Smt. Kamlesh Nagpal vs Shri. Anil Pandhoh on 12 February, 2016

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Delhi District Court

Smt. Kamlesh Nagpal vs Shri. Anil Pandhoh on 12 February, 2016

Page no. 1 of 48

IN THE COURT OF SH. SUMEDH KUMAR SETHI
ACJ-cum-ARC-cum-CCJ (WEST) THC, DELHI

UID No. 02401C0202272014
E No.38/2014 U/s 14(1)(e) of DRC Act
Date of institution: 02.05.2014
Date of Order: 12.02.2016
1. Smt. Kamlesh Nagpal
W/o Late. Sh. G L Nagpal
R/o M-117, G.S. Apartment
Sector-13, Rohini, Delhi.
2. Shri H.L. Nagpal
S/o. Late Shri Amarnath Nagpal
R/o. 2/9, Sarvpriya Vihar
Near IIT Gate, Hauz Khas,
New Delhi.
3. Shri Anand Swaroop Nagpal
S/o. Late Shri Amarnath Nagpal
R/o. 29/30, Old Rajender Nagpal
Near Ranjit Nagar, New Delhi
4. Sh. Ashok Nagpal
S/o. Late Sh. Amar Nath Nagpal
R/o. Flat No. 424, DDA Flats,
Near Ranjit Nagar, New Delhi.
5. Smt. Seema Nagpal
W/o. Late Sh. Inder Mohan Nagpal
R/o. BR-4C, Shalimar Bagh
New Delhi-110088.
6. Ms. Swinky Nagpal
D/o. Late Sh. Inder Mohan Nagpal
R/o. BR-4C, Shalimar Bagh
New Delhi-110088.
7. Mrs. Divya Kukreja
W/o. Sh. Amit Kukreja
R/o. 12/2, Moti Nagar,
New Delhi 110015.
8. Master Sahil Nagpal (Minor)
S/o. Late. Sh. Inder Mohan Nagpal
Through his legal guardian and Natural Mother
Smt. Seema Nagpal/Petitioner no.5
R/o. BR-4C, Shalimar Bagh
New Delhi-110088. ....... Petitioners
Versus
Shri. Anil Pandhoh
S/o Late Sh. Chaman Lal Pandhoh
Shop no.9, Nala Market
Patel Nagar, New Delhi ....Respondent

E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh
Page no. 2 of 48

Order deciding Leave to Defend in Eviction petition
U/sec. 14(1)(e) r/w Section 25-B of DRC Act, 1958

1) Vide this order the Court shall dispose of the application U/s 25B (4 & 5) of DRC
Act of the respondent seeking leave to defend the eviction petition, filed on

23.06.2014.

2) The eviction petition U/sec. 14(1)(e) Section 25B of the Delhi Rent Control Act,
1958 (hereinafter referred to as DRC Act) was filed by the petitioners against the

respondent on 02.05.2014.

FACTS

3) The averments made in the petition are that: 3.1 Shop no.9, Nala Market, Patel Nagar, (herein after called tenanted shop in question), as shown in red colour in the site plan is occupied by respondent. The tenanted shop is in use and occupation of respondent and the subtenants and various kinds of businesses including boutique and mobile recharge etc. are being run from the tenanted shop. The monthly rent of the shop in question is Rs. 210/ per month exclusive of all other charges. 3.2 The property bearing no. Shop no.9, Nala Market, Patel Nagar, New Delhi, was initially allotted to Late. Sh. Amar Nath Nagpal vide allotment order dated 24.12.1956 by the office of House and Rent Officer, Delhi. The said shop was subsequently let out by late Sh. Amar Nath Nagpal to the father of the respondent, namely Shri Chaman Lal Pandoh as tenant. 3.3 After the death of Shri Amar Nath Nagpal, the property in question was substituted in the name of his legal heirs vide substitution letter dated E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 3 of 48 03.09.1996 by the office of the Housing and Rent Office, Delhi. 3.4 After the death of Shri Amar Nath Nagpal, the allotment of the demised premises was substituted in the name of legal heirs of late Sh Amar Nath Nagpal i.e. Shri Girdhari Lal Nagpal, Shri Harbhajan Lal Nagpal, Shri Anand Swaroop Nagpal, Shri Ashok Nagpal, Shri Pravesh Nagpal and Shri Inder Mohan Nagpal.

3.5 Shri Girdhari Lal Nagpal expired on 26.06.2003 and after his death his share in the property devolved upon his all legal heirs i.e. his widow namely Smt. Kamlesh Nagpal and his son namely Vikas Nagpal, Sanjeev Nagpal and Jatin Nagpal. All the three sons of Shri Girdhari Lal Nagpal executed a registered relinquishment deed vide registered document no. 16028 in additional book no. 1, volume no. 11199, page no. 49 to 51 dated 01.11.2003 in respect of their share in the demise premises in favour of their mother Smt. Kamlesh Nagpal.

3.6 In the year 2005, a family settlement took place by virtue of which Shri Parvesh Nagpal relinquished his share in the favour of Smt. Kamlesh Nagpal, Harbhajan Nagpal, Anand Swaroop, Ashok Nagpal and Inder Mohan Nagpal by virtue of family settlement deed registered as document no. 5447 in Addl Book 1 Volume No. 11542 on page no. 130 to 135 dated 04.07.2005 in the office of the Sub Registrar, New Delhi, and in this way the demise premises came to the share of Smt. Kamlesh Nagpal, Harbhajan Nagpal, Anand Swaroop, Ashok Nagpal and Inder Mohan Nagpal.

3.7 Shri Inder Mohan Nagpal expired on 17.03.2012 and as such his share in the demise premises devolved upon his wife Smt. Seema Nagpal, two daughters namely Swinky Nagpal and Divya Nagpal and minor son Sahil E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 4 of 48 Nagpal. Daughter Divya Nagpal is married.

3.8 The petitioner no.1 Smt. Kamlesh Nagpal is aged about 70 years and is house wife and all her sons namely Jatin Nagpal who is married working with YES Bank and other two sons namely Vikas Nagpal and Sanjeev Nagpal are running jointly their catering business for last 15 to 20 years. They are having their own shop in Shalimar Bagh and it was sold on account of financial requirement. Presently, they are running their business from a rented accommodation situated at third floor of the property bearing no. AJ53, Shalimar Bagh, Delhi under the name and style of Celebration Foods. 3.9 The petitioner no.2 Sh. Harbhajan Lal Nagpal is aged about 72 years running his business of tools used for cutting diamond from rented accommodation since year 2004. His son Pankaj Nagpal started the business of tours and travels in the year 2009 under the name of Travstarz Holidays and Destinations Pvt. Ltd. and is using accommodation to run his business. Both of them are working from the common rented accommodation in the property bearing no. 69C, Second Floor, Eagle House, Kalu Sarai, Sarvpriya Vihar, Delhi16. Name of the landlord is Mrs. Shameem Begam. Most of the dealing of the business of petitioner no.2 Harbhajan Lal Nagpal is taking place through telephone network only due to paucity of accommodation. 3.10 Sh. Harbhajan Lal Nagpal has one son namely Pankaj Nagpal and one daughter namely Smt. Sumita Kapoor. She is married and is settled out of India. However, his son who is running his travel and tour business from common rented accommodation as has been aforesaid.

3.11 The petitioner no.3 Sh. Anand Swaroop Nagpal is aged about 67 years is running the business of General Provision Store from property bearing no. E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 5 of 48 30/13, Old Rajinder Nagar, New Delhi since last 30 years. It is submitted that the said property is partially constructed and entire back portion is vacant and partly constructed but in dilapidated condition and said property is owned by all the petitioners and falls in residential area. However, part of front portion is being occupied by petitioner no.3 for running provisional store and remaining front portion is gate for going into the partly constructed property. 3.12 The petitioner no.3 has two sons and one daughter namely Tarun Nagpal, Deepak Nagpal and Neetu Rawal. Shri Tarun Nagpal is married and doing job with Cosmic Group, Noida. Neetu Rawal is married and happily settled at her matrimonial home and Deepak Nagpal son of the petitioner no.3 is running property dealing business for last 4 to 5 years but does not have any space to deal with his clients and mostly he is dealing with his clients on phone and he is in need of commercial space so as that he could run his business of property dealer.

3.13 Petitioner no.4 Sh. Ashok Nagpal aged about 64 years has two sons namely Jalaj Nagpal aged about 25 years and Himanshu Nagpal aged about 21 years. Jalaj Nagpal is completely unemployed and Himanshu Nagpal is doing the course of Company Secretary.

3.14 The deceased Shri Inder Mohan Nagpal left behind petitioner no. 5,6,7 and 8 as his legal heirs. Out of them Smt. Seema Nagpal is looking after the restaurant business which was being run by late Sh. Inder Mohan Nagpal from their own shop in the property bearing no. AJ64, Shalimar Bagh, Delhi. Although this property is multi storeyed building except the ground floor entire above floors are purely residential and owned by different respective owners. The ground floor of the said property has four shops and out of four E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 6 of 48 shops only one shop is owned by Smt. Seema Nagpal and her two daughters and one son. Another shop on the ground floor of the said property is exclusively owned by petitioner no.4 Shri Ashok Nagpal and two other shops are owned by two different owners. It will not be out of place to mention here that these two shops were earlier owned by late Shri Inder Mohan Nagpal and Shri Ashok Nagpal. Late Shri Inder Mohan Nagpal sold one shop somewhere in the year 1997 on account of financial requirement. Similarly, Ashok Nagpal has also sold his other shop somewhere in the year 1996. The shop which is now owned by Ashok Nagpal is under tenancy of Mr. Rohit who is running readymade garments business in the name of Designer Hood. 3.15 Petitioner no.6 Swinky Nagpal is about to complete her Chartered Accountancy and earlier she was doing training with a company and is already done with the training part and has left the company as she wants to start boutique business.

3.16 All the sons of Sh. Amar Nath Nagpal have their separate mess and living separately and independently.

3.17 The petitioners are the coowners in respect of two properties i.e. property no.30/13, old Rajinder Nagar, New Delhi and the said suit property only.

3.18 The tenanted shop under the respondent is required bonafide for running business of son Deepak Nagpal of petitioner no.3 and for starting the business of petitioner no.6 Ms. Swinky Nagpal as they do not have accommodation to start their own business.

3.19 The son of petitioner no.3 Mr. Deepak Nagpal has no commercial place to run his business of property dealer, because of which he is under E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 7 of 48 compulsion to do the same through phone. He does not have office space for entertaining his clients. The tenanted shop can be adequately used for his office purpose. Part of the tenanted shop can be utilized by the petitioner no.6 for starting and running of her boutique business in which she is more interested. Presently she is in need of commercial accommodation to start her boutique business as she is more interested in doing her own business and that is why the tenanted premises is required immediately so that she can start her own business or alternatively she can use the same for running her chartered accountancy.

3.20 The mother of the petitioner no.6 and petitioner no.6 apart from the shop as mentioned above which is being owned by petitioner no.5 to 8 and which is being used by petitioner no.5 for running the restaurant business under the name and style of Peshawari's, do not own any other commercial and residential property and therefore the tenanted property is required by her for starting her business of boutique. Similarly, the petitioner no.3 also does not own any other commercial property and therefore the tenanted shop is required even for him for running his business of property dealer. 3.21 The respondent is a chronic defaulter in making regular payment of rent as the respondent has neither paid nor tendered the arrears of rent since December, 2013.

3.22 Somewhere, on 23.05.1992, predecessor in interest of the petitioner i.e. Smt. Motia Devi W/o. Sh. Amar Nath Nagpal entered into a sale agreement with the father of the respondent for selling the tenanted property. However, the said agreement was not acted upon and stands frustrated. Father of the respondent has also issued notice dated 08.05.1998 calling upon all the legal E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 8 of 48 heirs to confirm as to any permission for sale from Land and Development Officer. The legal heir duly replied about non grant of permission and non desire of selling the property. After receipt of letter, he remained happy with the return of money which was duly paid to him.

4) In the application for leave to defend along with affidavit, the respondent has also raised certain defences and the same are as under:

4.1 There is no relationship of landlord and tenant between the parties and it has already come to an end about 20 years back when the respondent's father Sh. Chaman Lal Pandhoh entered into an agreement to sell and receipt dated 19.05.1995which was duly executed and signed by respondent, his father and petitioner no.2, petitioner no.4, Inder Mohan Nagpal (since deceased; father of petitioner no.6 & 8 and husband of petitioner no.5, petitioner no.3, Parvesh Nagpal and Girdhari Lal Nagpal who were the coowners of the property in question bearing shop no. 9, Nala Market, Patel Nagar, New Delhi at that relevant point of time.

4.2 The petitioners have deliberately and fraudulently concealed material facts from the Court of having received valuable consideration from the respondent and his father. It is pertinent to mention here that prior to execution of agreement to sell dated 19.05.1995. The respondent and his father were tenants of more than 30 years in respect of property bearing shop no. 9, Nala Market, Patel Nagar, New Delhi and they were regularly paying the rent against rent receipts, the counterfoil of which were got signed by the landlord/petitioner/petitioner's relatives. However, after the death of Shri Amar Nath Nagpal, in the year 1992, Smt. Motia Devi Nagpal W/o. Shri Amarnath Nagpal and Others coowners expressed their intentions of selling E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 9 of 48 the tenanted property bearing no. 9, Nala Market, Patel Nagar, New Delhi approached the respondent and his father Sh. Chaman Lal Pandhoh and offered to sell the same at a market price of Rs. 3 Lakhs. Since the respondent and his father were already doing their business and were earning their bread and butter from the said property, they agreed to purchase the property and as such paid a earnest sum of Rs. 10,000/ vide cheque bearing no. 092512 dated 23.05.1992 drawn on Bank of India, Rajendra Place, New Delhi against a receipt. However, on 25.03.1993, Smt. Motia Devi expired and subsequently the legal heirs showed their reluctance to proceed and conclude the sale bargain entered into by Smt. Motia Devi. In such circumstances, after lots of persuasions, deliberations and meeting a settlement was arrived and it was agreed that the daughters of late Sh. Amar Nath Nagpal shall execute relinquishment deed in favour of sons of Shri Amar Nath Nagpal and thereafter a written agreement to sell shall be executed between coowner/LRs of Sh. Amar Nath and respondent and his father/Sh. Chaman Lal Pandhoh. 4.3 Pursuant to settlement and agreement, a relinquishment deed dated 28.09.1993 was executed between LRs of Amar Nath Nagpal whereby (1) Harbans Kaur Matta (2) Mrs. Man Kaur Kathuria (3) Mrs. Rajinder Wadhwa (4) Mrs. Praveen Wadhwa (5) Mrs. Shashi Kalra (6) Indu Ahuja all D/o. Sh. Amar Nath Nagpal released/relinquished their shares in favour of (1) Shri Girdhari Lal Nagpal (2) Shri Harbhajan Lal Nagpal (3) Shri Anand Sarup Nagpal (4) Shri Ashok Kumar Nagpal (5) Shri Parvesh Nagpal and (6) Shri Inder Mohan Nagpal all S/o. Late Sh. Amar Nath Nagpal (hereinafter collectively called as "Sellers").

4.4 On the strength of the aforesaid Relinquishment Deed and being the LRs of Late Shri Amar Nath Nagpal all the releases entered into a written contract E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 10 of 48 being titled as "Agreement to Sell & Receipt" with Sh. Chaman Lal Pandhoh (partner of M/s. PJ & Co.) on 19.05.95. At the time of entering into Agreement to Sell and receipt a further sum of Rs. 50,000/ was paid to the Sellers and the previous paid sum of Rs. 10,000/ paid by cheque was also acknowledged. It was further agreed between the parties that the purchaser/Sh. Chaman Lal Pandhoh shall henceforth cease to be tenant of the property/shop in question and shall not be liable to payment of rent, rather he shall possess the property/shop in question as its owner/prospective owner. In terms of the said written contract, the status of respondent and his father changed from that of tenant to bonafide purchaser. Time was not the essence of this contract/agreement and it was expressly agreed that the Registered Sale Documents shall be executed by the Sellers in favour of the Respondent's father or his nominee only when the Sale permission is obtained by L&DO department. As such, in part performance of the Agreement to Sell and Receipt dated 19.05.1995 the status of respondent and his father changed in the tenanted shop from that of a tenant to a bonafide purchaser. 4.5 In furtherance of the contract as to demand or payment of rent took place between the respondent, his father or any other LRs of late Sh. Amar Nath Nagpal and the respondent and his father were always considered as purchaser in possession. It is further submitted that in furtherance and as a consideration of sale transaction the petitioners received considerable money from time to time from the respondent and his father Sh. Chaman Lal Pandhoh and the respondent was always considered as bonafide purchaser of the shop in question and the respondent and his father thereafter retained the possession of the shop in question in pursuance of the transfer/agreement. It is submitted that the respondent and his father had always been in uninterrupted and E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 11 of 48 undisputed possession initially as a tenant and subsequently (w.e.f. 19.05.1995) as a purchaser.

4.6 The respondent and his father started paying the property tax of the shop in question in the name of their firm M/s. PJ & Co.

4.7 The family settlement deed dated 04.07.2005 is a sham, fictitious and void document so far as the same relates to the property bearing shop no. 9, Nala Market, Patel Nagar, New Delhi is concerned as the said property had already been sold by the LRs of late Sh. Amar Nath to the respondent, his father as stated above and hence there can be no settlement in respect of property which had already been sold. Similarly Relinquishment Deed dated 01.11.2003 executed in favour of Smt. Kamlesh Nagpal/petitioner no.1 is a void document as since Shri Girdhari Lal Nagpal had already sold his share in property bearing shop no. 9, Nala Market, Patel Nagar, New Delhi, as such there can be no Relinquishment by LRs in property which has already been sold by the deceased.

4.8 It is denied that there had been any substitution in the name of LRs of Sh. Amar Nath Nagpal in the year 1996 and the same is specifically denied for want of knowledge and fraud committed by petitioners and their family members.

4.9 The premises in question is not required by any of the petitioners or their family members as all of them are well settled and have their separate occupation and business which they are running from their respective properties. Moreover, it is submitted that in case they require any premises they have more than sufficient place at Old Rajinder Nagar in property bearing No. 30/13, wherein only a small portion of property is used for E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 12 of 48 running provision store and remaining property is lying vacant. The said property is hardly 3kms. from the shop in question and in case there is any alleged need for shop/space the said property can be utilized. The petitioners are also having four shops at Shalimar Bagh which is just walking distance from the residence of the petitioner no.6 who is alleging to require premises for opening a boutique and she can very well use any of the four shops. 4.10 Neither Deepak Nagpal nor Swinky Nagpal requires the premises in question as Deepak Nagpal is successfully employed in a Call Centre at Gurgaon, Haryana (the respondent shall furnish exact details on obtaining further information) and is working in 10 hours shift and it is denied that he is working as a property dealer or has any requirement of the premises for opening a property dealer's office/shop. The petitioner no.6 is highly qualified and is working as a Company Secretary with a reputed firm. To the knowledge of the respondent a company cab comes to receive and drop petitioner no.6 from her residence and she often leaves the city for audit work and as such there is no need of premises for her. Moreover, it is submitted the said petitioner is not having any know how, experience etc. required for running a boutique.

4.11 The respondent and his family members have perfected their possession of shop no. 9, Nala Market, Patel Nagar, New Delhi as owner by adverse possession.

5) The petitioners have filed a reply to the application for Leave to Defend along with counter affidavits and in the counter affidavits, the petitioners have denied the defences taken by the respondent. The petitioners further submitted as under:

5.1 Even if it is assumed only for the argument sake that such an agreement is E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 13 of 48 valid in the eyes of law though denied, the existence of the agreement does not terminate the relationship of landlord and tenant between the parties. The respondent continues to be the tenant and petitioners continue to be the landlord/owner of the property.

5.2 It is categorical admission of the respondent that right, title and interest existing in favour of the petitioners has not yet been transferred in these circumstances respondent continues to be a tenant and in fact respondent has continued to pay rent to the petitioner and therefore, the respondent can not take advantage of the alleged agreement to sell which has already expired/frustrated/over and has come to an end way back in 2001 when the respondent's father accepted the refund of money which he had extended to the petitioner.

5.3 Agreement to sell was entered into by Smt. Motia Devi Nagpal with the father of the respondent on 23.05.1992. However, after the demise of Smt. Motia Devi her legal heirs in order to honor the commitment made by Smt. Motia Devi continued to honour the said agreement and thereafter it is wrong to alleged that any agreement to sell was entered into on 19.05.1995. In the year, the legal heirs of Smt. Motia Devi expressed their unwillingness to transfer the property and thereafter drawing pool from respective share, petitioners returned the money which was accepted by Sh. Chaman Lal father of respondent and the said fact is also clear from the fact that thereafter Chaman Lal never took any action for the performance of agreement to sell. 5.4 The respondent paid the rent and property tax paid by the respondent was adjusted in the rent payable by the respondent, hence, therefore, respondent cannot claim advantage of having deposited the property tax for E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 14 of 48 and on behalf of the petitioner as the said payment was adjusted towards the rent due from respondent.

5.5 It is denied that neither Deepak Nagpal nor Swinky Nagpal requires the premises in question or that Deepak Nagpal is successfully employed in a call centre in the manner as alleged. It is denied that petitioner no.6 is working as Company Secretary with a reputed firm or that to the knowledge of the respondent, a company cab comes to receive or drop petitioner no.6 from her residence or that she often leaves the city for audit work or that there is no need of premises for her in the manner as alleged.

5.6 It is pertinent to note that Deepak Nagpal is doing property dealer work through the help of phone as he has no place to run his own independent business as he has no commercial property and presently running his small business through phone and for that detailed submission has been made in the petition. The petitioner no.6 is doing Chartered Accountancy and she can not be employed as Company Secretary.

6) Arguments were heard on the application under consideration on behalf of both the parties. Material on record has been perused. Submissions considered. REQUIRMENTS

7) In order to succeed in a petition for eviction filed under section 14(1)(e) of the Delhi Rent Control Act the petitioners must establish that:

i. He is the owner and landlord in respect of the tenanted premises. ii.That he requires the premises bonafide for himself or for any member of his family dependent upon him.

iii.That he has no other reasonably suitable accommodation E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 15 of 48

8) The scope of the section has been enlarged in view of the judgment of the Hon'ble Supreme Court titled as Satyawati Sharma v. Union of India: AIR 2008 SUPREME COURT 3148 so as to include premises let out for commercial purposes also within the scope and ambit of a petition under section 14(1)(e) of DRC Act.

9) The defences which are taken by respondent are discussed below and the same are as under: DEFENCES

10) There is no landlord tenant relationship and the respondent is occupying the premises as owner:

10.1 The respondent has contended that there is no relationship of landlord and tenant between the parties and it has already come to an end about 20 years back when the respondent's father Sh. Chaman Lal Pandhoh entered into an agreement to sell and receipt dated 19.05.1995 which was duly executed and signed by respondent, his father and petitioner no.2, petitioner no.4, Inder Mohan Nagpal (since deceased; father of petitioner no.6 & 8 and husband of petitioner no.5, petitioner no.3, Parvesh Nagpal and Girdhari Lal Nagpal who were the coowners of the property in question bearing shop no. 9, Nala Market, Patel Nagar, New Delhi at that relevant point of time. 10.2 The respondent further contended that petitioners have deliberately and fraudulently concealed material facts from the Court of having received valuable consideration from the respondent and his father. It is pertinent to mention here that prior to execution of agreement to sell dated 19.05.1995.

The respondent and his father were tenants of more than 30 years in respect of property bearing shop no. 9, Nala Market, Patel Nagar, New Delhi and E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 16 of 48 they were regularly paying the rent against rent receipts, the counterfoil of which were got signed by the landlord/petitioner/petitioner's relatives. However, after the death of Shri Amar Nath Nagpal, in the year 1992, Smt. Motia Devi Nagpal W/o. Shri Amarnath Nagpal and Others coowners expressed their intentions of selling the tenanted property bearing no. 9, Nala Market, Patel Nagar, New Delhi approached the respondent and his father Sh. Chaman Lal Pandhoh and offered to sell the same at a market price of Rs. 3 Lakhs. Since the respondent and his father were already doing their business and were earning their bread and butter from the said property, they agreed to purchase the property and as such paid a earnest sum of Rs. 10,000/ vide cheque bearing no. 092512 dated 23.05.1992 drawn on Bank of India, Rajendra Place, New Delhi against a receipt. However, on 25.03.1993, Smt. Motia Devi expired and subsequently the legal heirs showed their reluctance to proceed and conclude the sale bargain entered into by Smt. Motia Devi. In such circumstances, after lots of persuasions, deliberations and meeting a settlement was arrived and it was agreed that the daughters of late Sh. Amar Nath Nagpal shall execute relinquishment deed in favour of sons of Shri Amar Nath Nagpal and thereafter a written agreement to sell shall be executed between coowner/LRs of Sh. Amar Nath and respondent and his father/Sh. Chaman Lal Pandhoh.

10.3 The respondent also contended that pursuant to settlement and agreement, a relinquishment deed dated 28.09.1993 was executed between LRs of Amar Nath Nagpal whereby (1) Harbans Kaur Matta (2) Mrs. Man Kaur Kathuria (3) Mrs. Rajinder Wadhwa (4) Mrs. Praveen Wadhwa (5) Mrs. Shashi Kalra (6) Indu Ahuja all D/o. Sh. Amar Nath Nagpal released/relinquished their shares in favour of (1) Shri Girdhari Lal Nagpal (2) E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 17 of 48 Shri Harbhajan Lal Nagpal (3) Shri Anand Sarup Nagpal (4) Shri Ashok Kumar Nagpal (5) Shri Parvesh Nagpal and (6) Shri Inder Mohan Nagpal all S/o. Late Sh. Amar Nath Nagpal (hereinafter collectively called as "Sellers"). On the strength of the aforesaid Relinquishment Deed and being the LRs of Late Shri Amar Nath Nagpal all the releases entered into a written contract being titled as "Agreement to Sell & Receipt" with Sh. Chaman Lal Pandhoh (partner of M/s. PJ & Co.) on 19.05.95. At the time of entering into Agreement to Sell and receipt a further sum of Rs. 50,000/ was paid to the Sellers and the previous paid sum of Rs. 10,000/ paid by cheque was also acknowledged. It was further agreed between the parties that the purchaser/Sh. Chaman Lal Pandhoh shall henceforth cease to be tenant of the property/shop in question and shall not be liable to payment of rent, rather he shall possess the property/shop in question as its owner/prospective owner. In terms of the said written contract, the status of respondent and his father changed from that of tenant to bonafide purchaser. Time was not the essence of this contract/agreement and it was expressly agreed that the Registered Sale Documents shall be executed by the Sellers in favour of the Respondent's father or his nominee only when the Sale permission is obtained by L&DO department. As such, in part performance of the Agreement to Sell and Receipt dated 19.05.1995 the status of respondent and his father changed in the tenanted shop from that of a tenant to a bonafide purchaser. 10.4 The respondent further averred that in furtherance of the contract as to demand or payment of rent took place between the respondent, his father or any other LRs of late Sh. Amar Nath Nagpal and the respondent and his father were always considered as purchaser in possession. It is further submitted that in furtherance and as a consideration of sale transaction the petitioners E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 18 of 48 received considerable money from time to time from the respondent and his father Sh. Chaman Lal Pandhoh and the respondent was always considered as bonafide purchaser of the shop in question and the respondent and his father thereafter retained the possession of the shop in question in pursuance of the transfer/agreement. It is submitted that the respondent and his father had always been in uninterrupted and undisputed possession initially as a tenant and subsequently (w.e.f. 19.05.1995) as a purchaser. The respondent and his father started paying the property tax of the shop in question in the name of their firm M/s. PJ & Co.

10.5 The respondent also averred that the family settlement deed dated 04.07.2005 is a sham, fictitious and void document so far as the same relates to the property bearing shop no. 9, Nala Market, Patel Nagar, New Delhi is concerned as the said property had already been sold by the LRs of late Sh. Amar Nath to the respondent, his father as stated above and hence there can be no settlement in respect of property which had already been sold. Similarly Relinquishment Deed dated 01.11.2003 executed in favour of Smt. Kamlesh Nagpal/petitioner no.1 is a void document as since Shri Girdhari Lal Nagpal had already sold his share in property bearing shop no. 9, Nala Market, Patel Nagar, New Delhi, as such there can be no Relinquishment by LRs in property which has already been sold by the deceased.

10.6 The respondent denied that there had been any substitution in the name of LRs of Sh. Amar Nath Nagpal in the year 1996 and the same is specifically denied for want of knowledge and fraud committed by petitioners and their family members.

10.7 The respondent also contended that he and his family members have E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 19 of 48 perfected their possession of shop no. 9, Nala Market, Patel Nagar, New Delhi as owner by adverse possession.

10.8 The petitioners countered that even if it is assumed only for the argument sake that such an agreement is valid in the eyes of law though denied, the existence of the agreement does not terminate the relationship of landlord and tenant between the parties. The respondent continues to be the tenant and petitioners continue to be the landlord/owner of the property. 10.9 They further countered that it is categorical admission of the respondent that right, title and interest existing in favour of the petitioners has not yet been transferred in these circumstances respondent continues to be a tenant and in fact respondent has continued to pay rent to the petitioner and therefore, the respondent cannot take advantage of the alleged agreement to sell which has already expired/frustrated/over and has come to an end way back in 2001 when the respondent's father accepted the refund of money which he had extended to the petitioner.

10.10 The petitioners further countered that agreement to sell was entered into by Smt. Motia Devi Nagpal with the father of the respondent on 23.05.1992. However, after the demise of Smt. Motia Devi her legal heirs in order to honor the commitment made by Smt. Motia Devi continued to honour the said agreement and thereafter it is wrong to allege that any agreement to sell was entered into on 19.05.1995. In the year, the legal heirs of Smt. Motia Devi expressed their unwillingness to transfer the property and thereafter drawing pool from respective share, petitioners returned the money which was accepted by Sh. Chaman Lal father of respondent and the said fact is also clear from the fact that thereafter Chaman Lal never took any action for the E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 20 of 48 performance of agreement to sell.

10.11 The petitioners also stated that respondent paid the rent and property tax paid by the respondent was adjusted in the rent payable by the respondent, hence, therefore, respondent cannot claim advantage of having deposited the property tax for and on behalf of the petitioner as the said payment was adjusted towards the rent due from respondent. 10.12 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.

10.13 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 be something more than the tenant. In cases where the plot of land is taken on E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 21 of 48 lease, the structure is built by the landlord and he is the owner of the structure. 10.14 In the present case the defence raised by the respondent is that after execution of the agreement to sell, the petitioners had assured that the respondent and his father would be the owner of the property. 10.15 It is an admitted case of the respondent himself that the possession of the premises in question was handed over to them by the predecessor in interest of the petitioners. In fact, it is the very case of the respondent that they purchased the premises in question from the petitioners after being tenants for many decades and paying rent to the petitioners' predecessor in interest. 10.16 Thus, as far as the landlord tenant relationship is concerned, the same stands admitted 10.17 Now, as far as the contention that respondent is occupying the premises as owner is concerned, the respondent has stated that an agreement to sell was executed in their favour and time was not of the essence in the said agreement. Therefore, the respondent was not bound to take steps for specific performance of the said agreement within a given time. They have also paid various amounts to the petitioners at various times in pursuance of this agreement. On the other hand, the petitioners have stated that the said agreement stood frustrated as the respondent and his father never took any steps for performance of the agreement. They further stated that the agreement to sell does not confer any title on the respondent and till it is performed by both the parties, the landlord tenant relationship subsists. They also relied upon a letter allegedly sent by the father of the respondent in 1998 calling for performance of the agreement and stated that the limitation period for specific performance began running from the date of the said letter and all E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 22 of 48 amounts received in pursuance of the agreement were returned to the respondent and his father. The respondent has expressed doubt over the authenticity of this alleged letter.

10.18 Section 53A in The Transfer of Property Act, 1882 provides for Part performance. It states: Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof. 10.19 The respondent states first states that he is the owner and then states that he is in possession of part performance of the agreement to sell and subsequently states that he has become owner by adverse possession. E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 23 of 48 10.20 There is serious doubt about whether the respondent's father was occupying the premises as owner or in part performance of the agreement to sell as these words have been found endorsed upon the original agreement to sell. However, these words are not mentioned in the copy of the same agreement to sell filed by the petitioner. Since the original agreement to sell was with the respondent, it is apparent that these words have been added later on with the intention of giving an impression that the land lord tenant relationship has come to an end.

10.21 In Rambhau Namdeo Gajre vs Narayan Bapuji Dhotra (Dead) decided on 25 August, 2004 by the Hon'ble Supreme Court of India, it has been held:

"The agreement to sell does not create an interest of the proposed vendee in the suit property. As per Section 54 of the Act, the title in immovable property valued at more than Rs. 100/ can be conveyed only by executing a registered sale deed. Section 54 specifically pro vides that a contract for sale of immovable property is a contract evi dencing the fact that the sale of such property shall take place on the terms settled between the parties, but does not, of itself, create any interest in or charge on such property. It is not disputed before us that the suit land sought to be conveyed is of the value of more than Rs.

100. Therefore, unless there was a registered document of sale in favour of the Pishorrilal (proposed transferee) the title of the suit land continued to vest in Narayan Bapuji Dhotra (original plaintiff) and remain in his ownership. This point was examined in detail by this E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 24 of 48 Court in State of U.P. Vs. District Judge & Ors., 1997 (1) SCC 496, and it was held thus:

"Having given our anxious consideration to the rival con tentions we find that the High Court with respect had patently erred in taking the view that because of Section 53A of the Transfer of Property Act the proposed transferees of the land had acquired an interest in the lands which would result in ex clusion of these lands from the computation of the holding of the tenureholder transferor on the appointed day. It is obvious that an agreement to sell creates no interest in land. As per Section 54 of the Transfer of Property Act, the property in the land gets conveyed only by registered sale deed. It is not in dis pute that the lands sought to be covered were having value of more than Rs. 100."

Therefore, unless there was a registered document of sale in favour of the proposed transferee agreementholders, the title of the land would not get divested from the vendor and would remain in his ownership. There is no dispute on this aspect. However, strong reliance was placed by learned counsel for Respondent 3 on Section 53A of the Transfer of Property Act. We fail to appreciate how that section can at all be relevant against the third party like the appellantState. That section provides for a shield of protection to the proposed transferee to remain in possession against the original owner who has agreed to sell these lands to the transferee if the proposed transferee satisfies other conditions of Section 53A. That protection is available as a shield E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 25 of 48 only against the transferor, the proposed vendor, and would disentitle him from disturbing the possession of the proposed transferees who are put in possession pursuant to such an agreement. But that has nothing to do with the ownership of the proposed transferor who re mains full owner of the said lands till they are legally conveyed by sale deed to the proposed transferees. Such a right to protect posses sion against the proposed vendor cannot be pressed in service against a third party like the appellantState when it seeks to enforce the provi sions of the Act against the tenureholder, proposed transferor of these lands."

10.22 Thus, it can be safely concluded that the respondent has not acquired title to the property and the ownership still vests with the petitioners till a contract of sale is executed in pursuance of the agreement to sell, if at all it is permissible. Mere payment of property tax would not make the respondent owners of the property in question.

10.23 In Mool Chand Bakhru & Anr vs Rohan & Others decided on 29 January, 2002 by Hon'ble Supreme Court of India it was held that:

"14....The letters written by Mool Chand cannot be taken to be an agreement to sell within the meaning of Section 53A spelling out the terms of an agreement for sale. In our view, the High Court fell in error in coming to the conclusion that the letters written by Mool Chand, referred to above, constituted an agreement to sell the terms of which have been reduced in writing. Terms necessary to constitute the transfer with reasonable certainty could not be ascertained from the letters written by Mool Chand to his uncle. At the most it is an E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 26 of 48 acknowledgment that there was an oral agreement to sell but the same could not be construed to be a written agreement to sell the terms of which have been reduced into writing. Written agreement has to precede the putting of the proposed vendee in possession of the property. Bhagwan Dass was never put in possession in pursuance of the property to the written agreement arrived at between the parties."

10.24 In Abbot India Ltd. vs Rajinder Mohindra & Anr. Decided on 17 January, 2014by Hon'ble Delhi High Court it was held that:

"34. There is another aspect of the matter. If it were to be the case of the appellant / defendant that possession was indeed agreed to be delivered and delivered to it in part performance of the Agreement to Sell and which is not borne out from a bare reading of the Agreement to Sell itself then it would be a case of an agreement from which the terms cannot be ascertained with reasonable certainty and in which case also the defence of Section 53A of the Transfer of Property Act is not available."

10.25 It has already been observed above that there appears to be a subsequent addition in the agreement on part of the respondent. Thus, it cannot be said that the terms necessary to constitute the transfer can be ascertained with reasonable certainty from the said agreement. Hence, the same cannot be relied upon to prop up the defence of part performance against eviction proceedings initiated by the petitioner.

10.26 In the case of Sunil Kapoor vs Himmat Singh: 167 (2010) DLT 806 while referring to the submission of one of the counsels, it was observed that:

E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 27 of 48 "9. Per contra, the counsel for the respondents/plaintiffs relies on:

(i) Lachaman Nepak Vs. Badankayalu Syama Babu Subudhi AIR 1989 Orissa 154 where the Division bench of the Orissa High Court declined the stay of eviction proceedings under the Rent Control Act for the reason of pendency of the suit for specific performance on the ground that mere agreement to sell cannot create any interest in or charge in the property under Section 54 of the Transfer of Property Act.

(ii) Karri Satyanarayana Vs. Pichika Veerraju 1996 AIHC 2642 (A.P.) where also stay of eviction proceedings under the local rent statute was denied notwithstanding previously instituted suit for specific performance of sale of that premises.

(iii) Dr. N.P. Tripathi Vs. Smt. Dayamanti Devi AIR 1988 Patna 123 where the Division Bench again declined stay holding that proceedings for eviction under the Rent Act stand on a different footing, the Rent Act being a complete code in itself."

It was also held that:

"15. What follows is that even if the petitioner/defendant were to succeed in his suit for specific performance of agreement to sell, till the execution of a conveyance deed in pursuance to the decree, if any, in favour of the petitioner, the petitioner has no ground in law to save his possession of the premises. The status of the petitioner would continue to be as before i.e. of a tenant whose tenancy has been determined.

E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 28 of 48

16. Once that is found to be the position in law, the defence of the agreement to sell is not a legal defence available to the petitioner in the suit for ejectment."

10.27 It has also been held in the case of Jai Singh Rana vs Mohinder Mohan Goel: 1994 (31) DRJ 445 that:

"(6) We feel that the following approach would be reasonable: (1)In every suit for specific performance and permanent injunction, if an interlocutory application is filed under Order 39 Rule 1 Civil Procedure Code for temporary injunction or for stay of the Rent Control case it will be necessary for the concerned Court to decide whether the tenant who is the petitioner in such an application has made out a prima facie case and whether the balance of convenience lies in staying the Rent (2) If indeed there is prima facie proof of the genuineness of the agreement of sale, the Court could consider the question of stay of the Rent Control caw on merits. Even assuming that the Court came to the conclusion that a prima facie case was made out in favor of the tenant, the balance of convenience might not lie in granting stay of the Rent Control case. In such cases, the Court may even allow the rent control case to be decided and judgment and, decree pronounced but grant stay to the execution thereof, allowing the parties to complete the appeal against Rent Controller's decision or even the further appeal/revision as the case may be so that the whole exercise need not be commenced after the disposal of the civil suit for specific performance. (3)If, on the other hand, the tenant does not make out a prima facie case in regard to the genuineness of the agreement set E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 29 of 48 up by him, there will, in our view, be absolutely no justification for interfering with the rent control proceedings. It all depends on how far the tenant has established the prima facie case about the genuineness of the agreement of sale setup by him. (4) If indeed the eviction is not stayed and the tenant is evicted and later the suit for specific performance and possession succeeds, there can be no difficulty in executing the decree in the civil suit and putting back the tenant purchaser, in possession, after properly adjusting their rights'."

10.28 Thus, it is noteworthy that the tenant can rely upon an alleged agreement to sell in a suit for specific performance of the same but even then he may not get a stay on eviction proceedings. Whereas, in the present case, no suit for specific performance has been filed altogether, even till date (as per record).

10.29 In Roop Singh (Dead) Through LRs vs Ram Singh (Dead) Through LRs decided on 28 March, 2000 by Hon'ble Supreme Court of India it was held that:

"It is also to be stated that plea of adverse possession and retaining the possession by operation of Section 53A of the Transfer of Property Act are inconsistent with each other. Once it is admitted by implication that plaintiff came into possession of the land lawfully under the agreement and continued to remain in possession till the date of the suit, the plea of adverse possession would not be available to the defendant unless it has been asserted and pointed out hostile animus of retaining possession as an owner after getting in possession of the land. (Re: Mohan Lal vs. Mirza Abdul Gaffar and Anr., {(1996) E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 30 of 48 1 SCC 639}."

10.30 In Mohan Lal (Deceased) Throughhis ... vs Mirza Abdul Gaffar & Anr: 1996 SCC (1) 639 it has been held:

"The only question is whether the appellant is entitled to retain pos session of the suit property. Two pleas have been raised by the appel lant in defence. One is that having remained in possession from March 8, 1956, he has perfected his title by prescription. Secondly, he plead ed that he is entitled to retain his possession by operation of Section 53A of the Transfer of Property Act, 1882 (for short, 'the Act'). As regards the first plea, it is inconsistent with the second plea. Hav ing come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., upto com pleting the period of his title by prescription nec vi nec clam nec pre cario. Since the appellant's claim is founded on Section 53A, it goes without saying that he admits by implication that he came into pos session of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.

The question then is whether he is entitled to retain possession un der Section 53A. It is an admitted fact that suit for specific perfor mance had been dismissed and became final. Then the question is E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 31 of 48 whether he is entitled to retain possession under the agreement. Once he lost his right under the agreement by dismissal of the suit, it would be inconsistent and incompatible with his right to remain in possession under the agreement . Even otherwise, a transferee can avail of Section 53A only as a shield but not as a sword. It contem plates that where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascer tained with reasonable certainty and the transferee has performed or is willing to perform his part of the contract, he should be entitled to retain possession and to continue in possession which he has already received from the transferor so long as he is willing to perform his part of contract. Agreement does not create title or interest in the property. Since the agreement had met with dismissal of the suit his willingness to perform his part of the contract does not arise."

10.31 Thus, when the respondent has taken the plea of part performance they are barred in law from taking the plea of adverse possession. Moreover, willingness to perform one's part is an essential ingredient for the doctrine of part performance to apply. As observed above, the question of willingness would not arise upon the dismissal of suit for specific performance. In the present case no suit has been filed for specific performance even after filing of the present eviction petition. Thus, question of willingness does not arise at all.

10.32 In Wasim Ahmad Vs. Haji Shamsuddin: 2012 (3) ADJ 187 it was held that:

E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 32 of 48 "10. Not doing anything for 11 years clearly proves that no agreement was executed and even if agreement was executed, plaintiff no.1 was not ready and willing to perform her part of the agreement and get the sale deed executed. No notice for executing the sale deed was given. No permission was applied for." 10.33 Thus, it does not matter if time was of the essence in the contract or not. Mere payment of some amount is not enough. There should be overt acts on part of the respondent to get the sale deed executed. On the contrary, the only letter seeking performance which the petitioners have attributed to the respondent's predecessor in interest and filed on record has been (ironically) dismissed by the ld. Counsel for the respondent as a seemingly forged document in his submissions. This clearly shows lack of willingness to perform their part of the contract.

10.34 At this stage, however, this Court would exercise caution while commenting about the agreement to sell as the same is the prerogative of the appropriate Civil Court in the appropriate civil proceedings. 10.35 Even otherwise , reliance is placed in this regard on the case of Sh.

Ram Chander Vs. Smt. Ram Pyari: 2004 (72) DRJ 545 wherein it was held that:

"3. Learned counsel for the petitioner contends vehemently that once relationship of landlord and tenant is challenged, tenant is entitled to leave to contest the eviction petition. There is no dispute as to this proposition of law as it is the owner of the premises who has right to seek eviction of the tenant and none less on the ground of bonafide requirement of the premises. In this case petitioner claims himself to E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 33 of 48 be the owner of the premises and not as a tenant. The authority of the Supreme Court relied upon by the learned counsel for the petitioner in Manoj Kumar Vs. Bihari Lal (Dead) by LRs 91(2001) Delhi Law Times 25 (SC) is not at all applicable in the given facts and circumstances of the case as any person who denies to be a tenant and claim to be the owner of the premises cannot claim to be granted leave to defend eviction petition as eviction proceedings initiated under the Delhi Rent Control Act cannot be converted into a title suit. The title of the party is always decided though civil proceedings. As such claim of the petitioner that he is the owner of the premises and not the tenant could have been vindicated by way of filing civil suit and not in the eviction proceedings.

4. The first and foremost requirement to become entitled to leave to defend is that there should exist relationship of landlord and tenant between the parties. By denying the ownership or land lordship of the petitioner and claiming himself as owner, the petitioner cannot be granted leave to defend the eviction petition."

10.36 Thus, the respondent is at liberty to rake up the issue of ownership in appropriate civil proceedings. Merely stating that he is the owner and not ten ants would not amount to raising of a triable issue and would not entitle him for leave to defend.

10.37 Accordingly, this defence raised by the respondent is a sham defence and it does not raise any triable issue

11) The petitioners have alternative accommodation:

E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 34 of 48

11.1 The respondent contended that premises in question is not required by any of the petitioners or their family members as all of them are well settled and have their separate occupation and business which they are running from their respective properties. Moreover, it is submitted that in case they require any premises they have more than sufficient place at Old Rajinder Nagar in property bearing No. 30/13, wherein only a small portion of property is used for running provision store and remaining property is lying vacant. The said property is hardly 3kms. from the shop in question and in case there is any alleged need for shop/space the said property can be utilized. The petitioners are also having four shops at Shalimar Bagh which is just walking distance from the residence of the petitioner no.6 who is alleging to require premises for opening a boutique and she can very well use any of the four shops. 11.2 It has been observed in judgment titled as Rajender Kumar Sharma & Ors. Vs. Leela Wati & Ors.: 155 (2008) DLT 383 by Hon'ble Delhi High Court as under:

"11)....Thus, the affidavit filed by the tenant was shown to be false by the landlady on the basis of documents placed by it. No Rent Controller is supposed to grant leave to the tenant on the basis of a false affidavit and false averments and assertions. Such affidavit should be outrightly rejected by the Rent Controller. Only those averments in the affidavit are to be considered by the Rent Controller which have same substance in it and are supported by some material.

Mere assertions made by a tenant in respect of landlord's ownership of other buildings and in respect of alternate accommodation are not to be considered sufficient for grant of leave to defend." E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 35 of 48 11.3 In this regard, it has also been held in the case of Sohan Lal Gupta Vs. Sh. Nand Kishore: 219 (2015) DLT 9B (CN) that:

"5. So far as the shop existing in the residence of the respondent is concerned, it could not be disputed before this Court that it is not the case of the petitioner/tenant before the Additional Rent Controller that the residential premises where the alleged shop is available to the respondent/landlord is situated in a busy market like the tenanted shop. I may also note that the respondent/landlord has disputed the aspect that at all there is any shop which is available in his residence from where the son of the respondent/landlord can carry on business. In any case, taking the case of the petitioner at best that would mean that there is one shop at a premises which is not in the main market and in law it is not open to a tenant to dictate to the landlord which premises are more suitable for carrying on the business and in the present case undoubtedly the tenanted premises in the market is more suitable than another premises which is away from the market and not in the middle of the market. This has been held by the Supreme Court in the case of Anil Bajaj and Anr. Vs. Vinod Ahuja in Civil Appeal No. 5513/2014 decided on 8.5.2014:2014. (210) DLT58(SC). Therefore, though the so called shop in the tenanted premises is actually not existing, but even if it is existing, the same is not an alternative suitable premises."

[....] "6. The second aspect urged was that there was a shop to the adjoining tenanted premises which has been sold by the respondent. E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 36 of 48 On the first blush this argument seemed to have merit, however, the Additional Rent Controller notes that the petitioner did not file any document and this was only a bald plea. The petitioner has thereafter filed a document in this Court to show that the adjacent shop was sold about six years prior to filing of the eviction petition, and though I cannot look this document in view of the judgment of the Supreme Court in the case of Prithipal Singh Vs. Satpal Singh (dead) through LRs (2010) 2 SCC15which requires that all grounds, all facts and all documents have to be stated and filed within the inflexible statutory period of 15 days for filing of the leave to defend application, and beyond which period there cannot be condonation of delay particularly even one day, yet if the document is looked into it is clear that the transfer of the shop by means of the general power of attorney is around more than six years prior to filing of the eviction petition and therefore it cannot be stated that the shop which was sold six years prior to filing of the eviction petition would amount to an alternative premises because Courts cannot dictate as to how the landlord wants to utilize his property including by selling of the same and getting moneys from the same because moneys would be required by any person for myriad reasons. And even which has happened more than six years prior to filing of the eviction petition, in my opinion, cannot raise a bonafide triable issue."

11.4 It has also been held in the case of Royal Nepal Airlines Corporation vs Shrishti Properties Pvt Ltd: 2012 RLR 28 that:

"19. The Apex Court has time and again noted that it is prerogative of E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 37 of 48 the landlord to decide whether the premises are required for expansion of his business or not; in this context the observations of the Apex Court in the case of Sait Nagjee Purushotam & Co. Ltd. Vs. Vimalbai Prabhulal and Others (2005) 8 SCC 252 is relevant; it reads as under: "It is always the prerogative of the landlord that if he requires the premises in question for his bona fide use for expansion of business this is no ground to say that the landlords are already having their business at Chennai and Hyderabad therefore, it is not genuine need. It is not the tenant who can dictate the terms to the landlord and advise him what he should do and what he should not. It is always the privilege of the landlord to choose the nature of the business and the place of business."

20. Sarla Ahuja Vs. United Insurance Company Limited VIII (1998) SLT 374, the Apex Court had observed as under: "The crux of the ground envisaged in Clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide.

When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 38 of 48 draw a presumption that the requirement of the landlord in bona fide. It is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself."

11.5 In Krishan Lal vs R N Bakshi decided by our own Hon'ble High Court on 19 May, 2010 that:

"8. It is settled law that it is not for a tenant to dictate the terms to the landlord as to how and in what manner he should adjust himself, without calling upon the tenant to vacate a tenanted premises. While deciding the question of bonafides of requirement of landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted. When the landlord shows a prima facie case, a presumption that the requirement of the landlord is bonafide, is available to be drawn. It is also settled position of law that the landlord is the best judge of his requirement for residential or business purpose and he has got complete freedom in the matter and it is no concern of the courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own. The tenant cannot compel a landlord to live in a particular fashion and method until and unless the requirement shown is totally mala fide or not genuine."

E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 39 of 48 11.6 It has also been held in the case of Raj Kumar Khanna vs. Parduman Singh: 204 (2013) DLT 312 that:

"8. It has rightly been decided by the Apex Court in the case of Shamshed Ahmad & Ors. Vs. Tilak Raj Bajaj (deceased) 152 (2008) DLT 301 (SC), wherein the Apex Court affirmed the order of the trial court which was reversed by the HC, that the requirement of section 14(1)(e) is "bonafide requirement‟ and it has to be seen as per the requirement of the petitioner(landlord), even if the petitioner is very rich and having other properties at different places that does not affect his requirement of the premises, as alleged in the petition. And the leave to defend application was dismissed."

11.7 In the present case, it is not for the respondent to judge the suitability of the shop in question with respect to the requirement of the petitioners for their business and it is hereby held that the defence being deliberated upon does not raise any triable issue.

11.8 Moreover, if the petitioners deem it fit that they should use the tenanted shop, then the Court cannot interfere with the planning of the petitioners regarding utilization of their own property. The submissions regarding property at Shalimar Bagh are bald averments not supported by any substance and cannot be relied upon. Therefore, the shop chosen by the petitioners is the prerogative of the petitioners and it is for them to decide which portion of their property is best suitable for which purpose. Hence, the defence does not raise any triable issue.

12) The petitioners do not require the tenanted premises:

E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 40 of 48

12.1 The respondent contended that neither Deepak Nagpal nor Swinky Nagpal require the premises in question as Deepak Nagpal is successfully employed in a Call Centre at Gurgaon, Haryana (the respondent shall furnish exact details on obtaining further information) and is working in 10 hours shift and it is denied that he is working as a property dealer or has any requirement of the premises for opening a property dealer's office/shop. The petitioner no. 6 is highly qualified and is working as a Company Secretary with a reputed firm. To the knowledge of the respondent a company cab comes to receive and drop petitioner no.6 from her residence and she often leaves the city for audit work and as such there is no need of premises for her. Moreover, it is submitted the said petitioner is not having any know how, experience etc. required for running a boutique.

12.2 The petitioners denied that neither Deepak Nagpal nor Swinky Nagpal requires the premises in question or that Deepak Nagpal is successfully employed in a call centre in the manner as alleged. It is denied that petitioner no.6 is working as Company Secretary with a reputed firm or that to the knowledge of the respondent, a company cab comes to receive or drop petitioner no.6 from her residence or that she often leaves the city for audit work or that there is no need of premises for her in the manner as alleged. 12.3 The petitioners also stated that it is pertinent to note that Deepak Nagpal is doing property dealer work through the help of phone as he has no place to run his own independent business as he has no commercial property and presently running his small business through phone and for that detailed submission has been made in the petition. The petitioner no.6 is doing Chartered Accountancy and she can not be employed as Company Secretary. E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 41 of 48 12.4 This defence seeks to raise doubt against the bonafide of the landlord's requirement. In the judgment titled as Sarwan Dass Bange Vs. Ram Prakash: 167 (2010) DLT 80 the Hon'ble High Court of Delhi referring to the judgment of Baldev Singh Bajwa v. Monish Saini: (2005) 12 SCC 778 observed in para 17 as under:

"..It was held that the legislative intent is of expeditious disposal of the application for ejectment of tenant filed on the ground of requirement by the landlord of the premises for his own occupation; a special category of landlords requiring the premises for their own use has been created; if there is any breach by the landlord, the tenant is given a right of restoration of possession; the landlord who evicts a tenant on the ground of own requirement is not only prohibited from letting out the premises or disposing of the same but also required to use the same for his own residence only..."

12.5 Thus, it is clear that the special summary procedure provided for u/s 25B of the DRC Act is an exception to the general intent to the Act. The intention of the legislature is to provide an expeditious remedy to landlords who seek eviction on the ground of bonafide requirement under the stringent conditions imposed in the special procedure. Thus, the mere bald averment of the respondent to the effect that the shop in question is not needed by the petitioners cannot disentitle the petitioner from relief that he is entitled to get after fulfilling the stringent requirements provided for in the special procedure. Thus, this submission of the respondent is found to be untenable. 12.6 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 E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 42 of 48 are not enough for grant of leave to defend. It has been observed in judgment titled as Rajender Kumar Sharma & Ors. Vs. Leela Wati & Ors.: 155 (2008) DLT 383 by Hon'ble Delhi High Court as under:

"11)....Thus, the affidavit filed by the tenant was shown to be false by the landlady on the basis of documents placed by it. No Rent Controller is supposed to grant leave to the tenant on the basis of a false affidavit and false averments and assertions. Such affidavit should be outrightly rejected by the Rent Controller. Only those averments in the affidavit are to be considered by the Rent Controller which have same substance in it and are supported by some material.

Mere assertions made by a tenant in respect of landlord's ownership of other buildings and in respect of alternate accommodation are not to be considered sufficient for grant of leave to defend." 12.7 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 that:

"Summary procedure in Section 25B of Delhi Rent Control Act, 1958 cannot be defeated by merely making frivolous and vague allegations which can never be substantiated."

12.8 In the judgment titled as Ragavendra Kumar v. Firm Prem Machinary: AIR 2000 SUPREME COURT 534 the Hon'ble Supreme Court held that it is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter. Moreover, as has been held in a plethora of cases, neither the Court nor the tenant cannot dictate terms to the landlord E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 43 of 48 regarding the suitability of the premises or even the extent or type of the business proposed to be carried out.

12.9 Thus, on the basis of the aforesaid legal propositions the contention of the respondent is rejected as the same is a mere assertion without any substance and certainly the leave cannot be granted solely on this ground. 12.10 Further, in a recent judgment it has been observed by our own High Court that it is the moral duty of a father/ parent to help establish his/ her son. The relevant portion of the judgment titled Pawan Kumar Vs Sant Lal R.C.Rev 303/2012 decided on 6.8.2012 by Honorable Mr Justice M.L.Mehta is as under: "16. Further, submissions of learned counsel for the petitioner that Dr. Ankit was not financially dependent upon his father and so the tenanted premises could not be got vacated for his requirement, is also only noted for rejection. It is trite that the landlord is entitled to help his son, establish his business. In Labhu Lal Vs. Sandhya Gupta 2011(1) RCR,(Rent) 231 (Delhi), it has been held by this Court that the children are very much dependant on the landlord for the purpose of setting up their business and such a requirement is a bonafide one. The right of the landlord for possession of his property for setting up a business for his son has been also recognized by the Apex Court in Ram Babu Aggarwal Vs. Jay Kishan Das 2009(2) RCR

455. The moral duty of a father to help establish his son was also recognized by the Apex Court in Joginder Pal Singh Vs. Naval Kishore Behal AIR 2002 SC 2256 in the following words:

"24........Keeping in view the social or socioreligious milieu E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 44 of 48 and practices prevalent in a particular section of society or a particular region, to which the landlord belongs, it may be obligation of the landlord to settle a person closely connected with him to make him economically independent so as to support himself and/or the landlord . To discharge such obligation the landlord may require the tenancy premises and such requirement would be the requirement of the landlord. If the requirement is of actual user of the premises by a person other than the landlord himself the Court shall with circumspection inquire: (i) whether the requirement of such person can be considered to be the requirement of the landlord, and (ii) whether there is a close interrelation or identify nexus between such person and the landlord so as to satisfy the requirement of the first query. Applying the overlaid tests to the facts of the present case it is clear that the tenancy premises are required for the office of the landlord's son who is a chartered accountant. It is the moral obligation of the landlord to settle his son well in his life and to contribute his best to see him economically independent."

12.11 In the present case, it has been clearly stated by the petitioners that Ms. Swinky Nagpal and Mr. Deepak Nagpal require the tenanted premises for their boutique and property dealing businesses respectively. It may be noted that in Joginder Pal Singh Vs. Naval Kishore Behal: AIR 2002 SC 2256 (as referred to in aforesaid judgment) the situation was similar to the present case, as in the said case before the Apex Court the landlord had filed eviction E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 45 of 48 petition for the office of his son who was a chartered accountant who was residing with him. Honorable Mr. Justice R.C. Lahoti observed in the said judgment that such a requirement of the landlord is a genuine requirement. In the said case the Apex Court evicted the tenant from the premises for the said requirement of the landlord.

12.12 This would make the present case similar to the case of Joginder Singh (supra) as in the present case the tenanted premises is required by the petitioners for their businesses. Thus, this defence of the respondent does not raise any triable issue.

12.13 Every parent wants to settle his/ her children in the best possible manner and if the petitioners have found it proper to help Mr. Deepak nagpal and Ms. Swinky Nagpal to start their businesses at the tenanted premises, then it would not be proper for the Court to interfere in such decision of the petitioners, as the petitioners are the best judge of their own requirements and that of the requirements of their family members.

12.14 In the opinion of the Court it is the right of every person to excel in life. If the two of the petitioners are of the opinion that it would be better in life to start a business of boutique or property dealing from the tenanted premises respectively rather than working as a Chartered Accountant or in a call centre then it would not be just for this Court to direct the petitioners otherwise and thereby stop the financial growth of the family of the petitioners. The Court cannot ask the petitioners to give up their dreams of excelling in life and to establish their businesses from a premises owned by them. Though the success of the businesses is not guaranteed, but, at the same time the Court cannot predict the failure of the same and thereby decline the petitioners an E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 46 of 48 opportunity to establish their businesses from a premises owned by them. 12.15 Thus, the requirement of the petitioners is a bona fide requirement and there is no reason for the Court to find any malafide intention behind the same.

12.16 Thus, this defence raised by the respondent is a sham defense and it does not raise any triable issue.

CONCLUSION

13) It is well settled that leave to defend is granted to the tenant in case any triable issue is raised by him, which can be adjudicated by consideration of additional evidence. The mere existence of any triable issue is not sufficient. The nature of the triable issue raised by the tenant must be such that it will disentitle the landlord from obtaining the eviction order.

14) In the judgment titled as Sarwan Dass Bange Vs. Ram Prakash (supra) the Hon'ble High Court of Delhi referring to the judgment of Baldev Singh Bajwa v. Monish Saini (2005) 12 SCC 778 observed in para 17 as under:

"...the landlord who evicts a tenant on the ground of own requirement is not only prohibited from letting out the premises or disposing of the same but also required to use the same for his own residence only. It was held that these restrictions and conditions inculcate in built strong presumption that the need of the landlord is genuine; the conditions and restrictions imposed on the landlord make it virtually improbable for the landlord to approach the Court for ejectment of tenant unless his need is bona fide no unscrupulous landlord in all probability, under this Section, would approach the Court for ejectment of the tenant considering the onerous E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 47 of 48 conditions imposed on him. It was further held that this inbuilt protection in the Act for the tenants implies that whenever the landlord would approach the Court his requirement shall be presumed to be genuine and bona fide. It was further held that a heavy burden lies on the tenant to prove that the requirement is not genuine.." (emphasis supplied)

15) The whole purpose and import of summary procedure under Section 25B of the Act would otherwise be defeated. The prayer for leave to contest should be granted to the tenant only where a prima facie case has been disclosed by him. In the absence of the tenant having disclosed a prima facie case i.e. such facts which disentitles the landlord from obtaining an order of eviction, the Court cannot mechanically and in routine manner grant leave to defend. In the light of the aforesaid facts, circumstances and legal propositions, all the pleas taken by the respondent have failed to raise any triable issues regarding the ownership of the petitioners or the land lordtenant relationship; the bonafide requirement of the landlord; or the availability of any alternative suitable accommodation. The contents of the application for leave to defend have failed to rebut the presumption of bonafide qua the requirement of the petitioners. The application for leave to defend filed by the respondent is thus rejected.

16) As a consequence thereof, an eviction order is passed U/s. 14 (1) (e), DRC Act against the respondent regarding the tenanted premises i.e Shop no.9, Nala Market, Patel Nagar , New Delhi , as shown in red colour in the site plan

17) However, in light of Section 14 (7) DRCA, the aforesaid eviction order shall not be executable for a period of six months from today.

18) The parties are left to bear their own costs.

E. No. 38/2014 Kamlesh Nagpal & Ors. Vs. Anil Pandhoh Page no. 48 of 48

19) File be consigned to Record Room after due compliance.




Announced in the open Court

On 12th day of February, 2016                     (SUMEDH KUMAR SETHI)
                                                 ACJ/ARC/CCJ(West)/12.02.2016




E. No. 38/2014                                   Kamlesh Nagpal & Ors. Vs. Anil Pandhoh

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Delhi District Court

Smt. Kamlesh Nagpal vs Shri. Anil Pandhoh on 12 February, 2016