Delhi District Court
Smt. Pushta Devi vs Sh. Nanak Chand on 23 September, 2013
IN THE COURT OF MS. SHUCHI LALER, ADMINISTRATIVE
CIVIL JUDGE-CUM-ADDITIONAL RENT CONTROLLER
(NORTH-EAST), COURT NO. 60, KKD COURTS, DELHI.
E No.100/11/08 (Old No.E No.41 of 2008)
Unique Case ID No.: 02402C0632702008
In the matter of :
Smt. Ganga Devi (deceased)
through L.Rs.
1. Smt. Pushta Devi
W/o Sh. Bishambar Dayal,
D/o Late Ganga Ram
R/o B-5/378, Sector 5,
Rohini, Delhi.
2. Sh. Chander Prakash
S/o Late Sh. Ganga Ram
3. Sh. Sanjeev Kumar
S/o Late Sh. Ganga Ram
Both R/o 9383, Sher Singh Bhawan,
Gaushala Marg, Kishan Ganj,
Delhi.
4. Smt. Nand Kumari
W/o Sh. Mangat Ram,
D/o Late Sh. Ganga Ram,
R/o 14115, Gali No.6,
Ganesha Basti,
Near Durga Mandir,
Bhatinda, Punjab. ....Petitioners
Versus
Sh. Nanak Chand
S/o Sh. Mohar Singh,
Shop No.B-5/13, D.D.A.
Main Market, Nand Nagri,
Delhi - 110 093. ....Respondent
Date of Institution : 22/08/2008
E No.100/11/08 (Old No.E No.41/08) Page 1 to 14
Date of Final Argument : 23/09/2013
Date of Pronouncement : 23/09/2013
APPLICATION FOR EVICTION OF TENANT UNDER SECTION
14 (1) (e) r/w SECTION 25 B OF THE DELHI RENT CONTROL
ACT, 1958
JUDGMENT :
1. Eviction has been sought in respect of the tenanted shop ad measuring 8 x 8 sq. yards on the ground floor of the property bearing No.B-5/13, D.D.A Main Market, Nand Nagri, Delhi, (hereinafter referred to as tenanted shop) as shown in red colour in the Site Plan annexed along with the petition on the ground of bonafide requirement.
2. Brief resume of the facts is desirable, same is as under:
The present petition had been filed by Ms. Ganga Devi, however, during the pendency of the present petition, Ms. Ganga Devi expired and her legal heirs mentioned hereinabove were impleaded as petitioners vide Order dated 09/12/2009. The mother-in-law of Ms. Ganga Devi was the owner of the tenanted shop and the shop was given on rent to the respondent by the husband of Ms. Ganga Devi. After the death of the mother-in-law as well as the husband of Ms. Ganga Devi, she became the sole and absolute owner of the aforesaid tenanted shop. The respondent was inducted as a tenant at monthly rent of Rs.1,500/- excluding other charges in January, 1982 and it was an oral tenancy.
The grounds which have been delineated in Para 18
(a) of the petition are that Ms. Ganga Devi is owner / landlady of the tenanted shop and the tenanted shop is required bonafidely E No.100/11/08 (Old No.E No.41/08) Page 2 to 14 for the purpose of business / commercial activities as well as for the residential purpose of Ms. Ganga Devi as well as her family members, who are dependent upon her. The petitioners have no other alternative suitable accommodation except the above said tenanted shop. The petitioners are themselves residing at a tenanted premises. It is stated that petitioner no.3 namely Sh.
Sanjeev Kumar is unemployed due to lack of accommodation and a grand-son, aged about 18 years and a grand-daughter, aged about 21 years, are also unable to do any commercial activities due to lack of accommodation. Hence, the present petition.
3. Summons of the petition were directed / served upon the respondent in the prescribed proforma.
4. Leave to defend was filed. Vide Order dated 28/02/2009, Ld. Predecessor Judge was pleased to allow the application of the respondent for leave to defend.
5. Written statement has been filed. The case of the petitioners has been denied in toto. The respondent has denied Ms. Ganga Devi to be the owner / landlady in respect of the tenanted shop. The respondent has challenged the ownership of Ms. Ganga Devi on the ground that in a suit for permanent injunction bearing No.1461/93, son of Ms. Ganga Devi, Sh. Chander Prakash admitted that the respondent is his tenant and in DR Petition under Section 27 DRC Act, Ms. Ganga Devi did not raise any objection regarding her ownership or landladyship of the tenanted shop. It has been averred that the shop was let- out to the respondent by Sh. Ganga Ram and after his demise, his sons have become the landlords. The respondent has stated that the property bearing No.9383, Sher Singh Bhawan, Kishan Ganj, Delhi is having sufficient number of rooms to E No.100/11/08 (Old No.E No.41/08) Page 3 to 14 accommodate the petitioners. The respondent has alleged that Sh. Sanjeev is employed with a Nursing Home at Pandav Nagar, Delhi and Sh. Chander Prakash is also doing the work of Dye Making, thus, the petitioners do not require the tenanted shop. It has been stated that the petitioners have not disclosed precisely as to how much accommodation is available with them. Hence, the respondent prayed for the dismissal of the present petition with special compensatory costs.
6. Replication has been filed on behalf of the petitioners wherein the allegation to the contrary have been controverted and averments made in the petition have been re-affirmed and reiterated.
7. Parties were directed to lead evidence. Petitioner no. 3 stepped into the witness box as PW 1 and tendered his evidence by way of affidavit which is Ex. PW1/A. He has relied upon the documents such as copy of Ration Card of Ms. Ganga Devi Ex. PW 1/1, copy of Election I Card of PW 1 Ex. PW 1/2, copy of the Mutation Letter dated 06/08/1999 Ex. PW 1/3, copy of the License Fee, Payment Receipt dated 06/08/1999 Ex. PW 1/4, Rent Receipt in respect of House No.9383, Sher Singh Bhawan, Kishan Ganj Road, Delhi Ex. PW 1/5 and Site Plan Ex. PW 1/6. PW 1 has been duly cross-examined by the ld. counsel for respondent. Thereafter, the petitioners closed their evidence.
8. On behalf of the respondent, the respondent has examined himself as RW 1 and he deposed by way of affidavit in lieu of examination-in-chief which is Ex. RW. 1/A. RW 1 has relied upon the copy of the WS of Sh. Chander Prakash in Suit No.1461/93 Ex.RW 1/1. He was duly cross-examined by the ld. counsel for petitioners. Thereafter, the respondent closed his evidence.
E No.100/11/08 (Old No.E No.41/08) Page 4 to 14
9. I have heard the Ld. counsels for the parties and perused the record with their assistance.
10. Clause (e) of proviso to Sub-section (1) of Section 14 of DRC Act postulates following conditions which must be satisfied:
(i) that the landlord must be the owner of the premises.
(ii) that the premises must be required bonafide by the owner.
(iii)non-availability of any reasonably suitable accommodation.
OWNERSHIP OF LANDLORD / PETITIONERS
11.. The present petition for eviction on the ground of bonafide requirement had been filed by Ms. Ganga Devi W/o Late Sh. Ganga Ram. The mother-in-law of Ms. Ganga Devi was the owner of the tenanted shop. Ms. Ganga Devi has claimed herself to be the owner / landlady of the tenanted shop on the ground that her husband and mother-in-law have expired and the property has devolved upon her in accordance with the provisions of Hindu Succession Act.
12. The respondent has denied Ms. Ganga Devi to be the owner or landlady in respect of the tenanted shop. He has claimed that the shop had been taken on rent by the respondent from Sh. Ganga Ram and after the death of Sh. Ganga Ram, his sons namely Sh. Chander Prakash and Sh. Sanjeev had been receiving rent from the respondent.
13. The first and foremost is the ownership. The word "owner" has not been defined in the DRC Act. It is settled law that in a petition under Section 14 (1) (e) DRC Act, the landlord is not required to prove absolute ownership as required under E No.100/11/08 (Old No.E No.41/08) Page 5 to 14 Transfer of Property Act. The legislature has used the word "owner" in Section 14 (1) (e) DRC Act in contradistinction with a landlord as defined in the Act who is not an owner but holds the property for the benefit of another person and merely collects the rent. Reliance in this regard is placed upon the Judgment titled as Sushil Karta Chakravorty V. Rajeshwar Kumar AIR 2000 Delhi 413 and Shanti Sharma & Ors. V. Ved Prabha & Ors. (1987) 4 SCC 193.
14. It is, therefore, evident that Ms. Ganga Devi was not supposed to prove absolute ownership. She was only required to prove that she was something more than a tenant. It is an admitted case of the parties that Sh. Ganga Ram had inducted the respondent as a tenant in respect of the tenanted shop. Ms. Ganga Devi was the lawfully wedded wife of Sh. Ganga Ram. After the demise of her husband and mother-in-law, Ms. Ganga Devi became a co-owner of the property. it is well-settled that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners. Reference can be made to Judgments titled as M/s India Umbrella Manufacturing Co. vs Bhagabanda Aggarwal (Dead) by LRs (2004) 3 SCC 178,; Sri Ram Pasricha vs Jagganath & Ors )1976) 4 SCC 184; Dhanndu v. Kalawati bai & ors (2002) 6 SCC 16.
15. The respondent has stoutly resisted the ownership / landladyship of Ms. Ganga Devi and has claimed the sons of Ms. Ganga Devi to be the landlords / owners of the tenanted shop on the following grounds :
a) The rent was being regularly paid by the respondent to Sh. Chander Prakash and Sh. Sanjeev who are sons of Ms. Ganga Devi, after the demise of her husband Sh. Ganga Ram.
b) In suit No.1461/93 Sh. Chander Prakash had E No.100/11/08 (Old No.E No.41/08) Page 6 to 14 admitted the respondent to be his tenant.
c) In petition U/S 27 DRC Act, Ms. Ganga Devi accepted the rent without raising any objections regarding her ownership of the tenanted shop.
16. The aforementioned grounds are discussed in detail hereinbelow. Only the sons of Sh. Ganga Ram namely Sh. Chander Prakash and Sh. Sanjeev could have challenged the plea of ownership taken by Ms. Ganga Devi. The same has not been done. The respondent cannot raise any objection with respect to internal arrangement between the sons and their mother. The sons are competent to collect rent on behalf of their mother. It is not the case of the respondent that sons of Sh. Ganga Ram have staked their claim over the property or have asked the respondent not to vacate the property. Thus, mere payment of rent to the sons of Ms. Ganga Devi by the respondent would not amount to denial of status of co-owner / co-landlord of Ms. Ganga Devi in respect of the tenanted shop.
17. A suit for permanent injunction bearing No.1461/93 had been filed by the respondent against Sh. Chander Prakash. In Para No.4 of the Written Statement filed by Sh. Chander Prakash in the said suit Ex. RW 1/1, it is merely mentioned that the shop was let-out to the respondent by his father Sh. Ganga Ram in the year 1982. The statement dated 28/01/1998 recorded in aforesaid suit whereby Sh. Chander Prakash undertook not to dispossess the respondent from the tenanted shop without due process of law, had been made by Sh. Chander Prakash without admitting the contents of the plaint. Thus, in the suit bearing No.1461/93, there has been no unqualified or unequivocal admission on the part of Sh. Chander Prakash that he is the sole landlord of the respondent.
E No.100/11/08 (Old No.E No.41/08) Page 7 to 14
18. Now, adverting to the plea of the respondent that Ms. Ganga Devi had not asserted her ownership / landladyship in respect of tenanted premises by filing of objections in DR Petition under Section 27 DRC Act preferred by the respondent for deposit of rent in the name of sons of Sh. Ganga Ram. The copy of DR Petition and Orders passed therein are Ex. PW1/R.1. Vide Order dated 19/05/2000, Ms. Ganga Devi was allowed to withdraw the rent on behalf of her sons without prejudice to their rights. Non-raising of objections regarding her ownership / landladyship in DR Petition under Section 27 DRC Act will not in any manner preclude Ms. Ganga Devi from asserting her rights in the present petition.
19. Even otherwise, the plea raised by the respondent that Ms. Ganga Devi W/o Sh. Ganga Ram is not the owner / landlady of the tenanted shop rather the sons of Sh. Ganga Ram namely Sh. Sanjeev and Sh. Chander Prakash are the landlords / owners is of no significance now. Ms. Ganga Devi expired during the pendency of the present petition and Sh. Sanjeev and Sh. Chander Prakash along with their sisters have already been impleaded as petitioners in the instant case. Thus, the objection raised by the respondent regarding the ownership / landlordship is bogus and has no substance.
BONAFIDE REQUIREMENT AND NON AVAILABILITY OF REASONABLY SUITABLE ACCOMODATION
20. These two ingredients are dealt with together as they are inter related to each other. In support of the case of petitioners, the petitioner no.3 has donned the witness box as PW 1. PW 1 has deposed that the tenanted shop is required for the business / commercial activities as well as for the residential E No.100/11/08 (Old No.E No.41/08) Page 8 to 14 purpose of the petitioners and their family members. PW 1 testified that he, petitioner no.1 and petitioner no.4 and the sons and daughters of petitioner are unemployed due to lack of accommodation.
21. In rebuttal, the respondent / RW 1 has deposed that the tenanted shop is ad measuring 8 X 8 Ft. only and is not suitable for residence. RW 1 has also deposed that the property bearing No.9383, Sher Singh Bhawan, Delhi is having sufficient number of rooms to accommodate the petitioners as well as their family members.
22. The requirement of the tenanted shop by the petitioners for the purpose of residence could not be established. In the cross-examination of RW 1, no suggestion or question has been put to him that the shop is suitable for residence. Hence, the petitioners have admitted the defence of the respondent that the shop is unsuitable for residence.
23. Since beginning, the stand of the respondent has been that the property bearing No.9383, Sher Singh Bhawan, Kishan Ganj, Delhi, wherein the petitioners are presently residing, has sufficient space to accommodate the petitioners and their family members. In Replication, the aforesaid averment has been baldly denied. There is no specific averment as to the how many rooms, the aforesaid property comprises of and the number of family members of the petitioners have also not been specified so as to raise the inference of aforesaid property being inadequate for residence of petitioners and their family members. PW 1 has relied upon the document i.e. rent receipt Ex. PW 1/5 wherein Sh. Ganga Ram has been mentioned to be a tenant with respect to the aforesaid property. The ld. counsel for respondent had objected to exhibiting of the E No.100/11/08 (Old No.E No.41/08) Page 9 to 14 aforesaid rent receipt on the ground of mode of proof. Despite objection, no effort has been made by the petitioners to examine their landlord so as to prove the rent receipt Ex. PW1/5. The rent receipt Ex. PW1/5 has not been proved in accordance with the mandate of law, therefore, the same cannot be read in evidence. Thus, the petitioners have also failed to establish that the said property is a rented accommodation.
24. For the reasons recorded hereinabove, the petitioners have miserably failed to establish their need of the tenanted shop for the purpose of residence.
25. Coming to the aspect of the tenanted shop being required for the purpose of business / commercial activities. PW 1 has deposed that he, his sisters and the children of the petitioners are unemployed. In the petition, it is mentioned that the shop is required for running the business of PW 1, a grand- son and a grand-daughter of Ms. Ganga Devi, who all are unemployed. A party cannot be allowed to travel beyond his pleadings. No amount of evidence adduced on a fact which has not been specifically pleaded is of any relevance.
26. Thus, according to the rule of pleadings, the evidence led in the present case has to be appreciated in the light of requirement of the tenanted shop for running the business of PW 1, a grand-son and a grand-daughter, who are unemployed.
27. PW 1 has with-stood the rigors of cross-examination. PW 1 admitted, in his cross-examination, that he is unemployed for last about two years. PW 1 stated that he was running the small business at his home of preparation of small box of plastics. The factum of PW 1 previously carrying on his business at his home, fortifies the claim of the petitioners for lack of accommodation for commercial activity. In the cross-
E No.100/11/08 (Old No.E No.41/08) Page 10 to 14 examination of PW 1, no suggestion or question has been put to him regarding the employment of grand-son or the grand- daughter. Though, the respondent claimed PW 1 to be an employee of a Nursing Home at Pandav Nagar, Delhi, no suggestion or question to this effect has been put to PW 1 during his cross-examination. The name of the aforesaid Nursing Home is not forthcoming. No witness has been examined by the respondent to prove the factum of employment of PW 1, the grand-son and the grand-daughter of Ms. Ganga Devi. Thus, the petitioners has successfully established the bonafide requirement of the tenanted shop to run the business of PW 1, grand-son and the grand-daughter.
28. Ld counsel for the respondent strenuously urged that in the absence of disclosure of any business details which the petitioners propose to start; the need of petitioners cannot be termed bonafide, but in fact, it is a malafide need.
29. PW 1 has specifically testified that he is unemployed. In the cross-examination, no question or suggestion with respect to business details has been put-forth to PW 1. It is always the privilege and prerogative of the landlord to choose the nature of the business and the place of business. It is settled principle of law that landlord is the best judge of his requirements and neither the court nor the tenant can dictate terms to the landlord. In Tarsem Singh Vs. Gurvinder Singh 173 (2010) DLT 379, it was held that if the landlord wants to start his own business from the premises owned by him, by no stretch of imagination, it can be said that the requirement of the landlord for the premises is neither genuine nor bonafide.
30. Merely, because, the nature of business which the petitioners propose to carry out has not been specified, will not, E No.100/11/08 (Old No.E No.41/08) Page 11 to 14 per-se, convert the need of the landlord from bonafide to malafide need. Reliance in this regard is also placed upon the Judgment titled as Bata India Ltd., Vs. Anil Kumar Bahl CM No.11467/2011 dated 01/03/2012. Thus, the petitioners cannot be non-suited on the ground that they have not been able to establish their requirement for shop as bonafide for their failure to disclose the nature of business proposed to be carried in that shop.
31. The ld. counsel for the respondent has further contended that the petitioners have not specifically disclosed the extent of accommodation available with them, the petitioners have not pleaded all the necessary ingredients, hence, the petition is liable to be dismissed.
32. In the petition, the petitioners have categorically stated that they have no other suitable accommodation except the tenanted shop. The respondent has himself not disclosed any other alternative commercial accommodation which might be owned by the petitioners so as to raise an inference of concealment of material facts against the petitioners. Non- disclosure of the number of rooms of property bearing No.9383, Sher Singh Bhawan, Kishan Ganj, Delhi is of no relevance.
33. The petitioners were not obliged to discuss in their eviction petition, the manner in which the residential property of Kishan Ganj is being used as it is being used for totally different purpose than the purpose for which they require the tenanted shop. The bonafide requirement set-up by the petitioners is the running of their business. A landlord while seeking eviction of a tenant on the ground of bonafide requirement, is not expected to disclose the manner in which he is utilizing the accommodation available with him, if the accommodation with the tenant in E No.100/11/08 (Old No.E No.41/08) Page 12 to 14 respect of which he files the eviction petition is required by him for the purpose different from the purpose he is occupying and using the accommodation available with him. The extent of residential accommodation available with a landlord who seeks eviction of the tenant from commercial premises is wholly irrelevant.
34. Thus, the argument advanced by the ld. counsel for the respondent is without any merits. Even in the case of Mukesh Kumar Vs. Rishi Prakash, 174 (2010) DLT 64, it was held that "the courts have repeatedly held that mere failure to plead even the necessary ingredients in an eviction petition is not fatal to its maintainability".
35. Ld. counsel for respondents lastly submitted that the petitioners illegally want to enhance the rent and expressed the apprehension that the petitioners would re-let the tenanted premises after getting the same vacated from the respondents. The apprehension of the respondent is without any justification. Section 19 of DRC Act specifically takes care of this apprehension in as much as it provides that landlord after getting the premises vacated u/s 14 (1) (e) DRC Act cannot sell or let out the same for a period of three years without obtaining the permission of the Controller.
36. Therefore, judged from any angle, the requirement of the petitioners for the tenanted premises for starting their business cannot be termed malafide or with oblique motives.
37. Consequently, in view of the aforesaid discussion, eviction order is passed in favour of the petitioners and against the respondent.
38. Respondent is directed to hand over vacant and peaceful possession of the tenanted Shop ad measuring 8 X 8 E No.100/11/08 (Old No.E No.41/08) Page 13 to 14 sq. yards, forming part of Ground Floor of property bearing No.B-5/13, DDA, Main Market, Nand Nagri, Delhi as shown in the site plan Ex. PW 1 / 6 in red colour which is annexed along with the petition. Further, the petitioners shall not be entitled to obtain the possession of the aforesaid tenanted shop from the respondent before expiry of period of six months from the date of passing of this order as prescribed u/s 14 (7) of the DRC Act. The eviction petition under Section 14 (1) (e) r/w section 25-B DRC Act is accordingly disposed off. No order as to costs.
File be consigned to Record Room.
Announced in the open court (SHUCHI LALER)
Dt.23.09.2013 ACJ/ARC (NE),
KKD COURTS,
DELHI.
E No.100/11/08 (Old No.E No.41/08) Page 14 to 14
E No.100/11/08 (Old No.E No.41/08) Page 15 to 14