Delhi District Court
Kamal Kishore vs Pramod Kumar on 11 September, 2024
IN THE COURT OF ADMINISTRATIVE CIVIL JUDGE-
CUM- ADDITIONAL RENT CONTROLLER (CENTRAL) :
DELHI
PRESIDED OVER BY: Ms. MEDHA ARYA
Petition No.: RC ARC/72/2021
CNR No.: DLCT03-000519-2021
In the matter of :-
Sh. Kamal Kishore,
S/o. Late Puran Chand,
R/o. Part of 4721-24, Gali No. 48,
Raigar Pura, Karol Bagh,
New Delhi-110005.
....Petitioner
Versus
1. Shri Pramod Kumar,
S/o. Late Sh. Ram Kumar
2. Shri Sanjay Kumar,
S/o. Late Ram Kumar
R/o. 3366,Chirstian Colony,
Karol Bagh, New Delhi-110005.
Also at : One shop at ground floor
in property No. 4721-24, Gali No. 48,
Raiger Pura, Karol Bagh,
New Delhi-110005.
Also at : 9/3572, Raigar Pura,
Karol Bagh, New Delhi-110005.
Also at : 16/3695, Raigar Pura,
Hardhyan Singh Road, Karol Bagh,
Delhi-110005.
....Respondents
RC ARC/72/21 Kamal Kishore Vs. Pramod Kumar & Anr. 1/26
Date of Institution : 30.01.2021
Date of order when reserved : N.A.
Date of order when announced : 11.09.2024
Final Decision : Petition Allowed
JUDGMENT:
1. Vide this judgment, this Court shall decide the eviction petition filed by the petitioner against the respondents under Section 14 (1) (e) read with Section 25 B of Delhi Rent Control Act, 1958 (hereinafter, the 'DRC Act'), seeking eviction of the respondents from one shop at ground floor out of property bearing No. 4721-24, Gali No. 48, Raiger Pura, Karol Bagh, New Delhi- 110005. The said premises shall hereinafter be adverted to as the 'demised premises'. The demised premises are more clearly shown in Red in the site plan filed along with the eviction petition.
2. In the eviction petition, the petitioner has stated:-
2.1 That he is the owner of the demised premises. It is the case of the petitioner that his father Late Shri Puran Chand had purchased land admeasuring 150 Sq. Yds., falling in Khasra No. 1123, 1124 and 1125, Gali No. 47-48, Raigar Pura, Karol Bagh, New Delhi -110005, and constructed one house over the same. It is further his case that after the demise of his father, said property devolved upon all of his legal heirs, including the petitioner.
Thereafter, by vide virtue of Relinquishment Deed executed by his sisters, Partition Deed dated 11.12.2019 executed between him and his brother Ravi Kishore, subsequent Rectification Deed dated 08.12.2020, and another Partition Deed dated 08.12.2020, RC ARC/72/21 Kamal Kishore Vs. Pramod Kumar & Anr. 2/26 petitioner became owner of Southern side of the property which has been re-numbered as 4721-24, Gali No. 48, Raigar Pura, Karol Bagh, New Delhi, and admeasuring 62.5 Sq. Yds. His brother Ravi Kishore is the owner of the Northern side of the property, also admeasuring 62.5 Sq. Yds., and his sister Mohini remains the owner of the remaining 25 Sq. Yds. of the property. That the property in all consists of ground floor, first floor, half constructed second floor, and one room and kitchen constructed on third floor thereof. The share of petitioner therein is shown in Yellow in the site plan appended with the petition.
2.2 That petitioner is also living in some portion of the property that fell to his share. That one room on the ground floor is being used and occupied by him and his wife. Small portion adjacent to this room is being used by them as a storeroom, room on the first floor of the property is being used by his young daughter, and tin-shed room on the second floor is being used by his son. That room on the third/terrace floor is being used by another son of petitioner. Daughter of the petitioner is using the 'half shop' adjacent to the demised premises on the ground floor of the larger property for imparting tuition. It is stated that besides the above, there is one other shop on the ground floor of the property which is in possession of tenants Sh. Rajinder Kumar Agarwal, Sh. Rajesh Kumar Agarwal @ Raju and Sh. Mukesh Kumar Agarwal. The other shop existing on the ground floor of the property is the demised premises itself. That two rooms on first floor are under occupation of tenants Hema Ram and Ashish.
2.3 That respondents have inherited the tenancy which was RC ARC/72/21 Kamal Kishore Vs. Pramod Kumar & Anr. 3/26 created in the name of their father Late Shri Ram Kumar vide rent agreement dated 09.01.1979.
2.4 That wife of the petitioner namely Smt. Bhagwati is running a business of tailoring at a very small scale, and wishes to open her own boutique. That for the said purpose, she needs separate spaces for sale and purchase, counter, and display of suits and fabric, besides a small space which can be used as a tailor room, and another small space for a trial/changing room as well. That some private space to be used as waiting area for customers is also required. It is the case of the petitioners that the demised premises as well as the shop under the joint occupation of Shri Rajendra Kumar Aggarwal, Sh. Rajesh Kumar Agarwal and Sh. Mukesh Kumar Agarwal are both required so that a boutique can be set up therein, and a WC can also be made functional for her customers. It is stated that the demised premises as well as the other shop so described is the best available option for the petitioners, as the same faces the main road.
2.5 That wife of the petitioner is dependent upon him, and the petitioner does not have any other alternate accommodation in his possession except portion of the property 4721-24 as described in the foregoing portions of this order.
2.6 That on the other hand, the respondents are in possession of several properties, which includes commercial properties as well, and can easily shift their business to the said premises.
RC ARC/72/21 Kamal Kishore Vs. Pramod Kumar & Anr. 4/26
3. Summons of the petition in the prescribed format were issued to the respondents, who duly entered appearance and filed an application under Section 25 B (4) of DRC Act seeking leave to contest the eviction petition, along with an accompanying affidavit. In the application so filed, the respondents contested the ownership of the petitioner over the demised premises, and also the subsistence of landlord-tenant relationship between the parties. It was averred by them that their landlord is one Shamim Ahmed S/o. Late Mohd. Ahmed. The veracity of the rent agreement dated 09.01.1979 allegedly executed between Ram Kumar and Ramesh Chander on the one hand, and the father of petitioner Shri Puran Chand on the other was also challenged, and it was stated that the said agreement is forged and fabricated. Similarly, the rent receipt dated 20.07.2008 executed by Ram Kumar in favour of Shri Puran Chand was also described by the respondents to be forged. It was stated that the petitioner has no title to the demised premises, and all the documents relied upon by the petitioner being the two Partition Deeds or the Rectification Deed etc. show only an internal arrangement between the family members of the petitioner, but do not show the prior chain of title in favour of the petitioner or his predecessors-in-interest. It was alleged that the site plan filed on record is also incorrect. It was further alleged that the petition as filed is bad for non-joinder of necessary parties, in as much joint tenants in possession of the demised premises have not been joined to the petition. It was also pointed out that the petitioner has in his occupation four shops which open in Gali No. 48, and three shops which open in Gali No. 47, besides three shops which open towards Vishnu Mandir Marg. Bonafide nature of the requirement disclosed by the petitioner was also controverted, and RC ARC/72/21 Kamal Kishore Vs. Pramod Kumar & Anr. 5/26 it was averred that the wife of petitioner is not doing any tailoring business. It was further stated that as petitioner earns a handsome amount from rent from the various tenants who occupy several portions of the building owned by him, he has no genuine requirement for the demised premises. It was also alleged that the requirement shown by the petitioner is one for additional accommodation, which itself constitutes a triable issue.
4. Reply to the application was duly filed, and rejoinder thereto was also filed. After hearing arguments of the parties, Court allowed the application of the respondents seeking leave to contest the eviction petition vide order dated 29.01.2022. Thereafter, the respondents were directed to file their written statement.
5. In the common written statement filed by both respondents, preliminary objections qua the maintainability of the petition have been taken by them. They have stated that false averments have been made in the petition, and therefore, the petitioner is liable to be prosecuted under Section 340 of the Criminal Procedure Code, 1973. It has also been stated that as the petition has been filed by the petitioner to seek declaration of his title to the entire property of which the demised premises form a part, in a ham-handed manner, the petition is hit by section 41 (h) of the Specific Relief Act, 1963. On merits, it is stated:-
5.1 That respondents do not recognize the petitioner as their landlord. It is stated that it is one Shamim Ahmed S/o. late Mohd. Ahmed who has been collecting the rent from them, and RC ARC/72/21 Kamal Kishore Vs. Pramod Kumar & Anr. 6/26 therefore, is the landlord of the premises. It is averred that the rent note dated 09.01.1979 allegedly executed between Ram Kumar and Ramesh Chander on the one hand, and Shri Puran Chand on the other, is forged and fabricated, as also the rent receipt dated 20.07.2008.
5.2 That without prejudice to the contention that Shri Puran Chand was never the owner of the larger building of which the demised premises form a part, it has been averred in the petition that Shri Puran Chand only had the authority to collect rent for the demised premises, but is not the owner thereof.
5.3 That all the documents relied upon by the petitioner to assert his title over the property, such as the partition deed dated 11.12.2019 and the 08.12.2020 or the Rectification Deed dated 08.12.2020 are documents which have been executed between the family members of the petitioner inter-se, and do not establish in any manner the title of the predecessor-in-interest of the petitioner, namely his father Shri Puran Chand, over the demised premises.
5.4 That there is no privity of contract between the petitioner and the respondents, and it is for this reason that the petitioner has failed to file on record counterfoil of any rent receipt signed by the respondents. It is stated that respondents have never attorned tenancy in favor of the petitioner.
5.5 That the site plan filed by the petitioner is not accurate.
5.6 That petition as filed is bad for non-joinder of RC ARC/72/21 Kamal Kishore Vs. Pramod Kumar & Anr. 7/26 necessary parties.
5.7 That respondents never executed legal notice dated 14.07.2020 or any other legal notice from the petitioner.
5.8 That the requirement shown by the petitioner is not bonafide as his wife is not doing any tailoring business, for which reason the petitioner has failed to file on record even a single document which could establish that his wife is so working as a tailor.
5.9 That respondents do not own any commercial properties. It has been reasserted that demised premises is the only source of livelihood available with the respondents. It has also been reasserted that the respondents are tenants under the tenancy of one Mr. Shamim Ahmed, and have paid rent to him up till December 2019 at the rate of Rs 300/- per month.
On the strength of these contentions, respondents have prayed for the dismissal of the eviction petition.
6. In replication to the written statement, the petitioner has denied all the contents of the written statement, and has reasserted the case as pleaded in the eviction petition. Therein, 6.1 It is pleaded that the petitioner is the owner of the larger property of which the demised premises form a part, and that respondents have no right to challenge the ownership of the petitioner over the demised premises.
RC ARC/72/21 Kamal Kishore Vs. Pramod Kumar & Anr. 8/26 6.2 Veracity of the rent note as well as the rent receipts relied upon by the petitioner has been reasserted.
6.3 Correctness of the site plan filed along with the eviction petition has also been reasserted.
6.4 The contention that respondents are tenants of one Shamim Ahmed S/o Late Mohd Ahmed has been denied.
7. After the completion of pleadings, proceedings were fixed for recording of PE.
8. Petitioner took the witness stand as PW-1. In his examination-in-chief, he relied upon his evidence affidavit Ex.PW-1/A. The contents thereof are not being repeated herein in the interest of brevity, as the same are a reiteration of the contents of the petition. Further, he relied upon the following documents in his testimony :-
(i) Ex. PW-1/1 (OSR) being copy of agreement dated
09.01.1979.
(ii) Ex. PW-1/2 (OSR) being copy of rent receipt.
(iii) Ex. PW-1/3 (OSR) being copy of Relinquishment Deed by Mohini and Vimla.
(iv) Ex. PW-1/4 (OSR) being copy of Relinquishment Deed executed by Kamal Kishore and Ravi Kishore.
(v) Ex. PW-1/5 (OSR) being copy of Gift Deed executed by Vimla Devi.
RC ARC/72/21 Kamal Kishore Vs. Pramod Kumar & Anr. 9/26
(vi) Ex. PW-1/6 (OSR) being copy of registered Partition Deed dated 11.12.2019.
(vii) Ex. PW-1/7 (OSR) being copy of Rectification Deed dated 08.12.2020.
(viii) Ex. PW-1/8 (OSR) being copy of Partition Deed dated 08.12.2020.
(ix) Ex. PW-1/9 being copy of rent agreement dated 10.05.2017.
(x) Ex. PW-1/10 being copy of rent agreement dated 07.01.2012.
(xi) Ex. PW-1/11 being the photographs of property bearing No. 9/3572, Regharpura, Karol Bagh, New Delhi.
(xii) Ex. PW-1/12 being the photographs of property bearing no. 16/3695, Regarpura, Karol Bagh, New Delhi.
(xiii) Ex. PW-1/13 being the photographs of property bearing no. 3366, Christian Colony, Karol Bagh, New Delhi.
(xiv) Ex. PW-1/14 and Ex. PW-1/15 the photographs of the property bearing no, 4721-24, Regharpura, Karol Bagh, New Delhi.
(xv) Mark-A being the copy of order dated 17.01.2019 passed by Sh. Puneet Pahwa, Ld. ARC, Delhi (de-
exhibited from Ex.PW-1/16).
(xvi) Mark-B being copy of order dated 20.07.2017 passed by Ms. Neha, Ld. Civil Judge, Delhi (de-exhibited from Ex. PW-1/17).
RC ARC/72/21 Kamal Kishore Vs. Pramod Kumar & Anr. 10/26 (xvii) Ex. PW-1/17 being the site plan.
(xviii) Ex. PW-1/18 and Ex. PW-1/19 being the copies of House Tax Receipts.
(xix) Ex. PW-1/20 to Ex. PW-1/22 being copies of lease deed .
He was duly cross-examined and discharged.
9. No other witnesses were examined by the petitioner to prove his case. PE was accordingly closed, and the proceedings then progressed to the stage of recording of respondent evidence/RE.
10. At the stage of RE, respondent Sanjay Kumar took the witness stand as RW-1. In his examination-in-chief, he relied upon his evidence affidavit Ex.RW-1/A. The contents thereof are not being repeated herein the interest of brevity, as the same are a reiteration of the contents of the written statement. Further, he also placed reliance on the following documents :-
(i) Ex. RW-1/1 being site plan annexed with the application for leave to defend.
(ii) Mark-A being copy of GST Registration Certificate in the legal name of G.G. Sewing Machine Co.
(iii) Mark-B being copy of GST Registration Certificate in the legal name of Girdhari Lal.
(iv) Mark-C being copy of Telephone bill and Cheque of Hindustan Unilever Limited alongwith envelope in the name of Girdhari Lal.
(v) Ex. RW-1/2 being coloured photographs.
RC ARC/72/21 Kamal Kishore Vs. Pramod Kumar & Anr. 11/26
(vi) Mark-D being copy of weight receipt.
(vii) Mark-E being copy of rent agreement dated 10.12.2017.
(viii) Ex. RW-1/3 being copy of ration card.
After being cross-examined at length, the witness was discharged.
11. No other witnesses were examined by the respondent, and RE was then closed. Proceedings then progressed to the stage of final arguments. Final arguments heard. Record including written submissions filed by both the parties and relevant citations filed by them, perused. Considered.
12. In order to secure an order of eviction under Section 14 (1) (e) of DRC Act, the petitioner has to establish the following ingredients:
(i) Existence of landlord-tenant relationship between the parties.
(ii) That the landlord/petitioner is the owner of the property.
(iii) That the premises are required bonafidely for his use or for the use of any other family member dependent on him.
(iv) That he does not have any other reasonably suitable alternate accommodation available with him.
In Satyawati Sharma Vs. Union of India, AIR 2008 SC 3148, the Hon'ble Supreme Court of India has extended the scope of the provision to include areas for which an eviction petition can RC ARC/72/21 Kamal Kishore Vs. Pramod Kumar & Anr. 12/26 be filed which are commercial in nature.
13. The facts of the case and evidence led on record shall be examined in the light of legal position enunciated above.
Ownership of the petitioner over the demised premises & Subsistence of landlord tenant relationship between the parties.
14. The said two issues will be considered together, as they are interlinked. Bare perusal of Section 14 (1) (e) of DRC Act reveals that in a petition filed under the said provision, the petitioner has to establish that he is the owner of the tenanted premises. However, it has been laid down in a catena of judgments that the word 'owner' does not mean that the petitioner is required to establish perfect title over the demised premises, and he is only required to show that he has some semblance of title over the demise premises, which is better than that of the tenant. In other words, he has to show that he is more than a tenant with respect to the demised premises. In the case at hand, petitioner has stated that he is the owner of the demised premises, being one of the legal heirs of Shri Puran Chand, his father, who died intestate and subsequent to whose death, family arrangements between his legal heirs led to the demised premises falling in his share. In his testimony, the petitioner also relied upon the house tax receipts Ex. PW-1/18 and Ex.PW-1/19 as also the copies of the Lease Deed executed in favour of his predecessor-in-interest by DDA being Ex.PW-1/20 and Ex.PW-1/22(OS&R). These documents, in original, were produced by the petitioner. Since the documents have already been admitted by the Court in evidence, objection of RC ARC/72/21 Kamal Kishore Vs. Pramod Kumar & Anr. 13/26 respondents to the effect that they were filed without leave of the Court is untenable. Though witnesses from concerned departments were not summoned by petitioner to prove the documents, since the documents are official documents, they can still be read. Qua them, a suggestion was given by respondents to the petitioner that these documents do not establish the ownership of the petitioner over the demised premises. Concededly, these documents are not title documents and do not show the title of the petitioner's father/petitioner over the demised premises. However, in the instant proceedings, petitioner was not required to establish his title over the demised premises. As already discussed above, he was only required to show that he is somewhat more than a tenant qua the same. In the considered opinion of this Court, with the help of the said documents being the House Tax Receipts and the Lease Deeds executed in favour of Shri Puran Chand, the father of petitioner by DDA, the petitioner has been able to do so.
15. As regards subsistence of landlord tenant relationship between the parties, the petitioner has stated that it is the father of the respondents who was inducted as a tenant in the demised premises by his father, and a rent note dated 09.01.1979 was executed between the parties. The said rent agreement in original was produced by the petitioner on record being Ex. PW-1/1 (OSR). In their pleadings, the respondents have controverted this rent note and have stated that the same is forged and fabricated. Similarly, they have also stated that the rent receipt Ex. PW-1/2 (OS&R), which as per which the petitioner, also bears the signatures of the father of the respondents, is also forged and fabricated. Not only have the respondents controverted the veracity of the lease deed RC ARC/72/21 Kamal Kishore Vs. Pramod Kumar & Anr. 14/26 and the rent note as above, but they have set up a contrary version to say that they are actually the tenants of one Shamim Ahmed S/o. Mohd. Ahmed. However, when the evidence led on record is appreciated, it is seen that the version of the respondents has been left open ended by them, and the gaping gaps in their testimony enure to the benefit of petitioner. Respondents have stated that they used to pay rent to one Shamim Ahmed S/o. late Mohd. Ahmed, but could not produce any rent receipt to substantiate their version. Further, they failed to give any particulars regarding their tenancy to support their version. That is to say, they did not say as to what was the commencing point of the tenancy, whether they were inducted as tenants in the demised premises themselves, or whether their father was let in the demised premises when the tenancy was initiated, what was the initial rate of rent, and what were the other terms and conditions of such tenancy under which they were inducted as tenants in the premises. Absence of these details makes their version suspect. The alleged landlord Shri Shamim Ahmed S/o Late Mohd. Ahmed could have been summoned as a witness by the respondents to prove their version, but not to be. It has also not been shown by them on record that some dispute regarding ownership over demised premises is pending between the petitioner and Sh. Shamim Ahmed. In absence of any oral or documentary evidence to support this version, vague testimony of respondent No. 2 as contained in the evidence affidavit Ex. RW-1/A, that they have been paying rent to Shri Shamim Ahmed S/o. Late Shri Mohd. Ahmed, is not sufficient to establish, even on a scale of preponderance of probabilities, that respondents are tenants under the said Shamim Ahmad. When the testimony of the respondents is juxtaposed with RC ARC/72/21 Kamal Kishore Vs. Pramod Kumar & Anr. 15/26 the testimony of the petitioner, it is seen that the petitioner has been able to prove on record a well rounded-up version. He has explained as to how the predecessor-in-interest of the respondent was inducted in the premises, how the tenancy devolved upon the respondents, and has also explained as to how he acquired title to the demised premises. The version of the petitioner seems to inspire confidence.
16. Respondents have also controverted the genuineness of the rent agreement as well as the counterfoil of the rent receipt Ex. PW-1/1 and Ex. PW-1/2, and have pleaded in their written statement that the said agreement is forged and fabricated. It is their case that this fact can be inferred from the fact that on the rent agreement Ex. PW-1/1, the signatures of their father is in English language, whereas on the rent receipt, the same are in Hindi language. Merely such contention cannot be the basis to hold that the documents are forged. If indeed the petitioner forged these documents, he could have easily appended similar signatures on both. It is seen that in order to substantiate their version that neither of the said documents bear the genuine signatures of their father, the respondents did not expend much effort.
17. The signatures on the Rent Deed as well as the rent receipt Ex.PW-1/1 and Ex.PW-1/2(OSR) have been controverted by the respondents who stated that their father has not signed the agreement. However, no evidence was led on record by the respondents to prove this defence. Merely copy of the Ration Card Ex.RW-1/3 which their father had signed as RK Goel instead of signing as 'Ram Kumar' does not establish that the signatures of RC ARC/72/21 Kamal Kishore Vs. Pramod Kumar & Anr. 16/26 their father on the rent agreement are forged and fabricated. Neither any expert witness was examined, nor any application for sending the document for Forensic Examination was made by the respondents. On the mere asking of the respondents, it cannot be held that the signatures of their father on the rent agreement are forged.
18. As a last resort, an argument was taken by the respondents that there was no occasion for their father to append his signatures at two places on the rent agreement Ex.PW- 1/1(OSR) once as Ramesh Kumar, and once as Ramesh Chander. However, clarifications were taken from the respondents themselves in the open court, and they submitted that Ramesh Chander is actually the name of their uncle (Chacha). When they were asked if their uncle had also entered the demised premises as tenant, the respondents pleaded ignorance. Be that as it may, from their explanation, it stands clarified that their father did not sign the rent agreement twice. Since the fact that the signatures of their father on the rent agreement Ex.PW-1/1(OSR) or rent receipt Ex.PW-1/2 is forged and fabricated has not been established by the respondents in any manner, it remains not proved. No forensic evidence or specialized evidence was led on record by the respondents. Further, when RW-1 was asked if his father used to sign both in Hindi and English language, RW-1 gave an evasive respondent and said that as per his knowledge, his father used to sign in English only. If such were the case, RW1 could have easily brought on record multiple documents containing the admitted signatures of his father, other than the Ration Card Ex.RW- 1/3(OSR) to show the fact that on each document, his father would RC ARC/72/21 Kamal Kishore Vs. Pramod Kumar & Anr. 17/26 only sign in English language. No such evidence was also brought on record by the respondents. All in all, it stands established that the rent agreement Ex.PW-1/1 and rent receipt Ex.PW-1/2 are genuine documents, and that there subsisted a relationship of landlord and tenant between the father of petitioner and father of respondents. The fact that respondents have not paid any rent to the petitioner or have not attorned tenancy explicitly in favour of the petitioner does not detract from the merits of case of petitioner, it being a settled position of law that attornment in favour of the owner of the property is automatic in terms of Section 109 of Transfer of Property Act. Reliance at this juncture can be placed upon the judgment of the Hon'ble High Court of Delhi titled Mohd. Ilyas and Anr. Vs. Mohd. Adil and Ors. AIR 1994 Delhi 42. Since the respondents are claiming their interest in the demised premises through their father, they cannot deny the subsistence of landlord-tenant relationship between themselves and the petitioner.
19. It is contended in the written statement that other joint tenants are occupying the demised premises in their own right as well, and petition is bade for their non-joinder. However, no particulars of such joint tenants were so much as mentioned by the respondents. This contention is seen to have been urged to be rejected.
20. As such therefore, the subsistence of landlord-tenant relationship between the parties also stands established.
Bonafide nature of the requirement disclosed by the petitioner.
RC ARC/72/21 Kamal Kishore Vs. Pramod Kumar & Anr. 18/26
21. Petitioner has stated that he requires the demised premises for the use of his wife. It is stated in the petition that his wife Bhagwati is working as a ladies' tailor at a very small scale, and wants to expand her business and open a boutique, for which reason she requires the demised premises as well as the adjoining shop which is under the occupation of other tenants. In the petition as well as the similar affidavit of petitioner Ex.PW-1/A, petitioner has lucidly explained the requirement for the demised premises. He has stated that separate spaces are required for his wife where she can make her customers wait, where she can deal with her customers, besides space for displaying suits and fabrics as well as separate space for her tailor to sit, and also some accommodation to arrange for a trial/changing room. It is stated that a WC also needs to be installed in the premises so as to make the boutique fully functional. It is a well settled position of law that the requirement of the petitioner/landlord is to be presumed to be bonafide, unless contrary facts are brought on record by the tenants/respondents to refute such presumption. Reliance at this juncture can be placed on the judgment titled Sarla Ahuja Vs. United India Insurance Co. Ltd. (1998) 8 SCC 119.
22. In the considered opinion of this Court, respondents have not been able to bring on record any 'facts' within the meaning of Section 25-B (4) as would help refute the presumption arising in favour of the petitioner. It has merely been stated that the wife of petitioner is not doing any business, and does not require the demised premises. It has been stated that she is infact a housewife, and is not doing any professional work. It has been averred that petitioner is himself a government employee, and his RC ARC/72/21 Kamal Kishore Vs. Pramod Kumar & Anr. 19/26 wife does not require to open any boutique, as the petitioner has a comfortable source of income. It has been stressed that the source of income of the petitioner is augmented by rent received by him from various sources. Mere bald denials on the part of the tenant that the requirement disclosed by the petitioner is not bonafide is not such a fact as would dislodge the presumption which arises in favour of the petitioner. Furthermore, the respondents have asserted that the petitioner has multiple sources of income. However, even if it is presumed that the petitioner is at present leading a life which is comfortable, he still has the right to excel in life and expand his source of income, his requirement cannot be termed to be malafide merely because he otherwise has a good source of income in the form of a handsome salary being a government employee or the income that he derives from renting out other property available with him.
23. That a landlord can file an eviction petition for the requirement of his wife is well established. Landlord can seek vacant possession of tenanted premises not for his own use, but also for any family member dependent upon him. The word 'dependent' does not mean that the family member must be necessarily financially dependent upon the petitioner, but that family member who lives together with the landlord or is emotionally dependent on him is one for whose requirement the landlord can maintain an eviction petition. Reliance at this regard can be placed upon the judgment of Hon'ble High Court of Delhi titled as Anil Kumar Gupta Vs. Deepika Verma, Rev. 138/2015 DoD 14.10.2015.
RC ARC/72/21 Kamal Kishore Vs. Pramod Kumar & Anr. 20/26
24. Bonafides of petitioner have been challenged basis the contention that petitioner's wife has never had a tailoring business. Admission of the petitioner during his cross-examination as PW-1 that his wife was not doing any work as on the date of recording of his testimony does not falsify his case or establish that she never had a boutique. Human circumstances are bound to change, and they can change even minute to minute. The claim of petitioner that his wife was running a boutique on 30.01.2021, when the eviction petition was filed, or soon before, has not been proved to be false in any manner by the respondents. That she gave up working pending the eviction petition is not a fact on the basis of which the eviction petition can be dismissed or the requirements of the petitioner can be considered to be malafide.
25. In any event, if the petitioner does not use the demised premises within three years of eviction order, respondent can taken resort to Section 19 of DRC Act. Section 19 of DRC Act is sufficient to protect the interest of the respondent, which provides that when the landlord, after taking possession of the demised premises, fails to occupy it within two months or within three years thereof, either re-lets or transfers the premises to any person, the tenant can file a petition for repossession of the premises. Reliance at this juncture can also be placed on the judgment of the Hon'ble High Court of Delhi titled as Vinod Kumar Bhalla Vs. Sh. Nanak Singh, 1982 (2 RCR (Rent) 715), wherein it has been held, "(8) The allegations regarding the intention of the respondent to sell or re-let the property are also vague. Experience has shown that in all applications for leave to defend the common defense raised by almost all the tenants, is that the landlord wanted to enhance the rent or to sell the property after getting it vacated. Such type of RC ARC/72/21 Kamal Kishore Vs. Pramod Kumar & Anr. 21/26 allegations are generally without any foundation. When an order of eviction under Section 14(l)(e) of the Act is passed, the tenant is granted six month's time to vacate the premises under Section 14(7) of the Act. After getting the premises vacated the landlord is required to occupy the same within two months under Section 19 of the Act and he is not entitled to re-let or alienate the whole or any part of the tenancy premises within three years from the date of obtaining possession from the tenant. In other words, it would mean that the landlord is required to keep the premises for a period of three years with him. He would thus be not in a position either to sel'l the house or to re-let the same. The allegations of the alleged intention to sell or re-let do not require consideration at this stage. If the landlord sells the property or re-lets the same after obtaining possession, the tenant may proceed against the landlord for restoration of possession under Section 19 of the Act. This section is sufficient protection to the tenant against the alleged sale or re-letting of the premises by the landlord."
Availability of alternate accommodate with the petitioner
26. In the eviction petition, it has been asserted by the petitioner that for the requirement disclosed in the eviction petition, he does not have available with him any alternate suitable accommodation. In the entire pleadings, the respondents have not controverted this claim of the petitioner. In the preliminary objections stated in the written statement, they have not stated that the petitioner has in his possession any other alternate accommodation. Further, in response to Para no.8 of the petition wherein it has been asserted by the petitioner that he does not have in his possession any property except portion of property bearing no. 4721-24, they have merely stated the contents of paragraph are wrong and denied, but have not specifically elaborated to what all properties are in possession of the petitioner. In his evidence affidavit, RW-1 testified that a large number of properties are available with the petitioner which can constitutes alternate RC ARC/72/21 Kamal Kishore Vs. Pramod Kumar & Anr. 22/26 suitable accommodation with him. He deposed that towards Gali no. 48, four shops including one almirah, and towards Gali no. 47, three shops are available with the petitioner, besides three shops towards Vishnu Mandir Marg. However, in the absence of any pleadings to the effect that petitioner has in his possession alternate accommodation, evidence to this effect cannot be considered. It is cardinal principle of law that any evidence beyond pleadings is to be disregarded (Ref: Bondar Singh Vs. Nihal Singh AIR 2003 SC1905). RW-1 admitted in his cross-examination as correct the suggestion that contents of para no.8 of his evidence affidavit Ex.RW-1/A are beyond pleadings. In view thereof, his testimony to the effect that petitioner has several alternate accommodations with him cannot be considered, and respondents cannot be permitted to traverse beyond the case pleaded by them.
27. Photographs of some properties have also been annexed on record by the respondents but they cannot also looked into. being beyond pleadings. No foundational facts for considering these photographs can be traced in the written statement. In any event, the photographs have also not been proved by the respondents as per law, inasmuch as the witness RW-1 admitted in his cross-examination that he does not remember from whose phone the photographs Ex.RW-1/2 were taken. The author thereof was never examined, nor did the witness placed on record any certificate under Section 65-B of Indian Evidence Act, 1872 in support of the photographs. As such, the photographs can be disregarded for this reason as well.
28. Although no averment regarding availability of RC ARC/72/21 Kamal Kishore Vs. Pramod Kumar & Anr. 23/26 alternate accommodation was made by the respondents in the pleadings, still the contention of the respondents as taken in the application for leave to defend that in the premises, one shop/almirah is lying vacant since long and was let out to a vegetable seller by the petitioner in the month of January, 2021 shall be dealt with, since basis such contention, leave to contest the petition was allowed to the respondents. However, during trial, respondents could not prove that such accommodation constitutes alternate suitable accommodation available with the petitioner. Some photographs qua this shop/almirah were filed by the respondents with the application for leave to defend, and the said fact became the premise of the order vide which the respondents were permitted to contest the eviction petition on merits. In his cross-examination, not a single question was put to the petitioner regarding the availability of such almirah like shop in Gali No. 48 around the demised premises. Furthermore, the testimony of RW- 1 regarding the fact that this almirah/shop is suitable alternate accommodation available with the petitioner was discredited by the petitioner during his cross-examination. In his cross- examination, RW-1 admitted that the almirah as shown in the photocopy of the photograph filed by the respondents alongwith the written statement is on the back side of a wall of the demised premises towards Gali No.48, that the said premises is only 9 inch deep and that there is no shutter or door on the almirah. RW-1 volunteered that the petitioner had removed the shutter before filing of the petitioner. If such is the case, the falsity of the claim taken by the respondents in the application for leave to defend that the shutter existed even on date of filing of the application stands proved. Even otherwise, even if it is presumed that a shutter or RC ARC/72/21 Kamal Kishore Vs. Pramod Kumar & Anr. 24/26 door over the almirah was removed by the petitioner after filing of the petitioner, the fact that RW-1 has himself admitted that the said premises are only 9 inch deep, as is evident from the photograph Ex.RW-1/X2, makes it amply clear that the said premises cannot be said to constitute reasonable suitable accommodation available with the petitioner for the requirement disclosed in the eviction petition. The assertion of the respondents as taken in the application for leave to defend that the premises were let out by the petitioner to a vegetable vendor making the demised premises, situated in the vicinity, unsuitable for the requirement disclosed in the petitioner, can in no way discredit the case of the petitioner, as the latter could not be expected to leave the said premises vacant until the pendency of the instant eviction proceedings, in anticipation of a positive outcome herein. Pending the proceedings, the fact that the petitioner requires the demised premises for opening a boutique, which his wife would perhaps be able to do some time in future, would be no ground for him to consider that even on the date of filing of the petition he should not let out the property to any vegetable vendor. Such a contention appears to be absurd.
29. In his evidence affidavit Ex.PW-1/A, petitioner has also explained that the other shops available in the property of which the demised premises form a part are in occupation of other tenants, and also placed reliance on the Rent Agreements Ex.PW- 1/9 and Ex.PW-1/10. Neither the veracity of the rent agreements was challenged by the respondents, nor did they discredit the case of the petitioner in this regard in any other manner. On a scale of balance of probabilities, petitioner has established that he does not RC ARC/72/21 Kamal Kishore Vs. Pramod Kumar & Anr. 25/26 have available with him any alternate accommodation for the requirement disclosed in the petition.
CONCLUSION
30. In view of the aforesaid discussion, the instant petition stands allowed in favour of the petitioner and against the respondent. Accordingly, an eviction order is passed U/s 14 (1) (e) of the Act in favour of the petitioner and against the respondents in respect of one shop at ground floor out of property bearing No. 4721-24 Gali No. 48, Raiger Pura, Karol Bagh, New Delhi-110005 more clearly de-alienated in Red in the site plan which is annexed with the eviction petition. However, this order shall not be executable before the expiry of six months from the date of this order as provided U/s 14 (7) of DRC Act. Parties to bear their own costs.
31. File be consigned to record room after due compliance.
Digitally
signed by
Medha Medha Arya
Date:
Arya 2024.09.12
16:14:53
+0530
Announced in the open court (MEDHA ARYA)
on 11.09.2024 ACJ-cum-ARC (Central)
(This judgment contains Tis Hazari Courts
26 pages in total) Delhi
RC ARC/72/21 Kamal Kishore Vs. Pramod Kumar & Anr. 26/26