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Delhi District Court

Sh. Har Kishan vs Ms. Jaswinder Kohli on 25 September, 2021

 IN THE COURT OF SAUMYA CHAUHAN, SENIOR CIVIL JUDGE­CUM­RENT
                   CONTROLLER (EAST): DELHI

CNR No.DLET030005592014
RC ARC 641/16


In the matter of :­
Sh. Har Kishan
Through his attorney
Ravi Chaudhary
R/o A­56, Chilla Village,
Mayur Vihar, Phase­I,
Delhi­110091                                                                      ......Petitioner

                                               Versus
Ms. Jaswinder Kohli
W/o Late Sh. S.S.Kohli,
R/o AH­904, Amarpali Village,
Indira Puram, Vijay Khand­II,
Ghaziabad, Uttar Pradesh                                                          ......Respondent


Date of Institution                              :      27.01.2014
Date of order when reserved                      :      25.09.2021
Date of order when announced                     :      25.09.2021


                                         JUDGMENT

1. Vide this order, the court shall decide the application of the defendant seeking leave to defend against the present eviction petition filed by the petitioner against the respondent/ tenant U/s 14 (1) (e) r/w Section 25 (b) of Delhi Rent Control Act, 1958 (hereinafter referred to as 'Act').

2. The briefly stated facts as per the petitioner are that he is owner and landlord of two shops bearing no.182 (merged into one) Pratap Nagar, opposite Mayur Vihar, Phase­I, Delhi­110091. The petitioner had let out the said shop to the husband of the respondent for running a meat shop vide Rent Agreement dated 28.05.1990, exclusive of electricity and RC ARC 641/16 page no.1/9 water charges. On 08.05.2010, the husband of respondent no.1 had expired. However, respondent continued with the tenancy of the said premises by a mutual renewal of Agreement cum Rent deed dated 28.05.2010 at increased rent of Rs.2500/­ per month, exclusive of water and electricity charges.

3. The petitioner has averred that the respondent is chronic defaulter in payment of rent and has not paid rent since December 2011 till date. Not only this, the respondent, while posing as owner of the shop and without permission or consent of the petitioner, had also illegally and unauthorizedly sublet the property in December, 2012 to a person called Sarvesh Tiwari, who is running a Furniture shop under the name and style of 'Furniture Point'. The petitioner has filed a police complaint and an FIR has been registered in that regard.

4. It is further the contention of the petitioner that his son and his attorney Sh. Ravi Chaudhary is facing problem in settling business and needs office space. He is doing work of property dealer in partnership. However, due to some dispute him and his partner, now the petitioner's son wants to start his separate property dealing business. However, there is only shop available which is in possession of the respondent. There is no other space available to the petitioner for business of his son. Hence, tenanted premises is required by the petitioner to be used by his son for running property dealer business. The respondent has not paid rent since 2011 and is in arrears of rent amount to Rs.6,25,00/­.

5. The summons of the petition were served upon the respondent who has filed application for leave to contest the petition seeking permission to contest the petition. The grounds on which the respondent had sought the permission to contest the petition are as follows:­

(a) The respondent has admitted that she and her husband have been in occupation of the property since 1989­90 vide various rent deeds. The petitioner as a landlord had inducted Late Sh. S.S.Kohli, deceased husband of the respondent and after his RC ARC 641/16 page no.2/9 death, the respondent has continued as a tenant in the suit property. As per the respondent, the rent agreement of 2010 was for an unlimited period as no period was mentioned in the same for vacation of the premises.

(b) The respondent has claimed that the petitioner had taken a hefty sum as security/pagri for letting out the property to her and her husband.

(c) The petitioner is not true and lawful owner of the property.

(d) The petitioner and his family are in occupation of various properties in Delhi NCR and this fact has been concealed by the petitioner. He has a big house in Chilla Village near Patparganj and commercial complex at new Ashok Nagar, Delhi. Hence, there is no question of bonafide needs of the property.

(e) The respondent is a widow and living with his son at Indirapuram. The tenanted premises is being used as food serving outlet and is the only source of income for the respondent.

(f) The petitioner has been harassing her and trying to disrupt her peaceful possession of the premises. Hence, she has filed a suit for injunction and interim injunction against her dispossession from the suit property was granted in her favour.

(g) The petitioner has not been keeping the tenanted premises in a habitable condition. Hence, respondent had filed an application before Rent Controller for repair of the shop which is still pending. The petition is not maintainable as the premises was for commercial purposes.

6. The petitioner filed his reply, wherein he denied the allegations of the respondent and reiterated the averments in the petition. The petitioner has relied upon the judgment of Hon'ble Supreme Court titled as "Satyawati Sharma Vs. Union of India"

wherein the provision of Section 14 (1) (e) of DRC have been made applicable on commercial properties, if the landlord requires the same for his use or that of his family members.

RC ARC 641/16 page no.3/9

7. The petitioner has submitted that to file an eviction petition, absolute ownership is not a pre­condition. Even a landlord can institute and maintained the eviction petition. The petitioner has denied that he has various properties in Delhi­NCR. He only has a house in Chilla Village near Patparganj, Delhi where he is residing alongwith his family. It is further submitted that petitioner's son is unemployed and in need of a suitable office space, without which he is unemployed. The suit premises is located at a prime location which is most suitable for business of petitioner's son. It is submitted that landlord is best judge of his own requirement and he cannot be dictated around by the tenant.

8. The petitioner has submitted that an FIR which is registered against the respondent under Section 419/420/468/471/448 IPC vide FIR no.87/2013 with PS Pandav Nagar lodged by the sub tenant who was inducted in the suit property by the respondent. It has been denied that respondent is carrying on any business in the suit premises. It is prayed that leave to defend application is devoid of any merits and is liable to be dismissed.

9. A rejoined was filed on behalf of the respondent to petitioner's reply. Amongst the other averments made already in her leave to defend application, the respondent raised a new issue that in year 2009, the petitioner had entered into an understanding with respondent's husband, whereby the petitioner had handed over the possession of the tenanted premises to respondent's husband on acknowledging receipt of amount including Rs.1,85,000/­ as Pagri as well as Rs.70,000/­ as Security. It was decided that ownership of the property would be transferred by the petitioner in near future. These documents came to light when the respondent was searching the documents pertaining to the property in April 2016.

10. I have heard the submissions made by Ld. Counsel for both the parties and perused the record carefully.

RC ARC 641/16 page no.4/9

11. The essential ingredients which a landlord/ petitioner is required to prove for the purpose of getting an eviction order for bona fide needs are (i) the petitioner is the owner/ landlord of the suit premises (ii) the suit premises are required bona fide by the landlord for himself or any of his family members dependent upon him, and (iii) the landlord or such other family members has no other reasonable suitable accommodation.

Ownership as well as existence of landlord­tenant relationship :­

12. The respondent had contended that the petitioner is not the true owner of the property and has failed to place on record a single document to prove his ownership qua the suit shop. However, the respondent has admitted that she and her husband were inducted as tenants in the suit property. It is settled position in law that tenant who has been inducted into the tenancy by the landlord, cannot deny the title of the landlord during continuation of the tenancy.

13. As per Section 116, Indian Evidence Act, 1872, no tenant of immovable property shall during the continuance of the tenancy, be permitted to deny the title of the landlord. In "Sky Land International Pvt Limited V. Kavita P. Lalwani (2012) 191 DLT 594, the Hon'ble High Court of Delhi held, "Howsoever defective the title of the landlord may be, a tenant is not permitted to dispute the same unless he has surrendered the possession of his landlord. It is based upon the salutary principle of law and justice that a tenant who could not have gotten the possession but for his contract of tenancy admitting the right of the landlord, cannot be allowed to dispute the title of his landlord after taking undue advantage of the possession that he got from the landlord. Of course, he can deny his title after he gives up the possession, having the restored the status quo."

14. Similarly in the case titled as "Shri Ram Pasricha V. Jagannath, AIR 1976 SC 2335, the Hon'ble Supreme Court held that a tenant in a suit for eviction is estopped RC ARC 641/16 page no.5/9 from questioning the title of the landlord under Section 116 of the Indian evidence act. Under the general law, in a suit between landlord and tenant, the question of title to the lease property is irrelevant.

15. In view of the above discussion, the respondent is estopped from disputing the title of the petitioner qua the suit property. Accordingly, the Court holds that the petitioner is owner of the tenanted premises and he is the landlord in respect of the tenanted premises, qua the respondent.

Non­availability of reasonably suitable alternative accommodation in Delhi and Bonafide Requirement

16. The respondent has contended that the petitioner has various other properties available in Delhi and he also has shops in commercial complex in Ashok Nagar. This has been vehemently opposed by the petitioner submitting that only property apart from tenanted premises available to the petitioner is his residential house in village Chilla where he alongwith his family resides.

17. In the case titled as "Sarwan DassBange Vs. Ram Prakash", 167 (2010) DLT 80 the Hon'ble Supreme Court observed :­ "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. It was held that these restrictions and RC ARC 641/16 page no.6/9 conditions inculcate inbuilt 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 the tenant, unless his need is bonafide ­ no unscrupulous landlord in all probability, under this section, would approach the Court for ejectment of the tenant considering the onerous 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 requirements shall be presumed to be genuine and bonafide. It was further held that a heavy burden lies on the tenant to prove that the requirement is not genuine. The tenant is required to give all the necessary facts and particulars supported by documentary evidence if available to prove his plea in the affidavit itself so that the Controller will be in a position to adjudicate and decide the question of genuine or bona fide requirement of the landlord; a mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine."

18. Hon'ble Supreme Court in "Dattatraya Laxman Kamble Vs. Abdul Rasul Moulali Kotkunde", (1999) 4 SCC 1 held that the phrase "reasonably and bona fide required by the landlord" is not to be tested on par with "dire need" of a landlord because the latter is a much greater need. Similarly, in "Raghunath G. Panhale Vs. Chaganlal Sundarji & Co"., (1999) 8 SCC 1 it was held that the word "reasonable" connotes that the requirement or the need is not fanciful or unreasonable but need not also be a "compelling" or "absolute" or "dire necessity". A reasonable and bonafide requirement was held to be something in between a mere desire or wish on the one hand and a compelling or dire or absolute necessity on the other hand.

19. In the case at hand the petitioner has submitted that premises is required by his son to start his business of property dealer. The petitioner's son is unemployed and needs RC ARC 641/16 page no.7/9 the space for starting his business. It is well settled that landlord is the best judge of his requirement. The respondent has not been able to show that the petitioner is having any other accommodation in Delhi. Hence, the petitioner has successfully established that he needs tenanted premises for starting property dealer business of his son.

20. In the rejoinder filed by the respondent it has been alleged that the tenanted premises were agreed to be sold by the petitioner to the respondent. However, in the case titled as "Ishwar Dayal Kansal Vs. A.K.Jain" RC revision No. 47/2014, date of decision 28.07.2014, the Hon'ble High Court of Delhi relied upon the judgment of Hon'ble Supreme Court in the case of "Prithipal Singh Vs. Satpal Sharma"(2010) 2 SCC 15, wherein it was held that 15 days started period for filing of leave to defend application is in inflexible and sacrosanct and same cannot be extended by either the provision of of Limitation Act 1963 or the provisions of Code of Civil Procedure (1908). It was observed, "The ratio of the judgment of the Supreme Court in the case of Prithipal Singh (supra), thereof is that whatever has to be stated for seeking leave to defend has necessarily to be stated and accompanied by necessary documents within a period of 15 days, and after 15 days period, there cannot be one or more additional affidavits and one or more additional documents to seek leave to defend and that it is not permissible to raise any fresh grounds which are not found in the leave to defend application. Accordingly, the effort of the learned senior for the petitioner to refer to me the documents filed in the rejoinder to the leave to defend application is declined, and which rejoinder obviously has been filed beyond the period of 15 days statutory period. A rejoinder affidavit can only be filed to clarify and support the facts and documents already pleaded and not for fresh facts and documents."

RC ARC 641/16 page no.8/9

21. In this case, the respondent has raised a fresh issue that the petitioner had transferred the possession of the suit property to her husband after taking consideration amount and security amount. However, in the light of the aforementioned judgment, no new issue can be raised by the respondent in the rejoinder filed beyond the statutory period of 15 days.

22. Moreover, if the petitioner does not use the property for the purposes claimed in the petition, the respondent has a statutory remedy available U/s 19 of the DRC Act to seek re­entry.

23. In view of the aforesaid discussion, this Court is of the considered opinion that the petitioner has proved all the necessary ingredients of Section 14 (1) (e) of Delhi Rent Control Act, 1958.

24. Accordingly, an eviction order is passed U/s 14 (1) (e) of DRC Act in favour of the petitioner and against the respondent in respect of premises i.e. shop bearing no.182 (merged into one) Pratap Nagar, opposite Mayur Vihar, Phase­I, Delhi­110091. 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.

25. File be consigned to Record Room after due compliance.

Digitally signed by

                                                                SAUMYA     SAUMYA CHAUHAN

Announced in the Court                                          CHAUHAN    Date: 2021.09.25
                                                                           16:17:36 -0300


today, the 25th September 2021                                (SAUMYA CHAUHAN)
                                                                SCJ­cum­RC, East




RC ARC 641/16                                                                       page no.9/9