Delhi District Court
Sh. Yaj Parkash Gupta vs M/S Ahuja Glass Emporium on 27 February, 2015
IN THE COURT OF MS. SHUCHI LALER, SENIOR SENIOR CIVIL
JUDGECUM RENT CONTROLLER (EAST), KKD COURTS, DELHI
Ev. No.73/13
Unique Case ID No.: 02402C0299592013
In the matter of :
Sh. Yaj Parkash Gupta
s/o Late Sh. Om Prakash Gupta
R/o 23, Veer Savarkar Block
Shakarpur, Vikas Marg, Delhi92 ....Petitioner
Versus
M/s Ahuja Glass Emporium
Through its Prop. Sh. Mukesh Ahuja
s/o Late Sh. Ramesh Chander Ahuja
Shop on G.F. in Property No.23,
Veer Savarkar Block, Vikas Marg,
Shakarpur, Delhi110092 ....Respondent
Date of Institution : 13.09.2013
Date of Arguments : 03.02.2015
Date of Pronouncement : 27.02.2015
O R D E R
1. Vide this order, I shall dispose off an application for leave to defend filed by the respondent in reply to the eviction petition U/s.14 (1)(e) of the DRC Act filed by the petitioner.
E73/13 Page 1 of 26
2. Brief narration of the facts as disclosed in the petition is as under:
The petitioner pleads:
2.1 That the premises no. 23, Veer Savarkar Block, Vikas Marg, Shakarpur, Delhi92 was owned by Smt. Santosh Rani who sold the aforesaid property to the father of the petitioner by virtue of registered GPA, Registered Receipt and Agreement to Sell. A family settlement took place on 19.11.1987 and the family members settled their disputes in respect of the said property among themselves.
2.2 That 25% share of the aforesaid property came to the petitioner.
There were four shops on G.F., on 1st floor, three rooms, one kitchen, one store, one bathroom and one latrine, on 2nd floor four small rooms and on 3rd floor, four small rooms and on 4th floor one room came in the share of petitioner.
2.3 That out of the four shops on ground floor, one shop no.2 was sold by petitioner due to some financial problems, shop No.3 is in possession and occupation of very old tenant Mohd. Sharif and the same is run by his son Rahisuddin after the death of said tenant for which a separate eviction petition is filed. And the shop measuring about 9' X 26' + 9 X 18' in 'L' shape which is two side open shop with basement underneath the shop measuring about 9' X 18' is occupied by tenant/respondent, the private number of which E73/13 Page 2 of 26 is 4 as shown in Red Colour in the site plan @ Rs.725/ per month excluding all other charges. The fourth shop is in occupation of the son of the petitioner who is doing the work of photostat, computer job work, designing/ typing, lamination and photography at the said shop.
2.4 That the tenanted shop is required by the petitioner for running his business of Lemon Soda, Shikanji and Lassi. The petitioner is presently sitting on the road in front of the shop of his son and has no accommodation to run his business. The petitioner is having registration number under the name and style of "Chotu Bhai Lemon Wala" .
2.5 That the shops on the ground floor are commercial and the remaining portion of the property is residential. The petitioner has no other commercial accommodation to run his business. The tenanted shop is required urgently from the respondent.
Being aggrieved, the petitioner filed the present petition.
3. The summons of the eviction petition in the prescribed proforma as per schedule III under DRC Act were served upon the respondent. In pursuance of the service of summons, the respondent filed an application for grant of leave to contest the eviction petition on 19.10.2013
4. In the application for leave to defend, the averments made by the respondent are as under :
4.1 That the petitioner is not the owner of the tenant shop as he has not filed any document on record to prove his ownership. E73/13 Page 3 of 26
4.2. That the petitioner is a property dealer and he has no requirement to set up the lemon, soda sikanji and lassi business in the tenanted shop. His son and daughter are well settled and independent.
4.3 That the petitioner has deliberately not disclosed that the tenanted shop was let out to M/s Ahuja Glass Emporim which is a partnership concern by virtue of lease agreement, dated 07.06.1981.
4.4 That as per the agreement, dated 07.06.1981, it was agreed that the landlord will not ask the tenant to vacate the premises as the tenant has paid a pagri of Rs.60,000/ that was about the market value of the tenanted shop at that time and a receipt dt. 07.06.1981 was also executed at that time.
4.5 That the petitioner wants to enhance the rent and the petitioner has other suitable accommodation at his premises in his possession. The petitioner has sold one shop after the commencement of the tenancy in respect of the tenanted shop.
4.6 That the petition is bad for non joinder of necessary parties as the petitioner has deliberately not impleaded the other partners of M/s Ahuja Glass Emporium. The respondent is in occupation of tenanted shop since a long time and it is the only accommodation available with him to earn his livelihood. No notice was served upon the respondent before filing of the present petition.
In view thereof, respondent has claimed that there are many triable issues involved in the instant case which require adjudication, E73/13 Page 4 of 26 accordingly, it has been prayed that leave to defend be granted to the respondent.
5. The petitioner has filed reply to the application for leave to defend denying the contents of the application for leave to defend and raising preliminary objections such as the present application for leave to defend is barred by limitation and the respondent has not raised any triable issue. The petitioner has denied receiving any Pagri amount. The petitioner has prayed for dismissal of the application for leave to defend.
6. Additional affidavit was filed by the respondent wherein the respondent stated that the petitioner's daughter Ms. Pooja has got married on 03.02.2014 and the son of the petitioner is already working in a shop in the same premises and in Eviction Petition No. 74/2013 , titled as " Yaj Prakash Gupta Vs. Raheesuddin", the leave to defend has already been granted vide order dated 08.07.2014.
7. The petitioner filed counter affidavit wherein he stated that though his daughter has been married, she is still doing the boutique work from his residence and she requires a separate shop for her boutique business and in her matrimonial home, there is no space for the said work.
8. I have heard the Ld. Counsel for petitioner as well as Ld. Counsel for respondent and perused the record with their assistance.
9. First and foremost, the court needs to adjudicate whether the application for leave to defend has been filed by the respondent within the E73/13 Page 5 of 26 period of limitation. The petitioner has stated, in the reply to the application for leave to defend, that the summons of the petition was sent to the respondent by registered post on 27.09.2013, hence, the respondent was served by registered post on 01.10.2013. By ordinary post, respondent was served on 08.10.2013 and leave to defend has been filed on 22.10.2013. The petitioner has stated that the 15 days time expired on 15.10.2013 and the present application for leave to defend is time barred.
10. The respondent, in rejoinder to the reply to the application for leave to defend, denied that he received summons from registered post and stated that he received the summons sent through ordinary post on 08.10.2013, hence, the application seeking leave to defend is well within the period of limitation.
11. In the case titled as Chaman Lal Kewal and Others v. Kanta Devi, 2013 (1) RCR (Rent) 452, the Hon'ble Delhi High Court has observed that the period of 15 days for filing an application seeking leave to defend has to be calculated from the date of second service.
12. In the instant case, the summons of the eviction petition in schedule III were issued to the respondent through ordinary post as well as registered post. The summons by registered post were not received. The respondent was duly served through ordinary post on 08.10.2013. Even if the presumption of service by duly registered post is drawn, the period of limitation of 15 days for filing the application for leave to defend is to be E73/13 Page 6 of 26 calculated from the date of second service i.e. through ordinary post on 08.10.2013 in view of judgment of Chaman Lal Kewal (supra). Thus, the date of second service by way of ordinary post in the present case being 08.10.2013 and the application for leave to defend being filed on 19.10.2013, the present application seeking leave to defend is well within stipulated time.
13. As it has been held that the application for leave to defend has been filed by the respondent within the stipulated period, now the Court requires to determine whether the respondenttenant is entitled to grant of leave to defend.
14. It is wellsettled 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 well settled that mere denials for the sake of denials are no ground in the eyes of law and if there is no ground or plea, eviction order has to be passed against the tenant whereas if the facts disclosed by the tenant in his affidavit raise triable issues, then he is entitled for the grant of leave to defend and contest the eviction petition.
15. Clause (e) of Proviso to Sub Section (1) of Section 14 of the D.R.C. Act postulates following conditions which must be satisfied : (i) That the landlord must be the owner of the property ; (ii) The premises must E73/13 Page 7 of 26 be required bonafide by the landlord and (iii) Non availability of any other reasonably suitable accommodation.
16. OWNERSHIP OF LANDLORD/PETITIONER 16.1 The respondent has averred that the petitioner is not the owner of the tenanted shop as he has not filed any document to show his ownership. The respondent has admitted that he has made payment of rent to the petitioner.
16.2 The petitioner has claimed himself to be the owner of the tenanted shop. He stated that the property no. 23, Veer Savarkar Block, Vikas Marg, Shakarpur was owned by Smt. Santosh Rani who sold it to the father of petitioner. A family settlement took place and the tenanted shop came into the share of the petitioner. The petitioner has filed on record a copy of registered GPA dated 09.01.2006 executed in his favour whereby certain rights in respect of the tenanted shop were transferred to him. 16.3 A perusal of the rent receipts dated 06.01.1992, 27.09.1991, 20.06.1990, 31.03.1990, 19.03.1992 filed on record by the respondent firm reveal that the respondent firm is making payment of rent to the petitioner. In the aforementioned rent receipts, the name of owner has been mentioned as that of the petitioner. By advancement of rent to the petitioner, the respondent has admitted the existence of landlord tenant relationship between the parties.
16.4 In rent control legislation, the landlord can be said to be owner, E73/13 Page 8 of 26 if he is entitled in his own legal right, as distinguished from for and on behalf of someone else, to evict the tenant and then to retain, control, hold and use the premises for himself.
16.5 In M.M.Quasim Vs Manohar Lal Sharma (1981) 3 SCC 36 it was observed by the Apex Court that an "ownerlandlord" can seek eviction on the ground of his personal requirement is one who has a right against the whole world to occupy the building in his own right and exclude anyone holding a title lesser than his own.
16.6 It was observed in Shanti Sharma Vs Smt Ved Prabha AIR 1987 SC 2028 that the term "owner" has to be understood in the context of the background of the law and what is contemplated in the scheme of the Act. The Act has been enacted for protection of the tenants. But, at the same time, it has provided that the landlord under certain circumstances will be entitled to eviction and bona fide requirement is one of such grounds. Ordinarily, the concept of the ownership may be absolute ownership in the land as well as of the structure standing thereon. But in the modern context, where all lands belong to the State, the persons who hold properties will only be lessees or the persons holding the land on some term from the Government or the authorities constituted by the State. The legislature, when it used the term "owner" in s. 14(1)(e), did not think of ownership as absolute ownership. The meaning of the term "owner" is visavis the tenant i.e. the owner should E73/13 Page 9 of 26 be something more than the tenant. In cases where the plot of land is taken on lease, the structure is built by the landlord and he is the owner of the structure.
16.7 In Sushil Kanta Chakravarty Vs Rajeshwar Kumar 2000 (2) RCR Rent 4 it was observed that where there was an agreement to sell and so also a power of attorney in favour of the purchaser landlord and he had been given possession by virtue of the said power of attorney, it was held that he could maintain a petition for eviction.
16.8 In the present case the defence raised by the respondent that the petitioner is not the owner of the premises is not tenable even prima facie for the following reasons: 16.8.1 Because the respondent has himself admitted that he has made payment of rent to the petitioner and in the rent receipts filed on record by the respondent, the name of the petitioner has been mentioned as the owner.
16.8.2 Because the respondent has not stated that if the petitioner landlord is not the owner of the tenanted shop, then, who is. 16.8.3 Because the tenant is not entitled to challenge the family settlement arrived between the petitioner and the other legal heirs of late Sh. Om Prakash Gupta. The petitioner has claimed himself to be the owner of the tenanted shop by virtue of GPA dated 09.01.2006 and the respondent cannot challenge the inter se family settlement arrived E73/13 Page 10 of 26 between the petitioner and other legal heirs of late Sh. Om Prakash Gupta. Reliance is placed upon the judgment titled as A.K. Nayar v. Mahesh Prasad, (2008) 153 DLT 423.
16.8.4 Because admittedly, the tenanted shop was initially owned by Smt. Santosh Rani who sold the tenanted shop to the father of the petitioner Sh. Om Prakash Gupta. The petitioner being the son/legal heir of Sh. Om Prakash Gupta is one of the co owner of the tenanted shop and it is well settled that one of the co owner can file a suit for eviction of a tenant. (Reference may be made to the judgments titled as M/s India Umbrella Manufacturing Co. v. Bhagbarla Aggarwal (dead) by LRs, (2004) 3 SCC 178, Sri Ram Pasricha v. Jagannath & Ors., (1976) 4 SCC 184; Dhanndu v. Kalawati Bai & Ors., (2002) 6 SCC 16.
Thus, this defence raised by the respondent is a vague and sham defence and without substance.
17. BONAFIDE REQUIREMENT AND NON AVAILABILITY OF REASONABLY SUITABLE ACCOMMODATION 17.1 These two ingredients are being dealt with together as they are inter related to each other. The petitioner has stated that the tenanted shop is required by him bonafidely to start his business of lemon sikanji and lassi. The respondent has stated that the petitioner is a property dealer and he has E73/13 Page 11 of 26 no requirement to set up the lemon, sodashikanji and lassi business in the tenanted shop. The respondent has also taken the stand that the son and daughter of the petitioner are well settled and independent, thus, there is no requirement of shop for them.
17.2 In the instant case, the tenanted shop is required by the petitioner for his own use i.e. for starting his business of lemon soda shikanji and lassi business. It is not the case of the petitioner that the tenanted shop is required by him for his son and daughter. Thus, the Court is refraining from making any observation regarding the requirement of son and daughter and will only decide whether the tenanted shop is bonafidely required by the petitioner for his own business.
17.3 It is settled proposition of law that neither the court nor the tenant can dictate to the landlord as to how he should live and to what use he should put each and every portion of his property. It is not for the tenant to dictate terms to the landlord and suitability has to be seen from convenience of landlord and his family members and the landlord is the best judge of his requirements. The petitioner has specifically mentioned in his eviction petition that the tenanted shop is required to start his business of lemon, soda shikanji and lassi. The petitioner has filed on record certain photographs where from it is apparent that the petitioner is presently carrying on his business of lemon, sodashikanji and lassi in front of shop of his son. The petitioner has also stated that he has the registration number under the name E73/13 Page 12 of 26 and style of Chhotu Bhai Lemon Wala.
17.4 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. 17.5 The requirement given by the petitioner to start his business of lemon, sodashikanji and lassi cannot be brushed aside as mere desire or fanciful requirement. The respondent has made a bald allegation that the petitioner is a property dealer and he has no requirement to set up his business of lemon, sodashikanji and lassi. No document has been filed by the respondent to show that the petitioner is doing the work of property dealing and is not engaged in the business of lemon, sodashikanji and lassi. 17.6 The respondent has alleged that the petitioner has other reasonably suitable accommodation at his premises in his possession and the petitioner has let out the property to other tenants. The respondent has also alleged that the petitioner has sold one shop after the commencement of his tenancy.
17.7 In reply to this, petitioner has stated that he has not let out any part of his premises to any tenant for last more than 1012 years. The petitioner in the eviction petition has stated that four shops on ground floor, three rooms on first floor, four rooms on second floor, four rooms on third floor and one room on fourth floor came in his share by way of family E73/13 Page 13 of 26 settlement. The petitioner has categorically stated that out of the aforesaid four shops situated on the ground floor of the property, one shop is in possession of tenant Rahisuddin, second shop is in possession of his son, third shop is in possession of the respondent and the fourth shop was sold by the petitioner in 1993.
17.8 The respondent has taken the stand that the petitioner does not require the tenanted shop bonafidely as he has sold one shop after the commencement of tenancy of respondent. The petitioner has specifically stated that the aforesaid shop was sold by him in the year 1993. The respondent has not disputed the year of sale of aforesaid shop. The sale transaction took place in the year 1993 and the present petition has been filed in September 2013, that is about 20 years after the sale transaction of the shop. The sale transaction of the shop bearing no. 2 is so distant that the said transaction cannot cast a shadow on the bonafide requirement of the petitioner.
17.9 The requirement of the landlord may change from time to time and he may not have been able to anticipate things at the time of sale of shop in the year 1993. His inability to do so cannot deprive him of his rights, which he derives under the DRC Act. The petitioner has explained justifiably the intervening circumstance such as the requirement of the tenanted shop for running his business of lemon, sodashikanji and lassi which he is presently carrying on in front of shop of his son. The petition cannot be held to be E73/13 Page 14 of 26 malafide on this sole ground.
17.10 The respondent has also alleged that the petitioner has other reasonably suitable accommodation at his premises in his possession which he has let out to many other tenants. The aforesaid allegation has been stoutly denied by the petitioner. The respondent has not disclosed the names of the tenants to whom the premises has been let out by the petiitoner. Even the date of creation of tenancy has not been revealed. The petitioner has no vacant shop in his possession on the ground floor of the property no. 23, Veer Savarkar Block, Vikas Marg, Shakarpur.
17.11 The petitioner is in occupation of certain rooms on the first floor, second floor, third floor and fourth floor of the property no. 23, Veer Savarkar Block, Vikas Marg, Shakarpur.
17.12 In the case titled Udai Shankar Upadhyay Vs. Naveen Maheshwari VIII (2009) SLT 429, , the landlord had filed a suit for eviction of the tenant from the shop on the ground floor for setting up the business of his son and the tenant had contended that the sons of landlord can carry on business from the hall on the first floor of the premises above the tenanted shop. It was observed by the Hon'ble Apex Court as under:
"In our opinion, once it is not disputed that the landlord is in bona fide need of the premises, it is not for the Courts to say that he should shift to the first floor or any higher floor. It is wellknown that shops and businesses are usually (though not invariably) conducted on the ground floor, because the customers can reach there easily. The Court cannot dictate to the E73/13 Page 15 of 26 landlord which floor he should use for his business; that is for the landlord himself to decide. Hence, the view of the Courts below that the sons of plaintiff No.1 should do business on the first floor in the hall which is being used for residential purpose was, in our opinion, wholly arbitrary, and hence cannot be sustained." (Emphasis supplied). 17.13 This defence raised by the respondent is squarely covered by the aforesaid judgment of Honorable Apex Court. The petiitoner cannot be compelled to run his business of lemon, sodashikanji and lassi from the first or any other higher floor of the property bearing no. 23, Veer Savarkar Block, Shakarpur, Delhi.
17.14 Therefore, judged from any angle, the requirement of the petitioner for the tenanted shop for starting his business of lemon, soda shikanji and lassi cannot be termed malafide or with oblique motives. The respondent has not been able to show that the petiitoner has any other reasonable, suitable accommodation available with him to start his business.
18. OTHER DEFENCES The additional defences which have been raised by the respondent in the application for leave to defend are discussed herein below:
18.1 That t enanted premises is the only accommodation available with the respondent to carry out his business and to earn his livelihood: 18.1.1 The respondent has taken the defence that he is in occupation of tenanted shop since long time and this is the only accommodation available with him to earn his livelihood. The E73/13 Page 16 of 26 respondent has no other source of income.
18.1.2 The petitioner has denied the said fact in his reply to leave to defend and has stated that the defendant cannot take such ground.
18.1.3 The question before the Court is whether the said defence is of any relevance to the issue at hand.
18.1.4 In the opinion of the court, the said defence has no relevance to the issue at hand as it is not the livelihood of the tenant which is to be looked into by the court in these proceedings, rather, the court has to look into whether the tenant has disclosed some facts which may disentitle the landlord from obtaining an order for recovery of possession.
18.1.5 The fact that the tenanted premises is the only source of livelihood of respondent does not render the landlord/petitioner dis entitled to eviction of respondent from the tenanted premises. There is no provision in the DRC Act to evaluate the comparative hardships and comparative need between the landlord and tenant for deciding eviction petition. (Harbhajan Dass Vs Tilak Raj Mehta 1980 RCJ 780 Delhi).
Thus, this defence raised by the respondent does not raise any triable issue.
E73/13 Page 17 of 26 18.2 That the petitioner wants to enhance the rent by putting the tenant in fear of eviction.
18.2.1 The respondent has taken defence in his application that the petitioner wants to enhance rent by putting the tenant in fear of eviction. The petitioner is in habit of harrasing the tenant on one or the other pretext which has led them to file litigation. The petitioner refused to accpet rent so the respondent was compelled to send the rent by cheque.
18.2.2 On the other hand, in reply to application, it is denied by the petitioner that he wants to enhance the rent. He averred that the respondent never paid rent on time.
18.2.3 It is well settled law that bald allegation without any material on record to substantiate the same could not be looked into as the mere bald allegations are not enough for grant of leave to defend. It is held by the Hon'ble High Court of Delhi in Rajinder Kumar Sharma and Ors. Vs. Leelawati and Ors., 155 (2008) DLT 383:
11....."Only those averments in affidavit are to be considered by Rent Controller which have some substance in it and are supported by some material."
18.2.4 Moreover, It is held by the Hon'ble High Court of Delhi in a case tiled as Hari Shanker Vs. Madan Mohan Gupta, 111 (2004) DLT 534 E73/13 Page 18 of 26 "Summary procedure in Section 25B of Delhi Rent Control Act, 1958 cannot be defeated by merely making frivolous and vague alle gations which can never be substantiated."
18.2.5 It is also held by Hon'ble High Court of Delhi in Vinod Kumar Bhalla Vs. Sh. Nanak Singh 1982 (2) RCR (Rent) 715 that in all applications for leave to defend the common defence raised by almost all the tenants, is that the landlord wanted to enhance the rent or to sell the property after getting it vacated. It was observed by the High Court that such types of allegations are without any foundation and that after an order of eviction is passed under section 14 (1)(e), the tenant is granted six months time to vacate the premises and the landlord is required to occupy the same within two months and the landlord is further disentitle for reletting or alienating the whole or any part of the premises within three years from the date of obtaining possession from the tenant. Thus, the landlord is not in a position either to sell or relet the tenanted premises for a period of three years and if a landlord does sell or relet the premises within the said period then the tenant may proceed against the landlord for restoration of the possession under section 19 of the Act.
A similar observation was made in judgment titled Krishna Chopra & Anr. Vs. Smt. Raksha, 2000 Rajdhani Law Reporter 83.
18.2.6 Thus, on the basis of the above said caselaw the E73/13 Page 19 of 26 contention of the respondent is rejected as the same is a mere assertion without any substance. Moreover the contention of the respondent is not tenable because in such kind of cases, protection/remedy available/provided for such tenants under the DRC Act itself as they can file petition for repossession if the premises are relet or transferred by the landlord after evicting the tenant, but certainly the leave cannot be granted solely on this ground.
Thus, this defence raised by the respondent is a sham defense and it does not raise any triable issue.
18.3 That present petition is bad for nonjoinder of necessary parties.
18.3.1 The respondent has stated in the application for leave to defend that the tenanted shop was let out to M/s. Ahuja Glass Emporium which is a partnership firm and the petitioner has deliberately not impleaded the other partners of M/s. Ahuja Glass Emporium, consequently, the present petition is liable to be dismissed. 18.3.2 On the contrary, the petitioner, in his reply, stated that the tenancy is in the name of the firm and the tenanted firm can be sued through one of the partners and there was no requirement to implead all the partners of the respondent firm.
18.3.2 The plea of nonjoinder of necessary parties raised by E73/13 Page 20 of 26 the respondent/ tenant is without merits. The legal proposition that partnership is nothing but a compendious name of the partners cannot be denied and in case a partnership firm is inducted as an tenant, the partners of the said firm, on the date the tenancy was created, will be joint tenants. An Eviction Petition against one of the joint tenant without impleading remaining joint tenant is maintainable. 18.3.3 In the matter titled as Rakesh Kumar Vs. Nitin Garg & others, CM (M) No. 1331/2012 & C. M. No. 20431/2012, decided on 03.01.2014, it was observed as under:
"3. In the case of Kanji Manji Vs. Trustees of the Port of Bombay, that "Where the tenancy was a joint tenancy, notice to one of the joint tenant was sufficient and the suit against one of the joint tenant not impleading rest of the joint tenants was good and the suit cannot be dismissed on this ground. The plea of the petitioner that the petitioner was separately required to be served personally if therefore not tenable"
18.3.4 In another case titled as Rajender Kumar Sharma & others Vs. Leela Wati & Ors., 155 (2008) DLT 383, it was observed by Hon'ble Delhi High Court that:
"When original tenant dies, the legal heirs inherit the tenancy as joint tenants and occupation of one of the tenant is occupation of all joint tenants. It is not necessary for landlord to implead all legal heirs of the deceased tenant, whether they are living in the property or not. It is sufficient for the landlord to implead only those persons who are living in the property, as party. There may be a case where landlord is not aware of all the legal heirs of deceased tenant and impleading only those LRs who are in occupation of the property is E73/13 Page 21 of 26 sufficient for the purpose of filing Eviction Petition. An eviction petition against one of the joint tenants is an Eviction Petition against all the joint tenants and all joint tenants are bound by order of the Rent Controller as joint tenancy is one tenancy and is not a tenancy split into different legal heirs. Thus, the plea of the tenants on this count must fail".
In view of the afore mentioned judgments, the plea of the respondent that the present petition is bad for nonjoinder of remaining partners of respondent firm is untenable.
18.4 That no notice was served upon him prior to the filing of Eviction Petition: 18.4.1 The respondent has averred that no notice has been served upon him by the petitioner before filing the present petition, thus, the present petition is without cause of action and is liable to be rejected.
18.4.2 The petitioner, in his reply, stated that no notice is required for filing the petition under section 14 (1) (E) of DRC Act, read with Section 25 (B) DRC Act.
18.4.3 This plea of the petitioner is misplaced and is contrary to the settled legal position. In case of Eviction Petition filed under Section 14 (1) (e) of DRC Act, there is no requirement of service of notice to the tenant by the landlord before filing of the petition. No triable issue has arisen on this count.
E73/13 Page 22 of 26 18.5 That the respondent paid Pagri of Rs. 60,000/ and as such the petitioner is not entitled to seek eviction 18.5.1 The respondent has stated in his application that he paid earnest money/pagree of Rs. 60,000/ and that was the market value of the tenanted shop at that time. He has alleged that the petitioner has not come to the court with clean hands, hence, he is not entitled to any relief.
18.5.2 The said contention of the respondent has been denied by the petitioner. The petitioner has stated that no such amount was ever given or paid by the respondent and vexatious plea of Pagri amount has been raised by the respondent.
18.5.3 This defence taken by the respondent is a vague defence as according to the respondent, the shop in question was let out to him vide lease deed agreement dated 07.07.1981, however, in the lease deed agreement, dated 07.07.1981, the factum of payment of Pagree amount of Rs. 60,000/ has not been incorporated. Even if any money has been taken by the petitioner from the respondent than the respondent has legal remedy to recover the same from the petitioner, but the same cannot be a ground for granting leave to defend.
E73/13 Page 23 of 26
Thus, this defence raised by the respondent fails to raise any triable issue.
18.6 That, vide agreement dated 07.07.1981, it was agreed that the landlord will not ask the tenant to vacate the premises.
18.6.1 The respondent in his application has stated that the present petition is liable to be dismissed at threshold as the premises was let out to the respondent firm vide rent agreement dated 07.07.1981 and it was agreed between the parties that the landlord will not ask the tenant to vacate the premises. The aforesaid plea has been denied by the petitioner.
18.6.2 The terms and conditions of the tenancy with monthly rent of less than 3500/ are regulated and controlled by the specific statute i.e. Delhi Rent Control Act. It is the specific statue i.e. Delhi Rent Control Act which contains categoric provisions of eviction of tenant. No party can enter into an agreement which is in contradiction with the provisions of Delhi Rent Control Act. As the parties could not have entered into an agreement for vacation of tenanted shop after expiry of period of one year in the similar manner, they could not have entered into an agreement of perpetual lease. The termination of tenancy is governed exclusively by the provisions of Delhi Rent Control Act and any agreement to the contrary cannot be read by this E73/13 Page 24 of 26 court. Moreover, the agreement of perpetual lease requires mandatory registration but the agreement dated 07.07.1981 is neither registered nor properly stamped.
Thus the defence raised by the respondent is sham and is of no assistance to his case.
CONCLUSION
19. In the light of aforesaid discussion, the Court is of the opinion that the pleas taken by the respondent have failed to raise any triable issue. The contents of the application for leave to defend have failed to rebut the presumption of bonafide qua the requirement of the petitioner. The application for leave to defend filed by the respondent is accordingly dismissed.
20. Consequently, eviction order is passed in favour of the petitioner and against the respondent. Respondent firm is directed to hand over vacant and peaceful possession of the shop measuring about 9' X 26' + 9 X 18' in 'L' shape which is two side open with basement underneath the shop measuring about 9' X 18' tenanted shop situated on ground floor of property bearing no. 23, Veer Savarkar Block, Vikas Marg, Shakarpur, Delhi92 as shown in the site plan in red colour which is annexed along with the petition. Further, the petitioner shall not be entitled to obtain the possession of the aforesaid tenanted shop from the respondent firm before expiry of period of E73/13 Page 25 of 26 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 25B DRC Act is accordingly disposed off. No order as to costs.
File be consigned to Record Room.
Announced in the open court (Shuchi Laler)
Dated:27.02.2015 Senior Civil Judge/Rent Controller (East)
Karkardooma Courts, Delhi
E73/13 Page 26 of 26