Delhi District Court
! {Madhu Rani & Anr. vs . Prem Chand & Ors. (E-52/12)} on 24 January, 2013
! {Madhu Rani & Anr. Vs. Prem Chand & Ors. (E-52/12)}
IN THE COURT OF SH. SIDHARTH MATHUR, ARC-01(EAST),
KARKARDOOMA COURTS, DELHI
E-52/12
Unique Identification No. 02402C0103552012
1) Smt. Madhu Rani
W/o Sh. Madan Mohan
R/o D-217, 2nd Floor,
Laxmi Nagar,
Delhi-110092.
2) Smt. Richa Malhotra
W/o Sh. Abhinav Malhotra,
R/o 135, 1st Floor,
Sector-9, Faridabad,
Haryana. ........... Petitioner's
Through,
Sh. Shailender Babbar,
Advocate.
Versus
1) Prem Chand
S/o Sh. Ram Nath
R/o 198/29, Ram Nagar,
Shahdara, Delhi.
Through,
Sh. K. K. Malhotra,
Advocate.
2) Manohar Lal
S/o Sh. Ram Nath
R/o 198/29, Ram Nagar,
Shahdara, Delhi.
3) Sushil Kumar
S/o Sh. Ram Nath
R/o D-3/2, Shri Ram Nagar,
Near Gole Gurudwara, Station Road,
Jawala Pur, Haridwar,
Uttrakhand.
4) Vijay Kumar
S/o Sh. Ram Nath
R/o 198/29, Ram Nagar,
Shahdara, Delhi.
Through
Sh. Anil Garg,
Advocate.
........... Respondent's
! (Page No. 1 of 27)
! {Madhu Rani & Anr. Vs. Prem Chand & Ors. (E-52/12)}
JUDGMENT
1. Under Section : 14(1)(e), DRCA.
2. Date of institution : 12.04.2012.
3. Date of Final Order : 24.01.2013.
4. Final Order : Eviction Ordered.
BRIEF FACTS
(A) Petition
1. Both the petitioners are joint owners of property no. 94, Shankar Market, Railway Road, Shahdara, Delhi-110032 (herein after "suit property"). They had purchased their equal undivided ownership rights therein by virtue of the respective sale deeds dated 27.11.1996 and 06.07.2007.
2. Ram Nath, the father of the respondents was inducted as a tenant at shop no. 94/2 situated at the ground floor of suit property by the previous owner Bishan Narayan Mehra on 01.02.82 at a monthly rent of Rs.15.37 (herein after "the tenanted shop "). After his death on 12.03.1985, the respondents became the joint tenants by virtue of inheritance. However they have not paid rent since January 2005 despite the petitioners legal notice dated 17.08.2010.
3. Petitioner no. 1 is an widow lady aged 78 years. Her husband expired in January 2009. She now only has 02 daughters, both of whom are married. After the demise of her husband, she was being looked after by her daughters but now they have stopped. She used to earn her living from the rents received from her tenants at suit property and also by doing other house hold tasks. The respondents stopped paying rent since January 2005 and recently she has lost a major portion of her rental income received from Syndicate Bank, which has vacated its 1st floor rented portion of the suit property due to the misconduct of the respondents and one other tenant running "Fine Boot House". Hence she is now facing severe financial crunch whereby she want to start her own Boutique so that she does not have to remain dependent on her daughters and so that she can earn her living on her own in a respectable fashion.
The tenanted shop being the front road facing shop is the most suitable for her needs out of the 08 shops already existing at the suit property. The other 02 vacant shops at suit property are situated on the rear side and are thus not suitable for her prospective ! (Page No. 2 of 27) ! {Madhu Rani & Anr. Vs. Prem Chand & Ors. (E-52/12)} business. She has already taken no objection from petitioner no. 2 for exclusively using the tenanted shop for her prospective business from the otherwise undivided tenanted shop. Further she has also undertaken the necessary formalities for the start of her Boutique like finalization of her sales representatives, arranging the necessary catalogues of ladies garments and arrangement of the skilled labour and the requisite machineries. She has no alternate reasonable suitable commercial accommodation except the tenanted shop to answer her requirements whereby she genuinely requires the tenanted shop. In these circumstances, the present petition came into being on 12.04.2012.
(B) Service of the Respondents
4. The respondent no. 1 was served with the notice of this petition on 23.04.12 whereafter he filed his application for leave to defend within time on 08.05.2012.
The respondent no. 2 was served with the notice of this petition on 23.04.12 but he did not apply for any leave to defend.
Likewise the respondent no. 3 also got served with the notice of this petition on 05.06.2012 via speed post but he also did not apply for any leave to defend.
The remaining respondent no. 4 was served with the notice of this petition on 23.04.12 whereafter he filed his leave to defend within time on 07.05.2012.
It is thus clear that the present petition is being contested only by respondent no. 1 &
4. (C) Pleadings of Respondent no. 1
(i) Leave to Defend of Respondent no. 1
5. The respondent no. 1 has raised the following plea's to establish the existence of triable issues :-
i) That the petitioners are neither the owners, nor the landlords of the tenanted shop ;
ii) That the petitioner no.1 has alternate suitable sufficient commercial accommodations at shop no. 94/6, property no. 116, Bank Enclave, Delhi, property no, 87, Katra Neel, Chandni Chowk, Delhi and property no. 94, Sri Ram Nagar, Shahdara, Delhi ;
! (Page No. 3 of 27)
! {Madhu Rani & Anr. Vs. Prem Chand & Ors. (E-52/12)}
iii) That the petitioners are running several businesses from their
numerous premises ;
iv) That 03 ground floor shops, the entire basement and first floor at
property no. 94 are lying vacant with the petitioners which can serve as an alternative to the tenanted shop for petitioner no. 1 ;
v) That the petitioner no. 1 in her pleadings has not alleged the necessary facts that she does not have alternate reasonable suitable accommodation or that her need is bona fide ;
vi) That the assertions of the petitioners regarding the age, education and status of petitioner no. 1 are vague for whom they demanding the tenanted shop ;
vii) That the petitioners have not disclosed the kind of business they intend to run from the tenanted shop ;
viii) That the site plan of the petitioner is incorrect and incomplete;
ix) That the need of the petitioners is not bonafide since they have recently let out shop no. 1 to Ajay Jain in December 2011 ;
x) That the alleged family settlement amongst the petitioners is fake ;
xi) That the petitioner no.1 has no locus standi to maintain this petition after she along with Brij Mohan Sehgal wrote him the letter dated 17.09.2009 that they have sold the suit property to Brijesh Kishan ; and
xii) That the present petition is hit by section 14 (6) DRCA having been filed within 05 years of the execution of sale deed dated 06.07.2007 in favour of petitioner no. 2.
(ii) Reply to Leave to Defend of Respondent no. 1
6. In their counter reply, the petitioners have stated that the petitioner no. 1 has no other suitable alternate reasonable sufficient commercial accommodation except the tenanted shop for starting her Boutique. The petitioner no 1 has stated that the shop no. 94/6 belongs to Bishan Narayan Mehra whereby she has no concern with the same. Likewise she has also denied having any concern with the property no. 116, Bank Enclave, Delhi (herein after "property no. 116"), property no. 807, Katra Neel, Chandni Chowk, Delhi (herein after "property no. 807") or property no. 94, Sri Ram Nagar, Shahdara, Delhi (hereinafter "property no. 94"). The petitioner no. 1 has admitted that the shop no. 6 at the ground floor, the entire 1st floor and top floor of the suit property are lying vacant however has further stated that the same are neither suitable for her Boutique, nor does they can be used exclusively by her as both the petitioner's have an undivided equal share therein. The petitioners have also admitted that 02 shops no. 6, 7 & 9 at the suit property are lying vacant with them but they are not suitable for the prospective business of petitioner no.1 ! (Page No. 4 of 27) ! {Madhu Rani & Anr. Vs. Prem Chand & Ors. (E-52/12)} as they are situated in the rear portion. The petitioner no. 1 has further stated that otherwise also the said 02 shops would not be available for her Boutique since she intends to use the same for the production of the ladies garments for her Boutique and for the sitting arrangements of her employees. The petitioners have also denied that they have recently leased out the shop no. 1 to Ajay Jain. The petitioner's have also denied the existence of any family settlement as alleged by the respondent no.1 by stating that they have not based their case on any family settlement qua the tenanted shop, rather, their case is based upon the no objection given by the petitioner no. 2 allowing the petitioner no. 1 to claim the tenanted shop exclusively for her use. They have also denied the factum of the letter dated 17.09.99 allegedly written to respondent no. 1 jointly by petitioner no.1 & Brij Mohan Sehgal by terming the same to be forged & fabricated. The remaining reply is a mere reiteration of the contents of the petition whereby the petitioners have denied the contrary allegations of respondent no.1.
(iii) Rejoinder by Respondent no. 1
7. In his rejoinder, the respondent no. 1 has stated that Bishan Narayan Mehra is the son-in-law of petitioner no. 1. The remaining rejoinder is a mere reiteration of the contents of his leave to defend whereby he has denied the remaining allegations of the petitioners.
(D) Pleadings of Respondent no. 4
(i) Leave to Defend of Respondent no. 4
8. In his leave to defend, the respondent no. 4 has alleged that he and his father were inducted as joint tenants at the tenanted shop by Bishan Narayan Mehra, the father of petitioner no. 2 on 01.02.82 at a monthly rent of Rs. 15.37/-. He further stated that the suit property was then purchased by Chanchal Rani and Shravan Kumar in September 1982 whereafter his father expired on 12.03.1985 and thence the tenancy devolved exclusively in his favour to the exclusion of the remaining respondents since he exclusively continued to pay rent to the said joint owners and also because none of the remaining respondents had challenged his status that of a sole tenant in the last 15 years.
Apart from claiming himself as the sole tenant, the respondent no. 4 also raised the following plea's seeking leave to defend :-
! (Page No. 5 of 27)
! {Madhu Rani & Anr. Vs. Prem Chand & Ors. (E-52/12)}
i) That the petitioners are neither the owners, nor the landlords of the
tenanted shop ;
ii) That the registered sale deed of petitioner no. 1 is false and fabricated ;
iii) That the petitioner no. 1 owns numerous alternate properties and has a
rental income of more than Rs.1,50,000/- whereby she genuinely does not need the tenanted shop ;
iv) That the petitioners are occupying the 03 vacant ground floor shops, the entire 1st floor & basement floor whereby the present need of the tenanted shop by petitioner no. 1 is in the nature of an additional accommodation ;
v) That the petitioner no. 1 has placed no document on record showing that she intents to start a Boutique or that she has arranged the requisite machineries, catalogues and skilled labours etc. for her prospective business ;
vi) That the site plan of the petitioners is incorrect as the same does not disclose the exact number, location and address of the tenanted shop ;
vii) That the present petition has been filed by petitioner no. 1 in collusion with respondent no. 1 and Bishan Narayan Mehra, the father of petitioner no. 2 to evict him at all costs ;
viii) That the petitioners have concealed the material fact pertaining to the filing of the injunction suit no. 6/10 filed by him in 2010 wherein Bishan Narayan Mehra admitted having sold the suit property to Chanchal Rani and Shravan Kumar in 1982 and the petitioners never applied for their impleadment despite purchasing the suit property in 2007 ;
ix) That the petitioners have concealed the factum of the CS no.
26/12 for declaration and injunction filed by respondent no. 1 ;
x) That the petitioner no. 1 did not raise any objections in 2002 during the execution of the order under 44 DRCA passed by the Ld. ARC in 1995, nor asserted her ownership therein despite allegedly purchasing the tenanted shop in 1997 ;
xi) That the petitioners have concealed the factum of pending eviction petition U/s 14 (1) (e) DRCA filed by Bishan Narayan Mehra against the tenant running "Fine Boot House" ; and
xii) The petitioner no. 1 has not disclosed that she is one of the directors of "M/s. PV Constructions Pvt. Ltd" wherefrom she earns sufficient income ;
xiii) That he is old aged and the tenanted shop is the only source of his livelihood to support his big family ; and
xiv) That the petitioner no. 1 is an old lady suffering from various old age ailments whereby she is incapable of doing any work at this juncture of her life.
(ii) Reply to Leave to Defend of Respondent no. 4
9. In their counter reply, the petitioners have denied that respondent no. 4 was inducted as a joint tenant along with his father by alleging that his father was inducted as a sole tenant whose tenancy after his death was jointly inherited by the respondents. The ! (Page No. 6 of 27) ! {Madhu Rani & Anr. Vs. Prem Chand & Ors. (E-52/12)} petitioner no. 1 has revealed that she owns one other property at Laxmi Nagar other than the suit property, which is however a purely residential property where she resides.
In the remaining portion of this reply, the petitioners have merely denied the contrary allegations of the respondent no. 4 by reasserting the contents of their petition.
(iii) Rejoinder by Respondent no. 4
10. Along with his rejoinder, the respondent no. 4 has placed on record the rent receipts jointly issued in his name and the name of his father by the erstwhile owners to substantiate his claim that he & his father were the joint tenants. He has also alleged that the sale deed of the petitioner no. 1 is false and fabricated as the same does not bear her signatures thereupon. He has also alleged that the petitioner no. 1 owns 04 other shops at property no. 807. According to this respondent, the petitioner no. 1 has no right title or interest in the tenanted shop since the previous owner Bishan Narayan Mehra is still issuing the rent receipts to another tenant Ajay Jain regarding another separate shop bearing no. 1. He has also alleged that the present need of the petitioner no. 1 was never referred by the petitioners in their previous notice dated 17.08.2010 addressed to him and hence the same can not be assumed as bona fide.
The remaining rejoinder is a mere reiteration of his leave to defend whereby the respondent no. 4 has denied the contrary allegations of petitioners.
11. After the completion of the aforesaid pleadings, the contesting parties were duly heard on 13.09.2012, 27.09.2012 and 17.12.2012 regarding their respective claims.
Findings Plea's taken by Respondent no. 1
12. The respondent no. 1 has challenged the ownership of the petitioners placing on record the letter dated 17.09.1999 allegedly written by petitioner no. 1 and previous joint owner Brij Mohan Sehgal to him informing him that that they have sold the tenanted shop to Brijesh Krishan on 16.01.1998 and he was hence asked to pay rent to the said Brijesh Krishan w.e.f January 1998. The petitioners have claimed this letter to be forged and fabricated.
! (Page No. 7 of 27)
! {Madhu Rani & Anr. Vs. Prem Chand & Ors. (E-52/12)}
The petitioners have placed on record the chain of registered sale deeds whereby they have purchased their respective equal and undivided shares in the suit property comprising the tenanted shop. They have placed on record the sale deed dated 19.09.1974 whereby Bishan Narayan Mehra had purchased the suit property from Chanderwati, the registered sale deed dated 27.09.1982 whereby it was sold by Bishan Narayan Mehra to Chanchal Rani & Sharvan Kumar, the registered sale deed dated 27.11.1996 whereby petitioner no.1 and Brij Mohan Sehgal had purchased the same from Chanchal Rani & Shravan Kumar and the sale deed dated 06.07.2007 whereby petitioner no. 2 had purchased the undivided half share of Brij Mohan Sehgal in the suit property.
The aforesaid sale deeds clearly shows that both the petitioners are the joint and equal owners of the undivided suit property comprising the tenanted shop via their respective sale deeds.
Reverting to the aforesaid letter, its perusal shows that the petitioner no. 1 and the previous joint owner Brij Mohan Sehgal have mentioned therein that they had sold the tenanted shop to Brijesh Krishan on 16.01.1998. Be that as it may, the mere existence of this letter cannot dislodge the legal effects of the registered sale deeds respectively existing in favour of the petitioners. The respondent no. 1 except for this letter has placed nothing on record to even remotely suggest that the tenanted shop was ever sold to Brijesh Krishan by anyone at any point of time. No sale deed or any other written/ registered instrument was produced by respondent no. 1 substantiating the contents of this letter or establishing that the tenanted shop was ever sold to Brijesh Krishan. Hence the mere existence of this letter cannot lead to an assumption that the petitioners are not the owners of the tenanted shop or that they ever ceased to be so or that their respective sale deeds are invalid.
Hence this plea of the respondent no. 1 fails to gather any force.
13. The respondent no. 1 has alleged that the petitioners are not his landlords.
The petitioners claims that the father of the respondents was initially inducted as a tenant in 1982 by the previous owner Bishan Narayan Mehra and after his death, his tenancy was jointly succeeded by the respondents, who became their tenants after they respectively purchased their undivided shares in the suit property.
The aforesaid assertions of the petitioners have not been denied, either expressly or impliedly, by the respondent no. 1. The pleadings of respondent no. 1 rather suggests that he is accepting himself as a joint tenant with the remaining respondents. As already been ! (Page No. 8 of 27) ! {Madhu Rani & Anr. Vs. Prem Chand & Ors. (E-52/12)} discussed herein above, the petitioners are the joint owners of the suit property whereby they automatically becomes his joint landlords by means of section 2 (e) DRCA.
Thus the aforesaid plea of the respondent no. 1 fails to impress this court.
14. The respondent no. 1 has also alleged that the pleadings of the petitioners qua the bona fide requirement of petitioner no. 1 are insufficient as the necessary ingredients of section 14 (1) (e) DRCA have not been pleaded therein. As per respondent no. 1, the petitioners neither have disclosed the ground of the bona fide requirement for the petitioner no. 1, nor have revealed as to for what business purpose the tenanted shop is required by them. He has also asserted that the petitioners have not specifically pleaded that they do not have any alternate reasonable suitable accommodation or that the tenanted shop is bonafidely required by petitioner no. 1. He has also contended that the assertions of the petitioners qua the age, education and status of petitioner no. 1 are utterly vague whereby no presumption of bona fide can be raised in their favour. On these assertions, the respondent no. 1 demands the rejection of the petition u/o 7 Rule 11 CPC.
It is fairly well settled that the pleadings of the parties ought to be read in totality and meaningful manner so as to understand its implications. The petitioners have specifically stated in their petition that the tenanted shop is bonafidely required for enabling the petitioner no. 1 to start her Boutique. They have also specifically asserted that the petitioner no. 1 wants to start this business in order to earn her own living because she does not want to remain dependent upon her married daughters for her financial needs. Likewise they have also specifically pleaded in their petition that the petitioner no. 1 has no alternate suitable reasonable sufficient commercial accommodation other than the tenanted shop to fulfill her need. The petitioners have also clarified that business sought to be started by the petitioner no. 1 is of the nature, which can be run and managed by her without having any particular qualification or experience or skill in that regard. The petitioners have raised specific assertions in their petition revealing the exact age, current financial and family status of petitioner no. 1. Thus the meaningful reading of the pleadings of the petitioners reveals that they have pleaded all the necessary facts and ingredients required to maintain this petition.
Thus the present plea of the respondent no. 1 is devoid of any merit.
15. The respondent no. 1 has also alleged that the site plan of the petitioners is incomplete and incorrect. Except for raising this vague plea, the respondent no. 1 has not disclosed as to how and in what manner, the said site plan is either incorrect or ! (Page No. 9 of 27) ! {Madhu Rani & Anr. Vs. Prem Chand & Ors. (E-52/12)} incomplete. Further the respondent no. 1 has not filed his own site plan which could have revealed the so called inaccuracies and insufficiency of the petitioners site plan. Despite disputing the correctness of the petitioners site plan, the respondent no. 1 has neither expressly, nor impliedly disputed the description, measurement and address of the suit property as well as of the tenanted shop given by the petitioners in their pleadings, which are similar to what has been given in their site plan.
Thus the present objection of the respondent no. 1 is rejected being vague.
16. The respondent no. 1 has alleged that the present need of petitioner no. 1 can not be assumed as bona fide when the petitioners have recently leased out the vacant shop no. 1 to another tenant Ajay Jain in December 2011. The petitioners have vehemently denied this allegation.
Despite asserting that the petitioners have recently let out the said vacant shop no. 1 to another tenant Ajay Jain, the respondent no. 1 has produced nothing on record to substantiate this allegation. Thus in absence of any prima facie proof, this plea of the respondent no. 1 remained vague and thus incapable of being relied as the onus to establish the same rested with the respondent no. 1.
Hence the aforesaid plea of respondent no. 1 is likewise rejected being bald.
17. The respondent no. 1 has also alleged that the family settlement alleged by the petitioners to have taken place them regarding the tenanted shop is fake and thus does not confer any right whatsoever in lieu thereof in their favour.
This plea of respondent no. 1 is totally misconceived. At no point of time, the petitioners have claimed the existence of any family settlement amongst themselves for the purposes of the present petition or for reclaiming the tenanted shop exclusively for the petitioner no. 1. Throughout in their pleadings, the petitioners have consistently claimed themselves to be the joint and equal owners of their undivided suit property comprising the tenanted shop. None of them have alleged the factum of any family settlement having taking place between them regarding the division of their undivided ownership rights in the suit property. What transpires from their pleadings is that they have merely agreed amongst themselves to allow the petitioner no. 1 to reclaim the possession of the tenanted shop for starting her Boutique and to use the same exclusively for her business till the time their exact shares in the suit property comprising the tenanted shop are determined by metes and bounds. In this manner, the petitioner no. 2, being one of the joint owners of the undivided suit property, has merely given her no objection in favour of petitioner no. 1 ! (Page No. 10 of 27) ! {Madhu Rani & Anr. Vs. Prem Chand & Ors. (E-52/12)} to facilitate her to reclaim the possession of the tenanted shop for starting her prospective business. It appears that this mutual arrangement agreed and acted upon by the petitioners for the benefit and convenience of petitioner no. 1 has been mistakenly understood as a family settlement by the respondent no. 1. This mutual understanding between the petitioners cannot be legally termed as any family settlement since neither does it in any way determines or divides their respective shares in the otherwise undivided suit property, nor does it creates exclusive ownership rights in favour of petitioner no. 1 in the tenanted shop to the exclusion of petitioner no. 2. Despite their aforesaid mutual arrangement, the suit property comprising the tenanted shop continues to be the joint property of the petitioners Hence the aforesaid plea of the respondent no. 1 is repelled.
18. The respondent no. 1 has also alleged that the present petition is premature via Section 14 (6) DRCA as the same has been filed within 05 years of its purchase by one of its joint owners i.e. petitioner no. 2, who had purchased her undivided half share in the suit property on 06.07.2007.
The petitioner no. 1 had been joint owner of the undivided half share of the suit property since 27.11.1996. The petitioner no. 2 had purchased the remaining undivided half share of the suit property from Brij Mohan Sehgal on 06.07.2007, which undoubtedly is within 5 years from 12.04.2012 when the present petition was filed. Despite the fact that the present petition has been filed within 05 years of the purchase of undivided half share of the suit property by petitioner no. 2, the bar of Section 14 (6) DRCA will not apply as the present petition is based upon the bona fide requirement of petitioner no. 1, not petitioner no. 2. The petitioner no. 1 had been the joint owner of the half undivided share of the suit property since 1996, which is well beyond the period of 05 year prior to the filing of this petition. The object of section 14 (6) DRCA is that a landlord who is himself unable to evict a tenant for some reason, should be deprived of the temptation of transferring the tenanted premises to another person who would not be so prevented. Keeping in view this object of section 14 (6) DRCA in context of cases U/s 14 (1) (e) DRCA, its bar would apply only against that joint owner who alleges his bona fide requirement within 05 years of the acquisition of the tenanted premises by him and not against others. Hence the petitioner no. 1 being the joint owner of the undivided suit property since 1997 will not be prohibited by Section 14 (6) DRCA from reclaiming the tenanted shop for her own use.
Thus the aforesaid plea of the respondent no. 1 has failed to raise any triable issues.
! (Page No. 11 of 27)
! {Madhu Rani & Anr. Vs. Prem Chand & Ors. (E-52/12)}
19. The respondent no. 1 in the rejoinder affidavit has stated that the petitioners have admitted in their counter reply at its page no. 9 that the shops no. 6, 7 & 9 are suitable for the need of petitioner no. 1. The perusal of the respective counter replies of the petitioners to the leave to defend of respondent no. 1 shows that they have stated in the 11th line of para no. 3 at page no.9 that the said 03 shops are suitable for the bona fide need of the petitioner no. 1.
This alleged admission of the petitioners regarding the suitability of these 03 shops seems to be a inadvertent typographical error. In all the remaining portions of these counter replies and other pleadings of the petitioners, they have consistently maintained that these 03 shops are not suitable for the need of petitioner no. 1. In the 8th line of the same page no. 9, the petitioners have stated that these 03 shop are not a suitable alternative for petitioner no. 1. Thus the meaningful reading of the pleadings of the petitioner in a comprehensive manner would show that the aforesaid admission relied by respondent no. 1 is in fact not an admission but seems to be a bye product of a typographical mistake.
Hence the present plea of the respondent no. 1 is likewise rejected.
Plea's taken by Respondent no. 4
20. The respondent no. 4 has stated that the petitioners are not the owners of the tenanted shop. As already been discussed herein above, the petitioners have already established themselves the owners of the suit property whereby this plea of the respondent no. 4 falls flat on grounds. The established fact of petitioners being the joint owners of the tenanted shop automatically makes them as its joint landlord via section 2
(e) DRCA.
The respondent no. 4 has stated that he became the sole tenant after the demise of the other joint tenant i.e. his father. He has contended that he along with his father was jointly inducted as a tenant by Bishan Narayan Mehra on 01.02.1982 and after the death of his father on 12.03.1985, he exclusively paid rent to the then owners whereby the tenancy rights devolved exclusively in his favour, particularly, when none of the remaining LR's of his deceased father raised any objection in respect thereof. The respondent no. 4 has placed on record 06 rent receipts issued jointly in his name and his father in support of his contention.
! (Page No. 12 of 27)
! {Madhu Rani & Anr. Vs. Prem Chand & Ors. (E-52/12)}
The petitioners have refuted the aforesaid allegations by alleging that the father of the respondents was inducted as a sole tenant and no joint tenancy was ever created in the favour of respondent no. 4.
The aforesaid rent receipts filed by respondent no. 4 issued respectively by the previous owners makes it appear as if the respondent no. 4 was jointly inducted as a tenant along with his father. Admittedly the father of the respondents has expired way back on 12.03.1985. After the death of the father of the respondents, the extend of half of his joint & commercial tenancy devolved over to all the respondents by virtue of section 2 (l) DRCA. So though the respondent no. 4 was inducted as a joint tenant along with his father, but after the death of his father, all the remaining respondents also became the joint tenants by stepping into his shoes. In these circumstances, the mere fact that the respondent no. 4 has been exclusively paying rent to the owners will not make him as the sole tenant to the exclusion of the remaining respondents. The payment of rent by respondent no. 4 is too feeble a circumstance to extinguish the joint tenancy rights of the remaining respondents inherited by them on the demise of their father. Nothing has been placed on record except for these rent receipts by respondent no. 4 to show that he has been enjoying & occupying the tenanted shop exclusively to the exclusion of the remaining respondents after the demise of his father. Moreover the rent receipts filed by the respondent no.4 pertains to the era of 1980 and no recent rent receipts have been filed by him to show that he has been consistently and exclusively paying rent to the owners to the exclusion of the remaining respondents even till date. Hence the respondent no. 4 has failed to show that he became the sole tenant to the exclusion of the remaining respondents after the death of his father.
Be that as it may, even if I am to accept the contention of respondent no. 4 that he became the sole tenant to the exclusion of the remaining respondents after the death of the other joint tenant, that hardly would have made any difference. If the respondent no. 4 is the sole tenant, the present petition is still legally maintainable having been filed by the petitioners being the joint owners cum joint landlords. The mere impleadment of the remaining respondents would not have non suited the petitioners on the ground of mis- joinder or non-joinder. Furthermore if the respondent no. 4 is assumed as the sole tenant, he is then estopped from challenging the ownership of petitioners U/s 116 Evidence Act, who automatically became his joint landlords via section 2 (e) DRCA being the joint owners.
The respondent no. 4 has further stated that the previous owner Bishan Narayan Mehra is still issuing rent receipts to the adjacent tenant Ajay Kumar Jain, which leads to ! (Page No. 13 of 27) ! {Madhu Rani & Anr. Vs. Prem Chand & Ors. (E-52/12)} an assumption that the petitioners have no right, title or interest in the tenanted shop. This plea of respondent no. 4 is totally misconceived. Admittedly the rent receipts issued by Bishan Narayan Mehra to Ajay Kumar Jain does not pertains to the tenanted shop, rather, the same pertains to an adjacent shop whereby the same becomes irrelevant for the present case.
Hence the aforesaid plea of respondent no. 4 fails to impress this court.
21. The respondent no. 4 has alleged that the petitioners have not disclosed the factum of CS No. 6/10 filed by him against Bishan Narayn Mehra & Others wherein Bishan Narayan Mehra in his WS filed in 2010 had admitted that he has no concern with the suit property after having sold the same to Chanchal Rani and Shravan Kumar in 1982.
The petitioners have replied to the aforesaid allegations of respondent no. 4 by stating that they were not required to disclose the aforesaid CS as they were neither the parties therein, nor it was relevant herein.
Admittedly the petitioners were not the parties in the said CS. It also appears that the respondent no. 4 despite being the plaintiff therein never applied for the impleadment of the petitioners therein though he could have done it being "dominus litus". Further acting cleverly, the respondent no. 4 despite disclosing the factum of the said CS, did not file the plaint of his CS and instead only filed the WS filed therein by Bishan Narayan Mehra. Had the plaint of the said CS would have been filed by respondent no. 4 before this court, the question of its relevancy could have been easily determined. However for the reasons best known to him, the respondent no. 4 has preferred to withheld this material document i.e. the plaint.
The said CS was filed by respondent no. 4 wherein none of the petitioners were impleaded as parties by him, then it was the duty of the respondent no. 4 to disclose its factum and not of the petitioners. Be that as it may, once it transpires from the record that the petitioners were never been the parties in the said CS, the question of its disclosure by the petitioners loses its significance. Moreover the said CS being filed for Injunction is hardly relevant for the present proceedings, particularly, when the respondent no. 4 also did nothing to explain its relevancy for the present case. Merely because Bishan Narayan Mehra happens to be the common relative of both the petitioners, they were not supposed to disclose all the litigations wherein he might have been a party, however irrelevant they would have been.
Hence the aforesaid plea of the respondent no. 4 is accordingly repelled.
! (Page No. 14 of 27)
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22. The respondent no. 4 has stated that the petitioners have not disclosed the factum of CS No. 26/12 filed against them and him by respondent no. 1 for Declaration and Injunction despite the fact that they are contesting the same.
The respondent no. 4 has not explained as to how the pendency or the disclosure of the said CS is relevant herein. The said CS having been filed Declaration & Injunction is hardly of any relevance herein. Though he could have, the respondent no. 4 has not even bothered to file the pleadings for the said CS, which could have helped this court in easily determining its relevancy. Hence the non disclosure of the said CS by the petitioners can not be assumed to be fatal qua this petition.
Hence the present plea of respondent no. 4 is devoid of any strength.
23. The respondent no. 4 has stated that the petitioner no. 1 after having purchased the tenanted shop in 1987 did not raise any objection or alleged her ownership in 2002 during the execution of the order passed U/s 44 DRCA by the Ld. ARC in the year 1995, which silence of the petitioner no. 1 creates doubt over her bona fide's.
The respondent no. 4 has not filed the pleadings or the proceedings of the said petition U/s 44 DRCA. Had they been filed, the question of its relevancy would have been easily determined. The respondent no. 4 has not explained as to how the said proceedings are relevant for the present case, which otherwise seems to be irrelevant. Now being irrelevant, the petitioner no. 1 was under no duty to disclose it factum.
The respondent no. 4 has admitted that the said order U/s 44 DRCA was passed in the year 1995. Well at that time, the petitioner no. 1 had no concern with the tenanted shop since she had purchased its joint ownership only on 27.11.1996. When she had no concern with the tenanted shop in 1995, she definitely would not have been a party either during the trial of the said proceedings or during the order passed therein in 1995, which was then sought to be executed in 2002. Moreover any proceedings taken up or the orders passed U/s 44 DRCA hardly have any relevance for the cases like the present eviction. Merely because the petitioner no. 1 did not participate in the execution of the said order in 2002, it does not mean that she ceases to be the joint owner of the tenanted shop or that her actions are mala fide. The said proceedings U/s 44 DRCA were not title proceedings and thus the petitioner no. 1 was not required to participate during it execution either for establishing her ownership or for answering any objections raised therein regarding her ownership.
Hence the aforesaid plea of respondent no. 4 is likewise discarded.
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24. The respondent no. 4 has alleged that the petitioners have not disclosed the factum of a pending EP filed by Bishan Narayan Mehra against another tenant "Fine Boot House"
U/s 14 (1) (e) DRCA.
The respondent no. 4 has not explained the relevancy of the said EP. Admittedly neither the petitioners are the parties, nor the tenanted shop is the subject matter of the said EP. Rather the said petition has been filed & prosecuted by Bishan Narayan Mehra regarding a separate shop and a separate tenant. Hence the same cannot be said to be relevant for the present case whereby the petitioners were not required to disclose its factum.
Hence the aforesaid plea of the respondent no. 4 to fails muster any force.
25. The respondent no. 4 had stated that the petitioner's sale deed dated 27.11.1996 is false and fabricated. In his rejoinder affidavit, the said respondent has also asserted that the said sale deed is false and fabricated because it does not bears the signatures of vendee i.e. petitioner no.1 thereupon.
The said sale deed is a registered document. Also it is clear that it only bears the signatures of the vendors and not that of the vendees i.e. petitioner no. 1 or Brij Mohan Sehgal. But that will not render this sale deed invalid for want of mutuality on the ground that it was only an unilateral instrument. All that is necessary is to ensure that the essential parts of a modern conveyance namely, the "parties, the recitals, testatum, operative words, parcels, habendum and testimonium" are present in the instrument. After the decision of the Apex Court in "Aloka Bose Vs. Parmatma Devi and Others", (2009) 2 SCC 582, there is no scope any more for anybody to contend that a sale deed (deed of conveyance) executed and signed by the vendor is a unilateral document or instrument and is not a contract which can be enforced in law. Thus sale deed dated 27.11.1996 which contain the signatures of the vendors only and not that of the vendees is a contract enforceable in law. (Refer "Vasu @ Bhaskaran Vs. Parukutty Amma" 2012 (1) KLT 466).
Apart from the said plea regarding the absence of the signatures of the petitioner no. 1, nothing has been pleaded or disclosed by the respondent no. 4 as to how the said sale deed is either forged or fabricated.
Hence the present plea of the respondent no. 4 is meritless.
26. In his rejoinder affidavit, the respondent no. 4 has alleged that the petitioners in their notice dated 17.08.2010 has not spoken anything about the present bona fide need of the ! (Page No. 16 of 27) ! {Madhu Rani & Anr. Vs. Prem Chand & Ors. (E-52/12)} petitioner no.1 whereby her petition is now to be assumed as an afterthought devised to seek his eviction.
The petitioners had issued the said notice against the respondents demanding the arrears of rent and vacant possession of the tenanted shop as their tenancy was terminated w.e.f. 30.09.2010. Clearly the said notice of the petitioners is silent about the bona fide requirement of petitioner no. 1. But this omission is not fatal for this case since the said notice was not issued by the petitioners for the bona fide requirement of petitioner no. 1 but was for demanding their arrears of rent and the possession of the tenanted shop after terminating the tenancy of the respondents. Otherwise also no notice is required to be given by the landlord before filing an eviction petition U/s 14 (1) (e) DRCA.
Merely because the petitioners did not plead the bona fide requirement of petitioner no. 1 in the said notice does not mean that the petitioners are forever forbidden from raising their bona fide requirement, even if there arises one subsequently. Further the said notice is dated 17.08.2010 while this petition was filed on 12.04.2012 whereby there is a considerable lapse of time between these two events, which is sufficient for creation of circumstances involving urgent necessity for the petitioner no. 1 to reclaim the tenanted shop. The petitioner no. 1 in her pleadings has explained that the circumstances involving her bona fide requirement arose only 3-4 months prior to the filing of the present petition when she started facing financial constraints and realised that she want to earn for herself. Meaning thereby that no such compelling circumstances existed till 17.08.2010 when the said notice was addressed by the petitioners and hence there was no occasion for the petitioners to plead the bona fide requirement of the petitioner no. 1 therein.
Hence the present plea of respondent no. 4 is also repelled.
27. The respondent no. 4 has stated that the site plan of the petitioners is incorrect and incomplete wherein they have not disclosed the exact number, location and address of the tenanted shop. The respondent no. 4 has also filed a photocopied site plan of the suit property in lieu thereof, which was earlier filed by him in another case.
It is worthwhile to note that the petitioners in consonance with their pleadings has likewise described the suit property and tenanted shop in their site plan. The description of the suit property and tenanted shop i.e. address, location and dimensions etc. given by the petitioners in their pleadings and their respective sale deeds have not been disputed at all by the respondent no. 4 in any of his pleadings. These descriptions are sufficient to identify the suit property and the tenanted shop even in the site plan of the petitioners.
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The comparative analysis of the respective site plan's filed by the petitioners and respondent no. 4 reveals no anomaly so as far as shop no. 1 to 8 mentioned therein are concerned.
However the site plan of the respondent no. 4 shows 09 shops at the suit property while that of the petitioner shows 10 shops. The site plan of respondent no. 4 is dated 21.12.2009 while the site plan of the petitioners is a recent one. The meaningful understanding and mutual comparison of these site plan's would clarify that the rear most right side stair case existing at the suit property in 2009 has now been converted to the shop no. 9 as shown in the site plan of the petitioners. Neither respondent no. 1, nor respondent no. 4 are doubting the existence of this shop no. 9. Rather both of them have pleaded that this shop no. 9 can serve as an alternate accommodation for the petitioner no. 1 as the same lying vacant. Once the existence of this shop no. 9 is not disputed between the contesting parties, the site plan of the petitioners showing the same cannot be termed as incorrect or incomplete.
The site plan filed by the respondent no. 4 shows that the tenanted shop earlier in 2009 was smaller in size i.e. 7.9 X 18.6 ft, which has now been expended to 8.5 X 18.3 ft as appears from the site plan of the petitioners. The respondent no. 4 has not disputed in any of his pleadings the fact that the tenanted shop does not measures 8.5 X 18.03 ft as being alleged by the petitioners in their petition. Meaning thereby, he has impliedly admitted the said measurements of the tenanted shop given by the petitioners in their petition as well as in their site plan. From the comparative analysis of the respective site plan's filed by the petitioners and respondent no. 4, it appears that the tenanted shop was earlier smaller in its width in 2009, which was subsequently expanded from 7.9 ft to 8.5 ft by amalgamating the adjacent open space earlier lying vacant on the front right side of the suit property. It also appears that the said expansion was done to bring the width of the tenanted shop in consonance with that of the remaining shops already existing at the suit property. Thus I do not find any material discrepancy qua the tenanted shop in the the site plan of the petitioners, which thus cannot be termed as incorrect or incomplete Further had the descriptions and dimensions do the suit property or the tenanted shop being improperly/incorrectly given by the petitioners either in their petition or their site plan, the respondent no. 4 ought to have filed the latest site plan instead of relying upon an older site plan, which merely describes the suit property as it existed on 21.12.2009 and not what it is today. Filing of a substantially older site plan by the respondent no. 4 seems to be a ploy to trick the court and to create a superficial dispute qua the site plan of the petitioners. Thus this older site plan of respondent no. 4 cannot be relied either to ! (Page No. 18 of 27) ! {Madhu Rani & Anr. Vs. Prem Chand & Ors. (E-52/12)} reject the latest site plan filed by the petitioners or to assume that no altercations ever been made at the suit property or the tenanted shop since 2009 or that the latest descriptions given by the petitioners in their site plan are incorrect/incomplete.
Hence the aforesaid plea of the respondent no. 4 also fails to raise any triable issue.
28. The respondent no. 4 has alleged that the petitioner no.1 is earning sufficient monthly rental income of Rs.1.50 lac whereby she need not start any business. The petitioner no. 1 has denied this allegation. She has instead stated that she was earlier earning monthly rental income of Rs. 13,225/- from her 1st floor tenant Syndicate Bank but now that the said tenant has left whereby her monthly rental income from other tenants has fallen to merely Rs. 1500/-. Admittedly Syndicate Bank has vacated its rented 1st floor and hence the rental income generated from its tenancy has now stopped for petitioner no. 1. Nothing further has been placed on record by the respondent no. 4 to even remotely establish his vague plea that the petitioner no. 1 is earning a rental income of Rs.1.50 lac.
Hence this plea of the said respondent no. 4 is also rejected being bald.
29. The respondent no. 4 has alleged that the petitioner no.1 is earning sufficient income from her directorship of "M/s PV Constructions Pvt. Ltd.", whereby she has no requirement for starting any business and hence her desire to start a Boutique because of her financial constraints is totally flimsy.
The petitioner no. 1 has denied this assertion and to counter it, she has filed on record the copy of the RTI reply dated 19.12.2011 obtained from the Ministry of Corporate Affairs, Govt. Of India revealing therein that the name of the said company has already been "struck off" from the Govt. records.
The perusal of the said RTI reply reveals that the name of the said company has already been struck off from the relevant govt. records meaning thereby no such company now exists. The respondent no. 4 has placed nothing on record to rebut the contents of the said RTI reply or to establish that the said company is still functional wherein the petitioner no. 1 is still one of the directors. So when no company named "M/s PV Constructions Pvt. Ltd." exists, there arises no question of petitioner no. 1 being one of its directors or earning any income from it.
Hence the aforesaid plea of respondent no. 4 also fails to raise any triable issues.
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30. The respondent no. 4 has alleged that the present petition has been filed by the petitioners in collusion with respondent no. 1 and Bishan Narayan Mehra, the father of the respondent no. 2.
This plea of the respondent is utterly vague. No circumstances have been pointed out by respondent no. 4 showing any collusion between the petitioners and respondent no. 1 or Bishan Narayan Mehra qua the filing of the present petition. The respondent no. 1 is vigorously contesting the present petition via his leave to defend on the strength of numerous pleas. Had the present petition been a collusive exercise between him, petitioners and Bishan Narayan Mehra, the respondent no. 1 would not have been contesting it as strongly as he has been doing. Further the respondent no.1 is also fighting a litigation with the petitioners and respondent no. 4 by filing a separate CS no. 26/12 for Injunction, which gives one more reason for believing that they are not in collusion with each other qua the present case. Merely because the relations between respondent no. 4 & respondent no. 1 are not cordial does not necessarily leads to an assumption that the petitioners and respondent no. 1 have colluded for this case.
Bishan Narayan Mehra had already sold the suit property to Chanchal Rani and Shravan Kumar in 1982 whereafter he has no right, title or interest therein. Having no right, either present or prospective, in the suit property, their appears no probability of Bishan Narayan Mehra being part of any such alleged collusion. Merely because he is the father of petitioner no. 2 and son-in-law of the petitioner no. 1, it cannot be assumed that he is the driving force behind the present petition. Hence the present plea of respondent no. 4 also fails to raise any triable issue.
31. The respondent no. 4 has also alleged that he is a old man of 56 years with a large family to feed and that the tenanted shop is his sole source of earning. These plea's of the respondent no. 4 are totally irrelevant for the present case having no bearing either on its maintainability or the outcome.
Hence the aforesaid plea's of respondent no. 4 fails to raise any triable issue.
Common Plea's taken by Respondent no. 1 & 4
32. The respondent no. 1 states that the petitioners owns numerous alternate commercial accommodations in Delhi at property no. 116, 04 shops at property no. 807 and property no. 94, Shri Ram Nagar. Similarly the respondent no. 4 has also stated in his ! (Page No. 20 of 27) ! {Madhu Rani & Anr. Vs. Prem Chand & Ors. (E-52/12)} rejoinder that the petitioners are the owners of 04 shops at property no. 807 and numerous other properties in the vicinity of the tenanted shop & at other places in Delhi The petitioners have denied these allegations by stating that they have no concern with any of these properties. They have stated that the property no. 116 does not belong to them rather it belongs to Gur Narayan Mehra. Likewise they have stated that they have no concern with the remaining property no. 807 or property no. 94. The petitioners have maintained throughout that they have no commercial property in Delhi or elsewhere other than the suit property. Except for their vague pleas, the respondents no. 1 & 4 have placed nothing on record to even prima facie suggest that any of the petitioners have any concern with any of the aforesaid properties or that they own any other commercial accommodation at Delhi or elsewhere. The petitioner no. 1 has admitted that she owns one residential accommodation at D-219, Laxmi Nagar where she is currently residing. However this admission is irrelevant since this property of petitioner no. 1 at Laxmi Nagar is not established to be a commercial property by any of the contesting respondents.
Hence the aforesaid plea's of the respondents no. 1 & 4 are rejected being vague and fishing.
33. The respondents no. 1 & 4 have alleged that the petitioner no. 1 already has sufficient vacant accommodation at the suit property to start her Boutique whereby her present need is in the nature of an additional accommodation. The respondent no. 1 has alleged that the petitioners are already in possession of vacant portions at shop no. 94/6, another 03 shops no. 6, 7 & 9, entire 1st floor and the terrace floor at the suit property. Likewise the respondent no. 4 has alleged that the petitioners are already in possession of vacant portions at 03 shops no. 6, 7 & 9, the entire 1st floor and basement floor at the suit property.
The petitioners have admitted that they are in possession of vacant portions at 03 shops bearing no. 6, 7 & 9 at the ground floor, the entire basement, 1st floor and terrace floor at the suit property. However the petitioners have stated that the said vacant portions are not suitable for the kind of business which the petitioner no. 1 intends to start. The petitioner no. 1 has stated that she has an undivided interest with petitioner no. 2 in shop no. 06 whereby the same cannot be exclusively used by her. The petitioners have stated that the shops no. 7 & 9 are not suitable because they are situated in the rear internal side of the suit property. The petitioner no. 1 has further stated that the shops no. 7 & 9 would not be available for her Boutique since they would be used by her for production of the ladies garments, installation of the necessary machineries and sitting arrangements of her ! (Page No. 21 of 27) ! {Madhu Rani & Anr. Vs. Prem Chand & Ors. (E-52/12)} workers. The petitioner no. 1 has also stated that the basement, 1st floor and terrace floor are not suitable because they are not situated at the front portion of the ground floor and also because she has an undivided interest in the said floors with petitioner no. 2 whereby she cannot exclusively use the same for herself. The petitioners have stated that they have no concern with shop no. 94/6 which exclusively belongs to Bishan Narayan Mehra. .
Admittedly 03 shops no. 6, 7 & 9 at the ground floor, the entire basement floor, 1st floor and terrace floor are lying vacant with the petitioners. The petitioners have filed this petition for the requirement of petitioner no. 1, who needs a suitable space to start her Boutique. The success and profitability of such kind of businesses depends upon proper marketing and advertising. Now in this situation, ground floor front road facing premises are more suitable, viable and plausible than any other since they are easily accessible as well as visible to the customers and casual passerby's. If these kinds of shops are operated from a ground floor road facing portion, the probability of their popularity and profitability increases considerably. Every businessman wants to run a business in a profitable fashion and that's why majority of the Boutique outlets are being operated from ground floor road facing portions as it enables them to earn business not only from their regular customers but also helps them in attracting casual passersby's to come and buy their products. In the light of this analogy, their is nothing wrong with the fact that neither the shop no. 6 ,7 or 9, nor the basement, nor the 1st floor and nor the terrace floor can be considered as the viable and reasonable alternative for the petitioner no. 1 vis a vis the tenanted shop, which is situated right at the head front of the road facing portion of the suit property.
Moreover there is also force in the contention of the petitioner no. 1 that she cannot use the vacant shop no. 6 or the basement or the 1st floor or the terrace floor exclusively for her as they are the undivided joint properties of both the petitioners and that the petitioner no. 2 has given her no objection in her favour to exclusively use the tenanted shop only and not the remaining vacant portions.
Further as regards the shops no. 7 & 9, the petitioner no. 1 has already clarified that she would be using these shops for production of ladies garments, installation of the required machineries and sitting arrangements of her employees. Their is nothing wrong with this contention because the sort of business intended to be started by her requires a lot of set up like installation of machineries for stitching & sewing of ladies garments and for working & resting space for her employees. All these arrangements requires additional space apart from the tenanted shop, which would be consumed exclusively by Boutique showroom of petitioner no. 1. Though these arrangements could have also been made by ! (Page No. 22 of 27) ! {Madhu Rani & Anr. Vs. Prem Chand & Ors. (E-52/12)} petitioner no. 1 from the vacant basement, 1st floor or the terrace floor, had they been her exclusive property but that is not the case herein, nor does she has the permission from petitioner no. 2 to use these portions exclusively for her.
Otherwise also the respondents no. 1 & 4 being tenants cannot dictate terms to the petitioners. They should not be directing the petitioner no. 1 to start her business from the portions unsuitable for her business and to let go of the tenanted shop despite it being the most suitable for her.
The petitioners have denied having any concern with shop no. 94/6 by alleging that the same belongs to Bishan Narayan Mehra. The respondent no. 1 has not placed anything on record to rebut this assertion of by petitioners whereby his mere verbal plea in this regard can not form basis of an assumption that the said shop no. 94/6 is either owned or readily available to either of the petitioners.
Hence it is clear from the aforesaid discussion that neither of the portions lying vacant with the petitioners can be considered as a reasonable viable alternative of the tenanted shop from the point of view of the need of petitioner no. 1.
Thus the present plea's of the respondent no. 1 & 4 fails to make out any case of additional accommodation.
34. The respondent no. 1 & 4 have also alleged that the petitioners have not filed any document to show that the petitioner no. 1 wants to start her Boutique or that she has made any arrangements for its start like recruitment of labours and purchase of the machineries etc. This plea of respondent no. 1 & 4 is totally absurd. The petitioner no. 1 has stated that she desires to start her Boutique and for that purposes she is in the process of making necessary arrangements like labours and machineries etc. Meaning thereby she is still in the preparatory stage qua her business whereby she is still making the requisite arrangements for the starting and management of her proposed business. As a prudent business woman, she is not supposed to invest heavily beforehand by making the purchases of the machineries and recruitment of the labours even before getting the possession of the tenanted shop. These arrangements reasonably can always be and ought to be made by her once she regains the possession of the tenanted shop, which circumspection today will prevent her from any unwarranted losses, which may occur in case she is not being able to reclaim the tenanted shop in the immediate future. It must be prevailing somewhere in her mind that it is better to postpone these expenses and arrangements for the time being till the fate of the leave to defend is decided because if ! (Page No. 23 of 27) ! {Madhu Rani & Anr. Vs. Prem Chand & Ors. (E-52/12)} this petition is to go through a full fledged trial, then all such expenses and arrangements would be rendered futile and they could cost her more loses then what she might have gained out of this litigation. These arrangements and expenses can always be made by her even after the disposal of this petition whereafter she definitely would be having at least 06 months as per Section 14 (7) DRCA. This period of 06 months would be more than sufficient for her to make the said necessary arrangements & expenses for starting, establishing and managing her Boutique. Thus she is not bound to make such arrangements or incur such expenses even before getting the possession of the tenanted premises. Rather the postponement of these arrangements and expenses is an advisable & intelligent business decision. So the omission of the petitioner no. 1 to file any document showing that she is making arrangements for establishing her business cannot go against her.
Thus the aforesaid plea of respondent no. 1 & 4 fails to impress this court.
35. The respondent no. 1 has alleged that the need of the petitioner no. 1 for the tenanted shop is not bonafide since she is too old to start or manage any business at this stage of her life. The respondent no. 4 has also alleged that the petitioner is an old lady of 78 years suffering from heart disease and various other old age ailments whereby she is incapable of doing any work or starting any business at this stage of her life.
This plea of the respondent no. 1 & 4 is grossly absurd. Even if the petitioner no. 1 is an old lady aged 78 years, there is no legal bar which prohibits her from starting or managing the business of her choice at this stage of her life. The petitioner no. 1 has this constitutional right to start any business of her choice from her property or from anywhere in this country and she can exercise this right at any stage of the life, even if it happens to be the last day of her life. The respondent no. 1 & 4 have no business saying that petitioner no. 1 is too old to start any business. Success of a business is not dependent upon the age of its owner but is rather dependent upon the hard work and dedication of its owner. The respondent no. 1 & 4 cannot dictate terms to petitioner no. 1 as to when, how and at what age she ought to start a business of her own. The respondent no. 1 & 4 themselves are old aged men and if this plea of them is to be accepted, then instead of fighting this litigation, occupying the tenanted shop for their own use and advising the petitioner no. 1 to sit at home, they should likewise retire from working at the tenanted shop and sit at home.
Hence the aforesaid plea's of the respondent no. 1 & 4 is rejected being flimsy.
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36. The respondents no. 1 & 4 have alleged that the present petition has been filed by the petitioners so as to force them to enhance their rent or to fetch a new tenant paying higher rent.
These plea's of respondent no. 1 & 4 are totally irrelevant since none of them has any bearing either on the maintainability or outcome of the present petition.
The plea of the respondent no. 4 that the present petition has been filed by the petitioners just to evict him so as to fetch a new tenant is nothing more than an unfounded apprehension. The court litigations are to be adjudicated on the basis of facts, not unfounded apprehensions. Further the claim of the respondent no. 4 that the petitioners have a mala fide intent to evict him so as to subsequently let out the tenanted shop is being properly taken care of by section 19 DRCA whereby he can always apply for restitution even after his eviction, if his alleged apprehension comes true. (Refer :- "Satish Bansal Vs. Neelam Gupta", R.C. Revision no. 470/2012 decided by Delhi High Court on 04/10/2012).
Hence the aforesaid plea's of respondent no. 1 & 4 fails to raise any triable issue.
37. The respondent no. 1 & 4 have relied upon plethora of citations firstly to contend that the need of the petitioner's is not bona fide being made for an additional accommodation and secondly that their respective leave to defend raises triable issues.
They have relied upon "M/s. Budh Singh & Sons and Anr. Vs. Sangeeta Kedia" RCR No. 453/2011 decided by the High Court of Delhi on 17/11/2011, "Mohd. Illyas Vs. Nooruddin and Ors." RCR. No. 133/2011 decided by the High Court of Delhi on 15/11/2011, "Vijay Nayyar Vs. Om Prakash Malik" RCR No. 120/2011 decided by the High Court of Delhi on 11/07/2011, "Rajbir Pal & Anr. Vs. Kanwar Pratap Singh" RCR No. 209/2010 decided by the High Court of Delhi on 12/10/2011, "Dolly Chandra & Anr. Vs. Rameshwar Prasad" RCR No. 171/2011 decided by the High Court of Delhi on 08/09/2011, "Phoola Rani Vs. Rameshwar Sharma" RCR No. 182/2010 decided by the High Court of Delhi on 03/10/2011, "Satpal Khurana Vs. Beerwati" RCR No. 287/2010 decided by the High Court of Delhi on 21/07/2011, "Inderjeet Kaur Vs. Nirpal Singh" SLP (Civil) No. 554/2000 decided y the Supreme Court on 15/12/2000, "Pradeep Kumar Sethi Vs. Rajender Kumar Sethi" RCR No. 127/2010 decided by the High Court of Delhi on 18/07/2011, "Satpal Vs. Sahi Ram" RCR No. 25/2010 decided by the High Court of Delhi on 27/05/2011, "Devi Das Vs. Mohan Lal" AIR 1982 SC 1213, "Liaq Ahmed and Others Vs. ! (Page No. 25 of 27) ! {Madhu Rani & Anr. Vs. Prem Chand & Ors. (E-52/12)} Habeeb-Ur-Rehman" AIR 2000 SC 2470, "Inderjeet Kaur Vs. Nirpal Singh" JT 2001 (1) SC 308 and "Devi Das Vs. Mohan Lal" AIR 1982 SC 1213.
The citations relied by these respondents are so many that it is not feasible to deal with each one of those whereby I instead shall briefly enunciate the legal principles laid by those precedents to find out if any of them helps the cause of these respondents.
The citations relied by the respondent no. 1 & 4 basically lays certain principles which needs to be kept in mind by the Court while deciding the leave to defend. That if the tenant is able to show that the need of his landlord is for additional accommodation, then he is entitled to unconditional leave to defend. That if the tenant is able to show the existence of triable issues which could eventually non suit the landlord, then also he is entitled to unconditional leave to defend. That the landlord must come to the Court with clean hands by disclosing all the alternate and relevant accommodations available with him otherwise the tenant would be entitled to unconditional leave to defend. That if the landlord possesses reasonable & sufficient vacant accommodation, then also the tenant is entitled for unconditional leave to defend.
There is no doubt to these legal principles. However the respondent no. 1 & 4 cannot draw any benefit from these legal principles once my aforesaid discussion clearly spells out that they have squarely failed to prima facie establish that either the petitioner no. 1 need is in the nature of any additional requirement or is a mere desire lacking bona fides or that her case involves any triable issues capable of non suiting her. Thus these citations relied by the respondent no. 1 & 4 does not bestow them any favour.
CONCLUSION
38. It is well settled that leave to defend is granted to the tenant in case of any triable issue has been raised by him, which can be adjudicated by consideration of additional evidence. The mere existence of any triable issue is not sufficient. The nature of the triable issue raised by the tenant must be such that it will 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 & in routine manner grant leave to defend.
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In the light of the aforesaid legal ratio, all the pleas taken by the respondent seems to be sham and moonshine, which have failed to raise any requisite triable issues. The petitioner no. 1 is claiming the tenanted shop to start her Boutique for earning her living in a self sufficient and respectable manner. The petitioner no. 1 has prima facie established that she has no other alternate reasonable sufficient commercial accommodation to cater to her requirement. In light of the failure of the respondents no. 1 & 4 to raise any triable issues and the failure of the respondents no. 2 & 3 to apply for leave to defend, the need of the petitioner no. 1 is to be assumed as genuine, honest and bona fide. The applications for leave to defend filed by the respondent no. 1 & 4 are thus rejected.
Consequently an eviction order is passed U/s. 14 (1) (e), DRCA against the respondents regarding the tenanted shop no. 94/2 at the ground floor of property no. 94, Shankar Market, Railway Road, Shahdara, Delhi-110032 as shown in red in the site plan of the petitioners.
However in light of Section 14 (7) DRCA, the aforesaid eviction order shall not be executable for a period of six months from today.
The parties are left to bear their own costs.
File be consigned to Record Room after due compliance.
Announced in the open court
on 24.01.2013 (SIDHARTH MATHUR)
ARC-01/EAST/KKD/DELHI.
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