Delhi District Court
Shri A.P. Jain vs Shri Rajesh Gupta on 3 January, 2013
IN THE COURT OF MS. SUGANDHA AGGARWAL,
ADDL. RENT CONTROLLER: NORTHWEST:ROHINI:
DELHI
E.No.67/2009
[U/s 14(1)(e) of DRC Act, 1958]
Unique Case Identification No. 02404C0016232009
Shri A.P. Jain,
Son of Shri Roop Chand Jain,
R/o F14/17, Model TownII,
Delhi - 110009. ... Petitioner
Versus
Shri Rajesh Gupta,
Son of Shri B.D. Gupta,
Shop No.2 & Shop No. 3 at
F14/17, Model TownII,
Delhi - 110009. ... Respondent
Date of institution of petition : 18.09.2009
Date on which order was reserved : 10.12.2012
Date of order : 3.1.2013.
ORDER
1. By this order, I shall decide the application seeking leave to defend filed by the respondent under Section 25B (3) and (4) of Delhi Rent Control Act, 1958.
2. This is an eviction petition filed by the petitioner seeking E.No.25/2012 Page No. 1 of 27 eviction of the respondent under Section 14(1)(e) read with Section 25B of Delhi Rent Control Act, 1958. Petitioner has averred in the petition that the respondent is tenant with respect to two Shops i.e. Shop No.2 and Shop No.3 of property bearing No.F14/17, Model TownII, Delhi. It is further contended that Shop No.2 was let out in the year 1988 at a monthly rent of Rs.150/ and shop No.3 was let out on 1.1.1994 at a monthly rent of Rs.350/ excluding other charges. Tenancy was oral. Subsequently the intervening wall between the two shops was removed and at present there is one hall (hereinafter to be referred as "the suit premises") which is under the tenancy of the respondent. Petitioner has further contended that he is owner and landlord of the suit premises and the entire building of property bearing No.F14/17, Model TownII, Delhi. Petitioner has further contended that he is having three sons. The eldest son has three sons and as per the age given of two sons of eldest son of the petitioner, both of them are major. Petitioner has not disclosed the age of his youngest grandson. It is further E.No.25/2012 Page No. 2 of 27 contended that two other sons of the petitioner also have one son each. Petitioner has contended that his two sons are working at Bhagirath Place and third son is working in Model Town. However, the grandsons of the petitioner are not settled. Sons of the petitioner have requested him to settle the grandsons of the petitioner. Therefore, petitioner wants the suit premises so as to start a business from the same alongwith his grand children. It is further contended that the petitioner has no other commercial property which is equally suitable to settle his grandsons, therefore, the present petition has been filed.
3. Application for leave to defend was filed by the respondent. Though the same was filed beyond 15 days time period but the said delay was condoned by my Ld. Predecessor vide order dated 21.7.2010. It is contended in the application for leave to defend that the need of the petitioner is not bonafide. It is stated that petitioner has concealed material facts from the Court. Further respondent has stated that he shall be granted leave to defend on the E.No.25/2012 Page No. 3 of 27 following grounds :
a) Petitioner has made bald assertions with respect to bonafide need and has not specified as to what business he wants to carry out after getting the suit premises vacated.
b) Petitioner wants to resell the property at a high rate after getting the same evicted from the respondent and already several proeprty dealers have come to respondent's shop to enquire regarding the rate and other things of the suit premises.
c) That the suit premises is commercial in nature and as per clear language of Section 14(1)(e) of Delhi Rent Control Act, a petition for eviction on the basis of bonafide requirement is not maintainable with respect to commercial property as the said provision is applicable only with respect to residential properties. It is contended that the judgment passed in Satyawati Sharma Vs. Union of India 148(2008) DLT 705(SC) by the Apex Court was applicable on the facts of that E.No.25/2012 Page No. 4 of 27 case only and the said judgment is unconstitutional and therefore shall not be acted upon.
d) The present eviction petition has been filed envisaging the bonafide need for the grandsons of the petitioner. The grandsons cannot come under the term 'family members' of the petitioner as used in Section 14(1)(e) of Delhi Rent Control Act.
e) It is further contended that as per the contention of the petitioner, his grandsons are 28 and 25 years old. Petitioner has not mentioned as to why the eviction petition was not filed at the first instance when the need has arisen and why the petition has been filed today itself if the grandsons were not settled.
f) There are other properties available. Petitioner is also co owner of adjoining property No. F14/19, Model TownII, Delhi. It is further contended that the other shop in the property, in which the suit premises is situated, has been let E.No.25/2012 Page No. 5 of 27 out to Giani Ice Cream in the year 2009 only. If the petitioner was having requirement of commercial space then why the said shop was let out in 2009 only. Petitioner has also sold another shop in the same property to Puri Bakers in 2005.
g) It is contended that as per the admission of petitioner himself, the suit premises comprises of two shops. Both the two shops were let out at different times and different rate of rent and it cannot be said that both shops are under single tenancy. Therefore, the petition is bad for misjoinder of causes of action.
h) It is further contended that grandsons of the petitioner for whom the suit premises is required are well settled. They are having shops at Bhagirath Place which are being run by the sons and grandsons of petitioner in partnership. It is further contended that petitioner has given the age of only two grandsons and has not given the age of other three grandsons. It is only because the said three grandsons are not major and E.No.25/2012 Page No. 6 of 27 the suit premises is required for only two grandsons. However, the said two grandsons are already running their shops at Bhagirath Place in partnership with their father. It is further contended that the other son of the petitioner has been given property No. F14/19, Model TownII, Delhi who has let out the same.
4. It is prayed by the respondent that sufficient grounds have been furnished by the respondent and hence he should be granted leave to defend as the abovestated facts needs trial which can be adjudicated only after leading evidence in the Court.
5. Reply to the said application was filed by the petitioner wherein he has denied all the averments of the application and has reiterated the contents of the petition. Petitioner has reasserted that the suit premises is required by the petitioner for himself and his grandsons who are dependent on him for the purpose of accommodation. Petitioner has further contended that in view of the judgment passed by Hon'ble Supreme Court, the present E.No.25/2012 Page No. 7 of 27 eviction petition is maintainable with respect to commercial property also. It is further contended that the allegations made in the application by the respondent are vague and incorrect. The suit premises is required bonafide by the petitioner. It is further contended that there is no other tenant besides the respondent in the property in which the suit premises is situated. Site plan filed by the petitioner is correct. No property dealer has ever visited the suit premises as averred by the respondent in his application. The grandsons of the petitioner are not having any alternate property and are dependent upon the petitioner for the purpose of accommodation and business. It is further contended that the other properties mentioned by the respondent does not belong to the petitioner. The said properties are with the sons of the petitioner and the present eviction petition has been filed by the petitioner for the need of his grandsons. It is further contended that the allegation of the respondent that the other shop was sold to Puri Bakers for Rs.35 Lakhs is not correct. The petitioner has no concern with Puri E.No.25/2012 Page No. 8 of 27 Bakers and the said averment is completely incorrect. It is further contended that the other shop in the property in which the suit premises is located was let out to Giani Ice Cream as the petitioner was having no money for his daytoday requirement and also wanted to assist the grandsons financially. It is further contended that merely because the grandsons of the petitioner are having bank accounts does not mean that they are settled in life. The property No. A25/2 as mentioned by the respondent in his application is a residential property.
6. Rejoinder was filed by the respondent wherein he reiterated and reasserted the contents of his application for leave to defend and specifically denied all the averments of the reply to application for leave to defend.
7. Arguments have been heard on behalf of both the parties. Written arguments have also been filed by the respondent.
8. Learned Counsel for the respondent has argued that the respondent has filed the sale deed dated 16.7.2010 which shows E.No.25/2012 Page No. 9 of 27 that one shop was sold by the petitioner during the pendency of the petition and other sale deed dated 14.9.2010 shows that another shop was sold to Satya Gupta by the petitioner. It is further argued that petitioner has filed the present petition on the ground of need of grandsons and not the sons. The details of the properties available with the sons of the petitioner has been furnished by the respondent alongwith documentary proof which is not denied by the petitioner. All the sons of the petitioner are well settled carrying out their business from different places and therefore are in a position to settle their own sons. It is further argued that grandsons are not members of family and if the father is alive then grandfather is not under any obligation to settle the grandsons. It is further argued that petitioner has not given the extent of accommodation available with him and his sons and therefore petitioner has not approached the Court with clean hands. It is stated that one of the shop in the property in which the suit premises is located was vacated during the pendency of present E.No.25/2012 Page No. 10 of 27 petition and which is again let out by the petitioner recently. It is stressed that various triable issues have been raised by the respondent in his application for leave to defend. Therefore, the respondent shall be granted leave to defend and contest the present petition. To support his contentions, counsel for respondent has relied upon the following judgments :
a) Kaushalya Rani Vs. Waryam Singh 1984 (25) DLT 403.
b) Mohd. Jafar Vs. Nasra Begum R.C. Rev. No.279/2011.
c) Saraswati Dalmia Vs. Bennet Collman & Co. 1992 (46) DLT
191.
d) Vijay Nayyar Vs. Om Prakash Malik 2011 (126) DRJ 323.
e) Harcharan Singh Vs. Neeraj Sahu 2012 (190) DLT 323.
f) Chainmal Vs. Rani Bai Civil Revision No.1094/2003.
g) UOI Vs. Ravinder Singh Johar 36 (1988) DLT 301.
h) Deena Nath Vs. Pooran Lal (2001) 5 SCC 705.
i) V.K. Arora Vs. K.B. Madan 2000 (85) DLT 24.
j) B.R. Anand Vs. Prem Sagar 2001 (93) DLT 370.
k) Inderjeet Kaur Vs. Nirpal Singh (2001) 1 SCC 706.
l) Manoj Kumar Vs. Bihari Lal AIR 2001 SC 2176.
m)Mohd. Yusuf Vs. Sharifuddin JT 2001 (5) SC 274. E.No.25/2012 Page No. 11 of 27
n) Ramesh Kumar Aggarwal Vs. Rani Ravindran AIR 2009 SC 2462.
9. Per contra, learned counsel appearing on behalf of the petitioner has argued that there is no bar under the Delhi Rent Control Act saying that grandsons are not part of family and therefore petitioner cannot seek eviction for the bonafide need of the grandsons. It is further argued that the alternate properties mentioned by the respondent in his application belong to his son and petitioner has not sought any relief for his sons. It is further contended that the document attached with the rejoinder cannot be considered by the Court and the petitioner being the landlord is the best judge of his needs. Petitioner has stated in his petition and reply that there is no alternate accommodation at ground floor available with the petitioner. Respondent has not disputed the extent of accommodation of the suit premises and relationship of landlord and tenant, therefore, there is no ground made out for granting leave to defend to the respondent. It is further contended E.No.25/2012 Page No. 12 of 27 that all the judgments filed by the respondent are not applicable in the present case as the facts in the said judgments are different. Counsel for petitioner has also argued that as per the documents filed by the respondent himself, property No. F14/19, Model TownII, Delhi belongs to the son of the petitioner and not to the petitioner. Therefore, there is no ground envisaged by the respondent so as to grant him leave to defend. Counsel for petitioner has placed reliance upon the following judgments:
a) Shamshad Ahmed Vs. Tilak Raj Bajaj 2008 (2) RCR 346 (SC)
b) General Electronics Vs. Amrik Singh 2009 (1) RCR 285.
c) Kishan Lal Singhania Vs. District Judge, Kanpur AIR 1991 All.13
d) Arun Bhanwara Vs. S.L. Srivastava 2009 (1) RCR 189.
10. I have considered the rival contentions of both parties and have carefully perused the record.
11. There are various grounds enumerated by the respondent in his application for leave to defend. All the said grounds are dealt E.No.25/2012 Page No. 13 of 27 with separately as under : Ground No.1
12. Respondent has stated in his application for leave to defend that petitioner has made bald assertions with respect to bonafide need as it is not mentioned by the petitioner as to what business he wants to start after getting the suit premises vacated. Petitioner in his petition has specifically stated he wants to settle his grandsons and wants the suit premises for himself and for his grandsons. Petitioner has stated in the petition as to for whose need the suit premises are required and it is not essential for the petitioner to disclose or decide the business which he intends to start in the suit premises after getting the same evicted. Therefore, it cannot be said that bald assertions have been made by the petitioner in his petition.
Ground No.2.
13. Another contention raised by the respondent is that the petitioner wants to resell the suit premises after getting the same E.No.25/2012 Page No. 14 of 27 evicted. He has further stated in the application that property dealers have already started enquiring about the same. Respondent has stated that twice property dealers have enquired about the suit premises which shows that petitioner wants to resell the same. Petitioner has specifically refuted the said submissions made in the leave to defend application. Further there is ample safeguard provided under Section 19 of the Delhi Rent Control Act for the tenant for reentry in case the petitioner does not use the suit premises for the purpose for which it has been evicted but the cause of action for the same will arise only if the petitioner misuses the suit premises after the same being evicted. Therefore, this is not sufficient ground for the respondent to show that petitioner's requirement is not bonafide and therefore leave to defend cannot be granted to the respondent on this ground.
Ground No.3
14. Respondent has further contended that the suit premises are commercial in nature, therefore, as per the language of Section E.No.25/2012 Page No. 15 of 27 14(1)(e) of Delhi Rent Control Act, the same is not applicable on the suit premises. It is further contended that the judment passed in Satyawati Sharma Vs. Union of India 148 (2008) DLT 705 (SC) is unconstitutional. Though the language of Section 14(1)(e) of Delhi Rent Control Act states that the said provisions is applicable only to the premises let out for residential purpose but the law has been settled after the judgment of Satyawati Sharma's case (supra) by virtue of which the benefit granted under Section 14(1)(e) of Delhi Rent Control Act was extended to commercial premises also. This Court has no authority to declare the said judgment as unconstitutional and therefore the said plea of the respondent is not tenable.
Ground No.4
15. Respondent has further contended that the grandsons does not form the part of the family of the petitioner. However, counsel for petitioner has argued that there is no bar under the Delhi Rent Control Act stating that grandsons are not part of family of the E.No.25/2012 Page No. 16 of 27 petitioner. The contention of the counsel for petitioner holds force that there is no bar under the Delhi Rent Control Act showing that grandsons are not part of family members of the petitioner. However, as per the language of Section 14 (1)(e) of Delhi Rent Control Act and as per the requirement laid down by the Section, it is essential that the family member for whose need the premises are sought to be evicted are dependent upon the petitioner. In the present case, this is an admitted fact that the sons of petitioner are well settled in their individual businesses. Petitioner has stated that his grandsons are not settled. However, when the father of the grandsons are alive and are well settled in their respective businesses, how it can be said that the grandsons are dependent upon the petitioner. The said fact whether the grandsons are dependent on the petitioner is a matter of trial which needs evidence to prove the same.
Ground No.5
16. It is contended by the respondent that two of his E.No.25/2012 Page No. 17 of 27 grandsons are 28 and 25 years old and that Petitioner has not filed the eviction petition earlier. It is stated that grandsons being major would have required the premises for their business much prior to filing of the present eviction petition. The plea of the respondent is not tenable as landlord is best judge of his needs. It is for the landlord to see as to when the need of the grandsons had accrued and when it was incumbent upon the petitioner to get his grandsons settled.
Ground No.6
17. Respondent has stated that there are other properties available with the petitioner. The one property mentioned by the respondent is F14/19, Model TownII, Delhi. However, the respondent himself in his application has stated that the said property belongs to the son of the petitioner who has let out the same. Therefore, the said submission of the respondent is also not sustainable.
18. It is further contended by the respondent that one shop in E.No.25/2012 Page No. 18 of 27 property in which the suit premises is located has been let out to Giani Ice Cream in the year 2009 only. Petitioner has stated in his reply that the said shop was let out to Giani Ice Cream in the year 2009 in order to meet the financial requirements of himself and the grandsons as the grandsons are not settled, he wanted to assist his grandsons financially. With respect to shop being let out to Giani Ice Cream, petitioner has explained the need for letting out the same in the year 2009. If petitioner has some need, he cannot be expected to wait for the eviction order to be passed by the Court and he being the owner of the property has all the rights to enjoy the same in the manner he wants to use it for his benefit and for the benefit of his family.
19. Further respondent has contended that there was another shop with the name of Puri Bakers in the property in which the suit premises is situated. The same has been sold by the petitioner in the year 2005. Petitioner in his reply has denied to have any link with Puri Bakers. He has stated that he has no concern with the said E.No.25/2012 Page No. 19 of 27 shop and has not sold the shop as alleged by the respondent. However, respondent has filed copy of sale deed, according to which, the said shop has been sold by the petitioner to Puri Bakers in the year 2005. The copy of said sale deed is contradictory to the submissions made by the petitioner in his reply and primafacie it appears that petitioner is concealing material facts from the Court. Hence the same requires trial which can be adjudicated only after leading evidence.
20. The next contention raised by the respondent is that the present petition is bad for misjoinder of causes of action. It is contended that as per the version of petitioner himself, the suit premises consisted of two shops. The said two shops were let out at different times and rate of rent is also different, therefore, eviction cannot be sought by one eviction petition. On the other hand, petitioner has stated in his reply and in the petition that initially there were two shops in the suit premises, however, subsequently the wall between the two shops was demolished and now the suit E.No.25/2012 Page No. 20 of 27 premises consisted of one common hall. It is stated that both the said shops were let out to same tenant and rent is being paid jointly by the respondent/tenant. Counsel for petitioner has relied upon the judgment in the case of Kishan Lal Singhania Vs. District Judge, Kanpur AIR 1991 Allahabad 13, wherein it has been held as under: "Even though two portions of the same building might have been let out on different dates for different rents, but the landlord was entitled to composite rent of both the flats may be that amount might have been paid on different dates or in two cheques, but a tenant has been the same from the very inception of the creation of tenancy, even though the amount was not paid in lump sum or by one cheque or more than one cheque, that would not lead to inference that the tenancy has separated. It is the only single tenancy which could be said to have come into existence even though in respect of two flats of the same building. As the entire portion of the same building was leased out by the same landlord in favour of the same tenant the fact that the use of two flats was different by the same tenant would not be decisive to ascertain the nature of tenancy and the tenancy would continue to be composite tenancy rather single tenancy and the single tenancy can be said to have come into existence."
21. In the present case also, the tenant is same. In fact, at present there are no two separate shops and the suit premises E.No.25/2012 Page No. 21 of 27 comprises of one big hall. The intervening wall of two shops has already been demolished and the rent is paid jointly for both the shops by the respondent. Therefore, it cannot be said that the suit of the petitioner is bad for misjoinder of causes of action. As held in Kishan Lal Singhania's case (supra), the petitioner can file one eviction petition for the said two shops.
22. Respondent has further contended that the grandsons of the petitioner for which the present eviction petition has been filed are already well settled. They are running electronic shops in Bhagirath Place as partners and owners alongwith their father. Respondent has given the address of the said shops at Bhagirath Place. He has also filed copy of Directory of Delhi Electrical Traders Association, Bhagirath Place, Delhi in which the name of the grandsons of the petitioner i.e. Manish Jain and Atul Jain is mentioned alongwith the names of their father i.e. son of the petitioner. Respondent has further contended that the grandsons of the petitioner are income tax assessee. He has also filed copy of E.No.25/2012 Page No. 22 of 27 Income Tax Returns of the said two grandsons showing that tax are being paid by the grandsons of the petitioner. The said fact shows that the grandsons of the petitioner have some source of income as they have been regularly paying the tax and the said fact is also concealed by the petitioner in his petition.
23. It is further contended by the respondent that petitioner has mentioned the age of only two grandsons and has not mentioned the age of his other grandsons deliberately as the other grandsons are not major and are not required to be settled as asserted in the petition. The two grandsons whose age is mentioned and for whom the suit premises are required are already running the shop alongwith their father at Bhagirath Place. Petitioner has not specifically denied the said fact in his reply. Only an evasive denial has been given by the petitioner stating that the submissions made in the application for leave to defend are incorrect. Petitioner has specifically denied all other averments raised by the respondent in his leave to defend application but the said submission of the E.No.25/2012 Page No. 23 of 27 respondent has not been specifically denied by the petitioner. Despite the objection being raised by the respondent, petitioner has not given the age of his other grandsons in the reply to leave to defend application. Further petitioner has not explained as to under what capacity his two grandsons are running the electronic shop at Bhagirath Place with their father and how their names appear alongwith their father in the addresses of Ashoka Electricals in the Directory. Petitioner has not whispered about the shops at Bhagirath Place in his reply to leave to defend.
24. Respondent has raised an issue that the grandsons for whose bonafide requirement, the suit premises are required are already settled, therefore, the need of the petitioner is not bonafide. He has also filed certain documents in support of his averments whereas the petitioner has not specifically denied the said averments raised by the respondent. It has been held in Inderjeet Kaur Vs. Nirpal Singh (2001) 1 SCC 706 that leave to defend shall be allowed when respondent has raised such pleas in the E.No.25/2012 Page No. 24 of 27 application for leave to defend which shows that if the said pleas are proved, the same will disentitle the landlord from seeking an eviction order.
25. In the present case, petitioner has not contended that the grandsons of the petitioner are only assisting his son in the shop at Bhagirath Place. The judgments relied upon by the petitioner are not applicable in the present case. In General Electronics Vs. Amrik Singh 2009 (1) RCR 285, it was held that the requirement of the landlord cannot be stated to be not bonafide because he has not prayed for ejectment in the earlier petition. However, in the present case, there is no such plea raised by the respondent. Therefore, the facts of the said judgment are not similar to the facts of the present case.
26. In Shamshad Ahmed Vs. Tilak Raj Bajaj 2008 (2) RCR 346 (SC), the husband of the landlady was retired from the service and therefore eviction petition was allowed as the husband of the landlady was not employed anywhere. However, in the present E.No.25/2012 Page No. 25 of 27 case, respondent has stated that the grandsons for whose requirement the eviction is sought are already running business at Bhagirath Place which has not been denied by the petitioner in his reply to leave to defend application. Therefore, the facts of the present case are also different from the facts in Shamshad Ahmed's case (supra)
27. In Arun Bhanwara Vs. S.L. Srivastava 2009 (1) RCR 189, it was held that landlord is required to disclose the building which was owned by him and the building which are not owned by him need not be disclosed. But again in the present case, the case of the respondent is not that alternate accommodation is available with the petitioner but when the grandsons for whose benefit, eviction is sought are already settled, therefore the need of the petitioner is not bonafide. Therefore the judgment in Arun Bhanwara's case (supra) is also of no help to the petitioner as the facts are different from the present case.
28. In view of the above discussion, I am of the considered E.No.25/2012 Page No. 26 of 27 opinion that certain triable issues have been raised by the respondent in his application for leave to defend. The fact that the grandsons for whose benefit eviction is sought are dependent upon the petitioner and the fact that they are not running any other business can be adjudicated only after leading evidence in the Court. The respondent shall be given an opportunity to adduce evidence to prove the same in the Court. Hence the application for leave to defend filed by the respondent is allowed.
(SUGANDHA AGGARWAL) Addl. Rent Controller (NW) Rohini, Delhi Announced in the open Court on this 3rd day of January, 2013 E.No.25/2012 Page No. 27 of 27