Delhi District Court
Ms. Renu Chawla vs M/S Mahajan Traders on 16 October, 2010
IN THE COURT OF SH. PRITAM SINGH : ARC (CENTRL) : TIS HAZARI
COURTS : DELHI
E392/09
MS. RENU CHAWLA
W/o Sh. Rajesh Kumar,
R/o 2944, Gali No. 4142,
Beadonpura, Karol Bagh.
New Delhi. ...Petitioner
VERSUS
M/s Mahajan Traders
Through its proprietor, Parveen Gupta
Shop at Ground Floor
2944/4142 (Gali No. 4142),Beadonpura
Karol Bagh, New Delhi ...Respondent
ORDER : By this order I shall dispose of the application for leave to defend moved by the respondent.
2. The brief facts necessary for disposal of the application are that the petitioner has filed the present eviction petition u/s 14 (1) (e) read with 25B of DRC Act in respect of shop bearing No. 2944 Gali No. 4142, Bedoen Pura Karol Bagh, Delhi shown in red color in site plan. The petitioner claiming herself owner/landlady of the said property. It is stated that M/s Mahajan Traders through Sh. S.L Gupta was inducted as tenant in the 2 suit premises and the said tenant was paying the rent of the suit premises to the premises owner/ landlady Smt. Shringar Wati Chawla, who was also the mother of the petitioner. After the death of Smt Shringar Wati Chawla, the said tenant attorned in favour of the petitioner and became the tenant under the petitioner on the same terms and conditions by operations of law. After the death of Sh. S. L Gupta his son namely Sh Praveen Gupta steps into his shoes and took charge of the respondent firm and as is looking after the business of the respondent's firm and is liable for all acts and liability of the respondent's firm.
3. It is further stated that Sh. S.L Gupta, proprietor of M/s Mahajan Traders was earlier paying the rent to the petitioner and the rent receipts were issued in the name of respondent firm by the petitioner. However, Sh. S.L Gupta was habitual defaulter in paying the rent and the petitioner served legal notice of demand dated 07.09.2006 upon the respondent. After the death of Sh. S.L Gupta Sh. Praveen Gupta took charge of the respondent's firm and he sent false and frivolous reply dated 07.12.2006. The suit property is mutated in the name of petitioner in the house tax record of MCD. It is further stated that the suit premises are bonafidely required by the petitioner as the petitioner and her husband are facing great hardship and they have no other reasonable, suitable, vacate 3 accommodation to start their business and neither the petitioner nor any member of her family owns or possess any other property within the national capital of Delhi. The family of the petitioner consist of herself and her husband namely Sh. Rajesh Kumar and there is no other member in the family as unfortunately petitioner has not been blessed with any child. The ground floor of the suit property consists of only 3 shops, which are under the tenancy of different tenants from the life time of the mother of the petitioner who inducted all different tenants on ground and first floor of the suit property decades back during her life time. Apart from the shop under the tenancy of the respondent, more specifically shown in red colour in the annexed site plan, there are two other shops on the ground floor of the suit property. The shop marked 'A' is under the tenancy of Sh. Harsukh Lal, who is the tenant in the said shop for the last more than three decades @ Rs. 200/ pm. The other shop marked 'B' is under the tenancy of Sh. Rupesh Mittal @ Rs. 200/ for the last more than twenty years. On the first floor of the suit property, there is a godown marked 'C', which is under the tenancy of M/s Calcutta Handicrafts @ Rs. 300/ pm for the last more than three decades. Apart from the said three tenanted premises, the remaining portion of the suit property is being used for residential purpose by the petitioner and her husband, who are confined to the narrow limited accommodation in the suit property as shown in site plan.
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4. It is further stated that the husband of the petitioner namely Sh. Rajesh Kumar is a school dropout and have no professional decree or qualificaition and have no permanent source of income. Sh. Rajesh Kumar is employed on daily wages with M/s Singhal Trading Company at 1537/28 Karol Bagh, New Delhi, dealing in Screw Nuts and Auto Parts. The petitioner and her husband are dependent on the meager amount of Rs. 150/ per day, which is also not on regular basis besides limited rent realised from the tenants in the suit property. The suit premises are bonafide required by the petitioner for her husband to start his own business, who has gained knowledge and experience in Screw Nuts and Auto Parts business during his service with M/s Singhal Trading Company and the petitioner's husband is now aged about 40 years and at this juncture of life, his health also allow him start ands et up his own business besides his personal knowledge.
5. In the affidavit filed alongwith leave to defend application it is stated that the petitioner has not come to the court with clean hands and has suppressed the material facts, Moreover, the petition has been filed in the name of M/s Mahajan Traders which is not a legal entity in the eyes of the law and on this sole ground is liable to be dismissed. It is further stated that the petitioner has specifically admitted that the premises was let out to 5 Sh. S.L Gupta, the father of the responded who has since died. It is well settled law that all the legal heirs of a deceased tenant in respect of the commercial premises inherits the tenancy rights in view of the judgment of the Hon'ble Supreme Court of India in the case of Gian Devi Anand Vs. Jiwan Kaur. The deceased Sh. S.L Gupta left behind him besides respondent, two other sons and four daughters who have not been impleaded as parties in the eviction petition. The petition is also not maintainable as the petitioner does not require the premises in question bonafide and the present petition is only a device on the part of the petitioner to get the premises in question vacated. The petition in fact is actuated by malafide and has been filed with ulterior object to pressurize the deponent to concede to the illegal demands of the petitioner to vacate the tenanted premises so that the petitioner may earn handsome premium by re letting the same or to put undue pressure upon the respondent to pay the enhanced rent at the rate commensurate with the market rate). Earlier the petitioner got issued a notice in November , 2006 claiming rent @ Rs. 3000/ pm to the father of the respondent wherein the petitioner never claimed that she required the premises for her alleged needs. Thus the present petition is not maintainable in the eye of law.
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6. It is further submitted that Sh. Rajesh Kumar has no experience/knowledge of any alleged business of screws, nuts and auto parts nor he has ever worked with any alleged firm M/s Singhal Trading Company the alleged certificate dated 18.02.09 filed by the petitioner along with the petition, is a bogus certificate and has been manipulated. No person can continue to work on daily wages continuously for a period of three years and the claim made on the basis of alleged false certificate of seeking eviction is false. The father of the respondent was the oldest tenant and it is absolutely false that Sh. Harsukh Lal is a tenant in one shop for last more than three decades. In fact the other tenants were inducted much later in time than the deceased father of the respondent. No document has been filed to support the claim that the other tenants are three decades old.
7. It is further stated that the premises in question are situated in a market known for handloom items and there is no shop in the locality doing auto parts business. The claim in the petition that the premises are situated in main auto part market is far away form the suit premises and the claim that the prospectus of the business from the suit premises for auto part business is high and bright is also false. It is also submitted that for running such business several lakhs is required and a person claiming to be employed on daily wages cannot arrange such huge amount for starting a 7 new business nor even it has been stated that the petitioner or her husband possessed of any such huge amount for starting alleged business.
8. It is further stated that no documents showing her alleged ownership in respect of the suit property has been filed. The petitioner has not filed any document to show her ownership of the property and thus she has no locus standi to file the present petition. A copy of sale deed filed with the petition allegedly dated 17.021988 reflects that one Smt Shringar Wati had purchased the property. All the legal heirs of Smt . Shringar Wati would inherits the property but no names of any alleged legal heirs of late Smt Shringar Wati have been disclosed. The petition on this ground is not maintainable in the absence of title documents in favour of the petitioner. The alleged mutation of a property would not confer any title in favour of the petitioner nor any alleged mutation letter issued by MCD has been filed on record.
9. It is further stated in affidavit that the allegation that the respondent is defaulter in the payment of rent are absolutely false. It is wrong and denied that the premises are required by the petitioner for her husband or that they are facing any hardship.
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10. The petitioner had filed counter affidavit in reply to affidavit of respondent. It is stated in counter affidavit that the suit premises was originally let out to M/s Mahajan Traders, through Sh. S. L Gupta and the rent receipts were issued in the name of said tenant firm. It is further stated that after the death of Sh. S.L Gupta his son namely Sh. Praveen Kumar stepped into his shoes and took charge of the respondent's firm M/s Mahajan Traders and Sh. Praveen Kumar alone has been looking after business of the respondents firm and he is liable for all acts and liabilities of the respondent's firm. Even respondent has admitted the said facts and has claimed himself to be the sole proprietor of the respondent's firm. It is further stated that no alleged hefty amount is required for starting the said business as stated in the petition. All the allegations made by the respondent are wrong, incorrect and were specifically denied. Further in the past the respondent has admitted that the respondent firm is a tenant under the petitioner, so now it does not lie in the mouth of the petitioner to challenges the title of the petitioner. Even otherwise, the petitioner is the daughter of Smt. Shringar Wati and the petitioner inherited the suit property by virtue of registered Will dated 10.10.1988 executed by her mother Smt Shringar Wati whereby the suit property was bequeathed in the name of petitioner exclusively. The other allegation made in the affidavit by respondent were denied by the petitioner.
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11. The respondent has filed the rejoinder to the reply of the petitioner to leave to defend application in which the respondent has reiterated and reaffirmed the averments made in the leave to defend application and those made in the reply have been controverted.
12. Ld. counsel for respondent relied upon the following rulings:
(i) M/s Miraj Marketing Corporation Vs. M/s Vishaka Engineering and Another 115 (2004) Delhi Law Times 471 (DB) Delhi High Court. It was held, "a proprietorship firm has no legal entity like a registered firm. Suit cannot be instituted in the name of unregistered proprietorship firm and the said suit is to be instituted in the name of proprietor. Their is no statement made in the plaint by the plaintiff as to who is the proprietor of the firm. Sh. Amitabh Sharma was described in the Cause title of the plaint only as an authorised representative. The name of the proprietor of the said proprietorship firm is not given in the plain. The plaint was not signed by the authorised representative. A sole proprietorship firm is not a legal entity which can sue or be sued in its own name. Such suit relating to or against the affairs or claims of a proprietorship concern has to be brought or made against the person who is the sole proprietor of the firm".
(ii) Svapn Constructions Vs. IDPL Employees Cooperative Group 10 Housing Society 127 92006) Delhi law Times 80 Delhi High Court.
"Sole proprietorship firm is not legal entity which can sue in its own name though any two persons claiming or being liable as partners and carrying on business may sue or be sued in the name of firm of which such persons are partners at time of accuring of cause of action. Under Order 30, CPC and under any other provision of Code person carrying on business in name other than his can sue in name other than his. If sole proprietorship firm is not legal entity, petition should be filed by sole proprietor in his name on behalf of his sole proprietorship firm and not in name of sole proprietorship firm. Petition in name of sole proprietorship firm which is not legal entity, not maintainable".
(iii) Gian Devi Anand Vs Jeevan Kumar and Others 27 (1985)Delhi Law Times 460 Supreme Court of India. It was held that the heirs of deceased tenant, in the absence of any provision in the Rent Act to the contrary, will step into the position of a deceased tenant and all the rights and obligation of the deceased tenant including the protection afforded to the deceased under the Act will devolve on the heirs of the deceased tenant. The tenancy rights both in respect of residential premises and commercial premises are heritable.
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(iv) Textile Association (India) Bombay Unit, Vs Balmohan Gopal Kurup and Another, AIR 1990 Supreme Court 2053. In this case the tenant died leaving behind his widow and two sons. A suit for eviction on the ground of bonafide requirement and default in payment of rent filed Respondent one of the sons of deceased tenant was not impleaded and an Exparte decree passed in favour of the landlord. It was held Exparte decree obtained against mother and brother is not binding against respondent. Decree cannot be kept alive against two other tenants. Exparte decree was set aside with direction to implead respondent as party in the suit.
(v) Precision Steel Engg Vs. P remdev Niranjadev 1982 Rajdhani Law Reporter S.C 781
(vi) Inderjeet Kaur Vs. Nirpal Singh 89 (2001) Delhi Law Times 27 (SC)
(vii) Liaq Ahmed Vs. Habeeb Ur. Rehman 2000. Rajdhani Law Reporter (SC) 316
13. Ld. Counsel for petitioner relied upon following rulings:
(i) Attar Chand Jain Vs. Sudhir Kumar Jain 2002 (1) RCR 712. Partnership is nothing but a compendious name given to an association of persons. It by itself is not a legal entity. In fact, it is the partners who carry on the business and for all practical purposes, the rights are vested in them.
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(ii) Firm Vijay Nipani Tobacco House Vs. Sarwan Kumar and Others AIR 1974 Patna 117 (V 61 C 30). Suit against firm. Proprietor/partner not specifically impleaded. It was held " Order 30, Rules 1,3 and 10 make it clear that when a suit is filed in the name of the firm as defendant, the name of firm is merely an assumed collective name representing all partners. In case where there is a partnership or as provided in Rule 10 it is the name and style under which a person is carrying on a business. In both cases the defendants or the defendant, as the case may be can be sued in the name of firm and when so sued the firm included and represents defendants/defendant in their respective personal names. Therefore, the question of nonjoinder of a proprietor or partner by his name does not arise when suit is against the firm".
14. Arguments heard from the Ld. counsel of both the parties. Record perused and considered. The respondent has contended that the petitioner has filed the present petition against M/s Mahajan Traders which is a sole proprietorship concern and not a legal entity in the eyes of law, therefore, no suit /petition can be filed in the name of a sole proprietorship concern. It is further contended that the petition should have been filed in the name of sole proprietor of firm. On the other hand petitioner stated that tenanted premises was let out to M/s Mahajan Traders through its sole proprietor and 13 rent receipts were issued in the name of M/s Mahajan Traders. Sh. Praveen Gupta is its sole proprietor therefore, suit was filed against firm through its sole proprietor.
15. It has been specifically stated in the petition that Sh. Praveen Gupta is proprietor of M/s Mahajan Traders. The petition has been filed by the land lady in her personal capacity. There is no infirmity in the filing of present petition. So far the question of sole proprietorship concern of respondent firm is concerned, as the rent receipts were issued in the name of M/s Mahajan Traders therefore, I do not find any fault in filing of the petition against M/s Mahajan Traders through its sole proprietor Sh. Praveen Gupta.
16. It has been held in Svapan Construction Vs. IDPL Employees Cooperative Group housing (Supra) that, "Sole proprietorship firm is not legal entity which can sue in its own name though any two persons claiming or being liable as partners and carrying on business may sue or be sued in the name of firm of which such persons are partners at time of accuring of cause of action. Under Order 30, CPC and under any other provision of Code person carrying on business in name other than his can sue in name other than his. If sole proprietorship firm is not legal entity, petition should 14 be filed by sole proprietor in his name on behalf of his sole proprietorship firm and not in name of sole proprietorship firm. Petition in name of sole proprietorship firm which is not legal entity, not maintainable". In reality the present petition has been filed against Sh. Praveen Gupta who is sole proprietor of M/s Mahajan Traders, just writing the name of the firm before its proprietor will not cause any prejudice to the respondent. The ruling relied upon by Ld. counsel for respondent are of no help to him as in said ruling the petition/suit was not filed by duly authorized person and name of proprietor was not mentioned.
17. It is further contended by the respondent that the petitioner has not filed any document to show her ownership of the property in question, and as per the sale deed dated 17.02.1988 Smt Shringar Wati has purchased the property in question and after her death all the legal heirs of Smt Shringar Wati inherited the property but no names of any legal heirs of Smt Shringar Wati given in the petition. It is further contended that the mutation of the property does not confer any title in favour of the petition. On the other hand, the petitioner has placed on record a copy of sale deed in the name of Smt Shringar Wati and a copy of registered Will executed by Smt Shringar Wati in favour of the petitioner thereby, bequeathed the suit property in the name of petitioner exclusively. The petitioner has also placed on record 15 the copy of rent receipts issued in favour of the respondents. It is important to mention here that the relationship of landlord and tenant is not disputed. It has been held in Ramesh Chand Vs. Uganti Devi 157 (2009) DLT 450 by the Hon'ble High Court of Delhi, "It is settled proposition of law that in order to consider the concept of ownership under DRC Act, the court has to see the title and right of the landlord qua the tenant. The only thing to be seen by the court is that the landlord has been receiving rent for his / her own benefit and not for on behalf of some one else. If the landlord was receiving rent for himself and not on behalf of some one else, he is to be considered as the owner howsoever imperfect his title over the property may be. The imperfectness of the title of the premises can not stand in the way of an eviction petition U/s 14 (1) (e) of DRC Act, neither the tenant can be allowed to raise the plea of imperfect title or title not vesting in the landlord and that too when the tenant has been paying rent to the landlord. Section 160 of the Evidence Act creates estoppal against such a tenant. A tenant can challenge the title of landlord only after vacating the premises and not when he is occupying the premises. In fact, such a tenant who denied the title of the landlord, qua the premises, to whom he is paying rent, acts dishonesty."
18. In view of the aforesaid discussions there is no merit in the 16 contension of the respondent that the petitioner is not the owner of property in question and the title of the suit property did not vest with the petitioner.
19. The respondent has further contended that the suit premises has been commercially used earlier by Late Sh. S.L Gupta and after his death the property devolved upon all the legal heirs of Late Sh. S.L Gupta. The Late Sh. S.L Gupta left behind besides the respondent, two other sons and four daughters who have not been impleaded as party in this eviction petition. It is further contended that as all the legal heirs were not made parties, therefore, the petition is bad for nonjoinder of necessary parties. There is no dispute that after death of a tenant the tenanted premises devolved upon all his/ her legal heirs and all the legal heirs have joint rights in the tenanted premises. However, it is a settled law that after the death of original tenant, the tenancy devolved upon his legal heirs as joint tenants and all the legal heirs are not required to be impleaded in a petition filed by the landlord. It has been held in Rajender Kumar Sharma & Ors. vs. Leela Wati & Ors., 155 (2008) DLT 383 that Impleadment of Legal HeirsDeath of original tenant, legal heirs inherit the tenancy as joint tenantsOccupation of one of the tenants is occupation of all the joint tenants not necessary for landlord to implead all legal heirs of deceased tenant, whether they are living in property or not Sufficient for landlord to implead only those persons who 17 are living in property as party An eviction petition against one of the joint tenants. All joint tenants are bound by order of Rent Controller as joint tenancy is one tenancy and is not tenancy split into different legal heirs.
20. It is important to mention here that earlier an application U/o 1 rule 10 CPC filed by the brother of the respondent to implead him as a respondent. However the said application was dismissed by this court with an observation that after the death of original tenant the tenancy devolves upon his legal heirs as joint tenants and all the legal heirs are not required to be impleaded in the petition filed by the landlord. The said order was affirmed by the Hon'ble High Court of Delhi therefore, it is clear that there is no need to implead any other LRs of Late sh. S.L Gupta as a respondent and as the tenancy is joint, the eviction order if any, will be binding on all the LRs of Late Sh. S.L Gupta.
21. The respondent further contended that the petitioner does not require the premises in question bonafide and the present petition is only a devise on the part of the petitioner to get the premises in question vacated. It is further contended that the petitioner whose ulterior motive to pressurize the respondent to vacate the tenanted premises so that the petitioner may earn handsome premium by reletting the same and also to put pressure upon the 18 respondent to pay enhanced rent at the rate commensurate with the market rate. It is further contended that earlier petitioner got issued a notice in November, 2006 claiming rent at Rs. 3000/ pm to the father of the respondent wherein the petitioner never claimed that she required the premises for starting the business of her husband. It is further contended that the husband of the petitioner has no experience/knowledge of any business of screw, nuts and auto parts nor he has ever worked with M/s Singhal Trading Company and no person can worked on daily wages continuously for a period of three years. It is further contended that the tenanted premises is situated in the market known for hand loom items and their is no shop doing auto part business. It is further contended that for running such business several lakhs is required and a person claiming to be employed in daily wages can not arrange such huge amount for starting such business
22. On the other hand the petitioner stated that she required the tenanted premises for her husband to start his business, who has gained knowledge and experience in screw, nuts and auto parts business during his service at M/s Singhal Traders Company. The petitioner and her husband have no other sources of income apart from the meager rent from three shops including the shop in question. It is denied that the petitioner needs a huge 19 amount for starting the said business.
23. I do not find any force in the contention of the respondent that petitioner does not require the shop in question bonafidely. The respondent failed to disclose any such fact which shows that the petitioner is having any other business or good source of income. So far the question of re letting the premises in question on higher rent is concerned, there is always remedy available to the respondent u/s 19 of DRC Act. By virtue of section of DRC Act the landlord cannot relet or sale the premises at higher prises before expiry of three years from getting eviction order and in case the landlord after the eviction order, relet the same, the tenant has right to reenter the suit premises. The landlord has a right to start any business, of his choice and at any place where he desires. A tenant cannot be allowed to take plea that there are other tenants also and their tenanted premises are more suitable for landlord. If such plea are allowed than a landlord will never get back any of his property which is required bonafidely by him.
In Ram Babu Aggarwal Vs. Jai Kishan Dass, 2009 (2) RCR 455, The Hon'ble Supreme Court observed;
"However, as regards the question of bonafide need, we find that the main ground for rejecting the landlord's petition for eviction was that in the petition the landlord had alleged that he required the premises for his son 20 Giriraj who wanted to do footwear business in the premises in question. The High Court has held that since Giriraj has no experience in the footwear business and was only helping his father in the cloth business, hence there was no bonafide need. We are of the opinion that a person can start a new business even if he has no experience in the new business. That does not mean that his claim starting the new business must be rejected on the ground that it is a false claim. Many people start new business even if they do not have experience in the new business, and sometimes they are successful in the new business also."
In Sait Nagjee Purushotham & C0. Ltd Vs. Vimalabai Prabhulal and Others (2005) 8 Supreme Court Cases 252 "It is always the prerogative of the landlord that if he requires the premises in question for his bonafide use for expansion of business this is no ground to say that the landlord are already having their 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".
24. In view of the above, it has been established by the petitioner that the 21 petitioner requires the tenanted shops on the ground floor bonafidely for her husband to start the business of screw, nuts and auto parts and the petitioner does not have any other alternate suitable accommodation to start the said business and the requirement of the petitioner of the tenanted shop at the ground floor cannot be said malafide. On the other hand the respondent failed to disclose that the petitioner does not require the shop in question bonafidely and the application seeking leave to defend moved by the respondent is dismissed and an eviction order has passed U/s 14 (1) (e) read with Section 5 of DRC Act in favour of the petitioner and against the respondent in respect of one shop No. 2944 on ground floor, Gali No. 4142, Bedoen Pura, Karol Bagh, New Delhi " more specifically shown in red colour in site plan" Ex. C1 (exhibit today while passing the order). However, it is made clear that the petitioner shall not be entitled to get the eviction order executed before the expiry of six months running from today. No order has as to costs.
File be consigned to record room.
Announced in the open court (Pritam Singh)
ARC/Central/Delhi
16.10.2010