Delhi District Court
Smt. Jaswinder Kaur vs Sh. Praveen Kumar on 27 March, 2015
IN THE COURT OF MS. BHAWANI SHARMA: ACJ/CCJ/ARC
SHAHDARA: KARKARDOOMA COURTS: DELHI
E - 69/2012
Unique Identification No.02402C0363082012
1. Smt. Jaswinder Kaur
W/o S. Veerinder Singh Ahluwalia
2. Sh. Damanjit Singh
S/o S. Veerinder Singh Ahluwalia
3. Sh. Jaspreet Singh
S/o S. Veerinder Singh Ahluwalia,
All R/o 1/9547, Pratap Pura,
Gali No.2, West Rohtash Nagar,
Shahdara, Delhi110032. .....Petitioners
Versus
1. Sh. Praveen Kumar
2. Sh. Dinesh Kumar
Both S/o late Sh. Satish Chand
3. Sh. Pankaj Kumar (Deceased)
Through his legal heirs
(i) Smt. Veenita
W/o late Sh. Pankaj Kumar
(ii) Master Gautam
S/o late Sh. Pankaj Kumar
(iii) Baby Bhumi
D/o late Sh. Satish Kumar
E - 69/12
Smt. Jaswinder Kaur & Ors. vs. Praveen Kumar & Ors. Page 1 of 29
No. ii & iii being minors represented
through their mother Smt. Veenita
All R/o 1/11211B, Subhash Park,
Gali No.11, Near Kirti Mandir,
Shahdara, Delhi110032.
4. Smt. Rakhi Saxena
W/o Sh. Sajjan Saxena,
D/o late Sh. Satish Chand,
R/o S91/A, School Block,
Shakarpur, Laxmi Nagar,
Delhi110092. .....Respondents
Application for Eviction of tenant under Section 14 (1) (e) of the
Delhi Rent Control Act, 1958
Petition filed on : 20.12.2014
Order reserved on : 27.03.2015
Date of Order : 27.03.2015
Decision : Leave to defend application of the
respondent dismissed and
eviction order passed.
ORDER
1. This is a petition for eviction of tenant under Section 14 (1) (e) of the Delhi Rent Control Act, 1958 (herein after referred to as the 'DRC Act').
2. The petitioners Smt. Jaswinder Kaur & Ors. filed a petition under Section 14 (1) (e) of the DRC Act. Summons under prescribed E - 69/12 Smt. Jaswinder Kaur & Ors. vs. Praveen Kumar & Ors. Page 2 of 29 format were served upon the respondents on 14.01.2013. An application seeking leave to defend the petition was filed on 22.01.2013.
3. (a) The petitioners have sought an eviction against the respondents namely Praveen Kumar, Dinesh Kumar Pankaj Kumar (deceased) through his legal heirs and Smt. Rekha stating that the petitioners are the owners/landlords of the property bearing no. 1/9280 (new), 1480D (old), Main Babarpur Road, West Rohtash Nagar, Shahdara, Delhi110032. and the respondents are tenant in respect of one shop i.e. shop no.1 measuring 9'8" x 5'9" at ground floor facing towards the main road in the above said property more specifically shown with red colour in the site plan attached at a monthly rent of Rs.515/ excluding of other charges.
(b) It is submitted that the tenanted premises is commercial one and since the inception of the tenancy, the same is being used for commercial purposes.
(c) It is further submitted that the tenanted premises is required by the petitioner no.3 bonafidely for himself, who is son of the petitioner no.1 and brother of petitioner no.2. It is submitted that the petitioner no.3 is unemployed and is completely dependent upon the petitioner no.1 & 2. It is also submitted that the petitioners have no other commercial suitable accommodation available anywhere in E - 69/12 Smt. Jaswinder Kaur & Ors. vs. Praveen Kumar & Ors. Page 3 of 29 Delhi. It is submitted that the tenanted premises is required by the petitioners to settle the petitioner no.3 in the said shop and wants to run a trading shop/business. It is further submitted that the tenanted shop is adjoining shop of the petitioner no.1 & 2 and is facing towards main Babarpur Road. It is, therefore, prayed to pass an eviction order against the respondents.
4. (a) Ld. counsel for the respondents has argued through his leave to defend application that after the death of respondent no.3 i.e. Pankaj Kumar, his wife alongwith minor children had shifted to her parental home at Agra. However, the respondent no.1 had due to oversite mistake received summons on behalf of the respondents no.3 (i), (ii),
(iii), since the summons bears the name of his deceased brother hence the respondent no.3 have not been served with the summons of this petition as the service upon the respondent no.1 is not service upon the respondents no.3 (i), (ii), (iii). It is further argued that the present petition is false and frivolous and the petitioners have filed the present suit against the respondents including two minor children namely Master Gautam and Babi Bhumi, but the petitioners have not filed any application for appointment of guardian adlitum for the minors as per the provisions of CPC which clearly specify that when a suit is being filed against the minors then a guardian should be appointed for the minors and an application is required to be filed enabling the court to E - 69/12 Smt. Jaswinder Kaur & Ors. vs. Praveen Kumar & Ors. Page 4 of 29 do the needful.
(b) It is submitted that the petition is not maintainable as the petitioners have not filed the correct site plan of the tenanted premises and the site plan filed by the petitioners pertains to the property no. 1/9880, Main Babarpur Road, West Rohtash Nagar, Shahdara, Delhi32 whereas the tenanted premises is situated on the ground floor of property no.1/9289, Main Babarpur Road, West Rohtash Nagar, Shahdara, Delhi32. The present petition is also not maintainable as the site plan filed by the petitioners is not showing the details of accommodation available in the entire premises. As per the site plan filed by the petitioners the premises in which the tenanted shop is situated is a two storey building whereas the site plan shows only three shops on the ground floor and does not show the accommodation of first floor. It is submitted that the respondents have filed the correct site plan showing the accommodation available in the premises. The entire building is a two storey commercial complex of 200 sq. yds. which is in use & occupation of petitioners for their different commercial activities, except the tenanted premises and thus the petitioners are having ample commercial space avaialable with them.
(c) It is submitted that the petitioners are having several residential and commercial properties in Delhi including the entire E - 69/12 Smt. Jaswinder Kaur & Ors. vs. Praveen Kumar & Ors. Page 5 of 29 two storey commercial complex. The petitioners owned and possessed various properties i.e. (i) residential property no.185, 2nd Floor, guru Hargovind Enclave, Delhi, (ii) two storey commercial property no. 704, Main G.T. Road, Shahdara, Delhi (iii) commercial property no. 1/9292, West Rohtash Nagar, Main Babarpur Road, Shahdara, Delhi,
(iv) commercial property no.1/9274, West Rohtash Nagar, Shahdara, Delhi110032, (v) property no.1/9547, Gali No.2, Pratap Pura, Shahdara, Delhi, (vi) entire first floor in the market of Karol Bagh, Near Khilona Wala Park, New Delhi, (vii) property no.6841, East Rohtash Nagar, Pratap Gali, Delhi and (viii) property no.1/9280, West Rohtash Nagar, Shahdara, Delhi32. Thus, the petitioners have several reasonable alternative and suitable accommodation available with them.
(d) It is submitted that the petitioner no.3 is gainfully employed and is not unemployed as falsely stated by the petitioners in their petition. The petitioner no.3 is running a restaurant cum BarBeQue at the ground floor of the property in the name and style of "Dawat Mahal Restaurant" since the year 1992, which is running very successfully and is renowned restaurant in the area. The petitioner no. 3 is also doing catering business in the name & style of "DM Caterers". The petitioner no.3 is also running a billiard/pool club on the first floor of the property, apart from running his separate business E - 69/12 Smt. Jaswinder Kaur & Ors. vs. Praveen Kumar & Ors. Page 6 of 29 of construction and sale purchase of the properties in the name and style of "Walia Properties" at the first floor of the property and he has been purchasing properties/plots for the construction/reconstruction and renovation as well as under took reconstruction/renovation of buildings on collaboration agreements. The respondent no.3 does not require the shop in question for any of his commercial/trading activities as alleged by the petitioners in the petition.
(e) It is submitted that the bonafide requirement of the petitioners is fictitious as the petitioners have nowhere mentioned in the petition as to for what purpose the premises is required, what business the petitioner no.3 is intending to start in the premises, how the premises is most suitable for starting that business.
(f) It is submitted that the respondents are the old tenants in the property, the tenancy of which was created about 35 years back in the name of father of the respondent no.1 namely Sh. Satish Chand with initial rate of rent @ Rs.125/ per month by the then owner/landlord Smt. Kartar Kaur. Thereafter, the said property was purchased by Sh. Harvinder Singh Ahluwalia and thereafter, by the petitioners. The father of the respondents was a good pay master of rent and paid the rent time to time but he petitioners started causing harassments to the respondents by not accepting the rent in order to create a ground for eviction and the respondents had to deposit rent in court under 27 of E - 69/12 Smt. Jaswinder Kaur & Ors. vs. Praveen Kumar & Ors. Page 7 of 29 the DRC Act.
(g) It is submitted that the intention of the petitioners is to either get an arbitrary, unlawful and unjustified increase in the rent or to get it vacated from the respondents and to let it out to some other tenant at a higher rate of rent. It is submitted that the tenanted premises is the only source of income of the respondents no.1 & 2, where they are doing a small business of selling 'Gazak, Rewari' etc. It is submitted that after the demise of Pankaj Kumar/respondent no.3, his legal heirs are also dependent upon the income of the said shop and are getting their maintenance from the income of said shop.
(h) It is submitted that the husband of petitioner no.1 and father of petitioners no.2 & 3 namely Sh. Virender Singh Ahluwalia, is a retired ACP who have purchased several properties in Delhi and NCR in the name of the petitioners & other relatives and some of them are held as Benami Properties. The petitioners have several commercial and residential properties available to them and they have concealed the details of said properties from this court.
Thus, it is argued on behalf of the respondents that they have raised triable issues and the respondents are entitled to leave to defend.
5. The petitioners filed reply to the application seeking leave to defend and denied the contentions of the respondents reaffirming the averments made in the petition.
E - 69/12 Smt. Jaswinder Kaur & Ors. vs. Praveen Kumar & Ors. Page 8 of 29
6. Before adverting to the submissions of the parties, it would be apposite to encapsulate the legal provisions under Section 14 (1) (e) of the Delhi Rent Control Act, 1958, which governs the current litigation which read as under:
14. Protection of tenant against eviction.-(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 any court or Controller in favour of 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 ore more of the following grounds only, namely:
(e) that the premises are required bona fide by the landlord 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 accommodation.
7. In Shambhoo Singh vs. Triloki Nath Sharma 2012 (2) Rent LR 52, it was held that the essential ingredients to establish a case under Section 14 (1) (e) of the DRC Act are :
(a) The applicant has to be the landlord/owner.
(b) The premises should have been let out for residential or commercial purposes or both.
(c) The said premises are required bona fide by the landlord for occupation for himself or for his family member dependent upon him.
E - 69/12 Smt. Jaswinder Kaur & Ors. vs. Praveen Kumar & Ors. Page 9 of 29
(d) The said landlord or family member dependent upon him has no other reasonably suitable residential accommodation.
8. In the present case the petitioners have filed the present petition stating that they are the owners/landlords of the tenant/respondents in respect of tenanted premises one shop i.e. shop no.1 measuring 9'8" x 5'9" at ground floor facing towards the main road in the property bearing no. 1/9280 (new), 1480D (old), Main Babarpur Road, West Rohtash Nagar, Shahdara, Delhi110032. The petitioners have also claimed that the reason for eviction is a bonafide requirement for starting the business of petitioner no.3. They have no other property except the present property in the vicinity of Delhi.
9. What has to be seen now is whether the leave to defend application moved by the respondent has raised any triable issues or not for which evidence is to be led? I shall deal with all the defences raised in the leave to defend application of the respondent in a sequential manner:
10. The first ground on which leave to defend is sought is that after the death of respondent no.3 i.e. Pankaj Kumar, his wife alongwith minor children had shifted to her parental home at Agra. However, the respondent no.1 had due to oversite mistake received summons on E - 69/12 Smt. Jaswinder Kaur & Ors. vs. Praveen Kumar & Ors. Page 10 of 29 behalf of the respondents no.3 (i), (ii), (iii), since the summons bears the name of his deceased brother hence the respondent no.3 have not been served with the summons of this petition as the service upon the respondent no.1 is not service upon the respondents no.3 (i), (ii), (iii). It is further submitted that the present petition is false and frivolous and the petitioners have filed the present suit against the respondents including two minor children namely Master Gautam and Babi Bhumi, but the petitioners have not filed any application for appointment of guardian adlitum for the minors as per the provisions of CPC which clearly specify that when a suit is being filed against the minors then a guardian should be appointed for the minors and an application is required to be filed, enabling the court to do the needful.
11. Ground taken under this head of objection is rejected in the light of the fact that service of the present petition filed under Section 14 (1) (e) of the DRC Act by the landlords/petitioners has been received by one of the cotenant vide report dated 14.01.2013, who is one of the joint tenants in the premises and not tenants in common. Therefore service of summons upon one of the tenants only is sufficient and the petition cannot be set to have raised triable issues only on the ground that separate notice to the LRs of late Sh. Pankaj Kumar, one of the joint tenants has not been given. The plea for separate notice is not E - 69/12 Smt. Jaswinder Kaur & Ors. vs. Praveen Kumar & Ors. Page 11 of 29 tenable and service to one of joint tenants to be considered as service on all other joint tenants, therefore, all the respondents have been duly served through respondents no.(i), (ii) & (iv). In Kanji Manji vs. Trustees of Court of Bombay Air 1963 SC 468 wherein it was observed by Hon'ble Apex Court that where the tenancy was a joint tenancy, notice to one of the joint tenant was sufficient and the case against one of the joint tenants not impleading rest of the tenants was good. The plea of the petitioner for requiring him to be served personally is therefore not tenable. The petitioner was not a tenant in common. He had inherited a joint tenancy alongwith his brother and other legal heirs. In Mohd. Usman vs. Surayya Begaum 1990 (3) Delhi Lawyer 163, it was observed by Hon'ble Delhi High Court that "in the light of above observations by Hon'ble Apex Court, there can be no doubt that even if one of the legal heirs is not a party to the proceedings for eviction filed by the landlord against the legal heirs of the original tenant, that legal heirs, who has been left out cannot later on come forward and agitate his/her right in the tenancy". In Inderpal Khanna vs. Com. Bhupinder Singh Rekhi (Retd.) 2008 (8) AD Apex Decision (Delhi) 328, it was held that where out of many only one or two LRs of the deceased tenant are in occupation of the premises, an eviction petition by the landlord against those who E - 69/12 Smt. Jaswinder Kaur & Ors. vs. Praveen Kumar & Ors. Page 12 of 29 are in occupation of the premises is a valid petition and receipt of personal summons by one of the brother, who was joint tenant was valid service of summons on both the joint tenants in the eyes of law. Hence, service upon the respondent other than respondent no.3 (i), (ii) & (iii) is service upon no.3 (i), (ii) & (iii). Further, it is the contention of the respondent no.1, 2 & 4 that the LRs of respondent no.3 had after the death of respondent no.3 shifted to their parental home in Agra. This further strengthens that LRs of respondent no.3 deemed to have abandoned their right to challenge the eviction petition filed against them by the petitioner. In the light of discussion above, the ground of objection under this head is rejected.
12. The next ground taken by the respondents is that the present petition is not maintainable as the present petition has been filed relying upon photocopies of the documents, which are required to be proved by leading evidence as per the provisions of Indian Evidence Act. It is further objected that the petitioners have not filed the correct site plan of the tenanted premises and the site plan filed by the petitioners pertains to the property no.1/9880, Main Babarpur Road, West Rohtash Nagar, Shahdara, Delhi32 whereas the tenanted premises is situated on the ground floor of property no.1/9289, Main Babarpur Road, West Rohtash Nagar, Shahdara, Delhi32. The present E - 69/12 Smt. Jaswinder Kaur & Ors. vs. Praveen Kumar & Ors. Page 13 of 29 petition is also not maintainable as the site plan filed by the petitioners is not showing the details of accommodation available in the entire premises. As per the site plan filed by the petitioners the premises in which the tenanted shop is situated is a two storey building whereas the site plan shows only three shops on the ground floor and does not show the accommodation of first floor. It is submitted that the respondents have filed the correct site plan showing the accommodation available in the premises. The entire building is a two storey commercial complex of 200 sq. yds. which is in use & occupation of petitioners for their different commercial activities, except the tenanted premises and thus the petitioners are having ample commercial space available with them.
13. As regards the ground/objection of nonfiling of original documents by the petitioners is not tenable in the present petition filed under Section 14 (1) (e) of the DRC Act for bonafide requirement of the petitioner no.3 as the relationship of landlord and tenant between the deceased tenant are admitted and the petitioners are the owners/landlords of the tenanted premises which are necessary for the purpose of granting relief to the landlords/owners under Section 14 (1)
(e) of the DRC Act. As regards the filing of incorrect site plan of the petitioner, it is perused that the premises are sought for bonafide E - 69/12 Smt. Jaswinder Kaur & Ors. vs. Praveen Kumar & Ors. Page 14 of 29 requirement of the petitioner no.3 who is the son of petitioner no.1. As per the site plan, the tenanted premises is a shop measuring 9'8" x 5'9" on the ground floor facing towards main Babarpur Road and is adjoining to the shops of the petitioners no.1 & 2 and the same is required to run a trading shop. It is the contention of the petitioners that they do not have any other shop at such suitable place. It is further perused that vide order dated 30.05.2013 while allowing application of the petitioner under Order VI Rule 17 CPC with respect to the minor typographical error with respect to property no.1/9280 (the corrected one) and while dismissing the application of the respondent for taking of the correct site plan filed by the petitioner vide order dated 04.01.2013, the correct site plan of the suit property was taken on record. Hence the objection qua the same is of no avail.
14. The next argument of the respondent by countering the site plan of the petitioners with respect to the availability of alternative accommodation on the first floor, cannot be allowed in as much as for running a commercial activity on the ground floor brings better attention of the customers as compared to commercial venture set up on first and second floor. Further, the property in front and on ground floor rather than in behind and on first floor would not attract lucrative business. In Namdev vs. Sanjay Gupta 2012 (2) Rent LR 44 it was E - 69/12 Smt. Jaswinder Kaur & Ors. vs. Praveen Kumar & Ors. Page 15 of 29 held that where for expansion of business of landlord as presently he has not outlet from where he can carry out his retail business to display all articles of various ranges - landlord needs ground floor. The contention of the tenant alleging that alternative accommodation available on first and second floor is not a concealment on the part of the landlord. Customer cannot be expected to visit the first and second floor to examine the goods, in fact a wary and watchful customer would definitely not compromise on his stand to visit first, second and third floor, he would rather go to another shop where he can purchase the same goods at the ground floor level. Therefore, the accommodation available on first, second and third floor can in no manner be set to be reasonably suitable alternate accommodation. In Gulab Chand Pukhraj vs. R.B. Jinender Raj & Anr., 2009 (4) Civil Court Cases 748 (SC), it was held that once it is not disputed that landlord is in bonafide need of premises, court cannot dictate to landlord which floor he should use for his business. Moreover, it is well settled law that it is the landlord's prerogative as to in which location he prefers to run business and law should not and cannot prevent such preference by a landlord in order to meet his bonafide requirement. Further more, compelling the landlord/owner to succumb to the arrangement proposed by the respondent would not only be E - 69/12 Smt. Jaswinder Kaur & Ors. vs. Praveen Kumar & Ors. Page 16 of 29 detrimental to the petitioner but also to the business of the petitioner. A landlord/owner is the best judge of his own requirements. In Krishan Lal vs. R.N. Bakshi, cited as 169 (2010) Delhi Law Times 769, it was held by the Hon'ble High Court of Delhi that it is settled law that it is not for a tenant to dictate the terms to the landlord as to how and in what manner he should adjust himself, without calling upon the tenant to vacate a tenanted premises. While deciding the question of bonafides of requirement of landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted. When the landlord shows a prima facie case, a presumption that the requirement of the landlord is bonafide, is available to be drawn. It is also settled position of law that the landlord is the best judge of his requirement for residential or business purpose and he has got complete freedom in the matter and 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. The tenant cannot compel a landlord to live in a particular fashion and method until and unless the requirement shown is totally mala fide or not genuine.
15. Further more, it is for the landlord/owner to decide as to how and in what manner, his property can be utilized and it is not for the E - 69/12 Smt. Jaswinder Kaur & Ors. vs. Praveen Kumar & Ors. Page 17 of 29 tenant to dictate terms. In Sudesh Kumar Soni & Anr. Vs. Prabha Khanna & Anr., 153 (2008) Delhi Law Times 652, the court observed that "It is not for tenant to dictate terms to landlord as to who else he can adjust himself without getting possession of tenanted premisessuitability has to be seen for convenience of landlord and his family members and on the basis of circumstances including their profession, vocation, style of living, habit and background."
16. The next contention that the petitioners are having ample commercial space without explaining where and when, is mere a bald assertion hence the same is rejected.
17. The another ground taken by the respondents is that the petitioners are having several residential and commercial properties in Delhi including the entire two storey commercial complex. The petitioners owned and possessed various properties i.e. (i) residential property no.185, 2nd Floor, Guru Hargovind Enclave, Delhi, (ii) two storey commercial property no.704, Main G.T. Road, Shahdara, Delhi
(iii) commercial property no.1/9292, West Rohtash Nagar, Main Babarpur Road, Shahdara, Delhi, (iv) commercial property no.1/9274, West Rohtash Nagar, Shahdara, Delhi110032, (v) property no. 1/9547, Gali No.2, Pratap Pura, Shahdara, Delhi, (vi) entire first floor in the market of Karol Bagh, Near Khilona Wala Park, New Delhi, E - 69/12 Smt. Jaswinder Kaur & Ors. vs. Praveen Kumar & Ors. Page 18 of 29
(vii) property no.6841, East Rohtash Nagar, Pratap Gali, Delhi and
(viii) property no.1/9280, West Rohtash Nagar, Shahdara, Delhi32. Thus, the petitioners have several reasonable alternative and suitable accommodation available with them.
18. This ground of objection with respect to the availability of several reasonable alternative and suitable accommodation with the petitioners, is not tenable in the light of the fact that the suitability of the accommodation is to be judged from the prospective of the landlords need and not from the hardship of inconvenience of the tenants. It is the contention of the petitioner while replying to this ground of objection that the property no.185 is the residence of petitioner no.2 and is situated in purely residential area. The property no.704 is jointly owned by Smt. Jasjeet Kaur, the grandmother of petitioner no.2 & 3 and her sons namely Parminder Singh, Charanjeet Singh and Madanjeet Singh. Smt. Jasjeet Kaur is still alive and is blessed with four sons hence the petitioners have no right, title or interest in the said property. The property no. 1/9292 is owned by Smt. Jeet Kaur who is litigating with her both tenants hence other petitioners have no right over this property. The property no.1/9273 is owned by Smt. Jasjeet Kaur, the grand mother of petitioner no.2 & 3 and the shop of Walia Electronics is under the possession of Sh. E - 69/12 Smt. Jaswinder Kaur & Ors. vs. Praveen Kumar & Ors. Page 19 of 29 Parminder Singh and the shop known as Walia Cloth House is under the possession of another son of Smt. Jasjeet Kaur namely Charanjeet Singh and the Walia Boutique is under the possession of Madanjeet Singh, the son of Smt. Jasjeet Kaur and the other two small shops are under the tenancy of two old tenants and there is no accommodation is available with Smt. Jasjeet Kaur. The property no.1/9547 is a residential property and has been gifted by Smt. Jaswinder Kaur. The property at Karol Bagh is being run by the petitioner no.2 exclusively as he is living separately and doing his business in separate field. The property no.6841 is a residential property and owned by the petitioner and is purchased by the petitioner no.1 for property business purpose and construed four residential flats out of which one flat has already sold out and remaining three flats are under sale. The said property is not a commercial property. The property no.1/9280 is not disputed upto the extent that the wife of petitioner no.2 is running a boutique but it is quite mischievous allegation that the petitioner no.3 is running a restaurantcumbar be que in the name and style of Dawat Mahal Restaurant on the ground floor. The said restaurant and D.M. Caterers business are being run by the petitioner no.1 being sole proprietor of the same having current account in her name and the license from MCD to run the said restaurant. The Billiard Pool Club on the first floor is bing used by the petitioner no.1 exclusively. Hence, in the E - 69/12 Smt. Jaswinder Kaur & Ors. vs. Praveen Kumar & Ors. Page 20 of 29 light of reply and for want of cogent material i.e. documents of ownership so as to support the contention of the respondents/applicants, this ground of objection is also rejected.
19. The another leg of argument is that the petitioner no.3 is gainfully employed and is not unemployed as falsely stated by the petitioners in their petition. The petitioner no.3 is running a restaurant cum BarBeQue at the ground floor of the property in the name and style of "Dawat Mahal Restaurant" since the year 1992, which is running very successfully and is renowned restaurant in the area. The petitioner no.3 is also doing catering business in the name & style of "DM Caterers". The petitioner no.3 is also running a billiard/pool club on the first floor of the property, apart from running his separate business of construction and sale purchase of the properties in the name and style of "Walia Properties" at the first floor of the property and he has been purchasing properties/plots for the construction/reconstruction and renovation as well as under took reconstruction/renovation of buildings on collaboration agreements. The respondent no.3 does not require the shop in question for any of his commercial/trading activities as alleged by the petitioners in the petition.
20. This ground of objection is also not tenable in the light of the E - 69/12 Smt. Jaswinder Kaur & Ors. vs. Praveen Kumar & Ors. Page 21 of 29 fact that a person who is already into a business cannot be allowed to expand the same by saying that no bonafide need arisen in his favour. Setting up of a new venture by a person, who is already into a business is no ground in as much as the venture is being set up by the venture is set up in his property after following necessary procedure of formalities. The word dependent cannot be restricted to financially dependent (It has to be construed in the light of prevailing social conditions as well). If members of family of owner landlord cannot set up separate residence, they are said to be the dependent upon landlordowner. (Shri Gurdial Nagdev vs. Smt. Devi Bai 1979 (1) RCR (Rent) 119, relied). The landlord can eject tenant for occupation of himself and those members who are used to live with him as one unit on account of social. Religious customs and for purpose that landlord feels secure with such members (1980 (1) RCR 563 relied). The landlord can eject tenant for occupation of himself and those members who are used to live with him as one unit on account of social religious customs and for purpose that landlord feels secure with such members (1980 (1) RCR (Rent) 563 relied).
21. Dependency does not mean financial dependency but dependency for the building which belongs to the landlord who will constitute the family members has to be determined with regard to E - 69/12 Smt. Jaswinder Kaur & Ors. vs. Praveen Kumar & Ors. Page 22 of 29 social economic mileu of parties. In Indian society, son, daughter, soninlaw, daughterinlaw, brother, sister etc. are members of family and would, in many cases depends upon head of the family (2002 (2) Rent LR 253 and 1970 RCR 511 relied). The word himself under Section 14 (1) (e) of the DRC Act includes the persons with whom the landlord is normally accustomed to live (1971 RCR 887 relied). The word "dependency" as used in Section 14 (1) (e) of the DRC Act is primarily economic dependence. In certain cases, dependence may not be economic but may be physical or normal. An invalid person may depend on the help of another person. An unmarried daughter may depend upon her parents. Even if such dependant persons have a sufficient income of their own to set up an independent household, they would still be dependant on others in view of physical, normal and social if not economic reasons (as held in P.D. Sharma vs. Ram Lubhaya 1969, RCR (Rent) 992).
22. In Tej Prakash vs. Idrish & Ors. 2012 (2) R.C.R. (Rent) 536, it was held that it was prerogative of the landlord when to remain unemployed or to do his business. No prior experience or arrangement is required by the landlord to start a new business. A person can start a new business even if he has no experience [(2010) 1 SCC 164 relied].
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23. In Raghubar Dayal Om Prakash vs. Jai Kishan Rohtagi 2012 (2) Rent LR 36 held that it is not for the tenant or court to dictate terms to the landlord as to how and in what manner he has to meet his need for an accommodation.
24. Next ground taken by the respondents is that they are the old tenants in the property, the tenancy of which was created about 35 years back in the name of father of the respondent no.1 namely Sh. Satish Chand with initial rate of rent @ Rs.125/ per month by the then owner/landlord Smt. Kartar Kaur. Thereafter, the said property was purchased by Sh. Harvinder Singh Ahluwalia and thereafter, by the petitioners. The father of the respondents was a good pay master of rent and paid the rent time to time but he petitioners started causing harassments to the respondents by not accepting the rent in order to create a ground for eviction and the respondents had to deposit rent in court under 27 of the DRC Act. It is also argued that the petitioners is to either get an arbitrary, unlawful and unjustified increase in the rent or to get it vacated from the respondents and to let it out to some other tenant at a higher rate of rent. It is submitted that the tenanted premises is the only source of income of the respondents no.1 & 2, where they are doing a small business of selling 'Gazak, Rewari' etc. It is submitted that after the demise of Pankaj Kumar/respondent no.3, E - 69/12 Smt. Jaswinder Kaur & Ors. vs. Praveen Kumar & Ors. Page 24 of 29 his legal heirs are also dependent upon the income of the said shop and are getting their maintenance from the income of said shop. It is also argued that the husband of petitioner no.1 and father of petitioners no.2 & 3 namely Sh. Virender Singh Ahluwalia, is a retired ACP who have purchased several properties in Delhi and NCR in the name of the petitioners & other relatives and some of them are held as Benami Properties. The petitioners have several commercial and residential properties available to them and they have concealed the details of said properties from this court.
25. The ground of objection that the applicants are good pay master and that the premises are compelled to be vacated for letting it out to some other tenant at higher rate of rent, do not invite any triable issue for the purpose of proceedings with trial in the present case as the present petition is one filed under Section 14 (1) (e) of the DRC Act for the bonafide need of the petitioner no.3, payment or nonpayment of rent is not a fact in issue in the present case.
26. The arguments as advanced on behalf of the respondent to contend the bonafide requirement of the petitioner by stating that respondent is earning livelihood from the tenanted shop and he is having the tenanted shop, only source of income, does not raise any triable issue for the purpose of adjudication of the present petition. E - 69/12 Smt. Jaswinder Kaur & Ors. vs. Praveen Kumar & Ors. Page 25 of 29 Firstly, the financial status of the respondent or for that matter of the petitioner is not relevant for the purpose of determining whether a triable issue raised or not. Secondly, inconvenience or hardship to be faced by the applicant/respondent are of no avail for the purpose of proceedings with present petition in trial. Thirdly, the bonafide requirement of the petitioner has been generally challenged. In Gurcharan Lal Kumar vs. Smt. Satyawati & Ors. 2013 (2) CLJ 28 (NOC) Del. it was held that it is not necessary for landlord to indicate nature of business intended to start - sons and grandsons of the landlord have no other suitable alternate accommodation to carry out business - application for leave to defend dismissed with cost. As regards the arguments that after getting the premises vacated, the petitioner may sold it to third person as the rate of rent of the property is raising. In this regard reference can also be had to the judgment of Hon'ble High Court of Delhi in Shafiqqudin vs. Mohd. Ibrahim, in R.C.Rev 502/2012, wherein it was held that "It is important for the tenant, in any leave to defend application to submit relevant documents on record to support any triable issue raised by him. In absence of any material, the ARC cannot come to a conclusion as to the weight of the issue raised by the tenant. Thus impairing his power to decide whether an issue raised is triable or not." The inconvenience E - 69/12 Smt. Jaswinder Kaur & Ors. vs. Praveen Kumar & Ors. Page 26 of 29 or hardship going to be faced by the applicant after eviction is not a ground for not allowing the present application. Hence this leg of argument is also rejected.
27. The objection that the petitioners are having several commercial and residential properties with them is not tenable as no cogent material so as to substantiate this leg of arguments if filed by the applicants. Perusal of the case file reflects that no documentary proof in support of the contention of petitioner having other sufficient alternative accommodation, filed by the respondent. The petitioners have specifically denied of having any alternative suitable accommodation to their need for bonafide need of petitioner no.3 to run a trading shop/business. In absence of any documentary material, the averment remains a bald statement raising no triable issue for the purpose of proceeding with the trial in the present petition. In Naval Kishore Khandelwal vs. Kunti Devi 2013 (1) CLJ 295 Delhi while following case of Rajender Kumar Sharma vs. Leelawati, 155 (2008) DLT 383, it was held that mere assertion made by a tenant in respect of landlords ownership of other buildings and in respect of alternate accommodation are not to be considered sufficient for the grand of leave to defend. If this is allowed, the whole purpose of Section 25B of the Act shall stand defeated and any tenant can file a E - 69/12 Smt. Jaswinder Kaur & Ors. vs. Praveen Kumar & Ors. Page 27 of 29 false affidavit and drag a case for years together in evidence, defeating the very purpose of statute. The Rent Controller is, thus, precluded from considering the material placed before it by the landlord in response to leave to defend to show that the tenant's assertions and averments were totally false. In Prithpal Singh vs. Satpal Singh (D) through LRs (2010) 2 SCC 15, it was held that mere bald assertion made without any basis cannot create a triable issue.
Conclusion:
28. It is well settled law that leave to defend can be granted to the tenant in case of any triable issue has been raised by him, which can be adjudicated by consideration of additional evidence. The mere existence or averment of any triable issue is not sufficient. The nature of the triable issue raised by the tenant must be such that it would disentitle the landlord from obtaining the eviction order. The whole purpose and import of summary procedure under Section 25B of the Act would otherwise be defeated. The prayer for leave to contest should be granted to the tenant only where a prima facie case has been disclosed by him. In the absence of the tenant having disclosed a prima facie case i.e. such facts which disentitles the landlord from obtaining an order of eviction, the Court should not mechanically & in E - 69/12 Smt. Jaswinder Kaur & Ors. vs. Praveen Kumar & Ors. Page 28 of 29 routine manner grant leave to defend.
29. In the light of the aforesaid legal ratio, all the pleas taken by the respondent seems to be sham and moonshine, which have failed to raise any requisite triable issues. The contents of the application for leave to defend have failed to rebut the presumption of bonafide qua the need of the petitioner. The application for leave to defend filed by the respondent is thus rejected.
30. Consequently, an eviction order is passed under Section 14 (1)
(e) of the DRC Act against the respondents in respect of in respect of one shop i.e. shop no.1 measuring 9'8" x 5'9" at ground floor facing towards the main road in the property bearing no. 1/9280 (new), 1480D (old), Main Babarpur Road, West Rohtash Nagar, Shahdara, Delhi110032 as shown in red colour in the site plan filed by the petitioner in this case.
31. However in light of Section 14 (7) DRCA, the aforesaid eviction order shall not be executable for a period of six months from today.
32. The parties are left to bear their own costs.
33. File be consigned to Record Room after due compliance.
(Announced in the open (Bhawani Sharma)
Court on 27.03.2015 ACJ/CCJ/ARC (Shahdara)
(Order contains 29 pages.) Karkardooma Courts, Delhi.
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