Delhi District Court
Dr. Sunil Abrol vs Sh. Suresh Kumar Gupta on 23 May, 2011
IN THE COURT OF SH BALWANT RAI BANSAL
ADDITIONAL RENT CONTROLLER (SOUTH),
SAKET COURTS, NEW DELHI.
Eviction Petition No. 84/10
Dr. Sunil Abrol
S/o Late Sh. Dev Prakash Abrol
R/o M27, Greater KailashI Market,
New Delhi 110048
.........Petitioner.
Versus
1. Sh. Suresh Kumar Gupta
S/o Late Sh. Dhanpat Rai
2. Sh. Naresh Kumar Gupta
S/o Late Sh. Dhanpat Rai
3. Sh. Rajesh Kumar Gupta
S/o Late Sh. Dhanpat Rai
4. Smt. Depti D/o Late Sh. Dhanpat Rai
5. Smt. Kanta D/o Late Sh. Dhanpat Rai
All at:
Shop No. M27A, Greater KailashI,
Market, New Delhi - 110048
6. Sh. Shiv Kumar Gupta (Deleted vide order
Shop No. M27A, Greater KailashI dated 27.04.2011)
Market, New Delhi 110048
.........Respondents.
Eviction Petition No. E-84/10 Page 1 of 36
ORDER:
1. Vide this order I shall dispose of an application for leave to defend moved by the respondents no. 1 to 5.
2. The brief facts necessary for disposal of application are that the petitioner has filed the present eviction petition u/s 14 (1) (e) r/w Section 25 B of DRC Act against the respondents on the ground of bonafide requirement in respect of one shop No. 27A in property bearing No. M27, Greater KailashI, Main Market, New Delhi - 110048. It is the case of the petitioner that his father Sh. Dev Prakash Abrol was the owner of the property bearing No. 27, BlockM, situated at Greater KailashI, Market, New Delhi vide sale deed dated 07.03.1963 and after the death of Sh. Dev Prakash Abrol on 08.12.2001, his wife Smt. Swarn Lata Abrol, petitioner being son and two daughters namely Pamela Kapoor and Meenakshi Nijhawan inherited the aforesaid property. It is stated that after the death of Smt. Swarn Lata Abrol, the petitioner and his two sisters namely Pamela Kapoor and Meenakshi Nijhawan became the owners of 1/3rd undivided shares each in the aforesaid property and the aforesaid sisters of the petitioner have released and relinquished their undivided share, rights, interest and title in the said freehold property in favour of the petitioner vide relinquishment deed dated 29.05.2008 and the petitioner became the sole and absolute owner of the said property bearing No. M27, Greater Kailash Eviction Petition No. E-84/10 Page 2 of 36 I, New Delhi. It is further stated that the suit premises was let out to Sh. Dhanpat Rai by the father of the petitioner Sh. Dev Prakash Abrol vide an agreement dated 14.03.1968 and renewed the same vide lease deed dated 24.03.1970. Sh. Dhanpat Rai expired on 06.10.1993 and his wife Smt. Kiran Devi expired on 17.12.2001 and respondents no. 1 to 5 being legal heirs of Sh. Dhanpat Rai became the tenants in the suit premises by operation of law.
3. It is further stated that the petitioner is having two Ph.D, one in Behavioral Science and another Ph.D in International Business and presently the petitioner is holding the Post of Director General, Consultancy, Development Centre, Ministry of Science and Technology, Govt. of India and shall retire on 31st April, 2011 on attaining the age of superannuation from the said post. It is further stated that the petitioner is a certified management consultant with over 35 years of experience in teaching, industries and consultancy and after retirement from the services, the petitioner is intending to set up a multiservice/disciplinary, management consultancy firm to provide services to corporate clients. The sons of the petitioner namely Siddharth who is pursuing Post Doctoral Studies in Chemical Engineering in USA and Satyen who is pursing M.S. Computer Science in USA are likely to complete their studies by the end of 2010 and they have to settle in life after completion of their studies and they are Eviction Petition No. E-84/10 Page 3 of 36 dependent upon the petitioner for the same and would be joining the petitioner in the proposed Management Consultancy Services firm.
4. It is further stated that petitioner requires approximately 900 sq. feet area to set up the business of Management Consultancy, but except the tenanted premises and another shop adjacent to the tenanted premises i.e Shop No. 27B, no other space is available to the petitioner from where the petitioner can establish and operate his Management Consultancy Firm. Therefore, the tenanted premises under the possession of the respondents is bonafide required by the petitioner for himself as well as for his family members i.e. his sons who are totally dependent upon the petitioner. It is further averred that the petitioner and his family are permanently residing on the first and second floor of the property No. M27, Greater KailashI, New Delhi and it will be convenient for the petitioner to set up his multi disciplinary Management Constancy services on the ground floor of the same building. Hence, the present petition. It has been prayed that an eviction order may be passed in favour of the petitioner and against the respondents in respect of the suit premises.
5. It is pertinent here to mention that although, the leave to defend application has been filed by the respondents no. 1 to 5, but the affidavit has been filed by respondent no. 1 only. As per section 25B (4) of DRC Act, Eviction Petition No. E-84/10 Page 4 of 36 "the tenant on whom the summons is duly served (whether in the ordinary way or by registered post) in the form specified in the Third Schedule shall not contest the prayer for eviction from the premises unless he files an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller as hereinafter provided; and in default of his appearance in pursuance of the summons or his obtaining such leave, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant and the applicant shall be entitled to an order for eviction on the ground aforesaid." Since, there is no affidavits of the respondents no. 2 to 5 along with the leave to defend application, which is required to be filed as per provisions of section 25B (4) of DRC Act, the leave to defend application filed along with affidavit of respondent no. 1 cannot be considered to be filed by respondents no. 2 to 5 also.
6. It is also pertinent here to mention that initially the petitioner impleaded the respondent no. 6 in the array of the parties, who has also filed his leave to defend application. But, an application u/o 1 rule 10 (2) CPC was moved by the petitioner seeking deletion of name of the respondent no. 6 from the array of the parties. It was stated in the application that the petitioner had arrayed the respondent no. 6 as subtenant of respondent no. 1 Eviction Petition No. E-84/10 Page 5 of 36 to 5, but the respondents no. 1 to 5 have denied the same and have contended that the respondent no. 6 is their employee and not a subtenant in the suit premises, then the respondent no. 6 has no tenancy rights in the premises and as such the petitioner seeks to strike out the name of respondent no. 6 from the array of the parties. The respondent no. 6 has also stated in his affidavit filed along with leave to defend application that he has no tenancy rights in the tenanted premises and he is an employee of the respondents no. 1 to 5 employed as cashiercummanager in the shop. The application u/o 1 rule 10 (2) CPC was allowed vide order dated 27.04.2011 and the name of respondent no. 6 was deleted from the array of the parties.
7. In his affidavit to leave to defend application, it is contended by the respondent no. 1 that present petition has been filed just to harass the respondents and force them either to vacate the tenanted shop or to bow down to the illegal demand of enhancement of rent. It is stated that the petitioner had threatened the respondents that in case the respondents do not increase the rent and agree to pay a sum of Rs. 50,000/ to Rs. 55,000/ p.m., he shall make sure that they are thrown out/evicted. It is further stated that petitioner had earlier filed an eviction petition u/s 14 (1) (a), (b) and (j) of DRC Act purported to have been filed by his father but actually filed by the petitioner as an alleged attorney and to create false grounds, the petitioner Eviction Petition No. E-84/10 Page 6 of 36 had refused to accept rent and had alleged subletting by the respondents no. 1 to 5 who are in possession and control of the tenanted shop and had also alleged substantial damage to the tenanted premises. The said eviction petition is pending in the court of Sh. Sandeep Yadav, RC (South), Saket Courts, New Delhi and the respondents no. 1 to 5 are also contesting the same.
8. It is further contended by the respondent no. 1 that petitioner has no bonafide requirement of the tenanted premises either for himself or for his two sons as the petitioner has made vague allegations regarding the purported need of the tenanted premises i.e. alleged Management Consultancy, without specifying as to what Management Consultancy business, the petitioner propose to start or the nature of the same that the petitioner intends to embark on and how the tenanted premises are necessary for the same. It is further stated that the field in which the petitioner alleges himself to be competent is entirely different from the areas in which his sons have allegedly got post doctoral degree or M.Sc. Degree and even the qualifications of the sons of the petitioner, though not admitted are also in different areas and totally unrelated to each other. It is further stated that the petitioner has no intention to start any Management Consultancy business either by himself or along with two sons as there is nothing on record to Eviction Petition No. E-84/10 Page 7 of 36 substantiate the false alleged business and the requirement of the tenanted shop.
9. The respondent no. 1 has further contended that the petitioner has concealed the accommodation available with him on the ground floor as well as first and second floor of the property bearing No. M27, Greater KailashI, Main Market, New Delhi. It is stated that the petitioner has over 450 sq. feet area available on the ground floor of the said property behind the tenanted shop as well as the adjoining shop bearing No. M27B and over 2000 sq. ft. area on the first and second floor of the said property. It is further stated that the petitioner has not shown the entire dimensions of the property nor shown the dimensions or area of the first and second floor of the property under his possession in the site plan filed by him. It is further stated that the petitioner has also deliberately suppressed the fact that in the rear portion of the property M27, Greater KailashI, Main Market, New Delhi, there are two shops along with open area.
10. It has been denied that the petitioner along with his family is residing on the first and second floor of the aforesaid property. It is stated that the petitioner is residing in his own flat bearing No. A401, CDot Group Housing Society, Sector56 (Gurgaon) and the petitioner's vehicle bearing No. HR 26AV 8083 is also registered at the said address. It is Eviction Petition No. E-84/10 Page 8 of 36 further stated that the petitioner also has a residential property bearing plot No. 1, BlockB, Sector19, Noida.
11. It is further stated that the property No. M27, Greater KailashI, Main Market, New Delhi is situated in one of the well known markets in South Delhi and in fact, the entire market known as MBlock Market commercial activity is being carried out not only from the shops on the ground floor but also from the first and second floor. In fact in the entire market, the ground floor is being used specially the shops in front like the tenanted shop are being used only for running retail outlets/shops/restaurants and the offices, if any are situated only on first or second floor. Therefore, the allegation of the petitioner of using the ground floor as an office is malafide and the present petition has been filed merely to evict the respondent and sell the tenanted shop or let out for a retail outlet. It is further stated that the petitioner has suppressed the existence of yet another shop in the rear portion known as M27D, Greater KailashI, Main Market, New Delhi and it has not been shown in the site plan how the rear portion is to be used if the petitioner intended starting his business from the shop in front.
12. It is further averred that elder son of the petitioner Sh. Siddharth Abrol has been in USA since May, 2003 and is gainfully employed in Los Eviction Petition No. E-84/10 Page 9 of 36 Angles, California, USA and has acquired properties there and has no intention to return to India. Similarly, the younger son of the petitioner Sh. Satyen Abrol has also been in the USA since about August, 2008 and is employed in USA and working in Data Mining Lab, Computer Department, University of Texas, Dallas, USA and he has also acquired a property in Rechardson, Texas, USA and is also involved in IT development in USA and has no intention to come to India. Both the sons of the petitioner have applied for Green Cards and as such the allegation that the sons of the petitioner intend coming to India is false.
13. The respondent no. 1 has further contended that the petitioner has falsely averred that he is retiring on 31.04.2011. It is stated that the petitioner had sought an extension of his service and same has been granted to the petitioner. It is further stated that the petitioner has also applied to various institutions and universities for employment as teacher and is also looking for job opportunities in USA and settle down there along with his sons. It is further averred that the petitioner has been negotiating and approaching to various property dealers for the sale of tenanted shop along with the other portions of the property in question.
14. It is also contended by the respondent no. 1 that present petition is liable to be dismissed for misjoinder of parties as Sh. Shiv Kumar Gupta Eviction Petition No. E-84/10 Page 10 of 36 has been impleaded in the array of the parties as respondent who has no tenancy rights in the suit premises. It is further contended that present petition is also liable to be dismissed for nonjoinder of necessary parties as late Sh. Dhanpat Rai had left behind not only his widow and respondents no. 1 to 5 as his legal heirs but had also left a son Sh. Ramesh Kumar Gupta who had died after the death of late Sh. Dhanpart Rai. It is stated that after the death of Sh. Ramesh Kumar Gupta, the tenancy rights also devolved on his widow Smt. Sudha Gupta and his daughters namely Ms. Bhavna Gupta, Ms. Sumita Gupta, Ms. Ruchika Gupta and his son Sh. Bharat Gupta. The petitioner is aware of the said fact, but he did not implead the aforesaid legal heirs of Sh. Ramesh Kumar Gupta in the present petition.
15. It is further contended that the petitioner has filed a incorrect site plan and has not shown the true extent and dimensions of the tenanted premises. It is stated that the tenanted shop also comprised of a store/box room at the rear and a passage leading to the same, which the petitioner has not shown in the site plan and as such the present petition has been filed only for part of the tenanted premises and not for the entire tenanted premises and is thus not maintainable. It is stated that there are several triable issue which require trial, and, therefore, the respondent no. 1 has prayed for grant of leave to contest the petition.
Eviction Petition No. E-84/10 Page 11 of 36
16. The petitioner has filed the reply to leave to defend application and counter affidavit in which it has been denied that the petitioner has ever made any illegal demand for enhancement of rent or filed any eviction petition. It is stated that the earlier eviction petition on the grounds of sub letting and damages to the demised property u/s 14 (1) (a), (b) and (j) of DRC act was filed by his father late Sh. D.P. Abrol as owner of the property and after the death of Sh. D.P. Abrol and his wife Smt. Swarn Lata Abrol, the petitioner has been substituted as legal heir and successor and the said eviction petition is still pending in the court of Sh. Sandeep Yadav, RC (South). It is further stated that present petition has been filed by the petitioner on the ground of bonafide requirement because he is presently the owner of the property and he needs the premises for his bonafide requirement as he is retiring on 30.04.2011 from Govt. service and the bonafide requirement of the petitioner has nothing to do with the petition filed earlier by late Sh. D.P. Abrol on the ground of subletting against the respondents in year 2000 which is still pending.
17. It has been denied that petitioner has over 450 sq. feet area available on the ground floor of the property bearing No. M27, Greater KailashI, Main Market, New Delhi behind the tenanted shop as well as the adjoining shop bearing No. M27 B and over 2000 sq. ft. area is available on Eviction Petition No. E-84/10 Page 12 of 36 the first and second floor of the said property. It is stated that the total covered/carpet area available on the first and second floor is 160 sq. meters. The covered/carpet area available on the fist floor is around 90 sqm. (900 sq.ft.), while on the second floor it is around 70 sqm. (700 sq. ft.). It is further stated that the petitioner does not have any commercial space on the ground floor of the said property or any where else in Delhi. The petitioner is not in possession of shop bearing No. 27B and same is in possession of another tenant against whom the petitioner has filed the separate eviction petition. It has also been denied that there are two shops in the rear portion of the building which are in possession of the petitioner. It is stated that the shop No. M27 (e) having an area of around 120 sq. ft. has been rented out to Madan Gopal Singh and Shop No. M27 D having an area of only around 60 sq. ft. is used for dumping waste material. It is further stated that the entire area in the back portion as per sanctioned plan was an open verandah which has been declared by MCD on 07.04.2003 as unauthorized construction and same cannot be used for setting up a world class management consultancy firm. It has been denied that petitioner is residing in flat bearing No. A401, CDOT Group Housing Society, Sector56, Gurgaon. It is stated that only residential accommodation available to the petitioner is on first and second floor of M27, Main Market, Greater Eviction Petition No. E-84/10 Page 13 of 36 KailashI, where petitioner has been residing with his family for the last 30 years. It is further stated that the petitioner had purchased his car from a dealer in Gurgaon and, therefore, car has been registered at the address of Gurgaon and the aforesaid residential flat at Gurgaon has been rented out. The other contents of the leave application are stated to be wrong and denied and it is stated that no triable issue has been raised by the respondent in his leave to defend application and the petitioner has prayed for dismissal of the application.
18. Rejoinder has been filed by the respondent no. 1 in which averments made in leave to defend application have been reiterated and re affirmed and those made in reply to leave to defend application have been controverted.
19. I have heard the Ld. Counsel for the parties and perused the entire material available on record carefully.
20. The present petition has been filed u/s 14 (1) (e) read with section 25B of DRC Act and in order to succeed in such a petition, petitioner has to prove (i) ownership over the suit premises; (ii) alternative accommodation and (iii) bonafide requirement.
21. There is no dispute so far the ownership of the petitioner over the property in question as well as relationship of landlord and tenant between Eviction Petition No. E-84/10 Page 14 of 36 the parties is concerned. However, the respondent no. 1 has contended in leave to defend application that petitioner had earlier filed an eviction petition u/s 14 (1) (a), (b) and (j) of DRC Act purported to have been filed by his father but actually filed by the petitioner as an alleged attorney on the false ground of nonpayment of rent, subletting and substantial damage to the tenanted premises which is pending in the court of Sh. Sandeep Yadav, RC (South), Saket Courts, New Delhi and the respondents no. 1 to 5 are also contesting the same. In this regard, the petitioner has categorically stated in the counter affidavit that said petition u/s 14 (1) (a), (b) and (j) of DRC Act was filed by father of the petitioner late Sh. D.P. Abrol as owner of the property and after the death of Sh. D.P. Aborl and his wife Smt. Swarn Lata Abrol, the petitioner has been substituted as legal heir and successor, whereas the present petition has been filed by the petitioner on the ground of bonafide requirement because he is presently the owner of the property and he needs the premises for his bonafide requirement as he is retiring on 30.04.2011 from Govt. service.
22. In view of above, it is not in dispute that the earlier eviction petition u/s 14 (1) (a), (b) and (j) of DRC Act was filed by the father of the petitioner late Sh. D.P. Abrol on the ground of nonpayment of rent, sub letting and substantial damage to the tenanted premises which is still Eviction Petition No. E-84/10 Page 15 of 36 pending. However, the present petition has been filed u/s 14 (1) (e) r/w section 25B of DRC Act on the ground of bonafide requirement of the suit premises and filing of the earlier petition by the father of the petitioner has no bearing on the present petition which has been filed on the ground of bonafide requirement of the suit premises and it cannot be said that present petition has been filed with malafide intention as earlier eviction petition filed by father of the petitioner u/s 14 (1) (a), (b) and (j) of DRC Act is still pending.
23. Next contention of the respondent no. 1 is that petitioner has no bonafide requirement of the tenanted shop either by himself or for his two sons as the petitioner has only alleged that he wants the tenanted premises for Management Consultancy without specifying as to what Management Consultancy business the petitioner propose to start or the nature of the alleged need for running the Management Consultancy and how the tenanted premises are necessary for the same. It is further contended that the field in which the petitioner alleges himself to be competent is entirely different from the areas in which his sons have allegedly got post doctoral degree or M.Sc. Degree and even the qualifications of the sons of the petitioner, though not admitted are also in different areas and totally unrelated to each other.
Eviction Petition No. E-84/10 Page 16 of 36
24. On the other hand, it is categorical case of the petitioner that he is having 2 Ph.D, one in Behavioural Science and another Ph.D in International Business and presently holding the Post of Director General, Consultancy, Development Centre, Ministry of Science and Technology, Govt. of India and shall retire on 3oth April, 2011 on attaining the age of superannuation from the said post. It is further case of the petitioner that he is a certified management consultant with over 35 years of experience in teaching, industries and consultancy and after retirement from the services, he is intending to set up a multiservice/disciplinary, management consultancy firm to provide services to corporate clients and therefore, he requires the suit premises bonafide as he has no other commercial space available to him.
25. In support of his contention the petitioner has also placed on record the photocopy of certificate of Ph.D degrees issued by Indian Institute of Foreign Trade and Delhi University and photocopy of certificate issued by The Institute of Management Consultants of India. The petitioner has also placed on record the cover of the book titled as "Selecting and Getting Best out of Consultant" published by him. The aforesaid documents placed on record by the petitioner clearly show that the petitioner has good experience in Management Consultancy. Further, there is no dispute that the Eviction Petition No. E-84/10 Page 17 of 36 petitioner is employed as Director General, Consultancy Development Centre, Department of Scientific and Industrial Research, Ministry of Science and Technology, Govt. of India. As such it cannot be said that the petitioner has no intention to start any Management Consultancy business.
26. So far the nature of the Management Consultancy to be set up by the petitioner is concerned, the petitioner has categorically stated in the petition itself that he is intending to set up a multiservice/disciplinary management consultancy firm to provide services to corporate clients after retirement from the Govt. Service on 30.04.2011. As such, there is no merit in the contention of the respondent that the petitioner has not disclosed the nature of the Management Consultancy which he wants to set up in the suit premises. Moreover, it has been held in "Balwant Singh Chaudhary and Anothers Vs. Hindustan Petroleum Corporation Limited 2004 (1) RCR 487" that, "It is not necessary for the landlord to plead and prove the specific business he wants to set up if the landlord wanted premises for business purpose."
27. Although, the respondent has taken a plea in leave to defend application that the petitioner has falsely averred that he is retiring on 30.04.2011 and in fact the petitioner had sought an extension of his service and same has been granted to the petitioner, but except taking a bald plea, Eviction Petition No. E-84/10 Page 18 of 36 nothing has been placed on record by the respondent to show that extension of service had been sought by the petitioner and same has also been granted to the petitioner. On the other hand, petitioner has categorically denied in the counter affidavit that neither he has applied for extension of his tenure in the present job nor the same has been granted to him. The petitioner has also placed on record the certificate dated 06.12.2010 issued by Consultancy Development Centre in which it has been certified that Dr. Sunil Abrol, Director General, Consultancy Development Centre, Department of Scientific and Industrial Research, Ministry of Science and Technology, Govt. of India will be attaining the age of superannuation on 30.04.2011 and would consequently be retiring/superannuating from Consultancy Development Centre w.e.f. 30.04.2011. Hence, there is no merit in the contention of the respondent that petitioner has been granted extension of the service.
28. It is also contended by the respondent that the petitioner has also applied to various institutions and universities for employment as teacher and is also looking for job opportunities in USA to settle down there along with his son, which has been denied by the petitioner. But, again nothing has been placed on record by the respondent to substantiate his plea and in the absence of any material on record, the aforesaid vague plea of the Eviction Petition No. E-84/10 Page 19 of 36 respondent is not tenable.
29. The respondent has also taken a plea that the field in which the petitioner alleges himself to be competent is entirely different from the areas in which his sons have allegedly got post doctoral degree or M.Sc. Degree and even the qualifications of the sons of the petitioner, though not admitted are also in different areas and totally unrelated to each other. It is also contended by the respondent that both the sons of the petitioner are residing in USA and have acquired the properties and are also employed there and as such they have no intention to return to India.
30. In the counter affidavit, the petitioner has contended that his son has neither purchased any flat in USA nor is a permanent employee of any company. It is also stated that his son Siddharth Abrol is a post Doctoral researcher from the University of Delware, USA since 01.02.2010 and his appointment for a period of one year is going to expire on 01.01.2011. The another son namely Satyen Abrol is a Ph.D student in the Department of Computer Science, University of Texas at Dallas, USA and shall be returning to India after completing his Ph.D.
31. In support of his contention, the petitioner has also placed on record letter dated 21.01.2010 issued from the Department of Chemical Engineering, University of Delaware which goes to show that Siddharth Eviction Petition No. E-84/10 Page 20 of 36 Abrol has been offered an appointment at a post of Doctoral Researcher w.e.f. 01.01.2010 for one year which is renewable. The petitioner has also placed on record a letter from Department of Computer Science, University of Texas at Dallas, which goes to show that Satyen Abrol has been admitted to the graduate programme.
32. In view of above, it is evident that one of the son of the petitioner is studying in graduate programme and another son has been appointed for one year as Post Doctoral Researcher. There is nothing on record to show that aforesaid sons of the petitioner have got their own property in USA which has been also denied by the petitioner. Even if for the sake of arguments, the contention of the respondent is accepted that the aforesaid sons of the petitioner are well settled in USA and they have no intention to return back to India, still it does not vitiate the bonafide requirement of the petitioner of the suit premises. Because the case of the petitioner is categorical that since he is retiring from the Govt. Services on 30.04.2011 from the post of Director General, Consultancy Development Centre in the Govt. of India, he wants to set up his own consultancy business in the suit premises after his retirement apart from the fact that both the sons of the petitioner who are pursuing their studies at USA would be joining in the proposed management consultancy services firm.
Eviction Petition No. E-84/10 Page 21 of 36
33. Another contention of the respondent no. 1 is that the petitioner has concealed the accommodation available with him on the ground floor as well as first and second floor of the property bearing No. M27, Greater KailashI, Main Market, New Delhi. It is contended that the petitioner has over 450 sq. feet area available on the ground floor of the said property behind the tenanted shop as well as the adjoining shop bearing No. M27B and over 2000 sq. ft. area on the first and second floor of the said property. It is also contended that the petitioner has also deliberately suppressed the fact that in the rear portion of the property M27, Greater KailashI, Main Market, New Delhi, there are two shops along with open area. The petitioner has suppressed the existence of shop in the rear portion known as M27D, Greater KailashI, Main Market, New Delhi and it has not been shown in the site plan how the rear portion is to be used if the petitioner intended starting his business from the shop in front.
34. On the other hand, the petitioner has categorically stated in the counter affidavit that the total covered/carpet area available on the first and second floor is 160 sq. meters. The covered/carpet area available on the first floor is around 90 sqm. (900 sq.ft.), while on the second floor it is around 70 sqm. (700 sq. ft.). It is further stated that the petitioner is not in possession of shop bearing No. 27B which is in possession of another Eviction Petition No. E-84/10 Page 22 of 36 tenant against whom the petitioner has filed the separate eviction petition. It is further stated that the shop No. M27 (e) having an area of around 120 sq. ft. has been rented out to Madan Gopal Singh and Shop No. M27 D having an area of only around 60 sq. ft. is used for dumping waster material. It is also averred that the entire area in the back portion as per sanctioned plan was an open verandah which has been declared by MCD on 07.04.2003 as unauthorized construction and same cannot be used for setting up a world class management consultancy firm.
35. In the rejoinder affidavit, the respondent no. 1 has contended that the allegation regarding shop No. M27 (e) being rented out to the alleged Madan Gopal Singh is false. It is stated that there is no such shop numbered as M27 (e) and in fact a shop bearing No. 27C was let out to Madan Gopal and the petitioner has already obtained an eviction order on the false grounds of requirement of the petitioner's mother in respect of the said shop.
36. The petitioner has filed the site plan of ground floor portion of the property bearing No. M27, Greater Kailash I, New Delhi showing the tenanted premises. As per the site plan filed by the petitioner shop No. M27A is the suit shop. So far the adjoining shop bearing no. M27B is concerned, the petitioner has categorically stated that the said shop is in Eviction Petition No. E-84/10 Page 23 of 36 possession of another tenant against whom the petitioner has filed the separate eviction petition. The respondent has not controverted the said fact in the rejoinder affidavit that the shop No. M27B is not in possession of the petitioner and same is in possession of another tenant. As such, the said shop No. M27B is not available to the petitioner.
37. So far the another shop bearing No. M27 C is concerned, the petitioner has stated in the counter affidavit that the said shop is measuring 120 sq. ft. and has been rented out to Madan Gopal Singh, though the petitioner has mentioned the said shop as M27 (e) in the counter affidavit, but the said shop has been shown as M27C in the site plan filed by the petitioner. In the rejoinder affidavit, the respondent no. 1 has also stated that the said shop No. M27C was let out to one Sh. Madan Gopal Singh and petitioner has already obtained an eviction order on the false grounds of requirement of the petitioner's mother in respect of the said shop. As such, as per the respondent himself the eviction order has been passed in respect of the said shop for the requirement of the petitioner's mother and not for the requirement of the petitioner. Moreover, the respondent has not disputed the size of the said shop to be 120 sq. ft. which is not sufficient for the proposed business of Management Consultancy to be set up by the petitioner. Hence, the said shop bearing No. M27C will not serve any Eviction Petition No. E-84/10 Page 24 of 36 purpose for the bonafide requirement of the petitioner even if available to the petitioner.
38. Regarding the shop No. M27 D, the petitioner has categorically stated in the counter affidavit that the said shop No. M27D is having an area of only 60 sq. ft. and is used for dumping waste material. It is also stated by the petitioner that earlier it was an open verandah, which has been declared by MCD on 07.04.2003 as unauthorized construction and same cannot be used for setting up a world class management consultancy firm. The petitioner has also placed on record the copy of declaration of MCD dated 31.07.2005 by which the open verandah has been declared as unauthorized construction. Although, the respondent has disputed the same, but even for the sake of arguments if it is assumed that the said shop bearing No. M27D is available to the petitioner, still the size of the said shop is only 60 sq. ft. and same cannot be said to be sufficient for the proposed business to be set up by the petitioner which is presently used for dumping the waste material.
39. In view of above, it is evident that no commercial space is available to the petitioner at the ground floor of the property bearing No. M27, Greater KailashI, New Delhi and hence the contention of the respondent no. 1 that the petitioner is having over 450 sq. ft. area available Eviction Petition No. E-84/10 Page 25 of 36 on the ground floor is not tenable. So far the contention of the respondent no. 1 that petitioner is having over 2000 sq. ft. area available at the first and second floor of the said property is concerned, the petitioner has categorically stated in the petition itself that the petitioner and his family are permanently residing on the first and second floor of the property bearing No. M27, Greater KailashI, New Delhi where they have been residing for last 30 years. In this regard, the petitioner has also placed on record the photocopy of his passport and photocopy of Identity Card of his wife Smt. Saroj Abrol, who is employed as Vice Principal with Directorate of Education, Govt. of NCT of Delhi which go to show that the residential address of the petitioner and his wife has been shown of M27, Greater Kailash (Market), New Delhi.
40. Now, it is not in dispute that ground floor of the property bearing No. M27, Greater KailashI, New Delhi is being used for commercial purposes. The first and second floor of the said property is being used by the petitioner and his family for residential purposes. Therefore, it cannot be said that the first and second floor of the property is available to the petitioner for commercial purposes when the same is being used for residential purposes by the petitioner and his family members. Hence, the contention of the respondent no. 1 that the petitioner is having over 2000 sq. Eviction Petition No. E-84/10 Page 26 of 36 ft. area available to the petitioner on the first and second floor of the property for commercial purposes is without any merit.
41. Although, the respondent no. 1 has disputed that the petitioner along with his family is residing on the first and second floor of the aforesaid property and it is contended that the petitioner is residing in his own flat bearing No. A401, CDot Group Housing Society, Sector56 (Gurgaon) and the petitioner's vehicle bearing No. HR 26AV 8083 is also registered at the said address, but except taking a bald plea, the respondent has not placed on record any material to show that the petitioner has been residing at the aforesaid address at Gurgaon. So far registration of the petitioner's vehicle bearing No. HR 26AV 8083 at the aforesaid address of the Gurgaon is concerned, the same does not make any difference as the petitioner has categorically stated in the counter affidavit that he had purchased the car from a dealer in Gurgaon and, therefore, the car has Haryana registration number. Though, the petitioner has not disputed that he owns the aforesaid residential flat at Gurgaon, Haryana, but it is stated that the residential flat at Gurgaon has been rented out. Nothing has been placed on record by the respondent that the petitioner has been residing in the aforesaid residential flat at Gurgaon, Haryana and has not been residing on the first and second floor of the property bearing No. M27, Greater Eviction Petition No. E-84/10 Page 27 of 36 KailashI (Market), New Delhi. On the other hand, petitioner has placed on record the copy of his passport as well as Identity Card of his wife to show that he has been residing in the aforesaid property at Greater Kailash, New Delhi. Mere, registration of the vehicle at the address of Gurgaon, does not prove that the petitioner has been residing at Gurgaon, Haryana.
42. Moreover, availability of residential flat with the petitioner at Gurgaon does not make any difference as present petition has been filed by the petitioner on the ground of bonafide requirement of the tenanted shop for commercial purposes for Management Consultancy and not for residential purposes. Similarly, the availability of another residential property bearing plot No. 1, Block B, Sector19, Noida. is of no avail.
43. Another contention of the respondent no. 1 in leave to defend application is that the property No. M27, Greater KailashI, Main Market, New Delhi is situated in one of the well known markets in South Delhi and commercial activity is being carried out not only from the shops on the ground floor but also from the first and second floor and in fact in the entire market, the ground floor is being used specially the shops in front like the tenanted shop are being used only for running retail outlets/shops/restaurants and the offices, if any are situated only on first or second floor and allegation of using the ground floor as an office is Eviction Petition No. E-84/10 Page 28 of 36 malafide.
44. However, in my considered opinion there is no merit in this contention. It has come on record that the first and second floor of the aforesaid property is being used by the petitioner and his family for residential purposes and even if the upper floors of the property in Greater Kailash Market are being used for commercial purposes, it does not mean that petitioner should shift his residence elsewhere just for the sake of accommodating the tenant in the suit premises. It is a settled law that landlord has a choice to shift any of the properties owned by him. The tenant cannot force him to occupy any particular property. It has been held in Smt. Satya Malhotra Vs. Mohinder Singh Arora, 81 (1999) DLT 627 that when more than one premises are available to the landlord, it is for landlord to select as to which is suitable to him. Neither the tenant nor the Court would be justified in imposing on the landlord to shift in a particular accommodation so long as his selection is not unreasonable and malafide. The petitioner has categorically stated in the petition that he is residing on the first and second floor of the property bearing No. M27, Greater KailashI, New Delhi and it will be convenient for the petitioner to set up his multiDisciplinary Management Consultancy services on the ground floor of the same building.
Eviction Petition No. E-84/10 Page 29 of 36
45. It has also been contended by the respondent no. 1 in leave to defend application that present petition is liable to be dismissed for mis joinder of parties as Sh. Shiv Kumar Gupta has been impleaded in the array of the parties as respondent who has no tenancy rights in the suit premises. As already discussed herein above, the name of the respondent no. 6 has been deleted on an application moved by the petitioner u/s 1 rule 10 (2) CPC vide order dated 27.04.2011. The petitioner has also made a statement that he will withdraw the pending petition on the ground of subletting u/s 14 (1) (b) of DRC Act against the respondents no. 1 to 5. Hence, it cannot be said that present petition is misjoinder of parties and no triable issue would raise on this aspect.
46. It is further contended by the respondent no. 1 that present petition is also liable to be dismissed for nonjoinder of necessary parties as late Sh. Dhanpat Rai had left behind not only his widow and respondents no. 1 to 5 as his legal heirs but had also left a son Sh. Ramesh Kumar Gupta who had also died and legal heirs of said Sh. Ramesh Kumar Gupta have not been impleaded in the present case.
47. It is not in dispute that late Sh. Dhanpat Rai was the original tenant in the suit premises and after his death, tenancy was inherited by the respondents no. 1 to 5 being his legal heirs. The law is well settled that on Eviction Petition No. E-84/10 Page 30 of 36 the death of the tenant, tenancy devolves upon his LRs as joint tenancy and then notice to one of the joint tenant is sufficient to terminate the tenancy and service to one of the joint tenant is to be considered to be service to the other LRs and landlord is not required to implead all the legal heirs of deceased tenant whether they are living in property or not. It has been held in Inder Pal Khanna Vs. Commander Bhupinder Singh Rekhi (Retd.), 2008 VIII AD (Delhi) 328 that "It is settled law that on death of tenant, tenancy devolves upon legal heirs as a joint tenancy - LRs are joint tenants and not tenants in commonOnce tenancy a joint tenancy, notice to one of joint tenant is sufficient to terminate tenancy and suit cannot be held to be bad for non joinder of other joint tenants or all legal heirs of deceased tenantplea of petitioner that petitioner was separately required to be served personally is therefore not tenableWhere out of many, only one or two LR of deceased tenant are in occupation of premises, an eviction petition by landlord against those who are in occupation of premises, is a valid petition
- it is not necessary for the landlord to implead all the legal heirs of the deceased tenant or to implead even those who are not in occupation and possession of the premisesService of one of the joint tenant has to be considered service on the other joint tenant because in joint tenancy, tenancy remains oneIt is not separate tenancy and right of each of the joint Eviction Petition No. E-84/10 Page 31 of 36 tenants is in whole of the premises."
48. In view of law laid down in the aforesaid authority, after the death of original tenant Sh. Dhanpat Rai, the tenancy was inherited by the legal heirs of late Sh. Dhanpat Rai as joint tenants and notice to one of joint tenant is sufficient to terminate tenancy and the petitioner is not required to implead all the legal heirs of late Sh. Dhanpat Rai. Hence, there is no merit in the contention of the respondent no. 1 that present petition is bad for non joinder of necessary party.
49. Next contention of the respondent no. 1 in leave to defend application is that present petition has been filed only for part of the tenanted premises as tenanted shop also comprised of a store/box room at the rear and a passage leading to the same which the petitioner has not shown the same in the site plan and petitioner has filed incorrect site plan.
50. The petitioner has filed the present petition in respect of one shop No. 27A in property bearing No. M27, Greater KailashI, Main Market, New Delhi - 110048. There is no dispute that the suit premises was let out to Sh. Dhanpat Rai, predecessorininterest of the respondents no. 1 to 5 by the father of the petitioner Sh. Dev Prakash Abrol vide lease deed dated 24.03.1970, photocopy of which has been placed on record.
51. Perusal of the lease deed dated 24.03.1970 shows that a shop Eviction Petition No. E-84/10 Page 32 of 36 bearing No. 27A measuring 13 x 35' with front portion and without back portion, court yard or verandah of building No. M27, situated in the main market of Greater Kailash No. 1 New Delhi was let out by Sh. Dev Prakash Abrol to late Sh. Dhanpat Rai, predecessorininterest of the respondents no. 1 to 5. It has not been mentioned in the lease deed 24.03.1970 that any store/box room at the rear side along with the passage was let out to the predecessorininterest of the respondents no. 1 to 5 namely Sh. Dhanpat Rai by the father of the petitioner. Therefore, it cannot be said that present petition has been filed for part of the tenanted premises and the petitioner has not shown the complete tenanted premises in the site plan. The petitioner has shown the tenanted shop as Shop No. M27A with front portion in the site plan as mentioned in the lease deed dated 24.03.1970 which is not in dispute. Hence, there is not merit in the contention of the respondent no. 1 that the present petition has been filed for part of the tenanted premises or that the petitioner has filed incorrect site plan.
52. It is also contended by the respondent no. 1 in leave to defend application that present petition has been filed just to force the respondents either to vacate the tenanted shop or to bow down to the illegal demand of the petitioner for enhancement of rent. It is also contended that the petitioner had threatened the respondents that in case the respondents do not increase Eviction Petition No. E-84/10 Page 33 of 36 the rent and agree to pay a sum of Rs. 50,000/ to Rs. 55,000/ p.m.,they will be thrown out of the suit premises. The respondent no. 1 has further contended that the main intention of the petitioner in filing the present petition is to evict the respondent from the tenanted shop and sell or let out the tenanted shop on higher rent and the petitioner has also been negotiating and approaching to various property dealers for the sale of tenanted shop. The petitioner has denied the aforesaid contentions of the respondent no. 1 in the counter affidavit.
53. First of all, there is nothing on record to show that the petitioner has ever demanded the enhancement of rent @ Rs. 50,000/ to Rs. 55,000/ p.m. or that the petitioner has approached to the various property dealer for sale of the tenanted shop. Moreover, Section 19 of the DRC Act takes care of this apprehension of the respondent that the petitioner wants to sell out the suit property or let out the same on higher rent as by virtue of Section 19 of DRC Act, the landlord cannot relet or sell the premises at higher prices before expiry of 3 years from getting eviction order and in case the landlord after the eviction order relet the same, the tenant has right to reenter the suit premises.
54. So far the bonafide requirement of the petitioner is concerned, it is categorical case of the petitioner that he is a certified management Eviction Petition No. E-84/10 Page 34 of 36 consultant with over 35 years of experience in teaching, industries and consultancy and presently holding post of Director General, with Consultancy Development Centre, Ministry of Science and Technology, Govt. of India and after retirement from the said Govt. services on 30.04.2011, he is intending to set up a multiservice/disciplinary, management consultancy firm to provide services to corporate clients. It is further case of the petitioner that he is residing on the first and second floor of the building where the suit premises is situated on the ground floor and it will be convenient for him to set up him multidisciplinary Management Consultancy services on the ground floor of the same building where he is residing. The respondent has not been able to establish that the petitioner is having any other suitable alternative commercial accommodation except the suit premises to start his Management Consultancy business. Therefore, the need of the petitioner of the suit premises to start his Management Consultancy cannot be said to be malafide. It has also been held in Tarsem Singh Vs. Gurvinder Singh 173 (2010) DLT 379 that, "If the landlord wants to start his own business in premises owned by him, by no stretch of imagination it can be said that requirement of landlord for premises is neither genuine nor bona fide."
55. In view of aforesaid discussions, it is held that the petitioner Eviction Petition No. E-84/10 Page 35 of 36 requires the suit premises bonafide. The respondent has miserably failed to raise any triable issue in leave to defend application. Accordingly, the application seeking leave to defend the petition moved by the respondent no. 1 is dismissed and an eviction order is passed u/s 14 (1) (e) r/w Section 25B of DRC Act in favour of the petitioner and against the respondents in respect of one shop No. M27A in property bearing No. M27, Greater KailashI, Main Market, New Delhi 110048 , more specifically shown in red colour in site plan Ex. C1 (exhibited today while passing the order). However, it is made clear that the petitioner shall not be entitled to get the eviction order executed before expiry of 6 months running from today. No order as to cost.
File be consigned to Record Room.
Announced in the open court (Balwant Rai Bansal) on 23rd May, 2011 ARC(South), New Delhi Eviction Petition No. E-84/10 Page 36 of 36 E. No. 84/10 23.05.2011 Present: Petitioner in person. None for the respondents.
Vide my separate order dictated and announced in the open Court, the leave to defend application filed by the respondent no. 1 is dismissed and an eviction order u/s 14 (1) (e) r/w section 25B of DRC Act is passed in favour of the petitioner and against the respondents .
However, it is made clear that the petitioner shall not be entitled to get the eviction order executed before expiry of 6 months running from today. No order as to costs.
File be consigned to Record Room.
(B.R. Bansal) CCJ/ ARC/ ACJ(South), New Delhi 23.05.2011 Eviction Petition No. E-84/10 Page 37 of 36