Delhi District Court
Shri Gulshan Rai vs Smt. Shakuntala Kohli (Deceased) on 5 August, 2010
Gulshan Rai V. Shakuntala Kohli & Ors.
IN THE COURT OF SH. TARUN KR. SAHRAWAT,
ADDITIONAL RENT CONTROLLER, DISTRICT NORTH : DELHI.
E No. 335/2008
Unique Case ID No:
SHRI GULSHAN RAI
S/o Sh. Nand Lal
R/o E36/12, Rajouri Garden,
New Delhi110027. ...Petitioner.
Versus
1. SMT. SHAKUNTALA KOHLI (DECEASED)
2. SHRI RAJESH KOHLI
3. SHRI AJAY KOHLI.
4. SHRI SUNIL KOHLI
All sons of Shri Amar Nath Kohli
5. SMT. RITA SINGH
D/o Shri AMAR NATH KOHLI
C/o 1427, Nicholson Road,
Kashmere Gate, Delhi.
Respondent nos. 2 to 5 on record, are the
Legal Representatives of deceased
respondent no. 1. ...Respondents.
Date of institution of the petition : 23/12/2008
Date on which order was reserved : 21/07/2010
Date of Decision : 05/08/2010
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Gulshan Rai V. Shakuntala Kohli & Ors.
O R D E R
05/08/2010 This is an eviction petition U/Sec. 14 (1)(e) of the Delhi Rent Control Act, 1958 (herein after referred to as DRC Act).
By this order, I shall dispose of an application made on behalf of respondents U/s 25B of the D.R.C. Act for seeking leave to contest the present eviction petition.
1. Briefly stated the facts as narrated in the petition that petitioner is the owner/landlord and respondents are the statutory tenants in the premises situated on the ground floor forming part of the property bearing Municipal no. 14181421 and 14241427, Nicholson, Road, Kashmere Gate, Delhi as specifically shown in red colour in the Site Plan annexed in the petition (in short called "the premises"). The premises are let for non residential purpose to the respondents @ Rs. 27.77 p.m. It is further stated that the said premises are required bonafide by the landlord/petitioner for occupation as commercial purpose for himself and for his son Sh. Kanwal Kant who is dependent on him for accommodation. The premises already in possession of the son of petitioner on the ground floor of the aforesaid property are shown in green colour in the Site Plan which are used by him as an officecumgodown for the business named "Green Transport Corporation" and the said E no. 335/2008 Page 2/20 Gulshan Rai V. Shakuntala Kohli & Ors.
premises are not reasonably suitable and sufficient for the additional business, which son of the petitioner wants to carry on in the premises occupied by the respondent and also other tenants. With these submissions, petitioner prayed for grant of an eviction order U/Sec. 14(1)(e) of D.R.C. Act against the respondents in respect of the tenanted premises.
2. In the application/affidavit for seeking leave to defend, it is stated that there are some triable issues in this case, which , if proved, would disentitle the petitioner from obtaining an order of eviction in respect of the tenanted premises against the respondent. Thus, the respondent prayed for grant of leave to contest the present eviction petition.
3. I heard the arguments and perused the other material placed on record.
4. Before I advert to the respective contentions of Learned Counsel appearing for either parties, let us discuss the essential ingredients of Sec. 14(1)(e) of D.R.C. Act on which the petitioner may be entitled to an order of eviction, as under:
1. That petitioner is the landlord and owner of the tenanted premises, E no. 335/2008 Page 3/20 Gulshan Rai V. Shakuntala Kohli & Ors.
2. The premises in question were let for residential purposes,
3. The premises are required bonafide by the petitioner for use and occupation for himself or for any member of his family dependent upon him or for any person for whose benefit the premises are held; and
4. That the petitioner has no other reasonably suitable accommodation;
(1). That petitioner is the landlord and owner of the tenanted premises:
5. It is not disputed that petitioner is the owner of the premises in question. However, it is submitted on behalf of the respondents that original tenant late Sh. Amar Nath Kohli had expired on 12/02/1985 and after his death, his legal heirs have inherited tenancy rights and became tenants by operation of law and thus, Smt. Kanchan Relhan and Smt. Poonam Relhan, both the daughters of Sh. Amar Nath Kohli also, are the necessary parties to be impleaded in this case and as such, the petition is bad for non joinder of necessary parties.
6. I find no force in this plea of the respondents as in the case of Inderpal Khanna v. Com. Bhupinder Singh Rekhi (Rtd.) 2008, VIII AD (Delhi) 328; our own Hon'ble High Court has held E no. 335/2008 Page 4/20 Gulshan Rai V. Shakuntala Kohli & Ors.
that "It is a settled law that on death of the tenant, tenancy devolves upon legal heirs as a joint tenancy L.Rs. are joint tenants and not tenants in common - where out of many, only one or two L.Rs of the deceased tenant are in occupation of premises, and eviction petition by landlord against those who are in occupation of the premises is a valid petition - it is not necessary for the landlord to implead all the legal heirs of the deceased tenant or to implead even those who are not in occupation and possession of the premises."
Also, Learned counsel for petitioner relied upon the case of Krishan Kumar Alag v. Jambu Prasad Jain, deceased through L.R Anand Kumar Jain 161 (2009) DLT 511; wherein, it was held that "Para 11 : It was not necessary for the landlord to implead all the brothers of the petitioners as a party. It is well settled law that after death of the tenant, his legal heirs inherit the property as joint tenants and if one of them alone occupies the tenanted premises, it is considered that others have surrendered their rights in his favour. L.Rs are not considered tenantsincommon so as to have separate and severe rights in the tenanted premises. It is not necessary to bring on record each and every L.R of deceased. E no. 335/2008 Page 5/20
Gulshan Rai V. Shakuntala Kohli & Ors.
Moreover, in this case the petitioner had been giving rent and he was being issued rent receipts continuously for years together, after death of his father and none of his brother raised in disputed premises All these rent receipts were placed on record of A.R.C. Therefore, this plea was rightly rejected by the A.R.C."
7. Further, it is an admitted case that originally, property in question was owned by Late Sh. Brij Narain Khanna, HUF and the premises were let for commercial purpose to late Sh. Amar Nath Kohli. As per the petitioner, the said HUF sold the property to Smt. Manjeet Sethi on 12/09/1986. Thereafter, she sold the property to petitioner Sh. Gulshan Rai on 19/09/1988. Thus, the respondents in this case, being heirs of late Sh. Amar Nath Kohli became the tenants under the petitioner since 19/09/1988 by operation of law. On the other hand, it is contended on behalf of respondent that since the respondents have not received any Attornment Letter from the erstwhile landlord or father of the respondent therefore, relationship of landlord and tenant between the parties is in dispute.
8. Having heard the arguments on this point, I observe that firstly, respondents have not denied the fact with regard to the title/ E no. 335/2008 Page 6/20 Gulshan Rai V. Shakuntala Kohli & Ors.
ownership of the premises in question with the petitioner. Secondly, in so far as plea of the respondents with regard to the Attornment letter is concerned, it has no substance or meaning in the eyes of law in reference to the relationship of landlord and tenant between the opposite parties.
9. On this, learned counsel for petitioner sought reliance upon the following cases viz.
(i). Mahant Sarowar Nath v. Amar Nath Pardesi 2007 (2) RCR 397 P & H.
(ii). Haji Iqbal Sharif vs. Smt. C. Manjula 2007 (1) RCR 331 Karnataka;
(iii). Silva Uddin v. Naga Raju 2005 (1) RCR 173 Karnataka;
In the case of Mahant Sarowar Nath vs. Amar Nath (Supra); it was held that "East Punjab Urban Rent Restriction Act, 1949, Section 2 and 13 Proof of Tenancy Tenant admitting that he was tenant of premises In such a case execution of the rent note or the execution of the rent receipt pales into insignificance and, therefore, no benefit can be given to the tenant on the plea that the rent note or rent receipts are not pleaded or proved by the petitioner." E no. 335/2008 Page 7/20
Gulshan Rai V. Shakuntala Kohli & Ors.
Further, in the case of Haji Iqbal Sharif vs. Smt. C. Manjula (supra); it was held that "Transfer of Property Act, Section 109 Karnataka Rent Act, 2001, Section 43 Attornment of tenancy Landlady purchasing suit property from previous owner Tenant admitting that he was tenant under previous owner That by itself is sufficient to conclude that there is relationship of landlord and tenant."
In other case of Silva Uddin v. Naga Raju (supra); it was held that "Karnataka Rent Act (34 of 2001), Sections 3
(e), 45 Transfer of Property Act (4 of 1882), Section 109 Attornment Transfer of ownership of premises to respondent from previous lessor Respondent becomes entitled to receive rent in terms of lease by operation of Section 109 of Transfer of Property Act Attornment by tenant is not necessary to confer validity to transfer of lessor's rights Tenant cannot dispute right of transferee landlord to maintain eviction petition or to claim rent."
10. In the light of above discussion, it is discernible that there E no. 335/2008 Page 8/20 Gulshan Rai V. Shakuntala Kohli & Ors.
exists a relationship of landlord and tenants between petitioner and the respondents. Thus, it is established that petitioner is the owner/landlord and respondents are the tenants in respect of the tenanted premises.
2. The premises in question were let for residential purposes :
11. In the application for leave to defend, it is alleged that earlier, in the petition filed by the petitioner before Competent Authority (Slum), the petitioner has stated that the suit premises is residential, but in the present petition, he has claimed that the premises let out to father of the respondents is for commercial purpose. This issue, now, has no relevance in these proceedings as this controversy has been set at rest by the Hon'ble Apex Court in the leading case of Satyawati Sharma v. Union of India and Another 2008(5) SCC 287 wherein it was held that the premises let out either for residential or commercial purposes can be got vacated by the Landlord for bonafide requirements.
3 & 4. The premises are required bonafide by the petitioner for use and occupation for himself or for any member of his family dependent upon him or for any person for whose benefit the premises are held and that the petitioner has no other reasonably suitable accommodation: E no. 335/2008 Page 9/20 Gulshan Rai V. Shakuntala Kohli & Ors.
12. In the petition, petitioner has shown his bonafide requirement for the premises in question for use and occupation as commercial purpose for himself and his son. It is stated that son of the petitioner wants to obtain Automobile Dealership for cars/two wheelers and for that purpose, a big showroom on the ground floor is required. It is submitted that the said business cannot be carried on without utilising entire ground floor space including the premises in question.
13. On the other hand, it is contended on behalf of respondents that requirement of the petitioner for his only son for additional business purpose is highly motivated, malafide and not permissible under the provision of Section 14(1)(e) of D.R.C. Act. It is alleged that recently petitioner has let out the ground floor of the said property to Delhi Tourism Liquor shop about six months back i.e. June July 2008 and had constructed a new building on the entire first floor which was lying vacant and business of the said hotel has been recently started by son of the petitioner.
14. Further, Learned counsel for respondents contended that the present eviction petition did not contain the necessary facts constituting the cause of action to claim eviction U/Sec. 14(1)(e) of E no. 335/2008 Page 10/20 Gulshan Rai V. Shakuntala Kohli & Ors.
D.R.C. Act which was a mandatory requirement within the meaning of O. 7 R. 1 C.P.C. It is submitted that petitioner must plead in the eviction petition that he and his other family members dependent upon him, have no other reasonably suitable accommodation with them. As per the respondents, when this requirement is not specified, the Controller or the Court has to reject the petition O. 7 R. 11 C.P.C. Learned counsel sought reliance upon the case of Dr. (Mrs.) N.D. Khanna v. M/s Hindustan Industrial Corporation New Delhi AIR CJ 1981 (2) pg. 682.
15. It is further contended that petitioner's son has also been carrying out the business under the name and style of Green Transport Corporation and he is also the owner of newly built up hotel in Mussoorie in the name and style of "Green Castle Hotel"
and petitioner as well as his son are income tax assessee and as such, they did not require the suit premises bonafide because they have more than sufficient reasonably suitable accommodation.
16. In reply, petitioner submitted that the premises occupied by Delhi Tourism for vending liquor were in the tenancy of Union of India for post office and the said premises were vacated by Union of India on 18/10/2003 and the same were licensed to Delhi Tourism much prior to the judgment of Hon'ble Supreme Court. It is E no. 335/2008 Page 11/20 Gulshan Rai V. Shakuntala Kohli & Ors.
denied that the said premises were let out in JuneJuly 2008. It is further denied that on the first floor in the property, new building has been constructed. A part of the first floor is in occupation of a tenant namely Bangali Club and some portion is in occupation of the petitioner which is used by him as a guest house and not as a hotel as alleged.
17. Having found the dispute over the above mentioned issue, I am of the considered opinion that the allegations made by respondents in the absence of any material/ document, are not worthy of serious consideration. In this case, respondent has not placed on record a single document to substantiate that the ground floor of the property has been let out to Delhi Tourism about six months back i.e. JuneJuly 2008 and in absence of any material/documents, allegations of the respondents cannot be given due weightage. On this, I am supported by the case law of Sh. Rajender K. Sharma and Others. v. Leela wati and Others. 155 (2008) DLT 383; wherein it was held by our own Hon'ble High Court that: "Leave to defend not to be granted to tenant on the basis of false affidavit and false averments and assertions only those averments in affidavit are to be considered by Rent Controller which have some E no. 335/2008 Page 12/20 Gulshan Rai V. Shakuntala Kohli & Ors.
substance in it and are supported by some material."
18. In the light of above discussion, plea of the respondent with regard to alternative accommodation available with the petitioner is also found baseless and meritless, hence rejected. Further, learned counsel for respondent contended that son of the petitioner has nothing to do with the guest house business as he wants to expand his business in the other areas.
19. In support of his contention with regard to expansion of business, Learned counsel for petitioner sought reliance upon the following cases viz. (i). M/s. Sait Nagjee Purushottam & Co. Ltd. v. Vimalabai Prabhulal & others (2005) 8 SCC; (ii). M/s. Bajaj Associates & Others v. Vinod Kumar & Others 2008 (2) RCR 258 P & H, (iii). Rajan v. Poil Raghavan 2009 (1) RCR 429 Kerala DB (iv). Sarla Ahuja v. United India Insurance Co. Ltd. 1998 (2) RCR 533 SC and (v). Raghavender Kumar v. Firm Prem Machinery & Co. 2000 (1) RCR 135 (SC).
In the case of M/s. Sait Nagjee Purushottam & Co. Ltd. v. Vimalabai Prabhulal & others (supra); it was held that "4. First of all we shall take up the question of bonafide need of the landlords So far as the partition of E no. 335/2008 Page 13/20 Gulshan Rai V. Shakuntala Kohli & Ors.
the property and the present premises coming to the share of the landlords are concerned, there is no dispute that the portion of the building has come to the share of the landlords and they are the owners as a result of the partition of the family properties. But the question is whether the landlords who are the owners of the portion of the building substantiated the allegations with regard to the bonafide need or not. We have gone through the findings of the trial Court as well as that of the appellate authority and the High Court and after closely scrutinizing the same. We do not think that the finding reported by appellate Court and the High Court can be interfered by this Court on the ground of being perverse or without any basis. The landlords hav led evidence to show that one of their sons who had requisite qualification for starting a computer institute wants to establish the same at Calicut and others for extension of their business. The trial Court as well as the first appellate Court and the High Court examined the statements of PWs. 2 & 3 and after considering their evidence, the appellate Court reversed the finding of the trial Court and held that the need of the respondent landlords to start business at Calicut, is bonafide and genuine. It was held that it cannot be said E no. 335/2008 Page 14/20 Gulshan Rai V. Shakuntala Kohli & Ors.
that a person who is already having business at one place cannot expand his business at any other place in the country. It is true that the landlords have their business spreading over Chennai and Hyderabad and if they wanted to expand their business at Calicut it cannot be said to be unnatural thereby denying the eviction of the tenant from the premises in question. It is always the prerogative of the landlord that if he requires the premises in question for his bonafide use for expansion of business this is no ground to say that the landlords are already having their business at Chennai and Hyderabad therefore, it is not genuine need. It is not the tenant who can dictate the terms to the landlords and advise him what he should do and what he should not. It is always the privilege of the landlord to choose the nature of the business and the place of business. However, the trial Court held in favour of tenant appellant. But the appellate Court as well as the High Court after scrutinizing the evidence on record, reversed the finding of the trial Court and held that the need of establishing the business at Calicut by the landlords cannot be said to be lacking in bonafide."
In another case of M/s. Bajaj Associates & Others v. E no. 335/2008 Page 15/20
Gulshan Rai V. Shakuntala Kohli & Ors.
Vinod Kumar & Others (supra), it was held that "East Punjab Urban Rent Restriction Act, 1949, Section 13(3) (a) (i) Bonafide requirement for expansion of business Landlords running business of jewellery, watches and shirts and paper and stationary in grounds floor and basement of shop cum office in Sector 17, Chandigarh They wanted to shift paper and stationery business of their SCO in Sector 26, as said business required enough space Held, need of landlords was bonafide It is not for the tenants to dictate to landlords as to how they have no run or adjust their business Law has provided safeguard for tenant that if landlords relet out premises, tenant has right to repossession, 1998 (2) RCR (Rent) 533 (SC) relied."
Further, in the case of Rajan v. Poil Raghavan (supra), it was held that "Kerala Building (Lease and Rent Control) Act, 1965, Sections 11 (8) and 11 (3) bonafide requirement Non residential premises Building consisted of four roomsLandlord conducting groceries business in one room Sons of landlord conducting business in two rooms Tenant doing tailoring business in fourth room - Landlord wanted froom in occupation of tenant to expand E no. 335/2008 Page 16/20 Gulshan Rai V. Shakuntala Kohli & Ors.
business Need bonafide Standard of proof expected to be established by landlord under Section 11(8) in respect of Non residential premises is not so rigorous as in the petition under Section 11(3) (Residential premises). (Para 5 to 8)."
Similarly, in the case of Sarla Ahuja vs. United India Insurance Company Ltd. (supra); it was held that "14. 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 bonafide. 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 of the landlord is bonafide. It is often said by courts that it is not for the tenant to dictate terms of the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bonafides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself."
In another case of Raghavender Kumar v. Firm Prem Machinery & Co. (supra), it was held that E no. 335/2008 Page 17/20 Gulshan Rai V. Shakuntala Kohli & Ors.
"10. The learned single Judge of the High Court while formulating first substantial question of law proceeded on the basis that the plaintifflandlord admitted that there were number of plots, shops and houses in his possession. We have been taken through the judgments of the courts below and we do not find any such admission. It is true that the plaintifflandlord in his evidence stated that there were number of other shops and houses belonging to him but he made a categorical statement that his said houses and shops were not vacant and that suit premises is suitable for his business purpose. 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. (See Prativa Devi (Smt.) v. T.V. Krishnan, 1996 (5) SCC 353. In the case in hand the plaintifflandlord wanted eviction of the tenant from the suit premises for starting his business as it was suitable and it cannot be faulted."
20. Having gone through the above cited law authorities and heard the submissions, I observe that petitioner has pleaded all the necessary facts constituting the cause of action to claim eviction U/Sec. 14(1)(e) of D.R.C. Act. As per the settled law, even the E no. 335/2008 Page 18/20 Gulshan Rai V. Shakuntala Kohli & Ors.
additional accommodation may be claimed as a bonafide requirement by the landlord for expansion of his/her business and thus, the petitioner /landlord is entitled to claim the eviction order in respect of the premises in question for carrying on his business of Auto Mobiles Dealership for cars/two wheelers. It is further contended that Site Plan filed by the petitioner is not correct as the new hotel building has been recently constructed by the petitioner. Again, I am not in agreement with the contentions of learned counsel for respondent as he has not placed on record any material or the counter Site Plan to contradict the correctness of the Site Plan filed by the petitioner. On this, I am supported by the case law of Mukesh Kumar v. Rishi Prakash 2009 (2) RCR 485; wherein it was held that "A bald statement without anything more is no ground to grant leave to defend."
Also in the case of V.S. Sachdeva v. M.L. Grover 1997 (2) R.C.R. (Rent) 302; it was held that "E. Delhi Rent Control Act, 1958, Section 14(1)(e) Bona fide requirement Site Plan filed by landlord No Site Plan filed by tenant If tenant failed to file any Site Plan, then the Site Plan filed by landlord should be accepted."
21. In the aforementioned circumstances, above plea of the E no. 335/2008 Page 19/20 Gulshan Rai V. Shakuntala Kohli & Ors.
respondents with regard to construction of a new building, in the absence of counter Site Plan, is found meritless hence, rejected.
22. In the light of above discussion, I observe that the respondents have failed to disclose any triable issue in their application for leave to contest the present eviction petition, which would disentitle the petitioner from obtaining the eviction order in his favour. Thus, the present application U/s 25B for seeking leave to defend having no merits, is dismissed. Hence, an eviction order is passed U/s 14 (1) (e) of the D.R.C. Act in favour of the petitioner and against the respondents in respect of the premises situated on the ground floor forming part of the property bearing Municipal no. 14181421 and 14241427, Nicholson, Road, Kashmere Gate, Delhi as specifically shown in red colour in the annexed Site Plan vide Ex. P1. However, this order shall not be executable before the expiry of six months from the date of this order as provided U/sec. 14 (7) of D.R.C. Act. File be consigned to Record Room.
Announced in open court on 5th August, 2010. Tarun Kr. Sahrawat A.R.C.(North)/Delhi (1+2 separate copies are attached) E no. 335/2008 Page 20/20 Gulshan Rai V. Shakuntala Kohli & Ors.
E no. 335/2008 GULSHAN RAI VS. SHAKUNTALA KOHLI & ORS.
05/08/2010 Present: Proxy counsel for the parties.
Vide my separate order of even date, I observe that the respondents have failed to disclose any triable issue in their application for leave to contest the present eviction petition, which would disentitle the petitioner from obtaining the eviction order in his favour. Thus, the present application U/s 25B for seeking leave to defend having no merits, is dismissed. Hence, an eviction order is passed U/s 14 (1) (e) of the D.R.C. Act in favour of the petitioner and against the respondents in respect of the premises situated on the ground floor forming part of the property bearing Municipal no. 14181421 and 14241427, Nichrolson, Road, Kashmere Gate, Delhi as specifically shown in red colour in the annexed Site Plan vide Ex. P1. However, this order shall not be executable before the expiry of six months from the date of this order as provided U/sec. 14 (7) of D.R.C. Act. File be consigned to Record Room.
Tarun Kr. Sahrawat A.R.C. (N)/ Delhi.
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