Delhi District Court
Sh. Lalit Kumar vs Sh. Rajinder Kumar Gulati on 14 October, 2011
IN THE COURT OF AJAY GOEL:SCJ CUM RC(CENTRAL):DELHI
E-15/11
Sh. Lalit Kumar
s/o Late Sh. Dal Chand Gupta,
r/o 146, Deepali, Pitampura,
Delhi-34 ..... ..... Petitioner
VERSUS
1. Sh. Rajinder Kumar Gulati
s/o Sh. Swaran Lal Gulati
Working at:-
Municipal no. 2435, First Floor & Second Floor
11, Beadonpura,
(Part of property no. 2435-2438),
Gali no. 10& 11, Beadonpura,
Karol Bagh, Delhi-5
Resident of:-
135, Bhera Enclave, Paschim Vihar,
New Delhi.
2. Smt. Sunita Gulati
w/o Sh. Ramesh Chand Gulati
Working at:-
Municipal No. 2435, First Floor & Second Floor,
11, Beadonpura,
(Part of property no. 2435-2438),
Gali no. 10& 11, Beadonpura
Karol Bagh, Delhi-5
Resident of:-
AE-14, Tagore Garden, New Delhi\
3. Smt. Maya Devi
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w/o Sh. Mehar Chand
Working at:-
Municipal no. 2435, First Floor and Second Floor,
11, Beadonpura
(Part of property no. 2435-2438)
Gali no. 10& 11, Beadonpura,
Karol Bagh, Delhi-110005
Resident of:-
7/58, South Patel Nagar, New Delhi.
............ Respondents
4. Anil Kumar Gupta,
s/o late Sh. Dal Chand Gupta
r/o QD-58, First Floor, Pitampura,
Delhi-34
................ Performa Respondent
Date of filing of petition:- 21.7.11
Date of assignment to this court:- 21.7.11
Date of arguments:-13.10.11
Date of decision:- 14.10.11
JUDGMENT
1. Vide this judgment I shall dispose off the leave to defend application filed by the respondents in the instant eviction petition filed u/s 14(1)(e) r/w Section 25-B of DRC Act.
2. In the petition it was stated that suit premises is consisting of one hall on the first floor, another hall on the second floor alongwith a small area on terrace/third floor ad-measuring 9 feet X 6 feet approximately of which merely right to use was granted to the tenants for installation of air E 15/11 Page2/21 conditioner/air colling plant situated on the Ajmal Khan Road towards gali no. 11, property bearing no. 10& 11, Beadonpura, Karol Bagh having a total area of 1500 sq. ft. approximately on all the floors. As stated suit property was let out to the respondents by the previous owner/landlord namely Smt. Prash Wati Bhandari w/o late Sh. Manohar Lal Bhandari vide registered rent deed dated 11.3.79. As stated the petitioner herein alongwith Sh. Anil Kumar and Smt. Kamla Devi being sons and wife respectively of late Sh. D.C. Gupta purchased the entire built up property bearing no. 2435-2438, Gali no. 10 & 11, Beadon Pura, Karol Bagh from the said Smt. Prakashwati Bhandari vide registered sale deed dated 4.3.93 and petitioner herein, Sh. Anil Kumar and Smt. Kamla Devi became equal 1/3rd co-owners of the said entire property. Smt. Kamla Devi during her lifetime executed a Will dated 19.12.03 bequeathing her undivided 1/3rd share in the said property in favour of petitioner herein and Sh. Anil Kumar in equal shares and Smt. Kamla Devi expired on 18.1.04. After purchase of the property by the petitioner and other co-owners and respondents duly attorned in favour of petitioner and other co-owners and continued paying rent till January,1996 and thereafter stopped paying the rent. It was further stated that suit premises was let out for commercial purposes, however now the same is required bonafide by the petitioner for occupation of petitioner's E 15/11 Page3/21 younger son namely Sh. Sanchit Gupta for running independent business who is dependent upon the petitioner. As stated business of cloth was being carried out in partnership by the petitioner alongwith Sh. Anil Kumar and Smt. Kamla Devi from one shop situated on the ground floor of the said large property, however after the death of Smt. Kamla Devi on 18.1.04 said partnership firm was reconstituted vide partnership deed dated 20.1.04 whereby petitioner and Sh. Anil Kumar became the equal partners. As stated dispute arose between Sh. Anil Kumar and petitioner and since July, 2009 serious litigations both criminal and civil are going on between Sh. Anil Kumar and petitioner. During the said litigations, petitioner has been illegally declined access to the said shop and petitioner is out of possession from the said shop since September, 2009 and said shop is in exclusive possession of Sh. Anil Kumar. As stated another partnership business was run previously by petitioner and Sh. Anil Kumar from shop bearing no. 2774/1, Gali no. 20& 21, Beadonpura, Karol Bagh which was a tenanted premises under landlady/owner namely Smt. Saroj Gaur where also Sh. Anil Kumar is also creating serious hindrances. As stated wife of petitioner and elder son are carrying on their business from the shop no. 15, Ground Floor, City Square Mall, Rajouri Garden, Delhi-27 and litigation for partition etc. is also going on with respect to the said shop at Rajouri E 15/11 Page4/21 Garden. It was stated younger son of the petitioner cannot be accommodated in the said shop due to various factors including but not limited to litigations and other factors as wife and son of petitioner no. 1 have themselves taken two other premises at J-109 Rajouri Garden and another at 18, Kapil Vihar, Pitampura on monthly rent of Rs.2,25,000/-. As stated there are also temperamental differences between the elder son and younger son of petitioner and they cannot work together and therefore suit premises is required for independent running of business of younger son of petitioner. As stated younger son of petitioner has completed BE and wants to start his business of computer hardware an software and due to non availability of any suitable business he is unable to start his business and petitioner is unable to finalise marriage of his younger son. As stated Sh. Sanchit Gupta even took up jobs during September, 2010 to January, 2011 but did not continue in the jobs as Sh. Sanchit Gupta always intended to set up his own independent business. Accordingly it was stated that r premises under tenancy of the respondents is required bonafide for the use of the petitioner. Therefore it was prayed that eviction order for the property in question be passed in favour of the petitioner and against the respondents.
3. No leave to defend application was filed on behalf of respondent no. 3. Separate leave to defend applications supported by affidavits were filed E 15/11 Page5/21 separately on behalf of respondents no. 1 and 2, however similar grounds were taken by both the respondents. It was stated that petitioner has wrongly stated that he and his brother are owners of the property and no probate has been obtained of the alleged Will of the mother of the petitioner and daughters of Smt. Kamla Devi also have a right in the demised premises. It was also stated that petitioner has not impleaded all the tenants and therefore petition is liable to be dismissed. As stated petitioner has not come to the court with clean hands and is not required by him bonafide need and he just want to re-let the same at a higher rent. As stated petitioner is doing business jointly with his brother in a part of building bearing no. 2435-2438, Gali no. 10 and 11, Beadonpura and he visits the said shop everyday and the alleged litigations between the petitioner and his brother are collusive and has been initiated only to make a ground of eviction of tenants from the demised premises. As stated petitioner is doing the business of furnishing fabrics with his brother under the name and style of M/s D.C Gutpa & Sons from shop no. 2774/1, Gali no. 20 and 21, Bedonpura, Karol Bagh. It was also stated that M/s D.C.G Fabs Pvt. Ltd. is being run from shop no. 15, Ground Floor, City Square Marg, Rajouri Garden, Delhi and it is only for taxation purpose that the wife and elder son of the petitioner have been shown as Director of the said E 15/11 Page6/21 company. The two shops situated at Rajouri Garden and one at Pitampura alleged to be hired by M/s DCG Fabs Pvt. Ltd. are being actually used by the petitioner for the business. It was further stated that Sh. Sanchit Gupta, younger son of petitioner is still studying and he has no experience, expertise, knowledge or capability as far as the alleged business of computer is concerned. As stated petitioner himself has various other premises at his disposal and as such the premises rented to the respondents is not required for bonafide purpose and accordingly it was prayed that instant petition be dismissed or in alternative respondent be granted leave to defend to contest the petition.
4. Separate replies to leave to defend applications of respondent no. 1 and 2 were filed by the petitioner in which contents of leave to defend were denied and those of the petition were reiterated.
5. Separate rejoinders to leave to defend applications of respondent no. 1 and 2 were also filed by the respondent in which contents of the leave to defend were reiterated and those of the reply were denied.
6. Additional affidavits were filed on behalf of respondents and counter affidavits were filed by the petitioner. During the proceedings an application u/o 1 Rule 10 CPC was moved by Sh. Anil Kumar, brother of the petitioner for impleading him as party in the instant case. Said E 15/11 Page7/21 application was allowed since it was submitted by him that he does not wish to file any reply to the petition and wants suit property vacated, he was made performa respondent in the instant case and amended memo of parties was filed to that effect.
7. I have heard Ld. Cl. for both parties and perused the record.
8. To make out a case here u/s14(1) (e) of DRC Act the landlord has to prove the following:-
➢ That he is owner/landlord of the suit premises;
➢ That the suit premises were let out for particular purpose; ➢ That he has no other reasonably suitable accommodation and ➢ That the premises are required bonafide by him for occupation for himself or for any member of his family dependent upon him.
9. The aforesaid is dealt as follows:
i. In the instant case petitioner has claimed himself to be the co- owner of the property in question. However respondent has contended that petitioner has falsely claimed that he and his brothers are owners of the property since no probate has been obtained of the alleged Will of the mother of the petitioner as well as sisters of the petitioner also have right in the suit property. However on the other hand it is the case of the petitioner that he alongwith Sh. Anil Kumar and Smt. Kamla Devi being E 15/11 Page8/21 sons and wife respectively of late Sh. D.C. Gupta purchased the entire built up property bearing no. 2435-2438, Gali no. 10 & 11, Beadon Pura, Karol Bagh from the said Smt. Prakashwati Bhandari vide registered sale deed dated 4.3.93 and petitioner herein, Sh. Anil Kumar and Smt. Kamla Devi became equal 1/3rd co-owners of the said entire property. Copy of sale deed dated 4.3.1993 has been placed on record by the petitioner. The said sale deed admittedly is not under challenge before any court of law, hence co-ownership of petitioner stand duly established. As far as question of probate of Will of mother of petitioner or plea of right of sisters of petitioner over the portion of property owned by the mother of petitioner is concerned, first of all the entire suit premises was self acquired property and was purchased jointly by petitioner, his mother and his brother and after the death of mother of petitioner Smt. Kamla Devi, all her children became the LRs and had right in the said portion owned by the mother of petitioner, however copy of registered relinquishment deed dated 14.9.09 as placed by Sh. Anil Kumar Gupta is on record whereby all the sisters of petitioner have relinquished the portion of the property which fell under their share after death of their mother in favour of Sh. Anil Kumar Gupta who is also performa respondent before this court and hence after execution of the said relinquishment deed, no need arise for impleadment E 15/11 Page9/21 of sisters of petitioner in the instant case. There is inter-se dispute between the petitioner and his brother Sh. Anil Kumar Gupta, however his brother also have submitted before this court that he also wants the suit property to be evicted from the tenants and he also did not disputed the factum of purchase of suit property by him, his brother i.e. petitioner herein and their mother and he even stated in his application u/o 1 Rule 10 CPC that petitioner is co-owner to the extent of 31% whereas he is owner to the extent of 69%. Respondents have placed reliance upon 2003(1) RCR 30 wherein it was held that " Eviction petition filed by the co-owner is not maintainable without impleading the remaining co-owner or without the consent of other co-owner specially when there is an an objection by other co-owner." There is no denial with respect to the preposition of law settled by the abovesaid authority, however the same is distinguishable from the present case since in the instant other co-owner i.e. Sh. Anil Kumar Gupta is also party and he has also expressed his wish regarding the eviction of the suit premises from the tenants. Even otherwise it is settled law that one of the co-owner can file petition for eviction. Disputes between the co-owners will be looked after by the concerned court and for deciding the question herein it is sufficient that petitioner herein is the co-owner in the premises in question and a tenant cannot take advantage of the inter-se E 15/11 Page10/21 dispute between the co-owners and has no right to question the same. Even otherwise law is well settled with respect to the position of tenant vis a vis co-owner u/s 14(1)(e) of DRC Act as held in Pal Singh Vs. Sunder Singh 1989 AIR 758 SC wherein Hon'ble Supreme after considering all the relevant laws came to the conclusion that one co-owner can maintain the eviction petition even if the other owners are not joined and if other co- owner do not object to the eviction then the position is far better. Hon'ble Supreme Court had relied upon Kanta Goel Vs. B.P. Pathak 1977(2) SCC 814 and 1976(4) SCC 184 Sri Ram Pasicha Vs. Jagan Nath. Hon'ble Supreme Court has rather stated that when partition takes place then other co-owner of pre partition era could not have filed the petition and held that the position would change "only when partition would take place". It is settled law that co-owner is owner of every part of composite property. Recently in M/s India Umbrella Manufacturing Co. & Ors Vs. Bhagabandei Agarwalla (2004 ) Insc 14 Hon'ble Supreme Court further clarified the position and held that one co-owner filing the suit for eviction against the tenant does so in his own behalf in his own right and as an agent of other co-owner and even went to the extent that if partition has not taken place and order under petition u/s 14(1)(e) is passed then even a ridder in the right of the DH cannot be placed regarding the E 15/11 Page11/21 execution of the decree to the effect that decree cannot be executed till the partition between the co-owners take place. Thus, it is the wish of the first co-owner who files the petition and if he is able to show his bonafide need and there is no alternative accommodation available with him then he is entitled to the portion. The law is also well described in Shri Mokham Singh Vs. Mohd. Khurshid & Ors. by Hon'ble High Court of Delhi decided on 19.11.04 in CRP No. 1171/02 wherein Hon'ble Mr. Justice Sh. Sanajy Kishan Kaul has adjudicated upon this point and observed that even if the other co-owners are not willing to sign the petition they can be impleaded as performa respondent and if they back out and raise the objection then the co-owner is competent to file the petition on the ground of bonafide requirement. Thus all the above mentioned cases clearly shows that if all the co-owners are not made party or if the co-owners are made party and they give consent or even if they are made party or not made party and still do not give consent still the petition is maintainable. In the present case the performa respondent/ co-owner Anil Kumar has not filed any objections opposing the eviction and rather in application u/o 1 Rule 10 CPC he has stated that he requires the property bonafide for his son and has only prayed for his impleadment and not at all requested for dismissal of the petition. Hence co-ownership of petitioner in the entire suit premises E 15/11 Page12/21 stands established. As far as question of landlordship is concerned, petitioner has alleged that respondents themselves had filed a petition bearing no. 236/10 u/s 27 of DRC Act for deposit of rent wherein he alongwith his brother Anil Kumar Gupta have been made parties. Copy of the said petition is on record alongwith annexure-A which shows the payment of rent made through cheques to the petitioner and his brother. Hence now respondents cannot challenge the factum of landlorship of petitioner. Accordingly in view of the above it is held that petitioner is the co-owner/landlord of the property in question and there exist relationship of landlord and tenant between the parties and petition is maintainable.
ii. Though the purpose of letting as mentioned by both the parties is commercial. However now it is not material whether the property is residential or commercial as both of them can be got evicted for bonafide requirement. Reliance is placed upon 148(2008) DLT 705(SC) Satyawati Sharma & Anr. vs. UOI wherein the commercial property has also been allowed to be evicted on the ground of bonafide need as the arbitrary classification between residential and commercial tenancy has been done away with.
iii. As far as third ingredient is concerned though in leave to defend
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application no alternative accommodation available to the plaintiff has been pleaded and it was simply stated that petitioner has various other premises at his disposal, however in written arguments respondents stated that one shop on 2nd floor and one on the third floor is lying unused and is in possession of the petitioner whereas as per petitioner no space is lying vacant as some of the portions on second floor, first floor and third floor/terrace as shown red in site plan are under tenancy of respondents whereas some portions on ground floor, first and second floor are under tenancy of other tenants against whom also eviction petition has been preferred whereas rest of the portions are used for running business of cloth and is in possession of brother of petitioner and are under various litigations. Except for the bald assertion nothing has been placed on record by the respondents to substantiate their contentions whereas petitioner has clearly shown the space under occupation of various tenants as well as his brother in the site plan which site plan has not been challenged by the respondents and not only the petitioner but also the brother of petitioner who are at logger heads and facing various litigations against each other regarding the suit building, have contended that there is no space available at the suit building. Even brother of petitioner has stated that his son has also recently taken premises on rent since there is no space available in the E 15/11 Page14/21 suit building. The affidavit was filed by the respondents to the effect that the portions shown in green colour in the site plan Mark-A are not in possession of any tenant and are in possession of the petitioner. Petitioner has also filed counter affidavit to the abovesaid and was ready for appointment of Local Commissioner to see factum of the same and rather stated that the names of the tenants in the portion shown in green colour in site plan Mark-A can be verified by the court and is ready to make the statement to the said effect. Respondents have not been able to substantiate their claim that the green portions shown in the site plan Mark- A are in possession of the petitioner. Accordingly it is held that petitioner has no other alternative suitable property available with him and this ingredient is also decided in favour of petitioner.
iv.As far as bonafide need of the petitioner is concerned it was contended by the respondents that the need of petitioner is not bonafide. It was contended by the respondents that petitioner is doing business of furnishing fabric with his brother in the name and style of M/s D.C. Gupta & Sons from shop bearing no. 2774/1, Gali no. 20 and 21, Beddonpura, Karol Bagh, Delhi and is also doing business jointly with his brother in a part of building bearing no. 2435-2438, Gali no. 10 and 11, Beddonpura, Karol Bagh in the name and style of M/s Dal Chand Gupta & Co. and therefore E 15/11 Page15/21 petitioner does not require the suit property for himself. On the other hand petitioner himself had disclosed about the said properties and businesses earlier run by him and his brother jointly from the said premises, however it was stated that some dispute arose between them and matter regarding the said shops are under litigation. The factum of various litigations pending between petitioner and his brother is also admitted by his brother and various documents regarding the said litigations have also been placed on record. Respondents also disputed the same by saying that the litigations between the petitioner and his brother are collusive. Whether the said litigations are collusive or not would be dealt/adjudicated in the concerned cases by the concerned courts and this court has just to consider whether the need of petitioner is bonafide or not. It was also contended by the respondent that petitioner also has business of M/ s D.C. G Fabs which is being run from shop no. 15, Ground Floor, Rajouri Garden and his wife and elder son are shown as Director of the said firm only for the sake of taxation whereas everything is under the control of the petitioner and similar is the case with respect to two shops of M/s D.C.G Fabs Pvt. Ltd. At 18, Kapil Vihar, Pitampura, Delhi. Petitioner himself admitted regarding the said company being run by his wife and elder son but has stated that he has no concern with the same and has no right over the same. It was also E 15/11 Page16/21 stated by the petitioner shop no. 15 at Rajouri Garden is also under litigation. Even otherwise the petitioner has claimed the suit property for running business of his younger son and not for himself and accordingly contention of respondents that petitioner is already doing various businesses and therefore do not require the suit property is not tenable. Regarding son of the petitioner namely Sh. Sanchit Gupta, it was contended by the respondent that he is still studying and has no experience, expertise, knowledge or capability as far as business of computer is concerned and is studying Management. However except for the bald assertion nothing has been placed on record by the respondents to substantiate their contentions whereas copy of degree of Delhi University in Computer Engineering, certificates of various companies where Sh. Sanchit Gupta worked as Computer Engineer have been placed on record by the petitioner which are sufficient for showing that Sh. Sanchit Gupta has obtained education in the field of computer and as far as question his competence is concerned, it is a personal wish of a person to choose a profession or to run a business and respondents have no right to comment on the same and has no right to declare him incompetent even prior to starting of the said business. Respondents have also stated that he is student of MBA. On the other hand petitioner has submitted that his son E 15/11 Page17/21 will complete MBA in near future and admittedly he needs the place to work. Hence in view of the above it is held that the requirement of the petitioner seems to be well justified and respondent cannot dictate terms to the landlord and landlord is best judge of his requirements. For this reliance is placed upon :-
➢ Prativa Devi Vs. TBN Krishnan (1996)5 SCC 353 wherein it was held that " The landlord is the best judge of his residential requirements. It is not concern of the court to dictate to the landlord how and in what manner he should live or to prescribe for him a residential standard for their own. There is no law which deprives the landlord of the beneficial enjoyment of his property."
➢ Sarla Ahuja Vs. United Insurance Company 1998(8) SCC 119 wherein it was held that it is not for the tenant to dictate terms for the landlord as to how and when he can adjust himself without getting possession of the tenanted premises. It was further held that when the landlord asserts that he required his building for his own occupation, the Rent Controller shall not proceed on the presumption that the requirement is not bonafide.
➢ (1996) 5 Supreme Court Cases 344 Meenal Eknath Kshirsagar Vs. Traders & Agencies and Another wherein it was observed that " It is E 15/11 Page18/21 for the landlord to decided how and in what manner he should live and he is the best judge of his residential requirement. If the landlord desires to beneficially enjoy his own property when the other property occupied by him as a tenant or on any other basis is either insecure or inconvenient it is not for the courts to dictate to him to continue to occupy such premises."
9. It was also contended by the respondents that instant petition is not maintainable since all the tenants have not been made party. However I disagree with the said contention as the portion in question i.e. the suit premises is under joint tenancy of respondents and no one else. Even no names of other tenants in the portion in question/suit premises are mentioned by the respondents who have not been joined in the instant case.
Accordingly it is held that petition is not bad for non joinder of parties.
10.It was further argued on behalf of the respondent that petitioner wants to get the premises in question evicted for his ulterior motives and would misuse the same after eviction. The said apprehension is already taken care of in the DRC Act itself by our legislative fore fathers while enacting the laws who have already considered possibility of misuse in the hands of unscrupulous landlords and thereby inserted Section 19 of DRC Act according to which " Where a landlord recovers possession of any E 15/11 Page19/21 premises and the premises are not occupied by the landlord or by the person for whose benefit the premises are held, within two months of obtaining such possession, or the premises having been so occupied are, at any time within three years from the date of obtaining possession, re- let to any person than the evicted tenant without obtaining the permission of the Controller such tenant can be put back to the premises or can be paid such compensation as the Controller thinks fit." For the abovesaid reliance is also placed upon 2000 Rajdhani Law Reporter 83 wherein it was observed that "if the requirement of landlord is not bonafide and if a landlord abuses the process of the court, obtains an order of eviction, subsequently lets out the property or sells the same, the tenant can always apply for restitution u/s 19 of the Act."
11. In view of the above discussion judgments relied upon by the respondent are not applicable to the facts of the present case because all the objections taken by the respondents have been dealt above. Hence, it is held that respondents have not been able to show existence of any triable issue whereas petitioner has been able to show that he has no alternative places available with him for meeting out his requirement and the suit property is bonafidely required by him. Accordingly leave to defend applications of respondents are hereby declined and eviction order against the respondents E 15/11 Page20/21 and in favour of petitioner is passed with respect to one hall on the first floor, another hall on the second floor alongwith a small area on terrace/third floor ad-measuring 9 feet X 6 feet approximately forming part of property bearing municipal no. 2435, (part of property no. 2435-2438), Gali no. 10 & 11, Beadonpura, Karol Bagh, Delhi-5 as shown in red colour in the site plan previously marked A and now Ex. C-1. However this order shall not be executable before the expiry of period of six months which time is granted to the respondents to vacate the premises. No order as to cost. File be consigned to record room.
Announced in open court (Ajay Goel)
on 14.10.11 SCJ cum RC(Central)/Delhi
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