Delhi District Court
Smt. Suman Yadav vs Sh. Ashok Kumar on 4 June, 2014
IN THE COURT OF NAVEEN K. KASHYAP, COMMERCIAL
CIVIL JUDGE-CUM-ADDITIONAL RENT CONTROLLER
(WEST), TIS HAZARI COURTS, DELHI.
E. No- 82/2013
SMT. SUMAN YADAV
W/o Sh. Ram Gopal Yadav
R/o C-24 A, Shivaji Park,
West Punjabi Bagh,
New Delhi. .......... Petitioner
VERSUS
SH. ASHOK KUMAR
S/o Late Kishan Lal
R/o B-743, Sector-1,
Avantika , Rohini,
Delhi-110085. ........ Respondent
Date of institution : 05.06.2013
The date on which the
undersigned took over
the matter : 07.12.2013
Date of decision : 04.06.2014.
ORDER
The Facts:
1. Present petition is a petition U/Sec. 14 (1) (e) of DRC Act for eviction of the respondent from one shop on the ground floor, bearing private no. 1, in the property bearing no. C 24 A, Shivaji Park, West Panjabi Bagh, New Delhi. as shown in red colour in the site plan attached with the petition (hereinafter referred as suit property), on the ground of bonafide commercial requirement of petitioner's husband.E. No. 82/2013 Page 1 of 13
2. The brief facts as stated in the petition are that petitioner is the owner and landlord of the tenanted suit property. The same was purchased from previous owner Sh Bheem Sigh Yadav Vide sale deed dates 19/11/2004. That respondant is a tenant in the suit property at a rent of Rs. 300/- p.m. That family of the petitioner consist of herself, her husband sh. Ram Gopal Yadav and two children, who reside with the petitioner on the rear side of the suit property. That need of petitioner family is growing with passage of time. That husband of petitioner is unemployed at present and he wants to start a business of sale and purchase of mobile phones and repair thereof. That other shops of the ground floor of the building in which suit property is situated are already in occupation of other tenants. As such it is claimed that husband of petitioner is facing great hardship due to non availability of the shop. It is further stated that petitioner and her husband has no place to do work in Delhi. As such present petition is filed.
3. Notice of the eviction petition was sent to the respondent. In response to which, the respondent filed his leave to defend application dated 29.06.2013 filed on 29.06.2013 itself.
4. In nut shell, in his leave to defend application, it is claimed by the respondent that requirement of the petitioner is not bonafide.
It is further claimed that landlord/petitioner is having three floor buit up property on 250 square yard area. That there are 8 shops at the ground floor in the building in which suit shop is situated. And petitiner has also filed eviction cases against such other tenants. It is further stated that petitioner is also having three E. No. 82/2013 Page 2 of 13 story building at Madipur village having 5 shops and 7 rooms, which is also built up on 250 square yard area.
It is further claimed that work of the petitioner's husband can be inferred from the sticker put on the luxury car of the petitioner.
It is further claimed that requirement of the petitioner is not bonafide.
5. In his reply coupled with counter affidavit dated 27.08.2013, the petitioner denied the allegations made by the respondent and reaffirmed her stand taken in the main petition. Further, it is pertinent to mention that in such reply, the petitioner stated that she is owner only of the ground floor of the building in which suit property is situated. And the petitioner filed copy of sale deed in this regard which also gives details of owner of first floor and second floor. It is further replied that in fact there are in total 07 shops on the ground floor out of which 6 are in occupation of tenants including the respondent and remaining one shop is in occupation of a trespasser. Further the petitioner gave detail of all the tenants of such 7 shops. Further the petitoiner denied the ownership of any property at village Madipur.
6. The respondent even filed rejoinder dated 25/09/2013 to his leave to defend application in which he reaffirmed his stand taken in leave to defend application and denied the claim made by the petitioner.
E. No. 82/2013 Page 3 of 137. I have heard Ld. Counsels for the parties at length. Further, I have gone through the record including the case law relied by the parties.
THE LAW:
8. Before proceeding further it would be worthwhile to state that Chapter IIIA of Delhi Rent Control Act deals with summary trial of certain applications expressly stating that every application by a landlord for recovery of possession on the ground specified in clause (e) of the proviso to sub- section (1) of Section 14 of the Act, or under Section 14A or 14B or 14C or 14D shall be dealt with in accordance with the special provisions prescribed in Section 25B of the Act. The provisions in Chap. IIIA confer a real, effective and immediate right to obtain possession by confining the trial only to such cases where the tenant has such a defence as would disentitle the landlord from obtaining an order for eviction under s.l4(1)(e) or under s. 14A. Chap. IIIA seeks to strike a balance between the competing needs of a landlord and a tenant and has therefore provided that the tenant shall have a right to apply for leave to contest. As per the broad scheme of this Chapter a tenant is precluded from contesting an application filed for eviction on the grounds mentioned in the aforementioned provisions unless he obtains leave from the Controller to contest the eviction petition. In default of obtaining leave to defend or leave is refused to him an order of eviction follows. It appears recourse to summary trial is adopted having due regard to nature of the grounds on which the eviction is sought with a view to avoid delay so that the landlord should not be deprived or denied of his right to immediate E. No. 82/2013 Page 4 of 13 possession of premises for his bona fide use. The defence must also be bonafide and if true, must result in the dismissal of landlord's application. Defences of negative character which are intended to put the landlord to proof or are vague, or are raised mala fide only to gain time and protract the proceedings, are not of the kind which will entitle the tenant to the grant of leave. The Controller cannot set down the application for hearing without making an order in terms of sub-s. (5) of s. 25B. The trial must be confined only to such grounds as would disentitle the landlord to any relief.
9. A landlord, who bona fidely requires a premises for his residence and occupation should not suffer for long waiting for eviction of a tenant. At the same time, a tenant cannot be thrown out from a premises summarily even though prima facie he is able to say that the claim of the landlord is not bona fide or untenable and as such not entitled to obtain an order of eviction. Hence the approach has to be cautious and judicious in granting or refusing leave to defend to a tenant to contest an eviction petition within the broad scheme of Chapter IIIA and in particular having regard to the clear terms and language of Section 25B(5) of DRC Act .
10. Further it is pertinent to note that the scope of the Section 14(1)(e) D.R.C. Act has been enlarged in view of the judgment of the Hon'ble Supreme Court titled as "Satyawati Sharma v. Union of India" [AIR 2008 SC 3148] so as to include premises let out for commercial purposes also within the scope and ambit of a petition under section 14(1)(e) of DRC Act.
THE FINDINGS:
E. No. 82/2013 Page 5 of 1311. With this background, we turn to the facts of the case in hand. It is pertinent to mention that the tenant has not denied the landlord- tenant relationship nor he denied that petitioner is not the owner of the tenanted suit property. But the respondent has raised many other issues in the leave to defend application which have been stated to be triable issues.
Alternative Accommodation:-
12. The respondent has claimed that petitioner has 8 shops in the same building in which suit property situated. It is further claimed that petitoiner is having another property at Madiur village, Delhi.
13. On the other hand the petitiner has specifically stated in her reply that ther are 07 shops in total in her ownership inculding the suit shop. It is further stated that all such shops are already occupeied by variuod tetants and a trespasser. Further complete detail of all such tenants/tresspasser is given by the petitioner in her reply to leave to defend application. And the same is not denied by the respondant in his rejoinder. Under these circumstaces it cannot be said that petitioner is having any other vacant shop as far as the building in which suit property is situated.
14. Further the respondant vaguely claimed that petitioner is having another property at village Madipur, Delhi. But this is nothing more than a bald allegation. This defence taken by the respondent is a vague defence which is not supported by any document ,as such the same cannot be a ground for granting E. No. 82/2013 Page 6 of 13 leave to defend.It has been observed in judgment titled as Rajender Kumar Sharma & Ors. Vs. Leela Wati & Ors. 155 (2008) DLT 383 by Hon'ble Delhi High Court as under:
." ........Only those averments in the affidavit are to be considered by the Rent Controller which have same substance in it and are supported by some material. Mere assertions made by a tenant in respect of landlord's ownership of other buildings and in respect of alternate accommodation are not to be considered sufficient for grant of leave to defend."
15. In any case the suit property at Madipur village cannot be said to be equally suitable property as compare to suit property.
16. Further even if the petitioner has filed the eviction petition against other tenants also, the same does not have any material bearing on present claim as it is not the case of respondent that any of such other shop has been vacated by any other tenant so far.
17. Therefore, in view of above mentioned position of law , the present contention of the respondent does not raise any triable issue of such a nature that would disentitle the landlord from obtaining an order for the recovery of possession of the premises.
No Bonafide Requirement :
18. The respondents have taken the plea that the petitioner do not require the suit shop bonafidely.On the other hand ,it is stated by the petitioner that the suit shop is needed for the business of her husband and no other commercial space is available to carry out such business in Delhi.
19. It may be noted that the Respondent have not denied that petitioner or her husband cannot carry such business. At most the E. No. 82/2013 Page 7 of 13 case of the respondent is that petitioner own a luxury car .That on such car there is a sticker which indicate that same belongs to a advocate. But no documents regarding the car ownership is placed on record. Further merely because there is a sticker of advocate on such car, it can not be said that petitioner's husband is an advocate and as such not unemployed. Further Ld. Counsel for the petitioner vehemently denied that petitioner's husband is a advocate by profession. Despite that no efforts are made and no material is placed on record to show that petitioner husband is gainfully employed as advocate or otherwise.
20. In any case, it would be pertinent to note that the dependancy contemplated by the section 14(1)(e) is not the financial dependancy of the petitioner's husband but dependancy for the purpose of accomodation/commercial space. Thus even if the husband of the petitioner is gainfully employed ,still for the purpose of accomdation he is still dependant on the petitioner, as respondent failed to place on record any material to show that petitioner or her husband has any other vacant commercial space in Delhi.
21. Further the fact remains that the petitioner is the best judge of her own requirements .In the judgment titled as Ragavendra Kumar v. Firm Prem Machinary [AIR 2000 S.C.534] the Hon'ble Supreme Court held that it is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter.
22. Further in the judgment tiled as "Sarla Ahuja v. United India Insurance Co. Ltd."[AIR 1999 S.C. 100] it was held:
E. No. 82/2013 Page 8 of 13"...The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself...."
23. Furthermore, it is the right of every person to excel in life. If the the petitioner is of the opinion that it would be better in life to start shop for her husband in tenanted suit property, then it would not be just for this court to direct the petitioner otherwise and thereby stop the financial growth of the petitioner and her family . Though the success of the business to be established by the petitioner is not guaranteed, but, at the same time the court cannot predict the failure of the same and thereby decline the petitioner an opportunity to establish her own business from a suit shop owned by her.
24. As such, the requirement of the petitioner for herself and her husband is a bonafide requirement and there is no reason for the court to find any malafide intention behind the same.
25. Therefore, in view of above mentioned position of law , the present contention of the respondent does not raise any triable issue of such a nature that would disentitle the landlord from obtaining an order for the recovery of possession of the premises.
Re-let At Higher Rate Of Rent :
E. No. 82/2013 Page 9 of 1326. Respondents contended that the petitioners with malafide intention wants to get vacated the tenanted suit property from the respondent and then to re-let the same to the new tenant for earning handsome amount.On the other hand, the same has been vehemently denied by the petitioner.
27. It is held by Hon'ble High Court of Delhi in Vinod Kumar Bhalla Vs. Sh. Nanak Singh [1982 (2) RCR (Rent) 715] that in all applications for leave to defend the common defence raised by almost all the tenants is, that the landlord wanted to enhance the rent or to sell the property after getting it vacated. It was observed by the High Court that such types of allegations are without any foundation and that after an order of eviction is passed under section 14 (1)(e) of D.R.C. Act, the tenant is granted six months time to vacate the premises and the landlord is required to occupy the same within two months and the landlord is further dis-entitled for re-letting or alienating the whole or any part of the premises within three years from the date of obtaining possession from the tenant. Thus, the landlord is not in a position either to sell or re-let the tenanted premises for a period of three years.
28. A similar observation was made in judgment titled Krishna Chopra & Anr. Vs. Smt. Raksha [2000 Rajdhani Law Reporter 83].
29. Thus, on the basis of the above said case-law, the contention of the respondent is rejected as the same is a mere assertion without any substance. Moreover, the contention of the respondent is not tenable because in such kind of cases protection/remedy is available/provided for such tenants under the DRC Act itself as they can file petition for repossession if the E. No. 82/2013 Page 10 of 13 premises are re-let or transferred by the landlord after evicting the tenant, but certainly the leave cannot be granted solely on this ground.
30. Thus, the present contention of the respondent also does not raise any triable issue of such a nature that would disentitle the landlord from obtaining an order for recovery of possession of the premises.
The Conclusion :
31. It is well settled that leave to defend is granted to the tenant in case any triable issue is 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.
32. In the judgment titled as Sarwan Dass Bange Vs. Ram Prakash [167 (2010) DLT 80] the Hon'ble High Court of Delhi referring to the judgment of Baldev Singh Bajwa v. Monish Saini [(2005) 12 SCC 778] observed in para 17 as under:
"....It was held that the legislative intent is of expeditious disposal of the application for ejectment of tenant filed on the ground of requirement by the landlord of the premises for his own occupation; a special category of landlords requiring the premises for their own use has been created; if there is any breach by the landlord, the tenant is given a right of restoration of possession; the landlord who evicts a tenant on the ground of own requirement is not only prohibited from letting out the premises or E. No. 82/2013 Page 11 of 13 disposing of the same but also required to use the same for his own residence only. It was held that these restrictions and conditions inculcate in built strong presumption that the need of the landlord is genuine; the conditions and restrictions imposed on the landlord make it virtually improbable for the landlord to approach the Court for ejectment of tenant unless his need is bona fide
- no unscrupulous landlord in all probability, under this Section, would approach the Court for ejectment of the tenant considering the onerous conditions imposed on him. It was further held that this inbuilt protection in the Act for the tenants implies that whenever the landlord would approach the court his requirement shall be presumed to be genuine and bona fide. It was further held that a heavy burden lies on the tenant to prove that the requirement is not genuine.."
33. The whole purpose and import of summary procedure under Section 25-B 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 cannot mechanically and in routine manner grant leave to defend. In the light of the aforesaid legal proposition, all the pleas taken by the respondent have failed to raise any triable issues. The contents of the application for leave to defend have failed to rebut the presumption of bonafide qua the requirement of the petitioner. The application for leave to defend filed by the respondent is thus rejected.
34. As a consequence thereof, an eviction order is passed u/s. 14 (1) (e) of DRC Act against the respondent in respect of one shop on the ground floor, bearing private no. 1, in the property bearing no. C 24 A, Shivaji Park, West Panjabi Bagh, New Delhi.
E. No. 82/2013 Page 12 of 13as shown in red colour in the site plan attached with the petition (Marked "P-1" put by the court today itself ) filed by the petitioner.
35. However in light of Section 14 (7) DRC Act, the aforesaid eviction order shall not be executable for a period of six months from the date of this order. The parties are left to bear their own costs. File be consigned to Record Room after due compliance.
Announced in the open Court on 04/06/2014 (This order contains 13 pages) (NAVEEN K. KASHYAP) Commercial Civil Judge-CUM Additiional Rent Controller, West District, THC, Delhi.
E. No. 82/2013 Page 13 of 13