Delhi District Court
Mobeen Khan vs Obaid Khan on 18 September, 2013
In the Court of Sh. Gorakh Nath Pandey
Senior Civil Judge cum Rent Controller, New Delhi, Patiala House
Courts, New Delhi
New No. E24/13
In the matter of:
Mobeen Khan
S/o. Sh. Ibrahim Khan,
R/o. B16, Top Floor,
Sujan Singh Park, New Delhi. .....Petitioner
VERSUS
1. Obaid Khan
S/o. Late Ajaz Khan,
49B, Khan Market,
New Delhi110003.
2. Farough Begum
Wd/o. Late Ajaz Khan
49B, Khan Market,
New Delhi110003.
3. Miss Saba
D/o. Late Ajaz Khan
49B, Khan Market,
New Delhi110003.
Respondent Nos. 1to 3 also at:
137/48, Ghaffar Manzil,
Gali No.3, Jamia Nagar,
Okhla, New Delhi110025.
4. Ayaz Khanam
D/o. Late Ajaz Khan
W/o. Shakeel Khan
49B, Khan Market,
New No. E24/13
Mobeen Khan v. Obaid Khan & Ors. page no. 1 of 27
New Delhi110003.
Also at:
Gule Rana Compound,
Amir Nisha, Dodhpur, Aligarh,U.P.
5. Rana
D/o. Late Ajaz Khan
W/o. Arif Khan
49B, Khan Market,
New Delhi110003.
Also at:
589, Gali No.21,
Jakir Nagar, Okhla,
New Delhi110025.
6. Zaheen Ajaz
D/o. Late Ajaz Khan
W/o. Syed Mujeeb
49B, Khan Market,
New Delhi110003.
Also at:
H410, Ramesh Marg
CScheme, Jaipur,
Rajasthan3022001. ................ Respondents
Date of Institution :22.03.2012
Date of Arguments:27.08.2013
Date of Judgment :18.09.2013
ORDER
1. This order shall decide the question, whether the respondent no.1 be New No. E24/13 Mobeen Khan v. Obaid Khan & Ors. page no. 2 of 27 granted leave to contest the present application under Clause (e) of Proviso to Sub Section (1) of Section 14 of the Delhi Rent Control Act, 1958 (hereinafter referred to as "Act 59 of 1958".)?
2. It is relevant and necessary to note the brief and relevant facts for the decision on the question which is mentioned as below:
3. The petitioner Mr. Mobeen Khan has made this application under Clause
(e) of Proviso to Sub Section (1) of Section 14 of Act 59 of 1958 against respondents stating that the petitioner is the sole owner of property no. 49B, Khan Market, New Delhi3 having acquired vide registered agreement to sale dated 27.01.2005 and the property has been mutated in the records of NDMC. The suit property was originally purchased by Smt. Shakuntala Bhadwar on 20.08.1957 who sold the same to one Sh. Inder Pal vide sale deed dated 18.09.1961. As contended Mr. Inder Pal sold the said property to Sh. Sampat Kumar Gupta. The Predecessor in interest of the respondent Sh. Ajaz Khan was inducted by Sh. Sampat Kumar Gupta as tenant who executed the will dated 30.08.1981 bequething the property in favour of his wife Smt. Ram Dulari @ Preeti Devi. Smt. Ram Dulari vide will dated 10.10.1990 bequeathed the suit property in favour of Smt. Pushpa Gupta from whom the petitioner had purchased the property in question. As contended, the admission of relationship as landlord and tenant between the parties and occupation of the rented premises @ Rs. 400/ per month was made by the Sh. Ajaz Khan in the written statement filed by him in Suit No. 37/97 titled Pushpa Gupta v. Ajaz Khan. The petitioner claimed himself to be tailor by profession and required the New No. E24/13 Mobeen Khan v. Obaid Khan & Ors. page no. 3 of 27 premises for his own use for carrying business for himself as claimed. The petitioner is required to maintain one booking office and one workshop. The booking office is maintained by the petitioner at 47A, Khan Market, New Delhi3 with arrangement/agreement dated 01.06.2007 with the owner M/s. Grover Cloth House and the petitioner has to share his earnings for the same causing loss to the profession. The said accommodation is not suitable to run the workshop and the petitioner has been constrained to acquire rented accommodation. As claimed, the petitioner intends to do business of drapers alongwith tailoring and the suit property is most suitable for the said purpose. The suit premises has been explained as half portion of back side (rear portion) of the property no. 49B, Khan Market, New Delhi3 ((hereinafter called the suit property) which is shown in red colour in the site plan annexed with the application as Annexure A. The petitioner further explained in the application the history of the multiple litigation in respect of the suit property between the parties including their Predecessors in interest. It is further prayed in the application that an eviction order be passed against the respondent in respect of the suit property i.e. half portion on back side (rear portion) of property bearing no. 49 B, Khan Market, New Delhi3 as shown in red colour annexed as Annexure A in the application with costs.
4. The summons of the application for eviction were served upon the respondents and in pursuance of the said summons an application seeking leave to contest was filed by respondent no.1 on 12.04.2012 alongwith an affidavit of respondent no.1 Mr. Obaid Khan. As none appeared for New No. E24/13 Mobeen Khan v. Obaid Khan & Ors. page no. 4 of 27 respondents no.2 to 6 despite deemed service, the case was fixed for reply and arguments on leave to defend application of respondent no.1 vide order dated 09.05.2012. It was also observed that due to non filing of leave to defend application by respondents no.2 to 6, the order will be passed regarding the same alongwith order on leave to defend application filed by the respondent no.1.
5. In the affidavit of the respondent no.1, it is stated that the petition filed by the petitioner is not supported with the affidavit; the petitioner has no title to the suit property. As contended, the suit property in the year 1999 was owned by Mr. S K Gupta and Sh. Ajaz Khan, the father of the respondent no.1 was tenant. Subsequently, Smt. Puspha Gupta become the owner of the property and she did not transfer the suit property by any valid sale deed or conveyance deed and she continues to be owner of the suit property till today. The petitioner is not the landlord/owner and therefore, this petition is not maintainable. It is further contended that there is no relationship of landlord and tenant between the petitioner and the respondent no.1 and the site plain filed by the petitioner i.e. annexure A is not correct. The respondent no.1 denied the correctness of the written statement filed by Mr. Ajaz Khan in Suit No. 37/97 contending that the same is not correct and was incorporated due to the communication gap and mistake of the Counsel. The applicant/respondent no.1 denied the contention in the petition and other relevant materials thereon mentioning that Smt. Pushpa Gupta is even otherwise in possession of the portion used by Mr. M S Pal and the said is space is suitable for New No. E24/13 Mobeen Khan v. Obaid Khan & Ors. page no. 5 of 27 accommodation/requirement as alleged by the petitioner. The applicant mentioned this application is not maintainable and prayed to dismiss the same.
6. The application for leave to contest made by the respondent no.1/applicant is contested by the petitioner by way of written reply accompanied by a counter affidavit of petitioner Mr. Mobeen Khan. In the counter affidavit of Mr. Mobeen Khan, it is reiterated that the petitioner is the sole owner of the suit property having acquired the same from Smt. Pushpa Gupta vide registered agreement to sale/conveyance and the property has been mutated in the name of the petitioner in the records of NDMC. The ownership of Smt. Pushpa Gupta is admitted by the applicant alongwith the occupation of the suit property as tenant. The petitioner further reiterated that premises are required bona fide by him for himself to run his business and profession as detailed in the petition. It is further reiterated that the petitioner has no other suitable accommodation and as no triable issue arise from the application for leave to contest or the affidavit of the respondent, the application for leave to defend filed by the applicant /respondent no.1 be dismissed and eviction order may be passed in favour of the petitioner.
7. I have heard Ld. counsel for the parties and gone through the relevant materials on record carefully. I have also considered the relevant provisions of law.
8. Having drawn my attention on the contents of the application for leave to New No. E24/13 Mobeen Khan v. Obaid Khan & Ors. page no. 6 of 27 contest, affidavit of the respondent, counter affidavit of the petitioner, it is submitted by counsel for the respondent no.1 that the present the application for eviction has been made by the petitioner not for bona fide reasons but due to mala fide reasons as the petitioner does not require the premises bona fide for himself. It is further submitted by counsel for the respondent that the petitioner is neither owner nor landlord of the suit property and the application for eviction has been made merely to have vacated the premises. The petitioner cannot claim himself as the owner of the suit property merely on the basis of agreement to sale and the mutation by the NDMC. Ld. Counsel further argued that there is dispute regarding the extent of the tenanted premises and the petitioner not required the premises for his use as contended. It is further argued that petition is not properly verified and there is additional accommodation available with the petitioner. It is also submitted by counsel for the respondent the respondent has raised several triable issues in his affidavit and if the respondent is allowed to lead evidence on those issues, the petitioner shall be disentitled from recovering the possession of the premises from the respondent. The Ld. Counsel for the respondent no.1/applicant relied upon various judgments in support of claim and contention i.e. 1977 RLR 520; 1982 RLR 133; 1983 RLR 140; 11 (2011) CLT 304 (SC); AIR 2012 SC 206; AIR 2000 2470; 89 (2001) DLT 27 (SC); AIR 1967 SC 341; AIR 1967 Punjab 328; 1(2009) CLT 157 (SC); CM (M) 1164/09 titled Nitin Garg v. Naresh Kumar decided on 23.10.2009; RC (Rev.) No. 67/2011 New No. E24/13 Mobeen Khan v. Obaid Khan & Ors. page no. 7 of 27 titled as Rajesh Kumar v. Naresh Kumar Goel decided on 18.10.2011; RC (Rev.) No. 209/10 titled Rajveer Pal v. Kanwar Pratap Singh decided on 20.10.2011 and prayed that the respondent be granted the leave to contest the petition and the application for leave to contest be allowed.
9. Contrary to the submissions of Ld. Counsel for respondent no.1, the Ld. Counsel for the petitioner has drawn the attention of this court on the application for eviction, counter affidavit of the petitioner, documents filed on behalf of the petitioner in support of the application for eviction and alongwith the counter affidavit it is submitted by counsel for the petitioner that the petitioner is the owner and landlord of the premises which are required bona fide by him for himself for carrying his business as explained in the petition. It is further submitted by counsel for the petitioner that no other reasonably suitable accommodation is available with the petitioner and therefore, the application for eviction be allowed and the application for leave to contest made by the respondent be dismissed. Ld. Counsel for the petitioner has also relied upon various judgments in support of claim and contention as mentioned i.e (1987)4 SCC 193;134 (2006) DLT 298;173 (2010) DLT 189; (1996) 5 SCC 353; 94 (2001) DLT 683; 42 (1990) DLT 176 and AIR 1968 Mysore 119.
10. I have given my thoughtful consideration to the submissions made on behalf of the parties and considered the judgments relied on their behalf in support of claim and contention.
11. The present petition for eviction is under clause (e) of proviso to New No. E24/13 Mobeen Khan v. Obaid Khan & Ors. page no. 8 of 27 subsection of section 14 of Act 59 of 1958 which reads as under:
14.(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by and 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 reasonably suitable residential accommodation :
Explanation. For the purpose of this clause, "premises let for residential purposes" include any premises which having been let for use as a residence are, without the consent of the landlord, used incidentally for commercial or other purposes;
12. A landlord/land lady will be entitled to an order of eviction U/s. 14(1)(e) if he/she is able to prove that (1)the premises in question were let out for residential purpose, (2)he/she is the landlord/land lady and owner of the suit premises, (3)the premises required bona fide by him/her for occupation as residence for himself/herself or any member of his family dependent upon him/her for residence and for any person for whom the premises are held, and (4)the landlord/land lady or such person has no other suitable New No. E24/13 Mobeen Khan v. Obaid Khan & Ors. page no. 9 of 27 residential accommodation.
13. As per the law laid down by the Hon'ble Supreme Court in Satyawati Sharma v. Union of India and another, 148 (2008) DLT 705 (SC), clause
(e) of proviso to subsection (1) of section 14 of Act 59 of 1958 is also applicable to the premises let out for purpose other than residential purpose.
14. The Hon'ble Supreme Court in Charan Dass Duggal v. Brahma Nand, (1983)1 SCC 301 while dealing with the question in the matter of granting leave to contest the eviction petition filed on the ground of personal requirement, in para 5 has stated thus:
5.What should be the approach when leave to defend is sought?
There appears to be a mistaken belief that unless the tenant at that stage makes out such a strong case as would nonsuit the landlord, leave to defend cannot be granted. This approach is wholly improper. When leave to defend is sought, the tenant must make out such a prima facie case raising such pleas that a triable issue would emerge and that in our opinion should be sufficient to grant leave. The test is the test of a triable issue and not the final success in the action (see Santosh Kumar v. Bhai Mool Singh). At the stage of granting the leave parties rely in support of their rival contentions on affidavits and assertions and counter assertions on affidavits may not afford such incontrovertible evidence to lead to an affirmative conclusion one way or the other. Conceding that when possession is sought on the ground of personal requirement, an absolute need is not to be satisfied but a mere desire equally is not sufficient. It has to be something more than a New No. E24/13 Mobeen Khan v. Obaid Khan & Ors. page no. 10 of 27 mere desire. And being an enabling provision, the burden is on the landlord to establish his case affirmatively. If as it appears in this case, the landlord is staying at Pathankot, that a house is purchased, may be in the name of his sons and daughters, but there may not be an apparent need to return to Delhi in his old age, a triable issue would come into existence and that was sufficient in our opinion to grant leave to defend in this case.
15. In the same judgment, in para 7 it is further observed:
7. The genesis of our procedural laws is to be traced to principles of natural justice, the principal amongst them being that no one shall suffer civil or evil or pecuniary consequence at his back without giving him an adequate and effective opportunity to participate to disprove the case against him and provide his own case. Summary procedure does not clothe an authority with power to enjoy summary dismissal. Undoubtedly wholly frivolous defence may not entitle a person leave to defend. But equally a triable issue raised, enjoins a duty to grant leave. Maybe in the end the defence may fail. It is necessary to bear in mind that when leave to defend is refused the party seeking leave is denied an opportunity to test the truth of the averments of the opposite party by crossexamination and rival affidavits may not furnish reliable evidence for concluding the point one way or the other. It is not for a moment suggested that leave to defend must be granted on mere asking but it is equally improper to refuse to grant leave though triable issues are raised and the controversy can be properly adjudicated after ascertainment of truth through cross examination of witnesses who have filed their affidavits. Burden is on the landlord to prove his requirements and his assertion is required to be tested more so when it is shown that for long he is staying outside Delhi, that he has a building albeit standing in the names of his sons and daughters where he is staying and at which place he New No. E24/13 Mobeen Khan v. Obaid Khan & Ors. page no. 11 of 27 receives his normal correspondence. If in such a situation one can say that a triable issue is not raised, one is at a loss to find out where, when and in what circumstances such an issue would arise. We are, therefore, satisfied that this is a case in which triable issues were raised and both the learned Rent Controller and the High Court were in error in refusing to grant the leave.
16. Further in Precision Steel and Engineering Works v. Prem Deva Niranjan Deva Tayal, AIR 1982 SC 1518 the Hon'ble Supreme Court having discussed the relevant provisions of Act 59 of 1958 held as follows:
The Controller has to confine himself to the affidavit filed by the tenant under subsec. (4) and the reply if any On perusing the affidavit filed by the tenant and the reply if any filed by landlord the Controller has to pose to himself the only question, `Does the affidavit disclose, not prove, facts as would disentitle the landlord from obtaining an order for the recovery of possession on the ground specified in cl. (e) of the proviso to Section 14 (1)?' The Controller is not to record a finding on disputed questions of facts or his preference of one set of affidavits against the other set of affidavits. That is not the jurisdiction conferred on the Controller by subsec. (5) because the Controller while examining the question whether there is a proper case for granting leave to contest the application has to confine himself to the affidavit filed by the tenant disclosing such facts as would prima facie and not on contest disentitle the landlord from obtaining an order for recovery of possession. At the stage when affidavit is filed under subsec.(4) by the tenant and the same is being examined for the purpose of subsec.(5) the Controller has to confine himself only to the averments in the affidavit and the reply if any and that become manifestly clear from the language of subsec. (5) that the Controller shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would New No. E24/13 Mobeen Khan v. Obaid Khan & Ors. page no. 12 of 27 disentitle the landlord from recovering possession etc. The jurisdiction to grant leave to contest or refuse the same is to be exercised on the basis of the affidavit filed by the tenant. That alone at that stage is the relevant document and one must confine to the averments in the affidavit. If the averments in the affidavit disclose such facts which, if ultimately proved to the satisfaction of the Court, would disentitle the landlord from recovering possession, that by itself makes it obligatory upon the Controller to grant leave. It is immaterial that facts alleged and disclosed are controverted by the landlord because the stage of proof is yet to come. It is distinctly possible that a tenant may fail to make good the defence raised by him. Plausibility of the defence raised and proof of the same are materially different from each other and one cannot bring in the concept of proof at the stage when plausibility has to be shown.
17. In Sarwan Dass Bange v. Ram Prakash, 2010 IV AD (Delhi) 252, it has been observed by the Hon'ble Delhi High Court as follows:
The Controller has not discussed as to how the pleas raised by the respondent/tenant in the application for leave to defend are such which if established by adducing evidence would disentitle the petitioner/landlord of an order of eviction under Section 14 (1)(e) of the Act. Ordinarily, when a tenant approaches an advocate for drafting a leave to defend application, the advocate, using his legal acumen would dispute each and every plea of the landlord in the eviction petition. However, merely because the tenant so disputes and controverts the pleas of the landlord does not imply that the provisions of summary procedure introduced in the Act with respect to ground of eviction on the ground of requirement is to be set at naught. The Controller is required to sift/comb through the application for leave to defend and the affidavit filed therewith and to see whether the tenant has given any facts/particulars which require to be established by evidence and which if established would New No. E24/13 Mobeen Khan v. Obaid Khan & Ors. page no. 13 of 27 disentitle the landlord from an order of eviction. The test is not of the tenant having controverted/denied the claim of the landlord and thus disputed questions of fact arising; the test is to examine the pleas of facts and then to determine the impact thereof.
18. From the law laid down by the Hon'ble Supreme Court it can be discerned that while deciding the question of the grant of leave to contest under the provisions of section 25B of Act 59 of 1958, the Rent Controller should see the affidavit filed by the tenant and the counter affidavit filed by the landlord. From the decisions of the Hon'ble Supreme Court, it is also clear that while deciding the question of the grant of leave, the Controller is not required to conduct a full fledged trial and should only see that if the affidavit of the tenant raise any triable point the decision on which may disentitle the landlord from recovering possession of the premises. At the time of the decision on the question of leave, the Controller is not required to seek the proof of the defence of the tenant.
19. In the present case the respondent has sought leave to contest the application for eviction mainly on grounds, namely (1) the petitioner is not the owner/landlord of the premises, (2) there is no relationship of landlord and tenant between the petitioner and respondent no.1, (3) the need of the petitioner is not bona fide, (4) availability of the alternative accommodation with the petitioner, and (5) the extent of the premises is not correctly reflected by the petitioner in view of the site plan annexure A. New No. E24/13 Mobeen Khan v. Obaid Khan & Ors. page no. 14 of 27
20. It is submitted by counsel for the respondent that the petitioner is not the owner of the premises and therefore, he is not entitled to recover the possession of the premises on the grounds specified in clause (e) of proviso to subsection (1) of section 14 of Act 59 of 1958 whereas the contention of the petitioner is that he is the owner of the premises and therefore, entitled to maintain the present application for eviction.
21. The word "owner" has not been defined in the Delhi Rent Control Act. The word is also not defined in the Transfer of Property Act. This court does not find itself in consonance with the arguments by the Ld. Counsel for the respondent that ownership means absolute ownership. Hon'ble Delhi High Court interpretating the word "owner" in Section 14 (1) (e) of the DRC Act in T.C. Rekhi v. Usha Gujral 1971 RCJ 322 observed as under "the word "owner" as used in this clause has to be construed in the background of the purpose and object enacting it. The use of the word "owner" in this clause seems to me to have been inspired by definition of the word landlord as contained in Section 2(e) of the Act which is wide enough to include a person receiving or entitle to receive the rent of any premises on account of or on behalf of or for the benefit of any other person......". This interpretation of the word "owner" has been accepted by the Hon'ble Surpreme Court in Smt. Shanti Sharma & Ors v. Smt. Ved Prabha & Ors. reported as (1987) 4 SCC 193 Hon'ble Delhi High Court vide order dated 05.09.2008 in CRP. 380/2000 held that it is settled law that under DRC Act, a landlord seeking eviction of premises for his bona fide requirement is not required to show his absolute New No. E24/13 Mobeen Khan v. Obaid Khan & Ors. page no. 15 of 27 ownership over the property.
22. The Ld. Counsel for the respondent has relied upon the judgment reported as 183 (2011) DLT 1 (SC) title Suraj Lamps & Industries Pvt. Ltd. v. State of Haryana & Ors. and vehemently argued that by no stretch of imagination, the petitioner can get the title of the suit premises merely on the basis of an agreement to sell executed by Smt. Pushpa Gupta. This contention for Ld. Counsel for the respondent appears to be without any basis. The law is well settled that to maintain an application for eviction under clause (e) of proviso to subsection (1) of section 14 of Act 59 of 1958 the landlord is not required to be the absolute owner of the premises. The only requirement is that the landlord must have better title than the tenant and must have rights in the premises that are more than that of a tenant. This court is fortified in its opinion by the judgment reported as (2005) 1 RCR 323 wherein it was observed that a bald denial of ownership by the tenant or a frivolous plea cannot be a ground for granting leave to defend in his favour.
23. In Tahira Begum v. Sumitra Kaur and Anr. reported as 166 (2010) DLT 443, while relying on the decision of Supreme Court in the case of Shanti Sharma v. Ved Prabha reported as AIR 1987 SC 2028, it was observed that "for the purpose of Section 14 (1) (e) of the Act, ownership is not to be understood as absolute ownership, but only as a little better than the tenant. So what has to be seen is whether on the basis of aforesaid facts it can be said that the petitioner has any title to the property, the title better New No. E24/13 Mobeen Khan v. Obaid Khan & Ors. page no. 16 of 27 than the respondents".
24. In Meenakshi v. Ramesh Khanna and Anr. Reported as 60 (1995) DLT 525, it was held that mere denial of ownership of the landlord by the tenant does not mean that the matter has to be sent for trial. The controller has to assess the strength of the case of the tenant regarding denial of ownership of the petitioner. Mere denial of ownership is no denial at all. It has to be something more. The object of the requirement contained in Clause (e) that the petitioner should be the owner of the premises is not to provide an additional ground to the tenant to delay the proceedings by simply denying ownership of the landlord of the premises and thereby putting in to proof by way of full fledged trial.
25. It is settled law that in the context of the Delhi Rent Control Act what appears to be the meaning of the term "owner" is that visavis the tenant 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/s. 14(1)(e) of the Act is not required to be an absolute ownership of the property, and that 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 under Section 14(1)(e) of the Act, nor can the tenant be allowed to raise the plea of imperfect title or the title not vesting in the landlord and that too when the tenant has been paying the rent to the landlord. The tenant inducted by landlord is estopped and cannot dispute the title of his New No. E24/13 Mobeen Khan v. Obaid Khan & Ors. page no. 17 of 27 landlord in view of the provisions of Section 116 of the Indian Evidence Act without there being any subsequent change in the situation. This aspect has been discussed in the following judgments:
1. Shanti Sharma v. Smt. Ved Prabha, AIR 1987 SC 2018.
2. Zahid Hussain thr. LRS v. Aenul Haq Qureshi thr. LRS, 2005 (1) RCR 323.
3. Ram Chander v. Ram Pyari, 109 (2004) DLT 388.
4.Mukesh Kumar v. Rishi Prakash, 174 (2010) DLT 726
5. Rajender Kumar Sharma & Ors. v. Smt. Leela Wait & Ors. 155 (2008) DLT 383.
6. Meenakshi v. Ramesh Khanna & Anr. 60 (1995) DLT 524.
7. Tej Pal Gupta v. Rattan Singh 160 (2009) DLT 726.
8. Kamla Rani & Ors. v. Texmaco Ltd. 139 (2007) DLT 61.
9. Keshar Lal H.Pardeshi v.Vithal S Patole,(2005)10 SCC 249
10. Ramesh Chand v. Uganti Devi 157 (2009) DLT 450
11. M.M. Quasim v. Manohar Lal Sharma (1981) 3 SCC 36
12. B.R. Anand v. Prem Sagar 2002 (1) RCR (Rent) 234
13. D. Rani Puri v. Chaman Lal 65 (1997) DLT 313
14. Shree Ram Sharma v. Mohd. Sabr 178 (2011) DLT 247
15. Bharat Bhushan v. Arti Teckchandani 153(2008)DLT 247
16. Jiwan Lal v. Gurdial Kaur & Ors. 57 (1995) DLT 262.
26. In the application for leave to contest, the respondent has admitted that Smt. Pushpa Gupta was the landlord/owner of the premises. The execution of the agreement to sale by Smt. Pushpa Gupta in favour of the petitioner, passing of the consideration and the consequent mutation of the property by the NDMC in the name of the petitioner is not disputed. It is not disputed that Mr. Ajaz Khan i.e. predecessor in interest of the respondent New No. E24/13 Mobeen Khan v. Obaid Khan & Ors. page no. 18 of 27 was inducted in the suit premises as the tenant. In the pleadings on record of Ajaz Khan and the respondent itself in other litigation between the parties, the respondent had admitted that he is the tenant of Smt. Pushpa Gupta and not of the petitioner.
27. The Ld. Counsel for the petitioner vehemently argued that the Predecessor interest of respondent Ajaz Khan was inducted into possession as tenant by predecessor in interest of petitioner, the respondent could not question the title of the petitioner who is the transferee. It is further argued that the petitioner could be the landlord of the tenant in the occupation even without acquiring absolute ownership towards the suit property as there was distinction between the term "owner" and "absolute owner". It is argued by the petitioner that landlord Smt. Pushpa Gupta had transferred all her rights and interest in the property in favour of the petition and therefore, the petitioner can maintain this petition. The contention of the petitioner appears to as substance.
As held by Hon'ble Delhi High Court in Hardip Kaur v. Kailash and Anr. reported as 193 (2012) DLT 168, it is true that mere execution of the agreement of sell without doing anything more will not create any interest in the property to be sold, but where the vendor has received the sale price and in pursuance of the agreement to sell possession thereof has been delivered to the prospect vendee, then it could not be successfully argued on the basis of Section 54 of the Transfer of Property Act that no interest New No. E24/13 Mobeen Khan v. Obaid Khan & Ors. page no. 19 of 27 was created in the property. The words, "of itself" in Section 54 of the Act, are very material to reach the right conclusion in a given case.
28. Smt. Pushpa Gupta is admitted as the landlord and she admittedly by the agreement to sell sold all her rights, title and interest in the suit property in favour of the petitioner. There is no dispute regarding the execution of agreement to sell, payment of entire sale consideration, registration of agreement to sell after paying the required stamp duties and consequent mutation of the property by NDMC in the name of the petitioner. It is also not disputed that Mr. Ajaz Khan i.e. predecessor in interest of respondent was inducted in the premises as a tenant and the respondent also in other litigations between the parties admitted that he is a tenant of Smt. Puspha Gupta. Symbolic possession of the property was also handed over to the petitioner by Smt. Pushpa Gupta. Smt. Pushpa Gupta transferred all her rights in favour of the petitioner in terms of agreement to sell after payment of entire sale consideration between the parties as the petitioner is in possession of the property in question. It is not necessary to reproduce the relevant clause of agreement to sell dated 27.01.2005 which is Annexure C. In the case in hand, vide agreement to sell dated 27.01.2005, the suit property was agreed to be sold to be petitioner, Smt. Pushpa Gupta has received the entire sale consideration and handed over the vacant and peaceful possession. Smt. Pushpa Gupta surrendered all her rights, title and interest of the property to the petitioner and consequently the property was mutated by NDMC in favour of the petitioner. Therefore, the New No. E24/13 Mobeen Khan v. Obaid Khan & Ors. page no. 20 of 27 contention of the respondent regarding ownership have no substance.
29. In the present case in his affidavit, the petitioner has categorically stated that he is the owner of the premises. This version of the petitioner is duly supported by the documents filed by him alongwith the petition i.e. registered agreement to sale, mutation by NDMC. After going through the contents of the agreement to sell executed by Smt. Pushpa Gupta in favour of the petitioner, it is evident that the consideration was paid and symbolic possession was handed over to the petitioner by Smt. Pushpa Gupta. As the rights of the petitioner are much superior than that of the respondent and are analogous to ownership, therefore, this court is of the considered view that for the purpose of clause (e) of proviso to subsection (1) of section 14 of Act 59 of 1958 the petitioner is the owner/landlord of the premises. The objection raised by the respondent in this regard in his affidavit is without merit and does not give any rise to any triable issue on this aspect of the case. The argument for Ld. Advocate for the petitioner that petitioner cannot get title/interest on the basis of merely agreement to sell is without any ground.
30. Respondent no. 1 has denied the relationship of landlord and tenant contending that the petitioner is not the landlord and Smt. Pushpa Gupta is the owner of the property. This contention of the respondent is not acceptable as in the other proceedings pending between the parties, the respondent claimed himself as the tenant. It is further argued by the Ld. Counsel for the respondent that no rent was ever paid by respondent no.1 to the petitioner and therefore, there is no attornment.
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Mobeen Khan v. Obaid Khan & Ors. page no. 21 of 27
31. In Smt. Satya Malhotra v. Mohinder Singh Arora 1999 (2) RCR 645, it was held that "the tenant cannot challenge the title of subsequent purchaser".
32. Hon'ble Delhi High Court in its decision dated 08.08.2008 pronounced in the case of Bharat Bhushan Vij v. Arti Teckchandani, CM No. 9491/2008 has summarized the law on the aspect of ownership claimed on the basis of Will, which is as under:
"The concept of ownership in a landlord tenant 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 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 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 objection cannot be entertained unless the tenant comes forward as to who was the landlord/owner of the premises and to whom he has been paying rent after New No. E24/13 Mobeen Khan v. Obaid Khan & Ors. page no. 22 of 27 the death of the original owner".
33. In view of the law laid down in Bharat Bhushan Vij's case (supra), the respondent has no right to challenge the title of the petitioner. In these circumstances, the plea taken by respondents that the petitioner is not the owner of the suit property is found to be without any basis.
34. According to the respondent there is triable point regarding the bona fide necessity of the petitioner and the petitioner has alternative accommodation available. It is also contended on behalf of the respondent that the need of the petitioner is not bona fide and the only motive of the petitioner is to have vacated the premises. The law is well settled that in so far as the question of necessity is concerned, the landlord is the best judge of his necessity. The law is also well settled that if a person wants to start a new business, his decision cannot be challenged on the ground that such person has no experience in respect of the business he wants to commence. It should be remembered that the law requires that the tenant in order to succeed in the leave to defend application must show some facts which casts a serious doubt as to the genuineness of the need of the landlord and so the landlord has reasonably suitable accommodation.
35. The respondent/tenant cannot dictate the terms to the landlord as dealt in the case of Sarla Ahuja v. United India Insurance Company Ltd., AIR 1999 SC 100 (which are equally apposite to the present case.) As further held; ".....The crux of the ground envisaged in Clause (e) of Section 14(1) of the Act is that the requirement of the New No. E24/13 Mobeen Khan v. Obaid Khan & Ors. page no. 23 of 27 landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord in bona fide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself."
36. It is settled law that the landlord is the best judge of his requirement and has complete freedom in the manner of the beneficial enjoyment of his property once it is not disputed that the landlords is bona fide. The petitioner is the owner and landlord of the premises and in the present case has specifically pleaded that he needs the premises for own business use. Admittedly, he is carrying on the business of tailoring from the premises as explained in the petition in partnership and therefore other premises is used by the petitioner. It is necessary for him to share his profit in the business. As the petitioner is already running his business of tailoring and has every right to run his affairs in the manner he wants to run including the expansion of his business, the claim of the petitioner on the ground of bona fide requirement cannot be considered as false . In the absence of any substantial material brought before the court or pointed out by the respondent in his affidavit, it cannot be said that the present application for New No. E24/13 Mobeen Khan v. Obaid Khan & Ors. page no. 24 of 27 eviction is actuated by mala fide and has not been made with bona fide intention. Merely stating in the affidavit that the application for eviction has been made with mala fide intention is not sufficient to sustain the contention of the respondent. As mentioned in this case, the petitioner requires the premises for his own business use and has no other reasonably suitable alternative accommodation available with him. The respondent has not been able to show any circumstance which casts any doubt as to the genuineness of the requirement of the petitioner except by disputing the same. The mere dispute raised by the respondent does not show as to how the need of the petitioner is not genuine. In the facts and circumstances of the case, legal pronouncements and aforementioned discussions, this court is satisfied that the need of the petitioner is bona fide and appears to be sincere and honest and not a mere pretext to evict the respondent/tenant. The tenanted accommodation is the most suitable to meet the requirement of the petitioner to set up and expand his business. Moreover the respondent failed to bring to the notice of this court any alternative accommodation with the petitioner which would disentitle him from claiming the premises for his own bona fide use. There is no triable issue between the parties on this aspect of the case.
37. Another contention raised on behalf of the respondent is that the petitioner has not reflected the correct extent of the property in possession of the respondent. In the petition the petitioner has explained the portion in possession of the respondent which was let out as well as which was allegedly encroached by him. The contention of the petitioner is fortified New No. E24/13 Mobeen Khan v. Obaid Khan & Ors. page no. 25 of 27 in view of the materials on record and particular in view of the report of the Local Commissioner who has filed the report that the respondent is not in possession of the portion as claimed by him. Moreover, the case of the petitioner is corroborated in view of reply of Sh. Ajaz Khan to the petition filed by him for permanent injunction. It is reiterated that the Local Commissioner was appointed by the competent court and the report of the Local Commissioner has never been challenged by the respondent. Therefore, the contention of respondent replying in the site plan and its correctness is not appear to be true.
38. As per the provisions of section 25B of Act 59 of 1958 a tenant shall be entitled to leave to contest the petition for eviction if the affidavit filed by him discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the grounds specified in clause (e) of proviso to subsection (1) of section14 of Act 59 of 1958. In the present case, as I have already indicated, the petitioner is seeking recovery of possession of the premises only for his use. In the considered opinion of the court there is no triable issue on this aspect of the matter. Even if there is any issue the same is insignificant and does not entitle the respondent from seeking leave to contest the application for eviction. In view of above discussions, having gone through the contents of the affidavit and counter affidavit of the parties and the documents filed by them, this court is of the considered view that there is no triable issue between the parties which entitles the respondent for leave to contest the present application for eviction. The application for leave to contest is New No. E24/13 Mobeen Khan v. Obaid Khan & Ors. page no. 26 of 27 without merit and the same is dismissed.
39. As an off shoot of the dismissal of the application for leave to contest made by the respondent, the petitioner is found entitled to recover the possession of the premises, namely, back half portion of property no. 49B, Khan Market, New Delhi3 as shown in the site plan annexed with the application for eviction as Annexure A. The application for eviction is allowed. In the facts and circumstances of the case there shall be no order as to costs. File be sent to records.
40. In view of the provisions of subsection(7) of section 14 of Act 59 of 1958, this order for recovery of possession of premises shall not be executed before the expiration of a period of six months from this date. Announced in the open court on this 18th day of September, 2013 ( GORAKH NATH PANDEY) Senior Civil JudgecumRent Controller New Delhi New No. E24/13 Mobeen Khan v. Obaid Khan & Ors. page no. 27 of 27