Delhi District Court
Sh. Girwar Singh @ Girver Singh vs Sh. Amit Kumar Kumra @ Amit Kumar on 22 June, 2020
IN THE COURT OF SH. SACHIN GUPTA, ACJ-CCJ-ARC, SHAHDARA
DISTRICT, KARKARDOOMA COURTS, DELHI.
ARC No. 1163/2016
Sh. Girwar Singh @ Girver Singh
S/o Late Sh. Tek Singh
R/o 756, Scooter Market,
Jheel Khurenja, Delhi-110051
(Through LRs.) ... Petitioner
Versus
Sh. Amit Kumar Kumra @ Amit Kumar,
S/o Late Sh. Darshal Lal Kumra @ Darshan Lal,
Shop No. 756/B i.e. 756/2, Scooter Market,
Jheel Khurenja, Delhi-110051. ... Respondent
.
APPLICATION/PETITION U/S 14(1)(e) OF DELHI
RENT CONTROL ACT, 1958, FOR EVICTION OF
TENANT
22.06.2020
ORDER
1. This Order disposes of an application filed by Sh. Amit Kumra (henceforth 'respondent') under Section 25B(4) of the DRC Act, 1958 seeking leave to contest the application/petition (henceforth 'petition') filed under Section 14(1)(e) of the Delhi Rent Control Act, 1958 (henceforth 'DRC Act') by Sh. Girwar Singh (henceforth petitioner). By way of the said petition, the petitioner has sought eviction of the respondent from one shop at ground floor No. 756/B i.e. 756/2, Scooter Market, Jheel Khurenja, Delhi- 51, as shown in red colour in the site plan, filed alongwith the petition (henceforth 'tenanted premises').
2. In the petition, it is inter-alia pleaded by the petitioner that the ARC 1163/16, Sh. Girwar Singh Through LRs Vs. Sh. Amit Kumar Kumra, Page no. 1 of 12 tenanted premises was let out by the petitioner to Sh. Darshan Lal Kumra, father of the respondent prior to the year 1968; that after the death of his father, respondent continued to be tenant and in possession of the tenanted premises by the operation of law; that rent on 13.12.2015 was Rs. 371/- per month; that petitioner is the owner of the tenanted premises; that the tenanted premises is bonafidely required by the petitioner for the use of his grandson Sh. Yogesh Singh, who is son of his deceased son late Sh. Suraj, for opening a stationery shop for him and that Sh. Yogesh Singh is unemployed, who has no source of income and dependent upon the petitioner and petitioner has no other suitable and alternate shop available to him for the use of his grandson for commercial purpose, except this tenanted premises.
3. In the application filed under Section 25B (4) of the DRC Act, 1958 on 30.08.2016, the respondent has sought leave to contest the present petition on various grounds. The first ground taken by the respondent is that the petitioner is not the owner of the suit (tenanted) premises; that he had not filed document showing the alleged seller of the land to the petitioner ever had any right, title or interest in respect of land mentioned in the alleged sale deed and one litigation has been filed by the State of UP against DDA before the Hon'ble High Court of Delhi, in respect of the land, where suit property is located. The second ground taken by the respondent is that after the death of Sh. Darshan Lal Kumra, all his legal heirs inherited the tenancy and they all become co-tenant and that the petition is bad for the non-joinder of all the legal heirs of deceased. The third ground taken by the respondent is that Sh. Suraj Singh (son of petitioner) was carrying on his business from the shop no. 441/15, Jheel Khureja, Delhi; that after the demise of Sh. Suraj Singh, his younger son Sh. Yogesh has taken over the business of sale( wholesale) of vegetables from the said ARC 1163/16, Sh. Girwar Singh Through LRs Vs. Sh. Amit Kumar Kumra, Page no. 2 of 12 shop with the help of his mother and there exists a complete vacant floor exactly above the shop no 441/15, which is lying unused and family of Sh. Suraj Singh is looking for a tenant in respect of said first floor. The fourth ground taken by the respondent is that Sh. Suraj Singh had got one more shop bearing no. 186, Geeta Colony, DDA Market, Subzi Mandi, Delhi, which is lying closed and the same is not being put to any use by any member of family of late Sh. Suraj Singh. The fifth ground taken by the respondent is that the petitioner along with Sh. Suraj Singh was in occupation of one more shop i.e. the shop bearing no. 756/D or 756/4, which was recently vacated by the earlier tenant and the same has been let out in the year 2015 at a monthly rent of Rs. 25,000/-. The sixth ground taken by the respondent is that the only intention of the petitioner is to get the tenanted shop vacated and re-let the same on a higher rate of rent. The seventh ground taken by the respondent is that the petitioner in his petition has stated that " shouldered the responsibility to settle Yogesh Singh, the younger son of the deceased son Suraj by accommodating him in the said shop for opening a stationary shop for him" and that statement goes to show that Sh. Yogesh Singh is gainfully employed and is carrying on the business of stationery shop but deliberately, the petitioner has not mentioned the number of the shop and it has been referred to by the petitioner in the petition as the "said shop" and the petitioner does not require the tenanted premises bonafidely.
4. In the reply to the aforesaid application, in respect of the first ground taken by the respondent, while denying the assertions made by the respondent, the petitioner has pleaded that he is the owner of the tenanted premises and filed the copy of registered sale deed in his favour in the present petition and further stated that even landlord, seeking eviction for bonafide requirement, is not required to show his absolute ownership of ARC 1163/16, Sh. Girwar Singh Through LRs Vs. Sh. Amit Kumar Kumra, Page no. 3 of 12 property, when tenancy is admitted and even the possessory rights over the property of a person has been given recognition as ownership vis-a-vis tenant under the DRC Act. In respect of the second ground taken by the respondent, the petitioner has pleaded that after the death of his father, tenancy devolved upon the respondent; that rent receipts issued by the respondent and also by his father Sh. Darshan Lal Kumra had also been filed and other family members namely Ms. Aruna, Madhu, Vineeta and Shweta of late Sh. Darshan Lal Kumra were married before the death of their father and thereafter never resided in the tenanted premises as family members of deceased and since then living separately. In respect of the third ground taken by the respondent, while denying the assertions made by the respondent, the petitioner has pleaded that petitioner has no shop bearing no. 441/15. He categorically denied that Sh. Suraj Singh was carrying on his business from the shop no. 441/15, Jheel Khureja, Delhi or that after the demise of Sh. Suraj Singh, his younger son Sh. Yogesh has taken over the business of sale (wholesale) of vegetables from the said shop with the help of his mother or that there exists a complete vacant floor exactly above the shop no 441/15, which is lying unused or that family of Sh. Suraj Singh is looking for a tenant in respect of said first floor. It is pleaded that petitioner has no such shop bearing no. 441/15. In respect of the fourth ground taken by the respondent, the petitioner, while denying the assertions made by the respondent, has pleaded that the said shop is on rent under DDA.
5. In respect of the fifth ground taken by the respondent, the petitioner, while denying the assertions made by the respondent, has pleaded that the rent of the said shop is Rs. 21,000/- and not Rs. 25,000/-, which is the sole source for petitioner to look after his family and daughter who is suffering from acute kidney failure and all expenses are borne from ARC 1163/16, Sh. Girwar Singh Through LRs Vs. Sh. Amit Kumar Kumra, Page no. 4 of 12 this income. In respect of the sixth ground taken by the respondent, the petitioner has denied that his only intention is to get the tenanted shop vacated and re-let the same on a higher rate of rent. In respect of the seventh ground taken by the respondent, while denying the assertions made by the respondent, petitioner has pleaded that the respondent has cleverly broke the whole para by cutting the above lines of his petition and in the same line, it is written the 'tenanted shop' before this word "shouldered the responsibility" and it is a bogus plea and that petitioner has no other alternate shop premises available except the tenanted premises and it is required bonafidely for his grandson Yogesh to earn his livelihood.
6. The respondent has not filed any rejoinder qua the aforesaid reply of the petitioner and therefore failed to controvert the pleadings made therein.
7. During the pendency of present petition, petitioner expired. Vide order dated 25.01.2018, passed by Ld. Predecessor of this Court, application under order XXII Rule 9 CPC was allowed. Petitioner was substituted by his LRs and the present petition continued because the projected need was for Mr. Yogesh Singh, one of the LRs/grandson of the deceased petitioner. After the demise of the original petitioner Sh. Girwar Singh, his grandson Sh. Yogesh Singh has stepped into the shoes of the petitioner alongwith other family members.
8. It is pertinent to mention here that an application under order VI Rule 17 r/w section 151 CPC was filed on behalf of respondent, seeking amendment in his application for leave to defend, for incorporating additional fact of his fresh knowledge, that came after filing of leave to defend application, about the ownership of petitioner of a commercial ARC 1163/16, Sh. Girwar Singh Through LRs Vs. Sh. Amit Kumar Kumra, Page no. 5 of 12 property bearing no. 608/2, Jheel Khuranja, Geeta Colony, near Subji Mandi, Delhi. However, the said amendment application was dismissed by the Ld. Predecessor of this Court vide order dated 20.02.2019 and appeal filed by the respondent against the said order was also rejected by the then Ld. Rent Controller Tribunal-cum-District & Sessions Judge, Shahdara District, Delhi, vide order dated 06.05.2019.
9. I had heard Ld. Counsel for petitioner as well as Ld. Counsel for the respondent through video conferencing on CISCO Webex on 05.06.2020. Ld. Counsel for both the sides had also filed their written submissions on the dedicated email ID of the Court.
10. It is well settled that 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 and in routine manner grant leave to defend.
11. After considering the submissions made by the Ld. counsels for the parties, written submissions filed by them and perusing the record of the Court file including the pleadings of the parties, I find that the first ground taken by the respondent, challenging the ownership of the petitioner qua the tenanted premises, does not raise any triable issue because in the leave to defend application, the respondent has not disputed that he is the tenant of the petitioner qua the tenanted premises after the death of his father late ARC 1163/16, Sh. Girwar Singh Through LRs Vs. Sh. Amit Kumar Kumra, Page no. 6 of 12 Sh. Darshal Lal Kumra and also by not challenging the rent receipts filed by the petitioner, the respondent has not disputed that he is the tenant of the petitioner qua the tenanted premises and because as such, the plea of the respondent that the title of the petitioner qua the tenanted premises is defective, is hit by Section 116 of the Evidence Act, 1872. Moreover, the plea of the respondent that the petitioner is not the owner of the tenanted premises has been put to rest by the petitioner by placing on record the copy of registered sale deed purportedly executed in his favour, in respect of purchase of land in the 'Khasra' number, where tenanted premises is stated to be situated and because by not filing a rejoinder, the respondent has not rebutted the explanation offered by the petitioner qua his ownership to the tenanted premises and therefore, this Court also has no reason to disbelief the said explanation.
12. In respect of the second ground taken by the respondent, regarding non joinder of the all the legal heirs of deceased late Sh. Darshan Lal Kumra, I find that it does not raise any triable issue because it is well settled that it is not necessary for landlord to implead all legal heirs of the deceased tenant, whether they are occupying the property or not. It is sufficient for the landlord to implead either of those persons who are occupying the property, as party. Hon'ble Supreme Court of India in Suresh Kumar Kohli v. Rakesh Jain (Civil Appeal No. 3996 of 2018 decided on 19.04.2018) has held as under:
"20) We are of the view that in the light of H.C. Pandey (supra), the situation is very clear that when original tenant dies, the legal heirs inherit the tenancy as joint tenants and occupation of one of the tenant is occupation of all the joint tenants. It is not necessary for landlord to implead all legal heirs of the deceased tenant, whether they are occupying ARC 1163/16, Sh. Girwar Singh Through LRs Vs. Sh. Amit Kumar Kumra, Page no. 7 of 12 the property or not. It is sufficient for the landlord to implead either of those persons who are occupying the property, as party. There may be a case where landlord is not aware of all the legal heirs of deceased tenant and impleading only those heirs who are in occupation of the property is sufficient for the purpose of filing of eviction petition. An eviction petition against one of the joint tenant is sufficient against all the joint tenants and all joint tenants are bound by the order of the Rent Controller as joint tenancy is one tenancy and is not a tenancy split into different legal heirs.
Thus, the plea of the tenants on this count must fail"
13. In the present case, the respondent, who is son of original tenant late Sh. Darshan Lal Kumra, is in occupation of the tenanted premises and petitioner has also filed on record, the copy of rent receipt allegedly issued by respondent, which has not been disputed by the respondent. In view of aforesaid and settled preposition of law, the said second ground taken by the respondent also failed to raise any triable issue.
14. In respect of the third ground taken by the respondent, regarding the availability of shop no. 441/15, Jheel Khureja, Delhi, with Sh. Yogesh Singh, wherefrom, he is stated to be doing the vegetable business and also availability of complete vacant floor exactly above the shop, I find that it does not raise any triable issue because the respondent has not placed on record any material to substantiate that the said properties were in the possession of the deceased petitioner or his deceased son or even with Sh. Yogesh Singh and because, in the absence of any rejoinder qua the reply filed by the petitioner, this Court has not reason to disbelief the explanations offered by the petitioner qua the properties alleged by the ARC 1163/16, Sh. Girwar Singh Through LRs Vs. Sh. Amit Kumar Kumra, Page no. 8 of 12 respondent, to be in his possession. In this regard reference is craved to the law laid down in Ramesh Chand vs. Uganti Devi, 157 (2009) DLT 450. In the said judgment, it has been held that mere assertion of a tenant that the landlady/landlord is the owner of various properties, without placing on record even a single document qua the said fact, does not raise any triable issue.
15. In respect of fourth ground taken by the respondent, regarding the alleged availability of shop bearing no. 186, Geeta Colony, DDA Market, Subzi Mandi, Delhi which is stated to be lying closed and the same is not being put to any use, I find that it does not raise any triable issue because the said shop is allegedly on rent under DDA, which has not been disputed by the respondent and in the absence of any rejoinder qua the reply filed by the petitioner, this Court has not reason to disbelief the explanations offered by the petitioner in this regard. If a landlord/owner is in use of any rented premises, it does not debars him to seek eviction of his owned premises in possession of a tenant, for the bonafide use of his family member(s). If an owner is living in tenanted premises, he is entitled to seek eviction of his tenant and this desire cannot be held to be imaginary, fanciful or unnatural. Hon'ble High Court of Delhi, in case titled "Kailash Chand & Ors. Vs. Chand, 1998, RLR 603," held that it is a natural phenomena that a landlord living in rented premises is entitled to move in his own accommodation and the desire to do so cannot be held to be imaginary, fanciful or unnatural.
16. In respect of the fifth ground taken by the respondent, regarding the shop bearing no. 756/D or 756/4, which is stated to be recently vacated by the earlier tenant and the same has been let out in the year 2015 at a monthly rent of Rs. 25,000/-, I find that it does not raise any triable issue because for the purpose of this petition, filed on 02.08.2016, it is ARC 1163/16, Sh. Girwar Singh Through LRs Vs. Sh. Amit Kumar Kumra, Page no. 9 of 12 inconsequential that the petitioner had allegedly let out some other property in the year 2015 and even letting of such a property in the 2015 does not vitiate the bonafide need pleaded by the petitioner, in the present petition. Moreover, as on the date of filing of present petition, no such property was available with the petitioner for the use of his family member(s).
17. In respect of the sixth ground taken by the respondent, I find that it does not raise any triable issue because the fact that the petitioner has intention to get the tenanted shop vacated and re-let the tenanted premises to fetch high rental income, is irrelevant for the purpose of deciding the merit of the present petition and because in case, such a scenario arises, the respondents would have remedy under Section 19 of the DRC Act.
18. In respect of the seventh ground taken by the respondent, I find that it does not raise any triable issue because the respondent has not placed any material to substantiate his plea that Sh. Yogesh Singh is gainfully employed and carried on business of stationary and intentionally not mentioned the number of said shop. Moreover, the petitioner in his reply has clarified that the 'said shop' as referred in his petition was qua the tenanted premises only and because the respondent has himself taken self- contradictory and mutually destructive pleas, as at some places, he pleaded that Sh. Yogesh Singh is carrying on vegetable business with the help of his mother and whereas, at some place, he pleaded that Sh. Yogesh Singh is gainfully employed and carried on business of stationary and because in the absence of any rejoinder qua the reply filed by the petitioner, this Court has not reason to disbelief the explanations offered by the petitioner in this regard.
ARC 1163/16, Sh. Girwar Singh Through LRs Vs. Sh. Amit Kumar Kumra, Page no. 10 of 12
19. In respect of the submission made by the Ld. Counsel for the respondent that the respondent should also be granted leave to contest this petition on the ground that after filing of leave to defend application, respondent has come to know that petitioner is also the owner of the commercial property bearing no. 608/2, Jheel Khuranja, Geeta colony, near Subji Mandi, Delhi, and therefore, there is alternate shop available with petitioner/LRs for the alleged need of the grandson of deceased petitioner. However, the amendment application under order VI Rule 17 r/w 151 CPC, filed on behalf of respondent in this regard, seeking to amend the leave to defend application and incorporating the abovesaid ground, was dismissed by the Ld. Predecessor of this Court vide order dated 20.02.2019. Appeal filed by the respondent against the said order was also rejected by the then Ld. Rent Controller Tribunal-cum-District & Sessions Judge, Shahdara District, Delhi, vide order dated 06.05.2019. In view of the same, the aforesaid ground regarding the alleged availability of commercial property bearing no. 608/2, Jheel Khuranja, Geta colony, near Subji Mandi, Delhi, is not available to the respondent to be agitated in the present application for leave to defend and therefore, the same cannot be considered by this Court for the disposal of present application for leave to defend, in view of the dismissal of application under order VI Rule 17 r/w 151 CPC filed on behalf of the respondent.
20. As a net result of the aforesaid, the leave to defend application/affidavit filed by the respondent is rejected. Consequently, an eviction order is passed u/s. 14(1)(e) of the DRC Act against the respondent regarding the tenanted premises i.e. one shop at ground floor No. 756/B i.e. 756/2, Scooter Market, Jheel Khurenja, Delhi- 51, as shown in red colour in the site plan, filed alongwith the petition.
ARC 1163/16, Sh. Girwar Singh Through LRs Vs. Sh. Amit Kumar Kumra, Page no. 11 of 12
21. Before parting with this Order, it is clarified that as per Section 14(7) of the DRC Act, 1958, this Order shall not be enforceable for the period of six months from today.
22. File be consigned to the record room after due compliance.
SACHIN Digitally signed by
SACHIN GUPTA
GUPTA Date: 2020.06.22
12:01:35 +05'30'
(Sachin Gupta)
ACJ/CCJ/ARC/Shahdara
Karkardooma Courts/Delhi
22.06.2020
ARC 1163/16, Sh. Girwar Singh Through LRs Vs. Sh. Amit Kumar Kumra, Page no. 12 of 12