Delhi District Court
Courts vs Mohd. Ismail on 10 May, 2011
//1//
IN THE COURT OF SH. PRITAM SINGH, ARC (CENTRAL) TIS HAZARI
COURTS, DELHI.
E586/09
10.05.2011
Abdul Hameed
S/o Sh. Abdul Hakim
R/o 4339, Kucha Pandit
Lal Kuan, Delhi110006.
...Petitioner
VERSUS
1. Mohd. Ismail
S/o Sh. Sher Mohd.
Shop No. 4336, Kucha Pandit,
Lal Kuan, Delhi110006.
2. Abdul Salam,
S/o Late Sh. Abdul Hakim,
R/o 4339, Kucha Pandit,
Lal Kuan, Delhi110006.
3. Abdul Hai
4. Mohd. Irfan
5. Mohd. Rizwan
6. Ziauddin
7. Abdul Rehman
All sons of Late Sh. Abdul Aziz
All R/o 4339, Kucha Pandit,
Lal Kuan, Delhi110006.
...Respondents
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Petition U/s 14 (1) (e) r/w Section 25B of Delhi Rent Control Act
1. Date of institution of the case : 12.10.2009
2. Date of Judgment Reserved : 28.04.2011
3. Date of Judgment pronounced : 10.05.2011
JUDGMENT
By this order I shall dispose of an application u/s 25 B (4) of DRC Act filed on behalf of the respondent. The brief facts are that the present petition was filed by the petitioner u/s 14 (1) (e) r/w section 25 B of the DRC Act on the ground of bonafide requirements. It is stated that the petitioner is a coowner landlord of the suit premises bearing shop No. 4336, Kucha Pandit, Lal Kuan, Delhi6 and the respondent is a tenant under the petitioner in respect of the said shop. Originally, Sh. Sher Mohd. was inducted as tenant in the suit premises by the deceased father of the petitioner namely Sh. Abdul Hakim and the said tenant was paying the rent to Sh. Abdul Hakim against rent receipts. After the death of Sh. Abdul Hakim, the said tenant Sher Mohd. became the tenant under the petitioner and respondent no. 2 to 7 on same terms and conditions by operation of law. The said tenant Sh. Sher Mohd. attorned in favour of the petitioner and started paying rent to the petitioner qua the suit premises and the petitioner was issuing the rent receipt to Sh. Sher Mohd. after the death of Sh. Sher Mohd. in January, 2009, the respondent no. 1 alone became the tenant in the //3// suit premises being in exclusive use and possession of the suit premises.
2. The petitioner is a retired person having retired from the private service in the year 2004, when the petitioner had another heart attack and also developed other medical problems. Since then, the petitioner is sitting idle and has no work to do and has no source of income. The petitioner lost his wife in the year 2002 and the petitioner is living with his two unmarried sons and unmarried daughter in the narrow accommodation on the ground floor and first floor of the suit property. The petitioner's son Mohd. Mohsin is the only earning member in the petitioner's family and he is unqualified and is employed as salesman in a private small shoe shop at Ballimaran, Delhi6 and is drawing a salary of Rs. 4,000/ per month. The other petitioner's son Mohd. Nadeem is also unqualified and is jobless. Due to financial crises and paucity of accommodation, the petitioner even could not solemnize the marriage of either of his three children from the said petty amount of Rs. 4,000/. It is difficult to even provide two time meal to the family of four persons and the petitioner cannot imagine to bear any extra load of getting his children married.
3. It is further stated that there are four shops on the ground floor of the suit property which are under the tenancy of different tenants for decades.
//4// Apart from the suit premises, the other shop bearing No. 4337 is under the tenancy of Sh. Mohd. Inaam on a monthly rent of Rs. 30/ while the shop bearing No. 4338 is under the tenancy of Muneer Alam on a monthly rent of Rs. 70/ while the fourth shop bearing No. 4339A is under the tenancy of M/s Mirazuddin & Sons on a monthly rent of Rs. 80/. Apart from the same, the entire suit property bearing No. 43364339 is a residential property, in use and possession of the respondents no. 2 to 7 and their respective families apart from the limited portion in possession of the petitioner and his family. The petitioner wants to start his business of sale of stationery items from the suit premises to earn his livelihood. The petitioner and his family members have no other reasonable, suitable, vacant accommodation to start his business either in the property no. 43364339, of which the suit premises/shop No. 4336 forms a part or else where in Delhi and the suit premises is the most suitable and convenient accommodation for the petitioner. The respondent no. 2 to 7 are merely proforma respondents being coowners of the property in question and no relief is sought against them.
4. Leave to defend application alongwith affidavit was filed on behalf of the respondent no. 1. It is stated in the affidavit that the respondent no. 1 is the tenant in tenanted premises/shop alongwith other legal heirs of his deceased father, as such the petition is bad for nonjoinder of necessary //5// parties. The petitioner and his sons have been carrying on a large scale business of dying clothes in the entire ground floor just behind the shops for the last about 50 years and earning handsomely from the said business and the same business is being carried out on the entire first floor also of the property bearing No. 4339, Kucha Pandit, Lal Kuan, Delhi. The petitioner and his sons have also got a three storyed commercial property bearing No. 123, Street no. 9, Wazirabad, Delhi and running the same business in Wazirabad, they are earning lacs of rupees every month. The ownership of the shop in question is being claimed by one Sh. Abdul Sattar R/o Ballimaran, Delhi. Moreover, the petitioner has not placed on record any documents, which shows his ownership in respect of the shop. The petitioner has wrongly shown the back portion of the shops as residential, infact it is being used since longtime for commercial purposes. The other three tenants on the ground floor of the other shops are also negotiating with the petitioner to handover the possession of their respective shops to the petitioner and the respondent no. 1 has come to know that the negotiation has been finalized with two of the tenants of the said shops bearing no. 4337 & 4339 and within few days the petitioner will get the vacant possession of the said shops.
5. Reply to the leave to defend application alongwith counter affidavit //6// filed by the petitioner in which the petitioner has reiterated and reaffirmed the averments made in the petition and those made in the leave to defend application had been controverted.
6. The respondent no. 1 has filed rejoinder to the reply/counter affidavit of petitioner in which the respondent has reiterated and reaffirmed the averments made in the leave to defend application and those made in the reply had been controverted.
7. Arguments heard. Record perused and considered.
8. Ld. counsel for the petitioner relied upon the following rulings :
(i) Rajender Kumar Sharma & Ors. Vs Leela Wati & Ors, 155 (2008) Delhi Law Times 383.
(ii) R.K. Bhatnagar Vs Sushila Bhargav, 1986 Rajdhani Law Reporter
232.
(iii) Viran Wali Vs Kuldeep Rai Kochhar, 174 (2010) Delhi Law Times
328.
(iv) Ravi Datt Vs Rata Lal, 1984 Rajdhani Law Reporter, Supreme Court
153.
(v) Navneet Lal Vs Deepak Sawhney, RCR, 2010 (2) RCR 582, //7//
(vi) Adarsh Electricals Vs Dinesh Dayal, 2010 (2) RCR 593.
9. Ld. counsel for the respondent relied upon the following rulings :
(i) Dr. SM. Mehra Vs DD Mallik, Civil Appeal No. 120 of 1990, In the Supreme Court of India.
(ii) Precision Steel & Engineering Works And Another VS Prem Deva Niranjan Deva Tayal 1982 Delhi Law Times 458.
(iii) Mst. Bega Begum and Others Vs Abdul Ahad Khan (dead) by LR's and others, AIR 1979 Supreme Court of India 272.
(iv) Mrs. Kushal Takhar Vs Gurinder Singh, 2009 (1) RCR 33.
10. The present petition has been filed u/s 14 (1 ) (e) r/w section 25B of DRC Act and in order to succeed in such a petition, petitioner has to prove
(i) Ownership of the suit premises ; (ii) Purpose of letting; (iii) Alternative accommodation; and (iv) bonafide requirement;. Let the same be discussed in detail.
11. The respondent contended that his father was tenant in the suit premises since last more than 60 years and after the death, the respondent no. 1 is tenant along with other legal heirs of his father but other legal heirs were not made party by the petitioner therefore, the petition is bad for //8// nonjoinder of necessary party. The respondent further contended that the contents of the eviction petition were not supported by an affidavit therefore, the eviction is not maintainable. On the other hand the petitioner stated that other legal heirs of father of the respondent no. 1 are not tenants in the suit premises and the petition is maintainable even without affidavit of the petitioner. It is admitted case of the respondent no. 1 that his father was original tenant in the suit premises and after his death the respondent no. 1 became tenant. It is well settled law that after death of a tenant all his legal heirs only become joint tenants and not cotenants. A landlord is not required to implead all the joint tenants in an eviction petition. It was held in Inderpal Khanna Vs. Commander Bhupinder Singh Rekhi, 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 common. Where 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 the premises is a valid petition. It is not necessary for 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 premises". So far the question of nonfiling of affidavit in support of petition is concern there is no such requirement in Delhi Rent Control Act. An Eviction petition is maintainable in absence of affidavit in its support. Order 6 rule //9// 15 (4) of CPC requires that the person verifying the pleadings shall also furnish an affidavit in support of his pleadings. However, this provision is not applicable to the proceedings under the DRC Act as this provision was inserted in the CPC vide amendment Act 46 of 1999. However, there is no amendment in the DRC Act since 1988.
Ownership and purpose of letting
12. The respondent no. 1 contended that petitioner is not owner and landlord of the suit premises and one Abdul Sattar R/o Balli Maran is claiming ownership of the shop in question. The petitioner stated that the shop in question was let out by his father Sh. Abdul Hakkim to the father of the respondent. After the death of the father of the petitioner the father of the respondent started paying rent to the petitioner and attorned the petitioner as the landlord. After the death of the father of the respondent no. 1, the respondent no. 1 became the tenant and is in exclusive use and possession of the suit premises. In the leave to defend application respondent no. 1 has not disputed that his father was a tenant in the suit premises under the ownership of father of the petitioner. After death of a tenant his legal heirs become joint tenants therefore, respondent no. 1 is also a joint tenant. As father of the petitioner was owner/landlord of the shop in question therefore, after his death the petitioner also became the //10// coowner/colandlord by operation of law. The petitioner has also filed the rent receipts as well as their translated copy which show that Sh. Sher Mohd., father of the respondent no. 1 was tenant in the suit premises. Therefore, the contentions of the respondent no. 1 that petitioner is not landlord cannot be accepted. The respondent no. 1 has not stated who else is the owner/landlord if petitioner is not coowner and landlord. The respondent has also not stated to whom he is paying rent. A landlord is not required to prove absolute ownership in the proceedings under the Delhi Rent Control Act as required in the Transfer of Property Act. It was held in Rajender Kumar Sharma Vs. Leelawati that "A landlord is not required to prove absolute ownership as required under the Transfer of Property Act. He is required that he is more than a tenant". It was held in Ramesh Chander Vs. Uganti Devi that "Imperfectness of title of premises cannot stand in way of eviction petition. Neither tenant can be allowed to raise plea of imperfect title or title not vesting in landlord and that too when tenant paying rent to the landlord". So far the purpose of letting is concerned, after the judgment of Hon'ble Apex Court in Satyawati Sharma Vs. Union Of India III (2008) SLT 553, an eviction petition is maintainable in respect of the commercial purposes also.
//11// Alternative accommodation and bonafide requirement
13. The respondent no. 1 further contended that the petitioner and his sons have been carrying on a large scale business of dying clothes in the entire ground floor just behind the shop for the last about 50 years and earning handsomely from the said business and the same business is being carried out also on the entire first floor of the property no. 4339, Kucha Pandit, Lal Kua, Delhi. The respondent further contended that the petitioner and his sons have a three storied commercial property bearing no. 123, Street No. 09, Wazirabad, Delhi and carrying on the same business. The petitioner is also doing business along with his son from C Block, Chauhan Bangar, Seelampur, Delhi. The other three tenants on the ground floor are also negotiating with the petitioner to hand over the possession of their respective shops to the petitioner and the petitioner will get the vacant possession of said shop. The respondent further contended that the petitioner is intending to sale the shop in question on the high value therefore this petition has been filed. All these contentions of the respondent were denied by the petitioner. The respondent has merely stated that the petitioner and his sons are doing the business of dying clothes in the ground floor behind the shop in question and in other premises however no documentary proof has been filed to support these contentions. Merely stating that landlord is doing business in different premises is not sufficient //12// to raise the triable issue in the absence of substantive evidence. It was held in Rajender Kumar Sharma & Ors. Vs Leela Wati & Ors (supra) "Mere assertion made by the tenant in respect of landlords ownership of other buildings and in respect of alternate accommodation are not be considered sufficient for grant of leave to defend. Only those averments in affidavit are to be considered by Rent Controller which have some substance in it and are supported by some material". The respondent has merely stated that the petitioner is doing his business in various premises however it is nowhere stated that the petitioner is owner of the said premises. Therefore the contentions of the respondent the petitioner has alternative accommodation and running his business has no substance. The respondent has admitted that three shops on the ground floor are in use and occupation of other tenants however the petitioner is negotiating with them to get vacate the same. This contention has no force because when the respondent no. 1 himself is not vacating the tenanted shop then how three other tenants would vacate their tenanted shop. It is a general averment of the respondent which cannot be relied upon. The petitioner is a retired person and wants to start a new business of stationery but he has no suitable accommodation. The petitioner has only two rooms, kitchen etc. in the ground floor portion of property in question which is used by him for his residential purpose. Undisputedly the family of the petitioner consists of himself, his two //13// unmarried sons and one unmarried daughter. This accommodation with the petitioner is highly insufficient and he cannot use the same to start his business. Hence the need of the petitioner to get vacant the shop in question for starting his new business his genuine. It was held by Hon'ble Supreme Court in Ram Babu Aggarwal Vs. Jai Kishan Dass, 2009 (2) RCR 455 that "We are of the opinion that a person can start a new business even if he has no experience in the new business. That does not mean that his claim for starting the new business must be rejected on the ground that it is a false claim. Many people start new businesses even if they do not have experience in the new business, and sometimes they are successful in the new business also".
14. Considering all this aspects I am of the considered view that the petitioner has no alternative suitable accommodation except the tenanted premises in question and the petitioner bona fidely needs the tenanted premises in question to start his business. The respondent has failed to raise any triable issue. The rulings relied upon by the Ld. counsel for the respondent no. 1 is not applicable to the facts of the present case. Hence the petitioner is entitled for an eviction order u/s 14 (1) (e) r/w section 25B of DRC Act.
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15. Accordingly, the application seeking leave to defend moved by the respondents 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 respondent in respect of property in question i.e one shop bearing no. 4336, Kucha Pandit, Lal Kuan, Delhi110006 more specifically shown in red colour in site plan Ex. C1 (exhibited today while passing the order). However, it is made clear that the petitioners 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.
(Announced in the open court
on 10.05.2011) (Pritam Singh)
ARC/Central/Delhi