Delhi District Court
Ms. Vinita vs Sh. Ravi Dutt on 9 February, 2015
IN THE COURT OF SHRI SANDEEP GARG: ADMINISTRATIVE
CIVIL JUDGE CUM ADDITIONAL RENT CONTROLLER
(CENTRAL) : DELHI
E394/2013
Unique ID No : 02401C0470712013
In the matter of:
Ms. Vinita,
D/o Late Sh. Prem Swaroop,
R/o 29, Model Basti, Near Filmistan Cinema,
Delhi110005.
....Petitioner
Versus
Sh. Ravi Dutt,
R/o 8, Model Basti, Near Filmistan Cinema,
Delhi110005.
.....Respondent
O R D E R:
1. Vide this order, an application for leave to defend, filed on behalf of the respondent under Section 25B (4) of The Delhi Rent Control Act, 1958 (hereinafter referred to as DRC Act, 1958) seeking leave to contest the present eviction petition is disposed of.
E394/2013 Page 1/19
2. The present eviction petition has been filed by the petitioner namely Ms. Vinita against the respondent namely Sh. Ravi Dutt. It is averred that Late Sh. Sham Lal Soni, S/o Sh. Sewa Ram Soni was the owner of property bearing no. 8, Model Basti, Delhi situated on the plot measuring 133.3 sq. yds. vide an Indenture duly executed by Municipal Committee, Delhi in favour of Sh. Sham Lal Soni and duly registered as document no. 262 in Additional Book No. I, Volume No. 170 on pages 154 to 156 on 31.12.1949 as well as property bearing no. 29, Model Basti, Delhi situated on the plot measuring 133.3 sq. yds. vide an Indenture duly executed by Municipal Committee, Delhi in favour of Sh. Sham Lal Soni and duly registered as document no. 333 in Additional Book No. I, Volume No. 171 on pages 66 to 68 on 24.02.1949.
3. Sh. Sham Lal Soni expired on 19.02.1957 and his wife, Smt. Champa Devi expired on 13.01.1967 leaving behind the only legal heir their daughter, Smt. Vindhya Devi Soni and as such, Smt. Vindhya Devi Soni became sole and absolute owner of the aforesaid properties and her name has also been mutated in the records of Municipal Corporation of Delhi for the E394/2013 Page 2/19 purposes of payment of property tax. The respondent has also been making payment of rent to Smt. Vindhya Devi Soni.
4. The petitioner is absolute and sole owner of ground floor portions of immovable properties bearing no. 29, Model Basti, New Delhi as well as property no. 8, Model Basti, New Delhi by virtue of Will dated 15.12.2011 executed by Smt. Vindhya Devi Soni, who was the sole and absolute owner of the said properties. The first and second floors portions of property no. 29, Model Basti, New Delhi has been given to Sh. Jitender Shyam (brother of the petitioner) and first as well as second floors with roof rights of property no. 8, Model Basti, New Delhi has been given to Sh. Anand Swarup (another brother of the petitioner). Property no. 251A, Laulakha, Agra Cantt., U.P. has been given to Ms. Priti, Ms. Ratna and Ms. Sumita (sisters of the petitioner).
5. The respondent is tenant under the petitioner in respect of a portion consisting one shop out of property bearing no.8, Model Basti, situated near Filmistan Cinema, Delhi110005, as shown in red colour in E394/2013 Page 3/19 siteplan attached alongwith the petition for nonresidential purposes on the monthly rent of Rs. 200/ excluding all other charges.
6. The tenanted shop is required by the petitioner bonafide for her requirement for start of her business therein to earn for her livelihood and the petitioner has no other reasonable alternate accommodation. The other ground floor portions of the said property are also required by the petitioner for her bonafide requirement which are under the tenancy of the respondent as well as other tenants Sh. Surinder Singh and Sh. Santosh Gupta for which the petitioner is filing separate petitions since the ground floor portions are required by the petitioner.
7. The petitioner is residing on the ground floor portion of the property no. 29, Model Basti, New Delhi whereas, on first floor Sh. Anand Swarup, her brother is residing with his family consisting of himself and a daughter. Second floor portion is occupied by other brother Sh. Jitender Shyam with his wife and three daughters. The petitioner is graduate by education whose marriage has not been performed during life time of her E394/2013 Page 4/19 parents and till the lifetime of the parents, the petitioner was dependent upon them, but now after their death the petitioner has no source of income and has to depend upon her brothers who are already having their families to support. There is no possibility of the marriage of the petitioner as her age has already advanced. The petitioner wants to start her independent business of departmental store to earn her own livelihood/income to support herself on the ground floor portion of the petitioner of which the petitioner is the owner/landlady. Petitioner does not want to remain dependent upon her brothers as such entire ground floor portion of property no. 8, Model Basti, New Delhi110005 is bonafide required by the petitioner for her own use.
8. The petitioner, being graduate, shall be in the position to manage the said business. Property no.8, Model Basti, New Delhi, of which the respondent is tenant, is situated on main road facing Filmistan Cinema and there are good prospects of running flourishing business of departmental store on entire ground floor of the property which is measuring 133.3 sq. yds. It is prayed that an eviction order may be passed in respect of the tenanted premises as shown in red colour in the site plan. E394/2013 Page 5/19
9. The respondent has filed an application for leave to defend U/s 14 (1) (e) r/w Section 25B of DRC Act to defend and contest the eviction petition. The respondent has contended that the petitioner is neither owner, nor landlady of the tenanted shop. The tenanted premises is not the shop, but is a garage which was allowed by Smt. Vindhya Devi to be used by the respondent as an electrical repairing workshop in the year 1975 and since then, the same is being used by the respondent as a repairing workshop.
10. On 16.12.1949 the property bearing no.8, Model Basti, Shidipura, Delhi, admeasuring 133.3 sq. yds. was purchased by Late Sh. Sham Lal Soni, S/o Late Sh. Sewa Ram Soni, R/o 29, Model Basti, Delhi from the Municipal Committee vide a sale deed dated 16.12.1949 duly registered as document no.2628 in Additional Book No.1, Volume No.170 on pages 154 to 156 on 31.12.1949 with SubRegistrar, Delhi. Late Sh. Sham Lal Soni died intestate on 19.02.1957 and after his death, the property in question devolved on his wife, Smt. Champa Devi, his two daughters namely Ms. Maya and Smt. Vindhya Devi. Smt. Champa Devi also expired intestate on 13.01.1967 and after her death Ms. Maya and Smt. Vindhya Devi became E394/2013 Page 6/19 joint owners of the property in question.
11. After the death of the parents of Smt. Vindhya Devi, she claimed herself to be the sole owner in possession of the property in question in the year 1970 and let out to the respondent a garage/the alleged shop in question admeasuring about 85 sq. ft. on the ground floor at a monthly rent of Rs. 25/. Thereafter, in the year 1975, an open terrace on the roof of the first floor (second floor) admeasuring about 350 sq. ft. of the property in question with common toilet and staircase was let out by Smt. Vindhya Devi to the respondent at a monthly rent of Rs. 25/.
12. It was agreed between Smt. Vindhya Devi and the respondent that the respondent shall be at liberty to raise construction by erecting a tin shed at his own expenses on the above roof and will be entitled to use the same for his residential purposes. As per the mutual agreement, the respondent constructed two rooms, a kitchen and a latrine, bathroom on the second floor by a tin shed at his own expenses and has been residing in the said portion with his family since the year 1975.
E394/2013 Page 7/19
13. The respondent kept on paying the rent to Smt. Vindhya Devi till November, 2005 when vide an agreement to sell dated 11.11.2005, she agreed to sell the garage on the ground floor and the part of the second floor of the property in question, in possession of the respondent since 1970 & 1975, respectively, to the respondent for a total sale consideration of Rs. 1,60,000/. As per the terms and conditions agreed between the parties, the respondent paid the entire sale consideration to Smt. Vindhya Devi, erstwhile owner of the property in question. Since then, the respondent has neither paid any rent to Smt. Vindhya Devi, nor any rent has been demanded by her from the respondent.
14. Due to one or the other reasons, the sale deed as agreed, could not be executed. As such, Smt. Vindhya Devi vide a ratification deed dated 15.10.2008 ratified agreement to sell dated 11.11.2005 in favour of the respondent and assured the respondent to execute the sale deed. The respondent, due to his cordial and family relations with Smt. Vindhya Devi and her family, did not force upon her to execute the sale deed. Smt. Vindhya Devi was not keeping good health in the year 2011 and as such, E394/2013 Page 8/19 inspite of her best efforts, she could not go to the SubRegistrar's office. On the request of the respondent, Smt. Vindhya Devi vide a document dated 10.10.2011 again assured the respondent to execute the sale deed and also acknowledged having already received the total sale consideration in respect of property in question.
15. Smt. Vindhya Devi died on 09.02.2013 and after her death, the respondent has been requesting her sons and daughters including the petitioner, who is one of the four daughters of Smt. Vindhya Devi, to execute the sale deed in respect of the portion of the property in question agreed to be sold by Smt. Vindhya Devi. The petitioner and other legal heirs have refused to execute the sale deed. However, due to the fact that out of the four daughters of Smt. Vindhya Devi, three are married and are unable to get together to execute the sale deed, the same is being delayed till date.
16. The respondent was shocked to receive the summons of the present petition and when he confronted the petitioner about the same, she bluntly refused to execute the sale deed. The respondent is now seeking his E394/2013 Page 9/19 legal remedy to get decree for specific performance of the agreement to sell dated 11.11.2005 which was never refuted by Smt. Vindhya Devi. The Will dated 15.12.2011, relied upon by the petitioner alleging herself to be the owner of the garage/shop situated on the ground floor of property no. 8, Model Basti, Delhi, is a forged and fabricated document as Smt. Vindhya Devi was not keeping good health in the year 2011 and as such could not sign properly and her signatures and handwriting had deteriorated and this fact can be ascertained from the rent receipts issued by her to the tenants in the other portions of the property in question, duly witnessed by the petitioner and also the document dated 10.10.2011 issued by Smt. Vindhya Devi to the respondent, acknowledging the agreement to sell dated 11.11.2005. On the alleged Will, handwriting and signatures are totally different from the signatures on the documents.
17. The petitioner is a stranger to the property in question and she has no right or title in the property in question. No document has been placed on record to establish the relationship of landlord and tenant between the petitioner and respondent as since 11.11.2005, the respondent is in E394/2013 Page 10/19 occupation of the property as its owner. The petitioner has no locus standi to file the present petition. There exists no relationship of landlord and tenant between the petitioner and respondent.
18. The petitioner filed her reply alongwith counter affidavit to the application for leave to defend, filed by the respondent and has denied the allegations leveled by the respondent in his application for leave to defend and reaffirmed her stance, as averred in the petition.
19. Respondent filed rejoinder and allegations leveled by the petitioner have been controverted and rebutted. The averments made in application for leave to defend have been reiterated and reaffirmed.
20. Ld. Counsel for petitioner places reliance upon judgments delivered by Hon'ble High Court of Delhi in the cases of Sanjiv Pathak Vs. Som Nath, 2013 (204) DLT 667; Sunil Kapoor Vs. Himmat Singh, 2010 (167) DLT 806; Mohd. Burhan Vs. Triloki Nath Nirmal, 2014 (2) RLR 583 and National Institute of Technology Trust Vs. Official Liquidator, 2012 E394/2013 Page 11/19 (174) CompCas 513.
21. Ld. Counsel for respondent places reliance upon judgment delivered by Hon'ble Supreme Court of India in the case of Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana & Anr., 183 (2011) Delhi Law Times 1 (SC).
22. The court has heard submissions advanced on behalf of both the parties and have perused the material on record.
23. While deciding the question as to whether leave to defend should be granted or refused, the Court is required to examine the case on the following aspects :
(a) That the petitioner is owner of the suit premises;
(b) Purpose of letting;
(c) That the premises is required bonafide by the petitioner; and
(d) That the petitioner has no other alternative suitable accommodation in Delhi.
E394/2013 Page 12/19
24. In Precision Metal & Engg. Works Vs. Prema Deva, Niranjan Deva Tayal, AIR 1982 SC 1518, it has been held that "while deciding the application for leave to contest, the controller has to confine himself to the affidavit filed by the tenant under Sub Section (4) and the reply if any. On perusing the affidavit filed by the tenant and the reply if any filed by the landlord, the controller has to pose to himself the only question, "Does the affidavit disclose, not prove, facts as would disentitle the landlord from obtaining an order for the recovery of possession on the ground specified in clause of the proviso to Section 14 (1)?". The controller is not to record a finding on disputed questions of facts or his preference of one set of affidavits against the other set of affidavits."
The gist of the various decisions is that if any triable issue is raised in the application which can not be decided unless the parties lead evidence, leave to contest should be granted. In all other cases, the leave has to be refused.
25. In Rita Lal Vs. Raj Kumar Singh (2002) 7 SCC 614, Hon'ble Supreme Court has observed as under : E394/2013 Page 13/19 "If the Court is satisfied that though in the pleadings an issue is raised but that is not a triable issue then the Court is justified in refusing the leave to defend. A defence, which is practically moonshine, sham or illusory can not be held to be raising a triable issue. Else the whole purpose behind enacting a provision for granting leave to defend, and not permitting a contest unless leave was granted, would stand defeated." Ownership
26. It is emphatically contended by Ld. Counsel for respondent that petitioner is neither owner, nor landlady of the property in question. Respondent has never paid any rent to the petitioner. The Will dated 15.12.2011 relied by the petitioner is a forged and fabricated document as Smt. Vindhya Devi was not keeping good health in the year, 2011. Therefore, she could not sign properly. Her signatures and handwriting had deteriorated. This fact can be ascertained from the rent receipts issued by her to the tenants in other portions of the property in question, duly witnessed by the petitioner and also document dated 10.10.2011, issued by Smt. Vindhya Devi in favour of the respondent, acknowledging agreement to E394/2013 Page 14/19 sell dated 11.11.2005. The signatures of Smt. Vindhya Devi on the alleged Will are totally different from the signatures and handwriting on the documents mentioned above. No document has been filed by the petitioner to establish tenantlandlord relation between her and the respondent. Since 11.11.2005, the respondent is in occupation of the property in his capacity as owner.
27. Per contra, it is contended on behalf of the petitioner that admittedly, the tenanted premises was let out to the respondent by mother of the petitioner in the year 1970 at a monthly rent of Rs. 25/. Mother of the petitioner had executed a Will dated 15.12.2011 whereby she bequeathed ground floor of properties no. 29 & 8, Model Basti, New Delhi in favour of the petitioner. It is well settled proposition of law that the tenant has got no right or authority to challenge Will executed in favour of his/her landlord. It is only legal heirs of the deceased, who are competent to challenge genuineness of the Will. No right by virtue of alleged agreement to sell and ratification documents had vested in favour of the respondent as the said agreement to sell is not duly stamped and registered as per the provisions of E394/2013 Page 15/19 Stamp Act and Registration Act. Moreover, the said agreement to sell, certificate/letter dated 01.03.1972, certificate/letter dated 16.03.1975 and ratification deeds dated 15.10.2008 & 10.10.2011 are forged and fabricated. Therefore, there is no merit in the contention of the respondent that petitioner is neither owner, nor landlord of the tenanted premises.
28. The court is of the considered view that it is no longer res integra that a tenant cannot dispute genuineness of any Will executed in favour of the landlord. Admittedly, the tenanted premises was let out to the respondent by mother of the petitioner in the year 1970 at rent of Rs. 25/ per month. Petitioner has filed copy of Will dated 15.12.2011 purportedly executed by her deceased mother. It is only LRs of Smt. Vindhya Devi Soni who can dispute genuineness of the said Will. The landlord is only required to establish that he/she has some more rights in the property in question visa vis the tenant. As per the provisions of Transfer of Property Act, 1882 an agreement to sell by itself does not create any right, title or interest in the property. Since the alleged agreement to sell dated 11.11.2005 is not duly stamped and registered, as per law, the same is not valid. Reference can be E394/2013 Page 16/19 made to the judgments of Hon'ble High Court of Delhi in the cases of Sanjiv Pathak Vs. Som Nath, 2013 (204) DLT 667 and National Institute of Technology Trust Vs. Official Liquidator, 2012 (174) CompCas 513. Therefore, it is held that the petitioner is the landlord and owner of the tenanted premises qua the respondent.
Purpose of Letting
29. Purpose of letting has become redundant as in Satyawati Sharma Vs. Union of India 148 (2008) DLT 705 Supreme Court, it has been held that the premises let out either for residential or for commercial purposes can be got vacated by the landlord for bonafide requirements. Availability or NonAvailability of alternative suitable accommodation in Delhi
30. The respondent has not claimed that the petitioner is having alternative suitable accommodation with him. In the absence of any prima facie evidence or record to establish availability of alternative reasonably E394/2013 Page 17/19 suitable accommodation with the petitioner, the court holds that the petitioner is not having any other reasonably suitable accommodation for use by herself for nonresidential purposes and the respondent has not been able to raise any triable issue on this aspect.
Bonafide requirement
31. The respondent has not disputed that the bonafides of the purported requirement of the petitioner for opening and running a departmental store. In the absence of any prima facie evidence or record to indicate otherwise, the court holds that the respondent has failed to raise any triable issue regarding the bonafide requirement of the petitioner, whereas the petitioner has been able to establish that the tenanted premises is bonafidely required by her for herself.
32. In view of the above discussion, the Court is of the view that the respondent has failed to set up any triable issue which requires inquiry or trial. In other words, primafacie there is nothing on record which would disentitle the petitioner of the right of immediate possession in respect of the E394/2013 Page 18/19 tenanted premises.
33. Accordingly, the application under Section 25B (4) of Delhi Rent Control Act, 1958, filed by the respondent is dismissed. The petition is allowed and eviction order is passed in favour of the petitioner and against the respondent in respect of one shop out of property bearing no.8, Model Basti, situated near Filmistan Cinema, Delhi110005, as shown in red colour in siteplan attached alongwith the petition. This order shall not be executable before expiry of six months from the date of this order. Parties to bear their own costs.
File be consigned to Record Room.
Announced in the open court (SANDEEP GARG)
on 09.02.2015 Administrative Civil Judge cum
Additional Rent Controller (Central)
Delhi/09.02.2015
E394/2013 Page 19/19
E394/13
09.02.2015
At 4:00 pm.
Present : None.
Vide separate order of even date, application for leave to defend, filed by the respondent is dismissed. The petition is allowed and eviction order is passed in favour of the petitioner and against the respondent in respect of one shop out of property bearing no.8, Model Basti, situated near Filimistan Cinema, Delhi110005, as shown in red colour in siteplan attached alongwith the petition. This order shall not be executable before expiry of six months from the date of this order. Parties to bear their own costs.
File be consigned to Record Room.
(Sandeep Garg) ACJcumARC (Central) Delhi/09.02.2015 E394/2013 Page 20/19