Delhi District Court
Sh. Rajiv Sharma vs . Sh. Ramesh Kumar & Ors. on 6 January, 2012
Sh. Rajiv Sharma vs. Sh. Ramesh Kumar & Ors.
IN THE COURT OF DEVENDRA KR. SHARMA,
ADDL. RENT CONTROLLER, DISTRICT: NORTH. DELHI.
E No. 74/2010
Unique Case ID No: 02401C0217262010
SH. RAJIV SHARMA
S/o Late Jitendra Nath Sharma
R/o F-51-A, Kolhapur Road,
Kamla Nagar,
Delhi-110007. ...Petitioner.
Versus
1. SH. RAMESH KUMAR
S/o Late Phool chand
51-AF, Kolhapur Road,
Kamla Nagar, Delhi-110007.
R/o 5/21, Vijay Nagar, Double Storey,
Delhi-110009.
2. SMT. CHANDRAWATI
W/o Late Phool Chand
51-AF, Kolhapur Road,
Kamla Nagar, Delhi-110007.
R/o 5/21, Vijay Nagar, Double Storey,
Delhi-110009.
3. SH. SURESH KUMAR
S/o Late Phool Chand,
51-AF, Kolhapur Road,
Kamla Nagar, Delhi-110007.
R/o 104, Old Gupta Colony, Arjan Gali,
E no. 74/2010 Page 1/31
Sh. Rajiv Sharma vs. Sh. Ramesh Kumar & Ors.
Delhi-110009.
4. SH. KRISHAN KUMAR
S/o Late Phool Chand
51-AF, Kolhapur Road,
Kamla Nagar, Delhi-110007.
R/o 104, Old Gupta Colony, Arjan Gali,
Delhi-110009.
5. SH. HARISH CHAND
51-AF, Kolhapur Road,
Kamla Nagar, Delhi-110007.
R/o 5/21, Vijay Nagar, Double Storey
Delhi-110009.
6. SMT. KAMLESH
D/o Late Phool chand,
51-AF, Kolhapur Road,
Kamla Nagar, Delhi-110007.
R/o 5/21, Vijay Nagar, Double Storey
Delhi-110009.
7. SMT. GORI
D/o Late Phool chand,
51-AF, Kolhapur Road,
Kamla Nagar, Delhi-110007.
R/o 5/21, Vijay Nagar, Double Storey
Delhi-110009.
8. SMT. KRISHNA
D/o Late Phool Chand,
51-AF, Kolhapur Road,
Kamla Nagar, Delhi-110007.
R/o 5/21, Vijay Nagar, Double Storey
E no. 74/2010 Page 2/31
Sh. Rajiv Sharma vs. Sh. Ramesh Kumar & Ors.
Delhi-110009.
9. SMT. HEENA
D/o Late Phool Chand,
51-AF, Kolhapur Road,
Kamla Nagar, Delhi-110007.
R/o 5/21, Vijay Nagar, Double Storey
Delhi-110009.
...Respondents.
Date of institution of the petition : 21/05/2010
Date on which order was reserved : 03/01/2012
Date of Decision : 06/01/2012
ORDER
06.01.2012 Vide this order, I shall dispose of the leave to defend application filed on behalf of respondent nos. 1 to 5 U/s 25-B (5) of the Delhi Rent Control Act, 1958 (herein after referred to as D.R.C. Act, 1958) for seeking leave to contest the present eviction petition on merits.
Relevant facts for disposal of the present application are as follows:-
1. That the present petition was filed with the allegations E no. 74/2010 Page 3/31 Sh. Rajiv Sharma vs. Sh. Ramesh Kumar & Ors.
that the petitioner is the landlord/owner of the property bearing no. 51-AF also called F-51A, Kolhapur Road, Kamla Nagar, Delhi-07 and respondents are tenants by virtue of being legal heirs of Sh. Phool Chand who was inducted as tenant in one shop measuring about 100 sq. ft. bearing private number 1, on the ground floor of the aforesaid premises as shown in red colour in the site plan attached with the petition (hereinafter referred to as suit property).
2. It is further alleged that Sh. Jitendra Nath Sharma, the father of the petitioner executed a Registered Will in favour of the petitioner dated 27/02/2004. The family of the petitioner consists of his wife and one son. The parents of the wife of the petitioner are also dependent upon the petitioner and his wife for their looking after as wife of the petitioner being the only daughter takes care of them in their old age. Petitioner is practicing lawyer and is progressing well in his profession. The wife of the petitioner is also well educated and the only son of the petitioner is grown up now and therefore, wife of the petitioner is planning to start her own business as she wants to utilize her time and energy to increase the income of the family to meet the ever growing expenses due to the increasing inflation. Father of the petitioner in his lifetime was compelled to sell a shop bearing private number 3 on the ground floor to Sh. Ravi Sachdeva due to financial constraints and meager E no. 74/2010 Page 4/31 Sh. Rajiv Sharma vs. Sh. Ramesh Kumar & Ors.
rental income and at the said time the said shop was under the tenancy of Sh. Jamuna Dass.
3. It is further alleged that the property in which the suit property is located consists of three floors and on the ground floor there are five shops marked as A, B, C, D and F which are under the tenancy of various tenants. Ground floor also consists of one scooter garage which is used by the petitioner for parking his scooter which is marked as mark G in the site plan, one small store marked as mark H in the site plan, one Baithak-cum-make shift office of the petitioner as I, one toilet and bath room marked as Mark L and M respectively in the site plan, one small covered verandah marked as Mark K and open courtyard marked as Mark J in the site plan. The first floor of the property consists of two rooms marked as O and P which are about 100 sq. ft. and 130 sq. ft. out of which one room is being used as dining room and other room is used as living room. There is third room marked as mark Q in the site plan which is less than 100 sq. ft. and is being used as dressing-cum-store room. There is one kitchen, two toilet-cum- bathrooms, one small lobby/verandah, one terrace and balcony on the said floor. The second floor of the property consists of two rooms marked as mark X and Y of which one room is used as study room by the son of the petitioner and the other room is used as E no. 74/2010 Page 5/31 Sh. Rajiv Sharma vs. Sh. Ramesh Kumar & Ors.
bed/guest room respectively. There is third room marked as Z in the site plan which is less than 100 sq. ft. in area and is being used as pooja room. There is one kithcen, toilet, bathroom, small lobby/verandah and balcony on the said floor.
4. It is further alleged that neither the petitioner nor any of his family members owns any other residential or commercial property nor does the petitioner have any office/chamber in any of the Court complex or at any other premises, hence, petitioner is compelled to operate his office from his residence where he is using the small store-room measuring 6'9''X11'5'' approximately in the rear portion of the ground floor as a makeshift office-cum- baithak which is marked as mark I in the site plan. The said office-cum- baithak has been made after putting a wooden partition for separating it from the main entrance passage/dyorhi marked as mark N in the site plan which opens in the service lane on the rear side of the building. The portion marked as mark E in the site plan is always kept locked due to privacy and security reasons. A lot of clients, strangers, staff, associates and other visitors besides family friends and relatives visit the premises of the petitioner and the petitioner has to restrict the access of the clients to the baithak- cum-office. The entrance at point E is not adjacent to the aforesaid baithak and any visitor to reach the said baithak from the entrance E no. 74/2010 Page 6/31 Sh. Rajiv Sharma vs. Sh. Ramesh Kumar & Ors.
at point 'E' will have to be given entry from a portion which will require that person to cross the whole open courtyard marked as mark J and the staircase which goes to the upper floor of the house also starts from within the said entrance hence, granting entry from the said entrance will give unhindered direct access to all the visitors to the upper floors of the house of the petitioner thereby compromising the security and privacy of the petitioner and his family.
5. It is further alleged that the petitioner wants to use the main entrance mark E to his house for own purpose with separate and independent office having separate entry for clients etc. and therefore, separate office with separate entry is required for the purpose of privacy and security. The baithak cum make shift office is very small in size and is not sufficient for running an office and also as a baithak for entertaining the personal family guests and friends of the petitioner and/or his family members and the space therein is so small and narrow that the petitioner finds it difficult to keeps the necessary furniture and office equipments in it. The petitioner has no proper place to house his library and to keep the brief files and records of the cases. It is also very difficult to move around therein when some client or other visitor is sitting there. The petitioner has to move his furniture even for the purpose of opening E no. 74/2010 Page 7/31 Sh. Rajiv Sharma vs. Sh. Ramesh Kumar & Ors.
the almirahs as there is no space left for that purpose due to narrowness of the space and has to ask his client or the visitors to get up. At times, the small size of the place also creates suffocation. Most of times it becomes extremely annoying, disturbing and uncomfortable if some guest arrives when some client is already sitting there or vice versa.
6. It is further alleged that there is no privacy for the clients to discuss their case as the said office cum baithak is a common place and there is no place for the other people to sit and wait separately. The stenographer has to sit on one of the two clients seat for taking dictation. The computer operator also has to sit on the said client seat in a very uncomfortable ungle as there is no space available arranging a separate seat for them. The associates and fellow lawyers who regularly visit the petitioner also have to use the clients and guest seats for sitting as there is no sufficient space available for keeping the separate chair for them. Thus, petitioner needs a bigger and better space for his office.
7. It is further alleged that the petitioner is a chronic patient of gout and finds it difficult and painful to climb up and down the stairs whenever there is an attack of the same and has to have his office on the ground floor only. Recently the petitioner met with an E no. 74/2010 Page 8/31 Sh. Rajiv Sharma vs. Sh. Ramesh Kumar & Ors.
accident and suffered multiple fracture thus damaging his telus bone in the foot and has not recovered therefrom yet.
8. It is further alleged that the petitioner wants to expand his work by keeping more staff and associates as his clientage is increasing day by day and he wants to do better in his profession. The suit property opens towards the main road and is connected with a covered verandah on its rear side with a door which verandah is in possession of the petitioner and petitioner needs a bigger and separate space for his office as waiting room for his clients, consultation room, room for his staff and associates and one room for storing his files, stationery and books. The suit property is about 100 sq. ft. in area and can be used by the petitioner in conjunction with the covered verandah already in possession of the petitioner which is connected with a door with the suit shop. Suit property alongwith said verandah can be used to fulfill, to a great extent, of bonafide and urgent need of the office of the petitioner and otherwise also suit property is also having a locational advantage being on the main road and privacy and security of the petitioner and his family will not have to be compromised after having a separate office and a separate entrance opening towards the main road.
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9. Upon service of summons, leave to defend application was filed on behalf of respondent nos. 1 to 5 alongwith supporting affidavit of the respondents alleging and deposing that respondent nos. 1, 3, 4 and 5 are the real brothers and respondent no. 2 is the mother. Respondent nos. 6 to 9 moved separate application stating therein that they have no concern with the suit property.
10. It is further deposed that initially the suit property was let out to Late Sh. Daya Ram Gupta, the real Tau of the deponents No. 1,3, 4 & 5 by the father of the petitioner and later on he surrendered his tenancy in favour of the landlord and same was let out to the father of the deponent and his brother. The petitioner is not accepting the rent with malafide intention to get the suit property vacated for many years and a Legal Notice was also sent alongwith draft of Rs. 7200/- to receive the rent but petitioner did not accept the same. The suit property is without the electricity since 11.03.2010 as same was withheld and a Civil suit was filed for restoration of electricity and another petition U/sec. 45 of the D.R.C. Act was also filed for restoration of electricity.
11. It is further deposed that the petitioner is the Advocate by profession and very cunningly has drafted this case to show the contents that infact he requires the suit property for his bonafide E no. 74/2010 Page 10/31 Sh. Rajiv Sharma vs. Sh. Ramesh Kumar & Ors.
requirement but infact it is not like that. Site plan as well as the averments shown the grounds of eviction are false and incorrect. Infact suit building is a very big property constructed upto 3rd floor consisting of more than 200 sq. yds. and there are total 12 rooms including shops, covered areas, open courtyard and office. The petitioner has sold the shop bearing no. C for about 40 lacs. The present respondent and his brothers are the poor persons and without means, therefore, the petitioner is asking either to purchase the suit shop or to vacate it. The shop no. A, B and D are also with the tenants including the respondents.
12. It is further deposed that the shop no. E which (was) infact a shop but petitioner has shown it the passage and infact the petitioner has installed one shutter upon the opening of it and the old wooden door is also there and the reason to fix shutter upon it is to give the colour of this passage as shop because there are two more tenants who used to sell the ready-made wearing apparels in front of this shop on tables i.e. as phar to avoid any complaint and petitioner is earning Rs. 1,000/- per day from one tenant which shows the modus-operandi of the petitioner to earn the maximum rent from the small to small part of his property. Shop no. F is also occupied by the tenants and scooter garage shown at point G in the site plan infact is not being used as scooter garage as it is the E no. 74/2010 Page 11/31 Sh. Rajiv Sharma vs. Sh. Ramesh Kumar & Ors.
shop and time to time petitioner let out the same some time for three months or so. Since, said property is situated in main Bazar and according to prevailing system, shop is let out for one month or two months or as to fetch the maximum rent and shop shown as G was already let out to one person for the period of three months which he has already surrendered the same to the petitioner about two months back.
13. It is further deposed that the shop no. H is infact has opening from two sides one side shown as service lane and other side shown as Gali but infact the service lane is not there but is a back gali of Kolhapur Road and there are so many shopkeepers who are running their business. Portion shown as I is being used by the petitioner as his office and in the open courtyard, the office can be extended as per satisfaction of the petitioner. Moreover the portion shown as Chajja is also in occupation of the petitioner and the area shown as covered verandah on ground floor is infact the complete area behind the three shops and the petitioner is having enough accommodation to meet the requirement and if the petitioner requires, he may park his scooter in the open courtyard to extend his office for the purpose of having the sitting arrangements to the clients. Furthermore, the alleged rear entrance was infact the main entrance and the same is being used E no. 74/2010 Page 12/31 Sh. Rajiv Sharma vs. Sh. Ramesh Kumar & Ors.
as main entrance by the petitioner and his father after coming into this property after purchase. It is worth mentioning that now the area has been completely commercialized and petitioner with a view to earn maximum, is compelling the respondent and his brothers to surrender the tenancy but since, suit property is the only place to earn bread and butter for the entire family, therefore, respondents can not surrender the tenancy.
14. It is further deposed that the petitioner in his site plan has averred only two rooms on the first floor at Mark O and P with the measurement of 100 sq. ft. and 130 sq. ft. but same is not correct. Room 'O' is a very big room and is infact a hall and room 'P' is also a big room. There is also another room which petitioner has shown as dressing room. Remaining area is also covered and after the W.C. And bathroom the area shown as blank is also covered and being used as a room, thus, there are four rooms including covered area and open terrace in the rear portion and that area can also be covered in the event of requirement by the petitioner.
15. At second floor the room shown at X and Y are very big room and covered area has not been shown according to the construction on the ground floor. Mark Z is also a room and E no. 74/2010 Page 13/31 Sh. Rajiv Sharma vs. Sh. Ramesh Kumar & Ors.
complete remaining area shown as A2 on second floor and W on first floor are covered area and is being used as rooms. The outer balconies of first and second floor have also been extended by the petitioner and is being used for sitting purposes and they are like rooms. The petitioner is also in possession of one more property in the area of Chandni Chowk in Ballimaran lane and though respondents are aware about the location but not aware about particulars.
16. The family of the petitioner is consisting of only three members including a son aged about 11-12 years. A shop no. 3 was sold to Mr. Ravi Sachdeva and, thus, there is no bonafide requirement of petitioner.
17. It is further deposed that the petition has been filed without any cause of action and petitioner has no locus standi to file the eviction petition and petition lacks material particulars and same has been filed to abuse the process of law and there being number of triable issues, leave to defend application may kindly be allowed to contest the present case on merits.
18. Reply to leave to defend application was filed alongwith the counter affidavit of the petitioner raising the preliminary E no. 74/2010 Page 14/31 Sh. Rajiv Sharma vs. Sh. Ramesh Kumar & Ors.
objections that respondents have failed to raise any triable issue and the application for leave to defend is time barred and affidavits are false and there is no separate leave to defend application on behalf of respondent no. 2 and in her affidavit, contrary statements are made to the statements of respondent nos. 1, 3, 4 and 5 and since, there is no leave to defend application on behalf of respondent no. 6 to 9, therefore, leave to defend application is liable to be dismissed and on merits denied all the material allegations.
19. It is further deposed that no SPA has been filed on record. The electricity supply has already been restored and petitioner is the sole owner/landlord and this fact was admitted by the respondents themselves in the petition filed U/sec. 45 of the D.R.C. Act. It is further deposed that besides the petitioner, his wife and son, his father in law and mother in law are also the members of the family and also dependent upon the petitioner not only for the purpose of residence but also for moral physical support as there is no one else to look after them.
20. It is further deposed that despite being resident and occupant in the same building respondents have not disclosed the name of the so called tenants/phar holders which is allegedly rented out and are being rented out by the petitioner.
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21. It is further deposed that the portion marked as Mark-E is admittedly being used as a passage. This area has got the staircase which goes to the upper floor of the premises which shows that said area is not a shop and that can not be used as a shop. The area marked at point 'G' is used as a scooter garage. The premises is situated in crowded locality and, therefore, it is not possible to commute there on a motor car. The petitioner is a patient of gout and a few months back, he had fallen and had broken his ankle and, thus, can not walk for long distance. He uses a scooter to commute for short distances and, therefore, scooter is a necessity for the petitioner. Portion marked as Mark- 'H' can not be used as shop as these areas are not shops as per municipal record and petitioner never even paid any conversing charges to M.C.D. for converting the said areas into shops. All the said areas are being used by the petitioner for his own use.
22. It is further deposed that the petitioner despite being practicing advocate did not take any action against the respondents though they have not paid the rent, partitioned the tenanted premises without prior consent caused substantial damage and made illegal addition and alteration in the suit property without permission of the petitioner and even illegally tried to create third E no. 74/2010 Page 16/31 Sh. Rajiv Sharma vs. Sh. Ramesh Kumar & Ors.
party interest, therefore, there is no question of cunning drafting of the present case to meet out the grounds of bonafide requirement. All the legal heirs have been made party by the respondents themselves in the proceedings initiated by them being the legal heirs of Late Phool Chand and, thus, there is no question of mis- joinder. The area of the plot is approximately 160 sq. yds. and not more than 200 sq. yds. and the building is constructed upto second floor only. The building is an old construction and has very small rooms and its major portion consists of open courtyard. The shop bearing Mark-C was sold by the father of the petitioner and said shop was already in occupation of the tenant and father of the petitioner was a retired Teacher and was suffering from cancer and, therefore, he sold the said shop as he was in dire need of money for the treatment of his ailment. The shop no. F is already occupied by the other tenants. The portion shown at point 'G' is a scooter garage and is not being let out for three months or so. The portion marked as Marks G & H are less than 50 sq. ft. each and are very small and is inconvenient to be used as part of the office of the petitioner as both the areas are neither interconnected nor connected with the office-cum-Baithak from any side. Said both the portions open towards gali, therefore, it will not be possible for the petitioner to use the said portion in connection with the present office-cum- Baithak. The back galli/semi road is closed and has not been E no. 74/2010 Page 17/31 Sh. Rajiv Sharma vs. Sh. Ramesh Kumar & Ors.
authorised to be used for commercial purposes under the Delhi Master Plan.
23. It is further deposed that even the respondents have indirectly admitted the paucity of accommodation by suggesting the petitioner to extend the office into the courtyard of the house of the petitioner. The portion marked as 'Chhajja' is open and is very small on the first floor. The portion marked as covered verandah is not sufficient and suitable to be used as office as it is in triangular shop and is situated opposite to the current Baithak-cum-office and petitioner has to pass through the open courtyard of the house in order to access the covered verandah which is not suitable and desirable for the purpose of using it as office. Same verandah can be used in connection with the tenanted premises which is situated adjacent and the front portion of the said covered verandah is also interlinked with the existing door in between two portions and this will facilitate the direct access that too from the main road. The said covered verandah independently is not suitable to be used as an office extension of existing office.
24. It is further deposed that even the respondents have admitted that there are two entrances in the suit building and petitioner can not be aspected to park his scooter in open courtyard E no. 74/2010 Page 18/31 Sh. Rajiv Sharma vs. Sh. Ramesh Kumar & Ors.
as suggested by the respondents. The portion marked as Mark-T is a small portion approximately 03 ft. wide gallery/passage near to W.C./bathroom on the first floor and is covered with the plastic sheet and beyond that there is open courtyard/verandah and there is no room beyond the portion 'T' on the first floor. Open area in the premises can not be covered without municipal sanction. There is no 4th room existing on the first floor as alleged by the respondents.
25. The portion marked as Mark W and A-2 are verandah in front of the roof on first and second floor and are not meant for use as separate room. There is no extension of balcony on the first floor and second floor and, thus, can not be used as rooms. Otherwise also, requirement of the petitioner is on the ground floor for the purpose of using the same as office and petitioner can not be aspected to use the premises as per wishes of the respondents or have his office on first and second floor which is residential in nature and petitioner is not in possession of any property in Chandni Chowk and Ballimaran Lane and there is no question of re- letting and there is no triable issue, therefore, leave to defend application may kindly be dismissed and an eviction order may kindly be passed.
26. Rejoinder along with rejoinder affidavit was filed on E no. 74/2010 Page 19/31 Sh. Rajiv Sharma vs. Sh. Ramesh Kumar & Ors.
behalf of the respondents denying all the material allegations in the reply to leave to defend application and further deposing moreover the same facts as alleged in the leave to defend application and supporting affidavit.
27. During the pending proceedings, an application U/Sec. 151 CPC was filed on behalf of the respondents along with photocopies of plaint, W.S., copy of application U/O 39 Rule 1 & 2 CPC, reply thereof, rejoinder of the proceedings pending before the court of Ms. Somya Chauhan, Ld. C.J. Tis Hazari Courts, Delhi with the allegation that the allegations of the petitioner in the present petition regarding the user at the ground floor marked as Mark A to H are wrong. In reply to the application, petitioner has objected that the said application can not be filed when the matter was fixed for order and the application is mis-use of the process and on merits has alleged that there is no inconsistency in the pleadings and the site plan of the petitioner and all the portions have been shown correctly in accordance with their present user.
28. I have given my thoughtful consideration to the submissions advanced on behalf of the parties and have perused the record carefully.
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29. Petitioner has placed reliance upon the judgments reported in 2008 (8) AD (Delhi) 328, 2010 (173) DLT 518, 178 (2011) DLT 1, (2010) 174 DLT 328, 2010 (173) DLT 318, 2008 (155) DLT 383, (1999) 82 DLT 919, AIR 1994 (DEL.) 209, 1993 (49) DLT 684, 2006 (91) DRJ 558, 2010 (167) DLT 678, 2010 (172) DLT 1, 2010 (169) DLT 709, 2010 (174) DLT 64, AIR 1997 (SC) 2399, 1997 (68) DLT 369, 2005 (116) DLT 283 and 184 (2011) DLT 103.
30. Respondent has placed reliance upon the orders passed by Hon'ble High Court of Delhi in case titled as Vijay Singh Vs. Ram Bhaj Verma in RCR No. 79/2011 dated 15/09/2011, in case titled as Satpal Khurana Vs. Beerwati in RC. REV 287/2010 dated 21/07/2011, in case titled as Vijay Nayyar Vs. Om Prakash Malik in RCR NO. 120/2011 dated 11/07/2011, in case titled as Phoola Rani Vs. Rameshwar Sharma in RCR NO. 182/2010 dated 03/10/2011, in case titled as Sunil Kumar Vs. Sahi Ram in RC. REV 41/2011 dated 05/10/2011, in case titled as Satpal Vs. Sahi Ram in RC. REV. 25/2010 dated 27/05/2011, in case titled as Laxmi Narain Vs. Shyam Mohan Sharma in RCR NO. 241/2010 dated 19/09/2011, in case titled as Kusum Lata Vs. Shyam Mohan Sharma in RCR NO. 240/2010 dated 19/09/2011, in case titled as Jatinder Singh Narna Vs. Sarita Rani in RC. REV NO. 81/2010 E no. 74/2010 Page 21/31 Sh. Rajiv Sharma vs. Sh. Ramesh Kumar & Ors.
dated 12/07/2011, in case titled as Dolly Chandra & Anr. Vs. Rameshwar Prasad in RCR NO. 171/2011 dated 08/09/2011, in case titled as Anand Kumar Jain Vs. Subhash Chand Aggarwal in RC. REV. NO. 127/2011 dated 05/09/2011 and in case titled as Rajbir Pal & Anr. Vs. Kanwar Pratap Singh in RC. REV. NO. 209/2010 dated 12/10/2011.
A. The first ground taken is that the petitioner has no locus- standi to file the present petition but it has not been disclosed or detailed as to why the petitioner has no locus-standi to file the present eviction petition. Respondents themselves have admitted that the father of the petitioner had let out the suit property to the father of the respondents and there is no denial that the father of the petitioner had not since expired and there is no denial that the present petitioner is not the legal heir of the original landlord and further it has been admitted that a petition for electricity supply U/Sec. 45 of the D.R.C. Act was filed against the present petitioner and moreover it has not been disclosed who else is the owner of the suit property even there is rent agreement and registered will are on record and, thus, all these facts and circumstances established on record that the said objection pertaining to locus-standi has been taken for the sake of defence without having any substance and, thus, petitioner has established his ownership qua the suit property.
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B. The correctness of the site plan has been disputed by the respondents stating that there are nine shops on the ground floor of the suit building. In this regard, the respondents themselves have relied upon the copy of the plaint of the suit filed on behalf of the predecessor in interest of the petitioner by filing an application U/Sec. 151 CPC when the matter was fixed for orders and they themselves contradicted their own stand as in the plaint, 08 shops are alleged to be there on the ground floor and in the leave to defend application it has been stated that there are nine shops. Furthermore, no counter site plan has been filed on behalf of the respondents to challenge the correctness of the site plan filed on behalf of the petitioner and, thus, correctness of the site plan of the petitioner is deemed to have been admitted by the respondents themselves as it is settled law that in the absence of any counter site plan, the site plan filed by the petitioner is deemed to have been correct. However, there is challenge regarding the user of the portion on the ground floor by the petitioner. According to the respondents, the portion Mark-G is not being used as garage by the petitioner. Respondents also alleged that the portion Mark-H is not being used as store. They have further alleged that the portion Mark-G and 'H' in the site plan are being let out intermittently for extracting more income. There is further allegation that petitioner is E no. 74/2010 Page 23/31 Sh. Rajiv Sharma vs. Sh. Ramesh Kumar & Ors.
allowing the persons to sit outside the portion Mark-E and petitioner is receiving the user charges/rent from them.
C. All these allegations pertaining to letting, re-letting and allowing to use the portion for the purpose of 'phar' could have been relevant had there been any challenge to the site plan. In the site plan, one staircase has been shown in the portion Mark-E and in ordinary way the said portion can be used for the purpose of letting as shop. The site plan further clearly shows that there is no interconnection between the portions Mark-G and H with the portion Mark-I that is office cum baithak. There is no denial on behalf of the respondents that the portion Mark-I is not being used as 'Baithak'- cum-office by the petitioner. Even the respondents have gone to admit to the extent that the petitioner and his father since the date of purchase of the suit property is using the rear entrance as their main entrance which is shown as Mark-N in the site plan filed on behalf of the petitioner. Thus, it is clear that the petitioner is in occupation of an office-cum-baithak measuring about 11'.5"X6'.9"
i.e. approximately 80 sq. ft. Perusal of the site plan further makes it clear that the said portion can not be used along with the portion Mark-G and H as both the portions are separate and there is no common wall between the said portions and even if the suggestion of the respondents that the petitioner may park the scooter in his E no. 74/2010 Page 24/31 Sh. Rajiv Sharma vs. Sh. Ramesh Kumar & Ors.
open courtyard is accepted by the petitioner, that is of no avail as the said portion is separate and distinct from the portion 'I' and moreover it is now well settled law that neither the tenant nor court can dictate its own terms and can not suggest the petitioner to use the property according to the convenience of the tenant. So is the position of Mark-H which is stated to be store by the petitioner and according to the respondents that is one shop and if the version of the respondents is accepted that the said portion is shop and fetching Rs. 1,000/- or more, petitioner can not be deprived of the said income in view of the peculiar position that the said portion is also not connected with the portion Mark-I and can not be used as extension of present office having separate entrance and in this regard reliance may be placed upon judgment reported in 2010 (174) DLT 164 and 2010 (173) DLT 518.
D. There is another suggestion on behalf of the respondents that the petitioner can use the portion Mark-K as extension of his office. However, perusal of the site plan makes it clear that the said portion is about 20 ft. away from the portion Mark-I which is presently being used as office-cum-Baithak and that too there is open courtyard in between two portions and moreover as discussed earlier it is not for the court or the tenant to dictate its own terms and the said portion at no cost can be said to be E no. 74/2010 Page 25/31 Sh. Rajiv Sharma vs. Sh. Ramesh Kumar & Ors.
alternative suitable accommodation for the purpose of using the office-cum-Baithak as the said portion is having no independent and separate entry from the outside and according to the site plan, any person who wants to reach to the portion Mark-K has to cross the entire open courtyard which is also otherwise not convenient.
E. Admittedly, the shop no. A,B,C, D & F are not in occupation of the petitioner. It is admitted fact that the shop No. 'C' has already been sold out. The respondents have contended that since the shop no. 'C' was sold by the petitioner and had there been any requirement, the said shop would not have been sold. From the record, it is clear that the said shop was sold by the father of the respondents during his life time and it is admitted fact that the said shop was under the tenancy of somebody else or not in occupation of the petitioner or his father and, thus, its sell has no meaning in view of the judgment reported in 2004 (1) RCR 134.
F. The respondents have also disputed the site plan of the first floor and the second floor but that is of no consequence as the present case is not the case for additional residential accommodation like bed room or guest room but the present case is for additional space for the purpose of running the office by the petitioner who being practicing Advocate requires more space and, E no. 74/2010 Page 26/31 Sh. Rajiv Sharma vs. Sh. Ramesh Kumar & Ors.
therefore, he can not be dictated to shift his office on the first floor or second floor and for the said purpose, number of family members or the dependent family members have no meaning considering the requirement pleaded in the petition and, thus, availability of the accommodation on the first floor and second floor in the facts and circumstances of the present case is irrelevant to be discussed and even if it is assumed that the petitioner is having surplus accommodation on the first and second floor, he can only be asked to shift his Baithak-cum-drawing room but the fact remains that he is having 80 sq. ft. in his possession at present for the purposes of the office and the other space available can not be used in connection with the said portion and, thus, it has been established on record that the petitioner is having no alternative reasonable suitable accommodation for the purpose of running his office.
G. It has been further contended that the present case is case of additional accommodation and, therefore, leave to defend application ought to be granted. There is no dispute regarding the principal that ordinarily leave should be granted when the case is for additional accommodation. However, same is not universal principle and is not applicable to the facts and circumstances of each case. In the present case, the petitioner is having only 80 sq. E no. 74/2010 Page 27/31 Sh. Rajiv Sharma vs. Sh. Ramesh Kumar & Ors.
ft. at present which can be used for the purpose of office and he is having another open space in the form of covered verandah marked as Mark-A (suit property) in the site plan which is also about 80 sq.ft. But said portion Mark-K is directly connected with the portion Mark-A i.e. suit shop as there is a door in between two portions. Furthermore, the portion Mark-A has direct entry from the main road and, thus, is no way having any hinderence from any corner and it can be safely said that the said portion is more suitable than the portion already occupied for the office if the factum of its interconnection with the portion-K is considered simultaneously and, thus, area become about 180 sq. ft. i.e. almost double to the portion in occupation of the petitioner at present for the purpose of office-cum-baithak. It is also well settled law as discussed hereinabove that the petitioner is the best judge of his requirement and neither the court nor tenant can dictate its own terms and landlord can not be compelled to squeeze his requirement for the convenience of the tenant and admittedly the petitioner is a practicing advocate and he requires atleast office, consultation room, library as well as sitting arrangement for the clients and, thus, his choice of the suit shop can not be doubted and, thus, petitioner has established his bonafide requirement on record.
H. One another ground has been taken by the respondents E no. 74/2010 Page 28/31 Sh. Rajiv Sharma vs. Sh. Ramesh Kumar & Ors.
that the petitioner is also in possession of one property in the are of Chandni Chowk in Ballimaran but no detail has been disclosed of the said property and, thus, it appears that the said ground has been taken for the sake of defence without having any substance.
I. The next ground taken is that the petition lacks material particulars but it has not been disclosed as to how the material particulars are not there in the petition. Perusal of the petition makes it clear that petitioner has alleged all the necessary ingredients- his ownership, non availability of alternative suitable accommodation and his bonafide requirement and, thus, the said ground appears to have been taken for the sake of defence without having any substance.
J. The legal objection has been taken that the petition is bad for mis-joinder of respondents no. 6 to 9. However, there is no denial that they are not the legal heirs of original tenants and, thus, it can not be said that petition is bad for mis-joinder of the necessary parties.
K. The next ground taken is that the tenancy in favour of the present respondents is perpetual in nature according to the Rent Agreement entered into between the parties dated E no. 74/2010 Page 29/31 Sh. Rajiv Sharma vs. Sh. Ramesh Kumar & Ors.
08/09/1989. However, the said ground appears to be totally frivolous as there is no such recital in the said rent agreement but contrary to that in Clause-10 it has been specifically mentioned that the tenant will deliver quite and peaceful vacant possession of the shop on the expiry/termination of the Lease Agreement in accordance with Sec. 106 of the Transfer of Property Act and admittedly the said Rent Agreement is not registered one and for a perpetual tenancy in respect of immovable property, it is settled that the document must be registered one.
31. No leave to defend application has been filed on behalf of the respondents no. 6 to 9, therefore, the contents of the petition are deemed to have been admitted by them.
32. In the light of aforesaid discussion, this Court is of the opinion that the respondents have failed to raise any triable issue and defence taken by them are moonshine and illusory. On the other hand, petitioner has established on record his ownership qua the suit property, relationship of landlord and tenant between the parties, bonafide requirement as well as non availability of alternative reasonable suitable accommodation. Accordingly, leave to defend application filed on behalf of the respondents is hereby dismissed.
E no. 74/2010 Page 30/31Sh. Rajiv Sharma vs. Sh. Ramesh Kumar & Ors.
33. In consequence thereof an eviction order is passed U/s 14 (1) (e) of the D.R.C. Act in favour of the petitioner and against the respondents in respect of one shop measuring about 100 sq. ft. bearing private number 1, on the ground floor of property bearing no. 51-AF also called F-51A, Kolhapur Road, Kamla Nagar, Delhi-07 as shown in red colour in the Site Plan Ex. P-1 (as put by the court itself today) attached with the petition. However, this order shall not be executable before the expiry of six months from the date of this order as provided U/sec. 14 (7) of D.R.C. Act. The order be sent to the server (www.delhidistrictcourts.nic.in).
File be consigned to Record Room.
Announced in open court
on 6th January, 2012 Devendra Kr. Sharma
A.R.C.(North)/Delhi.
(1+2 separate copies are attached).
E no. 74/2010 Page 31/31
Sh. Rajiv Sharma vs. Sh. Ramesh Kumar & Ors.
E no. 74/2010
RAJEEV SHARMA VS. RAMESH KUMAR & ORS.
Date: 06/01/2012
Present: None.
Vide separate order of even date, leave to defend application filed on behalf of respondents is dismissed.
In consequence thereof an eviction order is passed U/s 14 (1) (e) of the D.R.C. Act in favour of the petitioner and against the respondents in respect of one shop measuring about 100 sq. ft. bearing private number 1, on the ground floor of property bearing no. 51-AF also called F-51A, Kolhapur Road, Kamla Nagar, Delhi-07 as shown in red colour in the Site Plan Ex. P-1 (as put by the court itself today) attached with the petition. However, this order shall not be executable before the expiry of six months from the date of this order as provided U/sec. 14 (7) of D.R.C. Act. The order be sent to the server (www.delhidistrictcourts.nic.in).
File be consigned to Record Room.
Devendra Kr. Sharma A.R.C.(North)/Delhi.
E no. 74/2010 Page 32/31