitted by the respondents that no document of family partition has been filed by the petitioner and therefore, it remains unproved that the present tenanted premises fell into the share of the petitioner exclusively. Per contra, it is averred by the petitioner that other coowners of the property have no objection to filing of the present petition by the petitioner. The petitioner has also filed No Objection Certificate issued by other co owners of the property regarding filing of the present eviction petition by Page 12 of 19 Vaibhav Verma Vs. Vinod Kumar & Ors. E - 98/14 13 the petitioner in his individual capacity and for his bonafide requirement.
14. I have heard the contentions of both the parties and have also gone through the No Objection Certificate filed by the other coowners of the property. In Yashpal Vs. Chamanlal Sachdeva, 129 (2006) DLT 200, it has been held that : "Coowner can maintain a petition and that the interse arrangement between owners is no business of the tenant."
Hence, petitioner is well within his right to file the present eviction petition since No Objection has been obtained by the other coowners of the property. Even otherwise, it is well established law that even co owner can file an eviction petition without making other owners as co party. In these circumstances, the present petition is perfectly maintainable.
15. It is further submitted by the respondents that the petitioner has failed to implead all the legal heirs of late Sh. Rakesh Kumar in the present eviction petition and therefore, the present eviction petition is not maintainable. In the present eviction petition, the petitioner has impleaded respondent no. 1, i.e., Sh. Vinod Kumar and wife of late Sh. Page 13 of 19 Vaibhav Verma Vs. Vinod Kumar & Ors. E - 98/14 14 Rakesh Kumar as respondent no. 2. The other legal heirs, i.e., children of Sh. Rakesh Kumar have not been made exclusively a party in the present eviction petition. In Rajender Kumar Sharma & Ors. Vs. Leelawati & Ors., 155 (2008) DLT 383, it has been held that : "It is not necessary for landlord to implead all legal heirs of the deceased tenant, whether they are living in the property or not."
In the present case also, the petitioner has impleaded wife of late Sh. Rakesh Kumar as a party to the present case and therefore, there was no necessity to implead children of late Sh. Rakesh Kumar as separate parties.
16. It is also averred by the respondents that the present petition has been filed in respect to two different separate tenancies, one in the name of respondent no. 1 and other in the name of respondent no. 2, whereas, there cannot be one eviction petition against two tenants and two different tenancies. It is averred by the respondent that the petitioner ought to have filed two different eviction petitions. Per contra, it is averred by the petitioner that Sh. Vinod Kumar and Sh. Rakesh Kumar had taken the tenanted premises on rent jointly. Later, after the demise of Sh. Rakesh Kumar in 2000, the tenancy was bifurcated without the Page 14 of 19 Vaibhav Verma Vs. Vinod Kumar & Ors. E - 98/14 15 consent of the petitioner and rent was paid separately by Sh. Vinod Kumar and legal heirs of late Sh. Rakesh Kumar.
17. I have gone through the rent receipts as well as documents filed by the parties.
18. It is admitted by the respondent that initially tenanted premises was taken on rent by Sh. Vinod Kumar and Sh. Rakesh Kumar jointly for running business of screen printing. At that time, there was no bifurcation in the tenanted premises. Thereafter, Sh. Rakesh Kumar expired and tenanted premises was bifurcated into two parts, one fell into the share of Sh. Vinod Kumar and other fell into the share of the legal heirs of late Sh. Rakesh Kumar. The rent for the tenanted premises was shared equally by two respondents. No document has been filed by the respondents to substantiate that prior permission or intimation was given to the petitioner before bifurcating the tenanted premises into two parts. Thus, it cannot be denied that initially tenancy was created jointly and there was no bifurcation at the time of letting out of the suit premises. Hence, eviction petition filed by the petitioner jointly against joint tenants with respect to the tenanted premises is perfectly maintainable. Even otherwise, it has been held in Jamal Vs. Safia Beevi, 2005 (2) KLT 359, Page 15 of 19 Vaibhav Verma Vs. Vinod Kumar & Ors. E - 98/14 16 that : "If the scheduled building in its entirety is a single structure consisting of single shop having different tenants in occupation of different portions, cause of action can be united in one petition and it cannot be said that there is any misjoinder of the cause of action, provided that no prejudice is cause to either of the parties."
In the present case, both th respondents had equal opportunity to defend their case and no prejudice would be caused to either of the parties by filing eviction petition jointly. Moreover, there is no separate municipal number for the portions in occupation of respondent no. 1 & respondent no. 2 and therefore, it cannot be said that both the respondents are in occupation of separate tenanted portions for which separate eviction petition should have been filed. Hence, it cannot be said that the present eviction petition is not maintainable. Bonafide requirement :
19. The petitioner has sought eviction of the tenanted premises for his bonafide requirement in order to start his business of computer hardware and software/cyber cafe since, the petitioner has done his M.Tech in Computer Science and does not have any job/business to earn his Page 16 of 19 Vaibhav Verma Vs. Vinod Kumar & Ors. E - 98/14 17 livelihood. Per contra, it is averred by the respondents that the petitioner has not yet completed his education and therefore, the present eviction petition is premature. The petitioner has filed copy of his marksheets in order to prove that he has completed his B.Tech as well as M.Tech during the pendency of the present petition. Respondent has failed to aver that petitioner is presently carrying on any other business from any other location or his involved in any other service and hence, it has been proved that the petitioner does not have any other alternative source of livelihood. The petitioner being the landlord cannot be denied of his right to start his own business to earn his livelihood just because the tenanted portion was rented out to the respondent at one point of time. In these circumstances, the bonafide requirement of the petitioner to start his own independent business of computer hardware and software/cyber cafe to earn his livelihood stands duly proved.
Availability of alternative suitable accommodation:
20. It is averred by the respondents that the petitioner has in his occupation two shops on the ground floor alongwith godown as well as the entire first and second floor of the suit property which can be used by him for starting his own independent business. Per contra, it is averred Page 17 of 19 Vaibhav Verma Vs. Vinod Kumar & Ors. E - 98/14 18 by the petitioner that the first and the second floors are being used by all the legal heirs of late Sh. Surendra Verma for their residential purposes and thus, the petitioner does not have his exclusive right over there. As far as shops as well as godown on the ground floor is concerned, the petitioner has himself mentioned in the original eviction petition that the same has been occupied by his cousin brother Sh. Himanshu Verma, after an eviction petition filed by the uncle of the petitioner against the tenant M/s MM Rubber Co. Ltd.. Hence, the same is not in occupation of the petitioner or lying vacant which can be used by the petitioner to start his business. Hence, the nonavailability of any alternative accommodation of the petitioner to start his business also stands proved.
21. Thus, from the discussion made above, respondents no. 1 & 2 have failed to raise any triable issue, which requires evidence to be proved. The petitioner, on the other hand, has clearly established his bonafide requirement regarding tenanted premises. Hence, the application for leave to defend filed by respondents no. 1 & 2 is ordered to be dismissed. Consequently, eviction order is liable to be passed against the respondents no. 1 & 2 u/s Section 25 B (4) of the Act. In view of above, petitioner is held entitled for recovery of the tenanted premises, i.e., initially one shop measuring 20' x 20' approx. which has Page 18 of 19 Vaibhav Verma Vs. Vinod Kumar & Ors. E - 98/14 19 now been divided illegally into two shops admeasuring 10' x 10', situated at ground floor in the property bearing no. 4019, Bagichi Ram Chandra, Paharganj, New Delhi110055 without roof, as shown in red colour in the site plan annexed with the petition. However, the petitioner would not be entitled to initiate execution proceedings for recovery of possession of the tenanted premises before expiration of six months from today in view of provisions given in Section 14 (7) of the Act.
Announced in open Court (Namrita Aggarwal)
on 04 Day of August, 2015.
th
CCJ cum ARC1 (Central)
[This order contains 19 pages.] Tis Hazari Courts, Delhi
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