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[Cites 7, Cited by 0]

Delhi District Court

Courts vs Smt. Rashida Begum @ Naseeban Begum on 12 May, 2011

                                               //1//

IN   THE   COURT  OF  SH.  PRITAM  SINGH,  ARC  (CENTRAL) TIS  HAZARI 
                                                     COURTS, DELHI
                                             E­38/10
12.05.2011
Nazar Mohd.
S/o Sh. Fateh Mohd.
R/o 1083, Kamra Bangash
Darya Ganj, New Delhi
                                                                                ...Petitioner
                              VERSUS
Smt. Rashida Begum @ Naseeban Begum
W/o Late Mohd. Rafiq,
R/o 1080, Kamra Bangash, Darya Ganj, New Delhi.


Also At :­
H.No. 4456, Gali Shatara, 
Ajmeri Gate, Delhi­6. 
                                                                   ...Respondent
        Petition U/s 14 (1) (e) r/w Section 25­B of Delhi Rent Control Act
1. Date of institution of the case               :        19.02.2010
2. Date of Judgment Reserved                     :        27.04.2011
3. Date of Judgment pronounced                   :        12.05.2011


JUDGMENT

By this order I shall dispose of an application under section 25 B (4) of DRC Act filed on behalf of the respondent. The brief facts are that the present petition was filed by the petitioner under section 14(1) (e) r/w section 25 B of the DRC Act on the ground of bonafide requirements. It is E­38/10 Page 1 of 10 //2// stated that the petitioner is owner of the premises no. 1080 (new) Kamra Bangash, Darya Ganj, New Delhi vide registered sale deed dated 01.10.1996. The respondent is a tenant in respect of one shop in the ground floor of property bearing no. 1080 (new) Kamra Bangash, Darya Ganj, New Delhi @ Rs. 120/­ per month excluding all other charges. The suit premises was let out for non residential purpose. The petitioner has eight sons. Afzal and Zishan are the sons of the eldest deceased daughter namely Shabnam Parveen of petitioner. The petitioner is selling readymade garments on the pavement since last three years and is being assisted by Mehtab (Son) and Afzal and Zishan (grand children). The space where the petitioner works is on the pavement and in front of stair case. The petitioner requires the tenanted premises for commercial use for himself and for Mehtab, Afzal and Zishan who depend on him. It is further stated that the petitioner has no other alternative and suitable commercial accommodation for himself and for his sons who depend upon him.

2. Leave to defend application filed on behalf of the respondent alongwith supporting affidavit. It is stated in the affidavit that the petitioner has six sons only and all the sons of the petitioner are working separately and they do not dependent upon the petitioner. Afzal and Zishan are the E­38/10 Page 2 of 10 //3// sons of Smt. Shabnam Parveen, the deceased daughter of the petitioner and Zishan, who is about 15 years old, has been doing the business of ready made garments for children on the alleged pavement in front of the stair case of self owned property of the petitioner. Afzal, the another son of the deceased daughter of the petitioner, is about 16 years old but not doing any work at the abovesaid pavement, and doing work somewhere else. It is further stated that the petitioner is owner of shop no. 22, Lakdi Market, Welcome, Delhi­53, shop no. Z/145, Lakdi Market, Welcome, Delhi­53 and double storeyed commercial property no. Z1/167, Lakdi Market, Welcome, Delhi­53 and the petitioner has been doing the work of manufacturing and selling of wooden furniture such as wooden tables, chairs, benches, counters, etc. with the assistance of his son Sh. Bahar Alam at his said self­owned shop No. 2, Lakri Market, Welcome, Delhi­53. Mehtab who are married and have also been living with the petitioner alongwith their families at the self owned property of the petitioner bearing Municipal No. 1083, Kamra Bangash, Darya Ganj, New Delhi­110002 and Sh. Mohd. Parvez and Sh. Mohd. Javed have been doing the business of ready made garments for children in the name and style of Al­Ibad at shop No. 2537, Tiraha Behrain Khan, Darya Ganj, New Delhi­1100002. Mehtab was studying till the year 2008 has been assisting his brothers Mohd. Parvez and E­38/10 Page 3 of 10 //4// Mohd. Javed in their business and do not depend upon the petitioner. The petitioner is aged about 68 year and has been suffering from paralysis for the last about one year and his treatment is still continuing and he mostly remain resting at home. It is further stated that the petitioner does not require the suit premises bonafidely. It is further stated that earlier a petition u/s 14 (1) (a) (b) and (j) filed by the petitioner was dismissed and the dismissal order was upheld in the appeal.

3. In reply to the application, it is stated by the petitioner that the shop no. 22, Lakdi Market, Welcome, Delhi­53 is not the property of the petitioner and the said property belongs to Ahmar Hussain who is its allottee and is situated in DDA. It is denied that the petitioner is owner of shop no. Z­145, Lakdi Market, Welcome, Delhi­53. This is a residential property and belongs to Abdul Zamil. The property no. Z­1/167, Lakdi Market, Welcome, Delhi­53 is occupied by Salim on the first floor and the ground floor is in occupation of Tabrak. It is further stated that the petitioner is a healthy man and he is attending to his business on each and every day. All other averments made in the affidavit of the respondent were denied.

E­38/10 Page 4 of 10

//5//

4. The respondent has filed rejoinder to the reply/counter affidavit of petitioner in which the respondent has reiterated and reaffirmed the averments made in the leave to defend application and those made in the reply had been controverted.

5. Arguments heard. Record perused and considered.

6. The present petition has been filed u/s 14 (1 ) (e) r/w section 25­B of DRC Act and in order to succeed in such a petition, petitioner has to prove

(i) Ownership of the suit premises ; (ii) Purpose of letting; (iii) Alternative accommodation; and (iv) bonafide requirement;. Let the same be discussed in detail.

Ownership and purpose of letting

7. It is not disputed that the petitioner is owner/landlord of the premises in question. So far the purpose of letting is concerned, after the judgment of Hon'ble Apex Court in Satyawati Sharma Vs. Union Of India III (2008) SLT 553, an eviction petition is maintainable on the ground of bonafide requirement in respect of the property which were let out for commercial purposes.

E­38/10 Page 5 of 10

//6// Alternative accommodation & bonafide requirement

8. The respondent contended that the petitioner is owner of shop no. 22, Lakdi Market, Welcome, Delhi­53, shop no. Z/145, Lakdi Market, Welcome, Delhi­53 and double Storeyed commercial property no. Z1/167, Lakdi Market, Welcome, Delhi. It is further contended that the petitioner has been doing the work of manufacturing and selling of wooden furniture with the assistance of his son Bahar Alam at his self owned shop no. 22. Mohd. Parvez and Mohd. Javed, all sons of petitioner, are doing the business of readymade garments in the name and style of Al­Ibad, Shop No. 2537, Tiraha Behram Khan, Daryaganj, New Delhi. Mehtab other son of petitioner is assisting his brothers in their business and he does not depend upon the petitioner. On the other hand the petitioner denied that he owned any property as stated by the respondent. The shop No. 22, Lakdi Market, Welcome, Shahdara belongs to Anwar Hussain and it is situated on Govt. land. The property no. Z/145 is a residential property and belongs to Abdul Jamil. The property no. Z­1/167, Lakdi Market, Welcome, Delhi is occupied by Salim on the first floor and the ground floor is in occupation of Tabarak. It is denied that the petitioner is doing the business of wooden furniture. The respondent has merely stated that the petitioner owned various properties and also doing the business of wooden furniture. E­38/10 Page 6 of 10

//7// However, there is nothing on record to show that the premises, as alleged by the respondent, belongs to the petitioner. It was held in Rajender Kumar Sharma & Ors. Vs Leela Wati & Ors (supra) "Mere assertion made by the tenant in respect of landlords ownership of other buildings and in respect of alternate accommodation are not be considered sufficient for grant of leave to defend. Only those averments in affidavit are to be considered by Rent Controller which have some substance in it and are supported by some material".

9. The respondent himself admitted that Mehtab one of the sons of the petitioner has been assisting his brothers in their business, however the plea of the respondent is that he does not depend upon the petitioner. From the averments of the respondent it is clear that Mehtab does not have his own place of business and he only assists his brothers. This shows that petitioner needs the shop in question for his son Mehtab who does not have his own business.

10. The respondent contended that the petitioner has six sons and not eight and Afzal and Zishan are son of the daughter of the petitioner. The petitioner himself stated in the petition that Zishan and Afzal are sons of his E­38/10 Page 7 of 10 //8// deceased daughter and he further clarified in his reply that he has eight dependents, six of them are his sons and two of them are grand children. The respondent further contended that Afzal and Zishan are not sons of the petitioner and they are sons of deceased daughter of the petitioner. Ld. counsel for respondent vehemently argued that Afzal and Zishan do not depend upon the petitioner as they have their own father. On the other hand Ld. counsel for the petitioner argued that they both depend upon the petitioner and working on footpath alongwith the petitioner. Ld. counsel further submitted that the husband of deceased daughter of the petitioner re­married and not taking care of his sons and they both depend upon the petitioner. I do not find any substance in the submission of Ld. counsel for the respondent that Afzal and Zishan being grand sons of the petitioner do not depend upon him. It is not disputed that Afzal and Zishan are living with the petitioner. The respondent has contended that Zishan has been doing the business of readymade garments on the alleged pavement in front of staircase of the property in question and Afzal is doing work somewhere else. From these averments it is proved that Zishan and Afzal do not have their permanent place of work and as their mother has expired, therefore, they are dependent upon the petitioner.

E­38/10 Page 8 of 10

//9//

11. The respondent further contended that the petitioner is 68 years old and has been suffering from paralysis from last about one year and he most of the time rests at home. This contention of the respondent is self contradictory. On the one hand the respondent contended that the petitioner is doing the business of wooden furniture from the shop no. 22, Lakdi Market,Welcome, Delhi­53. On the other hand he is contending that the petitioner is suffering from paralysis and used to take rest. Considering these contradictions of the respondent none of his contentions can be believed. The respondent further contended that earlier a petition u/s 14 (1)

(a) (b) and (j) filed by the petitioner was dismissed and the dismissal order was upheld in the appeal. The ground u/s 14 (1) (a) (b) and (j) are different from ground u/s 14 (1) (e) of DRC Act. A landlord has every right to file an eviction petition, if he requires the tenanted premises bonafidely.

12. Considering all this aspects I am of the considered view that the petitioner has no alternative suitable accommodation for commercial use for himself and for his dependents Mehtab, Afzal and Zishan except the tenanted premises in question and the petitioner bona fidely needs the tenanted premises in question. The respondent has failed to raise any triable issue. Hence the petitioner is entitled for an eviction order u/s 14 (1) (e) r/w E­38/10 Page 9 of 10 //10// section 25­B of DRC Act.

13. Accordingly, the application seeking leave to defend moved by the respondent is dismissed and an eviction order is passed u/s 14 (1) (e) r/w section 25­B of DRC Act in favour of the petitioner and against the respondent in respect of property in question i.e the shop bearing old No. XI/1241­44 (part)/1080 (new), Kamra Bangash, Daryaganj, New Delhi more specifically shown in red colour in site plan Ex. C­1 (exhibited today while passing the order). However, it is made clear that the petitioners shall not be entitled to get the eviction order executed before expiry of 6 months running from today. No order as to costs.

File be consigned to Record Room. 

(Announced in the open court                                            (Pritam Singh)
on 12.05.2011)                                                           ARC(Central)/Delhi




E­38/10                                                                     Page 10 of 10