Delhi District Court
Sh. Rajeev Gupta vs Sh. Raj Kumar Pahwa on 23 August, 2013
Rajeev Gupta v. Raj Kumar Pahwa E-01/13
IN THE COURT OF SH. MANISH YADUVANSHI
SCJCUMRC (SOUTH) SAKET COURTS COMPLEX
NEW DELHI
E. No. 01/13
UNIQUE CASE ID NO. 02406C0000132013
IN THE MATTER OF:
SH. RAJEEV GUPTA
S/O SHRI BHARAT BHUSHAN,
R/O D61, IIND FLOOR,
LAJPAT NAGARI,
NEW DELHI110024.
.... PETITIONER
VERSUS
SH. RAJ KUMAR PAHWA
S/O LATE SH. RATTAN LAL PAHWA
AT: SHOP AT GROUND FLOOR BEARING
PVT. NO. 1/3 IN PROPERTY NO. SHOP NO.1,
KRISHNA MARKET, LAJPAT NAGARI,
NEW DELHI110024.
.... RESPONDENT
DATE OF INSTITUTION : 03.01.2013
DATE OF RESERVING THE ORDER : 13.08.2013
DATE OF DECISION : 23.08.2013
Result: Application dismissed (Eviction order passed) Page 1 of 29
Rajeev Gupta v. Raj Kumar Pahwa E-01/13
ORDER ON LEAVE TO DEFEND APPLICATION
1. The application under Section 25B (4) of the Delhi Rent Control Act (hereinafter, referred as 'the Act') has been filed by the respondent Sh. Raj Kumar Pahwa in an eviction petition under Section 14(1)(e) read with Section 25B of the Act filed by the petitioner Sh. Rajiv Gupta.
2. As per the petition, the shop No.1, Krishna Market, Lajpat NagarI, New Delhi was allotted to his grandfather Late Sh. Sita Ram by L&DO on 21.05.1962 vide registered Lease and Conveyance Deed. Sh. Sita Ram, during his lifetime, executed a registered Will dated 21.09.2005 thereby bequeathing the said property in petitioner's favour. Shop No.1 comprises of 5 shops bearing Private Nos. 1, 1/2, 1/3, 1/4 and 1/5. These shops had been let out to various tenants including the present respondent by Late Sh. Sita Ram. The tenanted premises is shop bearing Private No. 1/3, Ground Floor in property No.1, Krishna Market, Lajpat NagarI, New Delhi measuring 12 x 9 sq. feet and is shown in red colour in the site plan. Same shall be referred as 'demised premises'.
3. It was let out at a monthly rent of Rs.600/ per month exclusive of electricity charges. It was agreed at the time of letting out on 05.07.2006 Result: Application dismissed (Eviction order passed) Page 2 of 29 Rajeev Gupta v. Raj Kumar Pahwa E-01/13 by virtue of an agreement dated 02.07.2006 between Sh. Sita Ram and the present respondent that the lessee shall handover the vacant and peaceful possession of the premises and its key to the lessor on the expiry or prior termination of lease agreement. It was let out for commercial purposes but stated to be closed since last two years. It is petitioner's claim that he was previously assisting his father in the dry cleaning shop business being run from shop No.1. It was closed down in the year 2009 on account of usage of chemicals in dry cleaning which were prohibited as per pollution control norms. The petitioner was receiving his monthly income of around Rs.8,000/ per month from the said business. After closure of the shop the petitioner was without work and thus started assisting his wife in her ladies tailoring shop which she runs from second floor of the residence of petitioner. Soon, the petitioner learnt skills of tailoring and starting selling ready made suits from the second floor of the residence with assistance of his wife. His family consists of four persons i.e. petitioner, his wife and two minor school going sons. It is submitted that the petitioner is not able to be successful in this venture on account of the fact that the premises is situated at second floor and thus not good for business purposes. It is submitted that the petitioner requires a shop on the ground floor so that his tailoring Result: Application dismissed (Eviction order passed) Page 3 of 29 Rajeev Gupta v. Raj Kumar Pahwa E-01/13 shop/boutique can run in proper manner. He requires a glass facade, a ladies try room, space for peeco machine, space for over locking machine, three stitching tailors with sewing machines apart from a wooden counter for fabrication of dress material. Presently, all five shops are rented. The minimum area required by the petitioner would be atleast four shops. Thus, the petition has been filed against present respondent particularly as the premises is lying locked for last two years and the respondent has also not paid rent of the said shop for the past two years i.e. September, 2010. It is submitted that the other tenants have consented to vacate the shop in their possession and had sought time of 9 months in this regard. It is claimed that if the petitioner gets possession of the demised premises, he would be in a position to atleast book tailoring work and execute the same from the second floor of the residence. It is submitted that the respondent has been blackmailing the petitioner as he is asking for sum of Rs.10,00,000/ in lieu of vacation of demised premises. It is claimed that the financial condition of the petitioner is not very sound and he as well as his wife are willing to open a boutique in the demised premises.
4. On being served, the respondent filed application to contest with detailed affidavit incorporating grounds requiring trial. The petition is Result: Application dismissed (Eviction order passed) Page 4 of 29 Rajeev Gupta v. Raj Kumar Pahwa E-01/13 stated to be without cause of action and the petitioner himself guilty of suppression of material facts. It is further submitted that essential ingredients of Section 14(1)(e) of the Act are not pleaded. It is further submitted that the petitioner is unable to show the ownership of the shop. It is admitted that Late Sh. Sita Ram was owner of five shops, who died on 08.02.2008, leaving behind three sons namely Sh. Bharat Bhushan Gupta, Sh. Anil Kumar Gupta and Sh. Ramesh Gupta besides two other married daughters as his legal heirs. It is submitted that any eviction order on the basis of the Will dated 21.09.2005 will tantamount to granting probate of the Will. It is submitted that as per the pleadings, the petitioner is in possession of the shop No.1 which has dimensions of 20"
x 13" which space is sufficient to start a tailoring shop as compared to the limited space available in the demised premises. It is further submitted that recently, the said shop has been given on rent to Apollo Pharmacy which is fetching rent of Rs.55,000/ per month. It is thus stated that the main purpose behind the present petition is to seek higher rent. It is further submitted that the petitioner has not disclosed that shop No.1/2 is in tenancy of Sh. Lalit Kumar Arora, 1/4 is in tenancy of Sh. Ajay Chopra and 1/5 in the tenancy of Sh. Dilip Chopra. It is further stated that the rent receipts have been issued to the respondent and other Result: Application dismissed (Eviction order passed) Page 5 of 29 Rajeev Gupta v. Raj Kumar Pahwa E-01/13 tenants by Sh. Bharat Bhushan Gupta i.e. father of the present petitioner till year 2012 and not by the present petitioner. It is further submitted that it was the father of the respondent who was originally the tenant in the demised premises and after his death Late Sh. Sita Ram Gupta had relet the premises to present respondent at increased rate of rent of Rs.600/ and thus executed agreement dated 02.07.2006. The respondent objected to some of the clauses and thus the said agreement was not even signed by Late Sh. Sita Ram Gupta. It is further submitted that the mutation of the name of the petitioner in MCD records is only for tax purposes. The respondent does not dispute that there are five shops in the premises but denies that the demised premises is closed since last two years. It is submitted that the respondent is doing business of commission agent from sale of properties from the tenanted premises. It is further submitted that the petitioner has made false submission of earing Rs.8,000/ only though he is earning Rs.55,000/ per month from Apollo Pharmacy which has been rented out recently in the year 2012. It is further submitted that the rent of the demised premises is being deposited in DR petition No. 84/12 and 17/13 in the Court of concerned ARC. It is further submitted that the petitioner has given third floor of his residence on rent and is earning good rent from said property. It is Result: Application dismissed (Eviction order passed) Page 6 of 29 Rajeev Gupta v. Raj Kumar Pahwa E-01/13 submitted that the other properties of petitioner are not in the knowledge of the respondent.
5. Reply to the leave to defend application with counter affidavit was filed by the petitioner. It is primarily a reiteration of the contents of the petition as correct. In addition thereto, the respondent is said to be barred from making submission that the eviction order will tantamount to granting of probate of Will as the same is internal matter of the legal heirs of Late Sh. Sita Ram Gupta who have no objection. The petitioner denies to be in possession of the shop No.1 and also denies that the proposed business can be run from the said shop. It is further stated that the said shop is in tenancy of Apollo Pharmacy and is not vacant. The present rent from the property is Rs.53,000/ per month. It is submitted that the respondent is blowing hot and cold in same breath. It is reasserted that the other shops are rented out and the ownership of the same devolved on the petitioner after death of Sh. Sita Ram by virtue of his Will. It is further submitted that Sh. Bharat Bhushan Gupta, being father of the petitioner can very well receive the rent of the demised premises on petitioner's behalf. It is further submitted that the rent receipts filed by the respondent for the period of November, 2011 and May, 2012 are fabricated. It is denied that father of the present Result: Application dismissed (Eviction order passed) Page 7 of 29 Rajeev Gupta v. Raj Kumar Pahwa E-01/13 respondent was the original tenant as alleged. It is further stated that the petitioner has been filing appropriate petition for vacation of other shops also.
6. The respondent filed a rejoinder which is mainly to the effect that the petitioner is not the owner of the demised premises in view of the fact that the registered Will dated 21.09.2005 has been already cancelled by Late Sita Ram during his lifetime by executing a Deed of Cancellation of Will dated 09.11.2011 duly registered with concerned SubRegistrar. It is further informed that the present petitioner has filed four identical petitions against the remaining tenants without explaining as to how all the shops are required for his alleged business.
7. No surrejoinder was filed.
8. I have heard arguments addressed by Sh. Shahid Ali, Ld. Counsel for the petitioner and Sh. Jagdev Singh, Ld. Counsel for the respondent and gone through the record carefully. Same are in accordance with the pleadings.
9. The petitioner relies on following case law: 9.1 Ranjeet Kumar Chopra v. Virinder Khosla, 155 (2008) DLT 658 Result: Application dismissed (Eviction order passed) Page 8 of 29 Rajeev Gupta v. Raj Kumar Pahwa E-01/13 in order to highlight that tenant or Court cannot impose their own standards and cannot compel landlord that he should keep on living in premises in his occupation just because he was used to live in it as has already been living in that premises.
9.2 Sh. A.K. Nayar v. Mahesh Prasad, 2008 (106) DRJ 796 to the effect that a landlord seeking eviction of premises for his bonafide requirement is not required to show his absolute ownership over the property.
9.3 Vinod Kumar Verma v. Manmohan Verma and Anr., 148 (2008) DLT 580 to the effect that ownership to be established by landlord to maintain petition under Section 14(1)(e) of Act is not absolute ownership of tenanted premises.
9.4 Mrs. Ram Devi & Anr. v. Shri Mool Chand Bhatia, All India Rent Control Journal 1998 (1) 100 to the effect that where a front portion of the ground floor which had fallen vacant and had been let out by the landlady for economic reasons and the landlady had sought the rear portion for her own residence and it was held that letting of the front portion for economic reasons would not make the need of the landlady for the rear portion as malafide.
Result: Application dismissed (Eviction order passed) Page 9 of 29
Rajeev Gupta v. Raj Kumar Pahwa E-01/13 9.5 Amarjit v. Mrs. Khatoon Quamarain, 23 (1983) DLT 362 to the
effect that where owing to financial difficulty a landlady let on rent the ground floor portion falling vacant during tenancy of the case at higher rent and sought possession of first floor premises, it was choice of the landlady to obtain eviction of the tenant of first floor and that the same was justified.
9.6 Shantaram v. Shyam Sunder & Anr., All India Rent Control Journal, 1972 741 to the effect that even if one of the landlords establishes his bona fide out of several landlords, decree of eviction must follow under Section 12(1)(e) of the Madhya Pradesh Accommodation Control Act, 1961 in respect of entire premises demised. 9.7 Freddy Fernades v. P.L. Mehra, 1973 RCR 53 to the effect that when a landlord has to choose between two alternative accommodations, his judgment has to be given due weight. Further to the effect that it is not a conclusion of law that a petition for eviction filed soon after the letting of premises must be held to be mala fide. It was open to the landlord to show that his needs might change from time to time or that the landlord might not have been clever enough to anticipate his needs. Merely because a petition for eviction is filed soon after the premises are Result: Application dismissed (Eviction order passed) Page 10 of 29 Rajeev Gupta v. Raj Kumar Pahwa E-01/13 let out, it could not be conclusively presumed that the petition was mala fide.
9.8 Royal Nepal Airlines Corporation v. Shrishti Properties Pvt. Ltd., 184 (2011) DLT 362 to the effect that it is prerogative of landlord to decide whether premises are required for expansion of his business or not. In the said case the petitioner/tenant had nowhere denied that need of the landlord was not bona fide.
9.9 Smt. Prativa Devi v. T.V. Krishnan, JT 1987 (1) SC 764 to the effect that the landlord is the best judge of his residential requirement. 9.10 Pushkar Singh v. Ansuiya, (2006) 6 SCC 799 to the effect that existence of an alternative accommodation in the name of wife of the landlord, not suitable for residence cannot result in rejection of eviction petition of landlord on the ground of availability of that accommodation. 9.11 Viran Wali v. Kuldeep Rai Kochhar, 174 (2010) DLT 328 to the effect that any business run from ground floor of a premises will attract more customers than business being run from basement. In this case, the respondent had in his eviction petition in clear and unequivocal terms mentioned about his requirements. Further the bona fide need of the Result: Application dismissed (Eviction order passed) Page 11 of 29 Rajeev Gupta v. Raj Kumar Pahwa E-01/13 respondent was not denied. The only defence was to the effect that the landlord possessed a basement in commercial area and the same could have been used by him. It was held that the landlord cannot be dictated terms and that the basement will not have better prospects in respect of business as compared to a shop on the ground floor.
9.12 Caron Ltd. v. M/s Parvathy Swaminathan & Sons, 2007 (2) RLR 481 to the effect that rights of the parties should be determined on the basis of the date of institution of the suit.
9.13 Budh Singh & Sons & Ors. v. Sangeeta Kedia, 185 (2011) DLT 580 to the effect that discrimination on purpose of letting out of a premises for a residential or nonresidential purpose has been struck down.
10. The respondent relied on following judgments:
10.1 Mohd. Jafar & Ors. v. Nasra Begum, 191 (2012) DLT 401 to the effect that where it is a case of requirement of additional accommodation by the landlord, leave to defend should normally be granted to the tenant.
In the said case the landlord's husband already had another shop at Jama Masjid, Delhi.
Result: Application dismissed (Eviction order passed) Page 12 of 29
Rajeev Gupta v. Raj Kumar Pahwa E-01/13 10.2 Vijay Nayyar v. Om Prakash Malik, 2011 (126) DRJ 323. In this case the tenant had sought leave to contest on the ground that the petitioner did not require the shop in question for starting business since he already had two other shops in his possession and the same amounted to a triable issue.
10.3 Kishore & Anr. v. Prabodh Kumar & Ors., 2012 (132) DRJ 562 to the effect that mere wish or desire of the landlord to have the tenanted shops for expansion of his business or for additional accommodation or even for setting up a business for his son may not in every case be taken to be his bonafide requirement which was observed that with acquisition of both the tenanted shops, the size of the accommodation with landlord would become three times and it would be required to be tested as to whether that much area could be be actually required for business expansion.
10.4 S.K. Seth & Sons v. Vijay Bhalla, 191 (2012) DLT 722 wherein it has been held that it is a triable issue that whether the shop available with landlord is sufficient to meet his requirement or not. 10.5 Mohd. Illyas v. Nooruddin & Ors., 184 (2011) DLT 590 to the effect that concealment of facts that the landlords had huge property Result: Application dismissed (Eviction order passed) Page 13 of 29 Rajeev Gupta v. Raj Kumar Pahwa E-01/13 which could be fit for their need is a triable issue.
10.6 Vinod Ahuja v. Anil Bajaj & Anr., 194 (2012) DLT 203 to the effect that in each case the version of landlord cannot be taken as gospel truth. The Court must examine the bona fide of the landlord. 10.7 Sukh Dev Raj Sharma v. Kuljeet Singh Jass, 2012 (132) DRJ 632 to the effect that wherever the tenant is able to make out a prima facie triable issue, he is required to be protected. 10.8 Hindustan Zinc Ltd. v. Lt. Col. Satya Pal Wadhwa & Anr., 194 (2012) DLT 244 to the effect that it is not a thumb rule that landlord's wish, desire or intent has to be taken as gospel truth. His requirement is to be tested objectively.
10.9 Jawahar Lal v. Ravinder Kumar Khanna & Anr., 195 (2012) DLT 239 which is primarily on the same ground as is enumerated in para 10.8 above.
10.10 Rakesh Kumar v. Pawan Khanna, 195 (2012) DLT 341 to the effect that the respondent had let out his property for commercial purposes sometimes before filing of the eviction petition cannot be Result: Application dismissed (Eviction order passed) Page 14 of 29 Rajeev Gupta v. Raj Kumar Pahwa E-01/13 ignored.
11. The present is a case which is not resting on scores of documents but just a handful of them. A proper evaluation of pleadings i.e. contents of affidavit is therefore required in juxta position to the documents relied. Few facts which are admitted are: (a) that Late Sh. Sita Ram Gupta was the owner of the shops in question; (b) that the present respondent was inducted as a tenant in the demised premises by Late Sh. Sita Ram; (c) that rent was being paid to Late Sh. Sita Ram; and (d) that even after the demise of Sh. Sita Ram rent was being paid to father of present petitioner namely Sh. Bharat Bhushan.
12. The following are the points agitated:
(a) That all essential ingredients required are not pleaded;
(b) The petitioner is not the owner of the demised premises. I must point out here that no question mark has been raised over petitioner's competence as landlord of demised premises.
(c) That the petitioner has concealed fact of earning Rs.55,000/ per month (admitted by petitioner as Rs.53,000/ per month) by renting out shop No.1 to Apollo Pharmacy in the year 2012.
Result: Application dismissed (Eviction order passed) Page 15 of 29
Rajeev Gupta v. Raj Kumar Pahwa E-01/13
13. Thus, primarily on these three broad grounds, the respondent intends to demonstrate absence of bona fide need of the petitioner.
14. I shall take the three grounds one by one in the light of pleadings and judgments relied upon.
FINDINGS
(a) That all essential ingredients required are not pleaded In para 3 of the affidavit in support to leave to contest application, the respondent states that the petition as framed does not fall within four corners of Section 14(1)(e) of the DRC Act since the essential ingredients of the same have not been pleaded.
I have gone through the complete pleadings. It appears that the petitioner has not stated in clear words that he does not have any other alternate suitable accommodation. The petitioner has however denied the corresponding para in his counter affidavit. In the rejoinder, the respondent has not come up with any avernment to the effect that the petitioner also owns or possess other commercial property apart from the shops in question. In para (D) of the affidavit annexed to leave to contest application, the respondent states that the petitioner has also given the third floor of his residence on rent and earning good rent from the said Result: Application dismissed (Eviction order passed) Page 16 of 29 Rajeev Gupta v. Raj Kumar Pahwa E-01/13 property and that the other properties of the petitioner are not in the knowledge of the respondent. The aforesaid avernment qua letting of the premises at third floor on rent is a bald avernment. The contents of para (D) have been denied in totality. No supporting documents are filed by the respondent.
Para 18 (A) of the petition is clear to the effect that the petitioner is doing tailoring work from his second floor residence and is not able to get the good business and thus intends to set up a boutique in the ground floor shop including the demised premises. In para 18 (D) of the petition he categorically states that all five shops of the petition are rented out to tenants. It is further stated in para 18(D) that in case of eviction of demised premises the petitioner would be in a minimum position to book the tailoring work from his clients in order to execute the same from his second floor residence. In this context, it has been held in Mohan Lal v. Tirath Ram Chopra 1982 (2) RCJ 161 (FB) that the avernments of facts are necessary and may be as elaborate as the landlord may desire to make but it will be enough for the landlord to state that he is the owner and landlord of the premises and that the same had been let out. It is not necessary for him to state as to how he became the owner for law does not require disclosure of statements to prove this fact. However, as bona Result: Application dismissed (Eviction order passed) Page 17 of 29 Rajeev Gupta v. Raj Kumar Pahwa E-01/13 fide requirement of the landlord or absence of other reasonably suitably accommodation has to be inferred from all the facts and circumstances, he must place such facts and circumstances in his application. In this context, he may have to plead the accommodation available with him, the nonexistence of any alternative suitable accommodation etc. etc. Thus, it is clear that the Court has to infer absence of other reasonably suitable commercial accommodation. The petitioner herein does not plead so categorically. But his pleadings are aimed to establish that he has none apart from the five tenanted shops. On the contrary the respondent also does not give description of any other commercial property available with the petitioner. So far as the avernment of letting on third floor is concerned, the same does not constitute a commercial property. Thus, in my considered view, in the given circumstances, it cannot be said that the present petition is not framed as per Section 14(1)
(e) of the DRC Act. In arriving at the aforesaid conclusion, reliance is placed on the law on the subject of nonmentioning of the essential ingredients to the effect that the same is not always fatal and is laid down in Sh. V.B. Raju v. R.L. Mahindroo, 1982 RLR 650; Sh. Gurdial Nagdev v. Smt. Devi Bai, 1979(1) RCR 119; Ram Gopal v. Basheshar Nath, 1981, RLR (Notes 32 to 24); Parvesh Kanta v. Vijay Kumar & Result: Application dismissed (Eviction order passed) Page 18 of 29 Rajeev Gupta v. Raj Kumar Pahwa E-01/13 Anr., 81 (1999) DLT 374 and Smt. Ram Chameli v. Smt. Sujan Kaur & Anr., 81 (1999) DLT 549.
(b) The petitioner is not the owner of the demised premises.
In this context, the ownership of grandfather of the petitioner qua demised premises is admitted fact. The petitioner relies on registered Will dated 21.09.2005 executed by his grandfather Late Sh. Sita Ram Gupta. The respondent, in his rejoinder mentions that the said Will has been cancelled by registered Deed of Cancellation of Will dated 09.11.2011. I have pointed out that no surrejoinder has been filed. On cancellation of the Will, the petitioner had expressed ignorance and during the course of arguments also submitted to take appropriate steps in regard to the aforesaid cancellation rating it as an act of fabrication. Be that as it may, it is settled law that the onus on the landlord to prove ownership is of a much lesser scale in rent proceedings. It is an admitted fact and in fact brought forth on record by the respondent himself that the Late Sh. Sita Ram Gupta left behind three sons and two married daughters as his legal heirs. It is not denied that the present petitioner is son of one of the sons of Late Sh. Sita Ram Gupta. It is nobody's case that after the Deed of Cancellation of Will, Late Sh. Sita Ram Gupta Result: Application dismissed (Eviction order passed) Page 19 of 29 Rajeev Gupta v. Raj Kumar Pahwa E-01/13 executed some other Will. If it that be so, the present petitioner would continue as the coowner of the premises. It is settled law that a coowner can maintain an eviction petition against the tenant. Reliance is placed upon AIR 2006 SC 1471 as well as 159 (2009) DLT 210.
Furthermore, the petitioner has also relied on the copy of a petition under Section 27 of the DRC Act. As many as 8 landlords/persons entitled to rent are described in the said petition and one of whom is present petitioner. It being so, it shall not lie in the mouth of the respondent to say that the present petitioner is not the absolute owner. As law would have it, the present petitioner would be required to show that he is more than a tenant.
It has been held in Sheela & Ors. Vs. Firm Prahlad Rai Prem Prakash, (2002) 3 SCC 375 that "In rent matters, the burden of proving ownership on a landlord is not that heavy as it is in a title suit and even a lesser quantum of proof may suffice for holding that the landlord is the owner of the premises in question.
It has been held in Rajender Kumar Sharma & Ors. Vs. Leela Wati & Ors. 155 (2008) DLT 383 that, "Where tenant denies ownership of landlord, he is obliged to disclose who was owner/landlord and to whom rent was being paid."
Result: Application dismissed (Eviction order passed) Page 20 of 29
Rajeev Gupta v. Raj Kumar Pahwa E-01/13 It is also a settled law that landlord is not required to prove absolute ownership in eviction petition filed on the ground of bonafide requirement. It has been held in Rajender Kumar Sharma & Ors. Vs. Leela Wati & Ors., 155(2008) DLT 383 that, ""Bonafide requirement - Eviction petition Landlord is not supposed to prove absolute ownership as required under Transfer of Property Act and he is required to show only that he is more than tenant.".
It is a settled law that mere denial of ownership is no denial. A tenant who has been living in same house for many years must know owner. Reliance may be placed upon Mrs. Meenakshi Vs. Ramesh Khanna etc., 1995 RLR 322.
It is a settled law that mere of ownership is no denial. It has been held in Zahid Hussain Vs. Aenul Haq Qureshi through Lrs, 2005 (1) RCR, 323 (DHC) that, " Tenant denying ownership of landlordtenant not able to show who else was owner of premises - A bald denied cannot advance case of tenant."
It is a settled law that landlord necessarily need not to be the owner but an owner is always a landlord. When the petitioner is owner of the property in question, he is also a landlord of the same. In a case Result: Application dismissed (Eviction order passed) Page 21 of 29 Rajeev Gupta v. Raj Kumar Pahwa E-01/13 titled as R.S. Gupta Vs. R.C. Bhagat & Anr. 100 (2002) DLT 494, it was denied by the tenant that there exist no relationship of landlord and tenant between respondent no. 1 and petitioner as premises was let out by respondent no.2 to the petitioner and consequently the respondent no. 1 cannot maintain eviction petition against the petitioner. However, the Hon'ble High Court held that, "Under the Rent Control Act, the landlord necessarily need not be the owner. Owner can authorize another person to collect rent on his behalf. That being the position there was no reason to hold that respondent no. 1 who was admittedly the owner of the property could not maintain the petition for eviction against the tenant."
In this regard, the petitioner has also correctly place reliance of cases titled Sh. A.K. Nayar's case (supra) and Vinod Kumar Verma's case (supra).
It is also to be borne in mind that as per the respondent the rent of the demised premises was being accepted by present petitioner's father namely Sh. Bharat Bhushan Gupta. Sh. Bharat Bhushan Gupta is again the LR of the original owner of the premises i.e Late Sh. Sita Ram Gupta. The present petitioner enjoys the same status. The respondent has never denied the landlordship of Sh. Sita Ram Gupta of which the present petitioner is a male descendant. This fact gathers strength from the fact Result: Application dismissed (Eviction order passed) Page 22 of 29 Rajeev Gupta v. Raj Kumar Pahwa E-01/13 that after the demise of Late Sh. Sita Ram Gupta, rent was being paid to the petitioner's father Sh. Bharat Bhushan Gupta. Thus, there cannot be any escape from the preposition that there is a relationship of landlord and tenant between the parties. It is petitioner's case that his father accepted the rent of the demised premises on his behalf. In this regard, when the respondent himself admits the relationship of landlord and tenant between the parties, he is estopped from disputing the title of the petitioner over the premises in question. It has been held in Ramesh Chand Vs. Uganti Devi, 157 (2009) DLT 450 by the Hon'ble High Court of Delhi 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 else. If the landlord was receiving rent for himself and not on behalf of someone else, he is to be considered as the owner howsoever imperfect his title over the premises may be. The imperfectness of the title of the premises cannot stand in the way of an eviction petition under Section 14 (1) (e) of the DRC 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 Result: Application dismissed (Eviction order passed) Page 23 of 29 Rajeev Gupta v. Raj Kumar Pahwa E-01/13 paying rent to the landlord. Section 116 of the Evidence Act creates estoppels against such a 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.".
Thus, in my considered view, without getting into the factum of the validity of Will and the Deed of Cancellation of Will, I am of the considered opinion that the present petitioner being a coowner of the demised premises can very well maintain the present petition.
(c) That the petitioner has concealed fact of earning Rs.55,000/ per month (admitted by petitioner as Rs.53,000/ per month) by renting out shop No.1 to Apollo Pharmacy in the year 2012.
Indeed, the petitioner has pleaded financial constraint as a reason due to which he joined the existing work of tailoring being run by his wife from his second floor residential premises. The respondent's have nowhere denied that the petitioner was not helping his father prior to closure of their business in shop No.1. They have not denied that the petitioner was not earning Rs.8,000/ from the earlier business. They Result: Application dismissed (Eviction order passed) Page 24 of 29 Rajeev Gupta v. Raj Kumar Pahwa E-01/13 have also not denied the fact that the petitioner has learnt the skills of tailors of ladies garment and has been taking orders from various clients. It is also not denied by the respondent that the petitioner is facing paucity of accommodation at his residence and is also facing loss of prospective business. On the contrary, the respondent has merely stated that the petitioner is in possession of shop No.1 on the ground floor. It is submitted that the said shop having dimensions of 20" x 13" would be sufficient for the tailoring needs of the would be boutique of the petitioner and his wife. Elsewhere in the leave to contest application, the respondent further states that in the year 2012, the petitioner had let out shop No.1at a monthly rent of Rs.55,00/ to Apollo Pharmacy. On the strength of these submissions, the respondent intends to give such colour to the present petition as would portray that the bona fide shown by the petitioner is to earn a living. The fact that the petitioner admitted of having let out shop No.1 to Apollo Pharmacy at a monthly rent of Rs.53,000/ has been blown out as a deliberate concealment of financial status. I do not find myself in agreement with such demonstration. This is not a case where the petitioner has based his claim of bona fide requirement merely for purposes of earning etc. If that be his intent, he could have setup any vocation or business even at a rented place Result: Application dismissed (Eviction order passed) Page 25 of 29 Rajeev Gupta v. Raj Kumar Pahwa E-01/13 somewhere else. The facts indicate that to begin with, the petitioner was left without any income w.e.f. 2009. In a quest to have a decent living he started assisting his wife in her tailoring business. There is no specific denial to this. As and when shop No.1 was available for fetching appropriate rent at market rate, the same was duly let out. In this regard, the petitioner has also relied upon Mrs. Ram Devi & Anr.'s case (supra) and Amarjit's case (supra) which reliance is proper and correct. Thus, to relate the present bona fide need of expansion of business with that of income constraints would be a improper analysis of the facts pleaded in the respective affidavits. It is settled law that a landlord has every right to the premises best suitable for such expansion and his status of pre existing wealth cannot be a factor worth consideration in ascertaining the bona fide of such business expansion need. The bona fide need before me is of business expansion. The petitioner categorically states the extent of accommodation required by him for purpose of setting out a proper boutique. For that he has also set up a need for vacation of atleast four shops. The respondent has relied on cases mentioned in para 10.1 to 10.10 of this order to the effect that ascertainment of area required for establishment of such business as is projected is a triable issue. I will have to say that the reliance is misplaced. Presently, the petitioner is Result: Application dismissed (Eviction order passed) Page 26 of 29 Rajeev Gupta v. Raj Kumar Pahwa E-01/13 doing his business from his residential premises. This fact has not been specifically denied. He now requires commercial premises. It would be difficult to say that the present attempt of the petitioner is merely an attempt of expansion of business from residential premises. In fact, the petitioner intends to have enjoyment of at least four shops including the demised premises in order to set up a commercially viable shop/boutique. The same cannot be done from the second floor of the residential premises The petitioner rightly relies on Viran Wali's case (supra), Freddy Fernades's case (supra) and Royal Nepal Airlines Corporation's case (supra) wherein it is held that a shop on the ground floor would be more viably located in terms of business than a basement.
Going by said analogy, it also cannot be said that this is a case of seeking additional accommodation. The petitioner would naturally intend to give up all commercial activities from his residence if he could have the enjoyment of his shops in regard to which admittedly, he has filed various eviction petitions. The respondent does not deny the extent of the family of the petitioner. The fact remains that he has two minor school going sons. The need as projected cannot be therefore said to be mala fide and for that reason I find that there is no concealment of fact qua present income of the petitioner as also for the reasons that the present Result: Application dismissed (Eviction order passed) Page 27 of 29 Rajeev Gupta v. Raj Kumar Pahwa E-01/13 income of the petitioner has no nexus with his bona fide need of business expansion. The reliance placed by respondent on Mohd. Jafar & Ors.'s case (supra) does not fit in present facts. Likewise, Vijay Nayyar's case (supra) too, shall have no application herein as all five shops are tenanted and none is in possession of petitioner herein. Same shall be the position with Kishore & Anr.'s case (supra) and S.K. Seth & Sons's case (supra) as petitioner does not have any shop out of the five in his vacant possession.
The respondent, though relies on Mohd. Illyas's case (supra) but does not say in pleadings that the petitioner has any huge property which could be fit for their need. So far as judgment in Rakesh Kumar's case (supra) is concerned, I have already said that petitioner owing to financial constraint, could letout any of his shop which, in this case is shop No.1. The ratio of judgment in Mrs. Ram Devi's case (supra) and Amarjit's case (supra) nullifies the respondent's present stand. The remaining cases relied have no bearing on facts of this case. Result
15. In the result, I find that no triable issue that has been raised in the affidavit as well as the leave to defend application under Section 25B (4) Result: Application dismissed (Eviction order passed) Page 28 of 29 Rajeev Gupta v. Raj Kumar Pahwa E-01/13 of the DRC Act. The leave to defend application of the respondent is dismissed.
16. Accordingly, an eviction order is hereby passed in respect of shop at Ground Floor bearing Pvt. No. 1/3 in property shop No.1, Krishna Market, Lajpat NagarI, New Delhi110024 measuring 12 x 9 sq. feets as shown in red colour in the site plan. However, the eviction order passed under Section 14(1) (e) of the DRC Act shall not be executable for a period of six months from the date of this order.
17. File be consigned to record room.
Announced in the open Court (MANISH YADUVANSHI)
on 23.08.2013 SCJCUMRC (SOUTH)
SAKET COURTS,
NEW DELHI.
Result: Application dismissed (Eviction order passed) Page 29 of 29