Delhi District Court
Smt. Savitri Devi vs Sh. Lalta Prasad on 22 March, 2011
IN THE COURT OF SH. ANIL KUMAR SISODIA, SENIOR CIVIL JUDGECUM
RENT CONTROLLER (NORTH EAST DISTRICT) : KARKARDOOMA COURTS :
DELHI.
EVICTION PETITION NO. 6 OF 2010
(UNIQUE I.D. NO.02402C0269552010)
SMT. SAVITRI DEVI
W/o Sh. Suresh Chand Verma
R/o 1/3212, Ram Nagar, Mandoli Road,
Shahdara, Delhi32. ............ PETITIONER
VERSUS
SH. LALTA PRASAD
S/o Sh. Garib Seth
Proprietor of Sunil Bartan Store,
1/3212, Ram Nagar, Mandoli Road,
Shahdara, Delhi32.
R/o A1/234, Nand Nagari, Delhi93. ........... RESPONDENT
U/s 14 (1)(e) r/w Section 25B DRC Act
Date of institution : 22.09.2010
Order reserved on : 04.03.2011
Date of order : 22.03.2011
O R D E R :
1.Vide this order, I shall dispose of an application filed by the respondent for leave to defend in the eviction petition filed by the petitioner against him. Eviction petition no.06/10 Page 1/11
2.The facts relevant for the purpose of disposal of the application for leave to defend and as stated in the eviction petition are that the petitioner is the owner/landlady of the property bearing no.1/3212, Ram Nagar, Mandoli Road, Shahdara, Delhi32 in which respondent is a tenant in respect of one shop on the ground floor portion at a monthly rent of Rs.430/ p.m. excluding electricity for commercial purposes and the respondent is running his business of selling utensils from the tenanted shop in the name and style of Sunil Bartan Store. The husband of the petitioner is running his jewellary shop in the name and style of Shubham Jewellers in the same premises and the area of the shop under occupation of her husband is less than the tenanted shop. The husband of the petitioner has also started business in the name and style of Shubham Tours & Travels and son of the petitioner is assisting him in looking after the business of jewellary shop. The petitioner has no other commercial premises in Delhi or NCR area. The space available with the husband and son of the petitioner is very less and they are facing difficulty in running the business as there is another jewellary shop in the name and style of M/s. Urmil Jewellers which is a good showroom and the customers are attracted to the said showroom as it is more spacious than the shop of husband of the petitioner. The petitioner's husband is facing hardship and difficulty and his business is running into losses. The husband of the petitioner started a business of Tour & Travels in a rented shop in Dilshad Garden about 2 ½ years ago but the said business also went into losses and the husband of the petitioner is facing hardships in paying the rent of aforesaid shop in Dilshad Garden. It has also been stated that the tenanted premises is required to built a jewellary showroom by enlarging the shop under occupation of husband of the petitioner but the respondent is not vacating the said shop. It has further been stated Eviction petition no.06/10 Page 2/11 that two shops including the tenanted shop and the shop under the occupation of another tenant namely Sunil Goel are having large area to develop the business of her husband and she has filed eviction petition against the said tenant also. The petitioner has no other source of income to develop the shop of her husband and at least 300 sq. feet of area is required to be developed as a jewellary showroom but the husband and the son of petitioner are only having 60 sq. feet of area. It has also been stated that the petitioner and her family does not have any funds to reconstruct the entire building by demolishing the same. The petitioner now bonafidely requires the tenanted shop occupied by the respondent to enlarge the area of jewellary shop by demolishing the partitioned walls of the shop and also to shift the business of Tour & Travels into her own premises to save the rent being paid by the petitioner qua the premises at Dilshad Garden. A prayer has been made for passing an eviction order against the respondent.
3.The summons of the eviction petition were sent to the respondent in the prescribed form as per Schedule III under the DRC Act. In pursuance of the service of the summons, the respondent filed an application for grant of leave to contest the eviction petition. The respondent has also filed affidavit in support of his application for leave to defend. The respondent has claimed that petitioner is not the absolute owner of property in question and the rent receipts are being issued by Sh. Suresh Chand Verma who has been claiming himself to be the owner of the property. The respondent is a tenant for the last 30 years and husband of the petitioner has lateron let out two shops to different tenants. It has been stated that there are four shops in the property and one shop is in possession of the petitioner and three shops are on rent. The petitioner has encroached upon the land of the MCD and constructed the Eviction petition no.06/10 Page 3/11 shop on the same and owner of the shop in question is MCD and not the present petitioner. The petitioner has been asking to increase the rent to Rs.1,000/ p.m. and has been adopting all the illegal tactics to get the property vacated. The petitioner has another shop in Dilshad Garden which is sufficient for the son of the petitioner. The issue of ownership requires trial because no ownership documents have been placed on record. The petitioner has falsely alleged paucity of accommodation. In the back side of the shop of the petitioner, her house is situated and the shop can be extended upto any extent which is easily possible and feasible for the petitioner. The petitioner has nowhere mentioned in the entire petition that her husband and son are dependent upon her. He petitioner cannot be allowed to pick and chose to she has two other tenants in the same property. The petitioner has not filed copy of correct site plan showing the accommodation available with her nor she has filed any document to show the dependency of her husband and son. The eviction petition has been filed with malafide intention and the petitioner has concealed the fact of having ownership of other properties as well as the properties in the name of her son and thus, there are several triable issues which entitle grant of leave to contest the present eviction petition to the respondent. In the affidavit, same facts have been reiterated.
4.The petitioner has filed reply to the application raising preliminary objections that the application contains distorted facts and number of allegations are afterthought. On merits, the contents of application have been denied and it has been stated that the petitioner is the absolute owner of the suit property and she has filed complete chain of documents. The petitioner has also filed eviction petition against another tenant namely Sunil Goel which is also pending adjudication. Sh. Suresh Chand Verma is the husband of the petitioner and she had allowed him to collect rent from the tenants Eviction petition no.06/10 Page 4/11 on her behalf. It has been denied that the petitioner has encroached upon the MCD land or that the MCD is the owner of shop in question. All other allegations in the application for leave to defend have been denied and it has been stated that the shop at Dilshad Garden is owned by Ms. Anita Devi and a prayer has been made for dismissal of the application of the respondent. The petitioner also filed counter affidavit reiterating that facts stated in the reply.
5.The respondent has filed rejoinder reiterating the facts stated in the application and denying the contents of the reply. A rejoinder affidavit has also been filed by the respondent reiterating the contents of the rejoinder.
6.I have heard Ld. Counsel for the petitioner as well as counsel for the respondent and I have perused the record carefully. I have also gone through the documents filed by the petitioner.
7.At the outset, it may be mentioned that it has now been well settled that in order to obtain leave to defend to contest the Eviction Petition, the tenant is required to file affidavit disclosing such facts which would disentitle the landlord from obtaining the eviction order. Such facts must be material and substantial and they must be bonafide. Further, it has to be seen that allegations of facts are not meant to delay the disposal of the eviction petition. It is also well settled that mere denials for the sake of denials are no grounds in the eyes of law and if there is no grounds for plea, eviction order has to be passed against the tenant whereas if the facts disclosed by the tenant in his affidavit raises triable issues, then he is entitled for the grant of leave to defend and contest the eviction petition.
8.Clause (e) of proviso to Subsection (1) of Section 14 of the DRC Act postulates following conditions which must be satisfied : (i) that the landlord must be the Eviction petition no.06/10 Page 5/11 owner of the property; (ii) the premises must be required bonafide by the owner and
(iii) nonavailability of the any other reasonably suitable accommodation. OWNERSHIP OF THE TENANTED PREMISES :
9.The respondent has challenged the ownership of the petitioner qua the tenanted premises in his application for leave to defend. It has been stated that the petitioner is not the owner of the tenanted shop and the same has been constructed on encroached land of the MCD and MCD is owner of the said shop. The petitioner, on the other hand has filed copy of registered sale deed executed in her favour which shows that the petitioner is the owner of the suit property. The mere fact that rent was being collected by husband of the petitioner and rent receipts wee being issued by him will not make him the owner of the tenanted shop. The petitioner is a registered owner of property in question by virtue of sale deed dated 07.04.1971 and her title cannot be disputed merely by taking vague pleas by the respondent. In J.C. Mehra Vs. Smt. Kusum Gupta, 2005(2) RCR, 656 (DHC), it was held that the expression 'owner' has not been defined in Rent Act. By reference to judicial pronouncement, it has been held that expression 'Owner' is not an owner in an absolute sense but the expression refers only to a person who has a right/title more than the tenant.
10.Further, in Rita Lal Vs. Raj Kumar Singh, 2002(2) RCR, 463 (SC), it has been held that a tenant having been inducted by the landlord so long as he remains in possession cannot deny the title of his landlord in view of the rule of estoppal contained in Section 116 of the Evidence Act. Hence, in my considered opinion, the petitioner has established that she is the owner of the tenanted premises. Accordingly, this ingredient stands satisfied.
RELATIONSHIP OF LANDLORD AND TENANT BETWEEN THE Eviction petition no.06/10 Page 6/11 PARTIES :
11.The respondent has not disputed the relationship of the landlord and tenant between the parties. He has admitted that the rent was being collected by the husband of the petitioner. The petitioner being the owner of the suit property is also a landlady qua the respondent. Accordingly, this ingredient stands satisfied.
12. BONAFIDE REQUIREMENT AND NONAVAILABILITY OF REASONABLY SUITABLE ACCOMMODATION :
13.These two ingredients are being dealt with together as they are interrelated to each other. The petitioner has submitted that the tenanted premises is required for bonafide need of her husband and son who are running jewellary shop from one of the shops in the premises which is inadequate for their purpose. It has also been stated that the husband of the petitioner also started Tour & Travel business from the tenanted premises in Dilshad Garden.
14.The respondent has denied the correctness of the site plan filed by the petitioner and has stated that the petitioner has not approached the court with clean hands and the site plan filed by her does not show the exact position. However, no site plan has been filed by the respondent challenging the site plan of the petitioner. In Radhey Shyam, H.U.F. Vs. M.L. Parbhakar, 82(1999), Delhi Law Times, 919 (DHC) where no site plan in rebuttal disputing accommodation available with the petitioner was filed by tenant, it was held that in the absence of any site plan filed by respondent, the site plan filed by the petitioner has to be accepted as correct.
15. Counsel for the respondent on the other hand has argued that the present petition U/s 14(1)(e) is not maintainable as the petitioner wants to rebuild or reconstruct the premises and she should have filed the petition U/s 14(1)(g) or 14(1)(f) of the DRC Eviction petition no.06/10 Page 7/11 Act. The petitioner has also not filed any proposed site plan for the expansion of the jewellary shop nor any sanction from MCD has been obtained and filed for reconstruction and rebuilding of the tenanted shop. It has also been argued that there is space available behind the shop in occupation of the petitioner and the petitioner can extend the shop to any extent.
16.However, I do not find any merits in the arguments advanced by the Counsel for the respondent. Grounds mentioned under Section 14(1)(g) and 14(1)(f) are applicable are entirely different from the grounds of bonafide requirement U/s 14(1)
(e) DRC Act. Ground for eviction U/s 14(1)(f) is available for the purpose of making repairs of the premises when the premises has become unsafe or unfit for human habitation and the repairs cannot be carried out without the tenanted premises being vacated. Similarly, the ground for eviction U/s 14(1)(g) is available when the landlord intends to rebuilt or make substantial additions and alterations in the premises which cannot be carried out without the premises being vacated. The petitioner is not seeking eviction of the respondent on any of those grounds. Her requirement is on the basis of bonafide need for expansion of business of her husband and son. The arguments of the Counsel for the respondent that petitioner has not filed sanctioned site plan for the proposed changes in the tenanted premises is not sustainable as the petitioner is not going to make any structural or substantial changes in the building but her plan, as disclosed from the eviction petition, is to merge the three shops into one shop. Similarly, petitioner is not bound by the advise of the respondent that she should expand the shop in her possession backwards. The petitioner has categorically stated in the eviction petition that she does not have funds of building the entire premises after its demolition and the tenant cannot Eviction petition no.06/10 Page 8/11 dictate terms to the petitioner as to how she should meet her requirements.
17.The respondent has also taken the defence that the petitioner had been pressurizing him to enhance the rent to Rs.1,000/ p.m. However, in the entire application for leave to defend or affidavit or even in the rejoinder, no details have been give by the respondent as to when the petitioner pressurized him to enhance the rent. Hence, even this defence is without any substance. I am supported in my views by the judgment of Sham Singh Bisht Vs. Sushil Bhatia, 1992 (1) RCR, 678 (DHC), wherein a similar plea taken by the tenant that landlord wanted to increase the rent but without disclosing any details as to when landlord had made demand and nothing in writing was brought out, was held to be a vague allegation.
18.Counsel for the respondent has also argued that the husband of the petitioner is also having a shop in Dilshad Garden from where he is running his Tour & Travel business and the requirement of the petitioner for the Tour & Travel business is not bonafide. The petitioner has filed copy of the rent agreement with respect to the shop at Dilshad Garden alongwith the electricity bills which show that the said premises is not owned by the petitioner or her family members and hence, the said shop cannot be considered as the premises owned by the petitioner or her family members. Even otherwise, it is a natural desire of a person to shift to her own premises rather then to pay rent and stay in the tenanted premises. Hence, the requirement of the petitioner to shift the Tour & Travel business to her own premises cannot be termed as malafide by any stretch of imagination. The fact that the husband of the petitioner had to take on rent, the shop at Dilshad Garden rather shows that the petitioner genuinely requires the tenanted shop for her son and husband for the expansion of the business. The desire of the husband and son of the petitioner for expansion of jewellary Eviction petition no.06/10 Page 9/11 showroom to make it more attractive, comfortable and customer friendly is not only boanfide but also, a necessity for them if they want to remain in the business and succeed in it and their requirement cannot be termed as malafide or fanciful. The argument of the respondent that petitioner is adopting pick and chose policy, is also without any merits as the petitioner has also filed eviction petition against another tenant whose shop is situated between the shop of the petitioner and the respondent as it is required by the petitioner for the expansion of business of her husband and son.
19. It has also been argued by the respondent that petitioner has not stated in the eviction petition that her husband and son are dependent on her. However, Perusal of para 7 of Annexure A of eviction petition shows that the petitioner has clearly stated that : the tenanted premises is required by the husband and son of the petitioner for enlarging the shop under which they are running their business and the respondent is adamant and not considering the hardships, difficulties and bonafide requirements of the petitioner and the dependents i.e. her husband and son. These lines clearly reflect that the husband and son of the petitioner are dependent on her for the purposes of accommodation. Hence, it cannot be said that the petitioner has not mentioned that her husband and son are dependent on her, although, she may not have repeated the statutory language. Hence, even this argument of the respondent is without any substance and is accordingly rejected.
20. Thus, after assessing the rival contentions of the parties, I am of the considered opinion that respondent has failed to raise any triable issues or to disclose such material facts as would disentitle the landlord from getting eviction orders. Hence, in view of the aforesaid discussion, the application filed by the respondent seeking Eviction petition no.06/10 Page 10/11 permission for leave to defend eviction petition is dismissed.
21.Accordingly, an eviction order is passed in favour of petitioner and against the respondent directing him to handover the vacant and peaceful possession of the tenanted premises consisting of a shop on the ground floor forming part of property no.1/3212, Ram Nagar, Mandoli Road, Shahdara, Delhi32 as shown in red colour in the site plan (now marked as Mark A) annexed with the petition. Further, the petitioner shall not be entitled to obtain the possession of the aforesaid tenanted premises from the respondent before expiry of period of six months form the date of passing of this order as provided U/s 14(7) of DRC Act. The petition for eviction U/s 14(1)(e) r/w Section 25B of DRC Act is accordingly disposed off. No orders as to cost.
File be consigned to Record Room.
Announced in the open Court
Dated : 22nd March, 2011 (ANIL KUMAR SISODIA)
SCJCUMRC (NE)
KARKARDOOMA COURTS
DELHI.
Eviction petition no.06/10 Page 11/11
E6/10
22.03.2011 :
Present : Proxy counsel for the petitioner.
Ld. Proxy counsel for petitioner has filed some documents as per list attached.
Put up for order at 04.00 P.M.
SCJcumRC (NE)
KKD. Courts/Delhi/22.03.2011
4.00 P.M.
Present: Proxy counsel for the petitioner.
None for the respondent.
Vide separate order announced in the open court today, the application filed by the respondent seeking permission for leave to defend eviction petition is dismissed.
An eviction order is passed in favour of petitioner and against the respondent directing him to handover the vacant and peaceful possession of the tenanted premises consisting of one shop forming part of property no.1/3212, Ram Nagar, Mandoli Road, Shahdara, Delhi32 as shown in red colour in the site plan (now marked as Mark A) annexed with the petition. Further, the petitioner shall not be entitled to obtain the possession of the aforesaid tenanted premises from the respondent before expiry of period of six months from the date of passing of this order as provided U/s 14(7) of DRC Act. The petition for eviction U/s 14(1)(e) r/w Section 25B of DRC Act is accordingly disposed off. No orders as to cost.
File be consigned to Record Room.
SCJcumRC (NE) KKD. Courts/Delhi/22.03.2011 Eviction petition no.06/10 Page 12/11