Delhi District Court
Smt. Saira (Widow) vs Page 1 Of 29 Saira & Ors. Vs. Riyazuddin & ... on 6 August, 2016
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In the Court of Ms. Namrita Aggarwal
CCJ Cum Additional Rent Controller1 (Central)
Tis Hazari Courts, Delhi.
Case No. E165/15
Unique I.D. No. 02401C0570902012
In the matter of :
1. Smt. Saira (Widow)
W/o Sh. Ahsan Elahi
2. Mst. Suraiya D/o Late Sh. Ahsan Elahi
W/o Sh. Mohd. Akhlaque
R/o 6237, Gali Jharsaiyan, Quresh Nagar,
Sadar Bazar, Delhi110006.
3. Mst. Shehnaz W/o Mohd. Nafis
R/o 7331, Second Floor, Gali Gurdwara Wali,
Quresh Sadar Bazar, Delhi110006.
4. Mst. Shabnam W/o Mohd. Rehan,
R/o 7347, Gali Khatian Quresh Nagar,
Sadar Bazar, Delhi110006.
5. Miss. Sunehra D/o Late Ahsan Elahi
6. Mr. Allah Wala @ Mohd. Rizwan
7. Mohd. Elahi
8. Dr. Fazle Elahi
9. Mohd. Imran
Widow of, all sons & D/o Late Ahsan Elahi
Petitioner no. 1 & 3 to 9.
R/o 7609, 1st Floor, 738586,
Quresh Nagar, Sadar Bazar, Delhi06. ...........Petitioners
Versus
Page 1 of 29 Saira & Ors. Vs. Riyazuddin & Ors. E. No. 165/15
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1. Riyazuddin,
2. Mirajuddin, respondent no. 2
through his guardian Miftauddin
Respondent no. 3 in the petition
3. Miftauddin
4. Chiraguddin, All sons of late Ghayasuddin,
All R/o 5109, Gali Qudratullah,
Quresh Nagar, Sadar Bazar, Delhi. ...........Respondents
Date of Institution : 07.12.2012
Date of reserved for judgment : 12.07.2016
Date of Judgment : 06.08.2016
Decision : Allowed
JUDGMENT
1. Vide this judgment, I shall dispose off eviction petition filed by the petitioners Mst. Saria & Ors. Against the respondents Riyazuddin & Ors, u/s 14(1)(e) Delhi Rent Control Act, 1956 [in short, 'the Act'].
2. Eviction petition has been filed by the petitioners Mst. Saira & Ors. against the tenants/respondents Riyazuddin & Ors. in respect of tenanted premises, i.e., one shop measuring 116 sq. yds, on the ground floor of property bearing no. 7609, Quresh Nagar, Sadar Nala Road, Sadar Bazar, Delhi06, as shown in colour red in the site plan annexed alongwith the petition on the ground of bonafide requirement under Section 14 (1) (e) of the DRC Act.
Ownership and landlordtenant relationship.
3. The case of the petitioners is that the grandfather/grandmother of petitioners no. 2 to 9 and the fatherinlaw/motherinlaw of petitioner no. 1 were the owners of the suit Page 2 of 29 Saira & Ors. Vs. Riyazuddin & Ors. E. No. 165/15 3 property and had died leaving behind father of petitioners no. 2 to 9 and husband of petitioner no. 1 and Smt. Mussavira Khatton wife of Late Sh. Sharfuddin as their legal heirs. That on 04.12.2002, the compromise was effected between the deceased husband of petitioner no. 1 and Smt. Mussavira Khatoon in the court of Sh. Sanjeev Kumar Malhotra, the then Ld. Civil Judge, Delhi, wherein Smt. Mussavira Khatoon had extinguished/left her share from property no. 7609, Quresh Nagar, Sadar Nala Road, Sadar Bazar, Delhi including the tenanted portion of the suit property and had received claim over property no. 73817386, Quresh Nagar, Near Ghante Wali, Sadar Bazar, Delhi. Copy of the said compromise deed is placed on record. Thus, the husband of petitioner no. 1 became the absolute owner of the suit premises comprising of the tenanted portion. That late Sh. Ahsan Elahi, husband of petitioner no. 1 expired on 10.03.2006 and the petitioners became the owners of the entire property no. 7609 and part property no. 7381 7386, Quresh Nagar, Sadar Bazar, Delhi by way of inheritence. That father of the respondents late Hafiz Ghayasuddin was a tenant with respect to one shop measuring 116 sq. yds. on the ground floor of the suit property and he expired leaving behind respondents as his legal representatives. The respondents inherited the statutory tenancy rights in respect of the said premises.
Bonafide requirement.
4. It is averred by the petitioners that the suit premises is bonafidely required for the use and professional needs and requirements of petitioners no. 7 & 8. That the petitioner no. 7 is a practicing advocate aged about 42 years, who started his practice in the year 1998 in Delhi. Presently, petitioner no. 7 is carrying on his practice from a small office measuring 6' x 12' sq. ft. on the ground floor of property bearing no. 7386 in Quresh Nagar, Sadar Bazar, Delhi as the husband of petitioner no. 1 was also the owner of part property (i.e., 21 sq. yds. upon which three stories are built up) in premises no. 73817386, Quresh Nagar, Sadar Bazar, Delhi. That petitioner no. 7 is also in possession of one room measuring 8' x 16' on the first floor of the said property which is used by him as residence alongwith his wife and two children. That the ground floor of 21 sq. yds. in property no.
Page 3 of 29 Saira & Ors. Vs. Riyazuddin & Ors. E. No. 165/15 473817386, Quresh Nagar, Sadar Bazar, Delhi comprises of two shops and one office of petitioner no. 7. First floor consists of one room, kitchen and bathroom used by petitioner no. 7 for residence. Second floor also consists of one room with kitchen and bathroom used by petitioner no. 8 alongwith his family for their residence and third floor also consists of one room with kitchen and bathroom which is used by petitioner no. 9 alongwith his family for residential purpose. One shop measuring 8' x 12' on the ground floor of the said property is in possession of petitioner no. 9, who is running business of general store from the said shop and another shop measuring 3' x 6' is in possession of joint tenants, namely, Mohd. Furkan, Mohd. Sadiq and Mohd. Aftab, who are jointly running business of general store from the said premises. It is averred that the suit premises is required by petitioner no. 7 for his profession as after 14 years of his practice as an advocate, he cannot pull on with his practice in a small room measuring 6' x 12' since his practice has enhanced considerably and he wants to set up a library in his office alongwith computer room with separate space for the sitting of his clerk and store room. Petitioner no. 7 also wants a separate room for his waiting clients besides a room to be used as consultation and office room. It is further averred that petitioner no. 7 also owns one car and two scooters which are presently parked on road and therefore, if the tenanted premises is got vacated, the petitioner no. 7 can reconstruct and use the same for garage as well.
5. The tenanted premises is also required to meet the requirement of petitioner no. 8 which is practicing doctor in modern as well as unani medicines who passed his BUMS Degree in 1997 and started his practice in 1998. That petitioner no. 8 is doing his practice from several rented accommodations since 1998 and presently running his clinic from property bearing no. 1071, Main Road, Farash Khana, Delhi under landlordship of Sh. Iqbal Ahmed and was paying him Rs. 6,500/ per month as use and occupation charges in terms of partnership deed dated 01.07.2009 entered into between petitioner no. 8 and said Iqbal Ahmed. It is averred that the petitioner no.8 has now gained lot of clientage in the area and therefore, he wants to set up his practice in his own premises which is nearest to his residence as petitioner no. 8 always remain under the threat of vacating the tenanted premises. Further, it is averred that petitioner no. 8 also required separate consultation Page 4 of 29 Saira & Ors. Vs. Riyazuddin & Ors. E. No. 165/15 5 room, dressing room, pharmacy room, assistant room and waiting room alongwith parking space.
6. Petitioners no. 1 to 6 and 9 have no objection if the tenanted premises is bonafidely used by petitioners no. 7 & 8 for their bonafide needs and petitioners no. 7 & 8 have no alternative accommodation in Delhi to meet out their bonafide requirements.
Alternative accommodation.
7. It is averred by the petitioners that husband of petitioner no. 1 was also owner of shop no. 519/1, Vishwaas Nagar, Shahadra, Delhi measuring 10' x 10' and petitioner no. 6 is running his business of meat shop in the said premises after getting it vacated from one tenant Shijauddin in 2009.
8. The first floor of th suit property comprising of tenanted premises consists of two rooms with bathroom and kitchen wherein, in one room petitioner no. 1 alongwith his family are residing and in other room, petitioner no. 1 & 5 alongwith daughter of petitioner no. 2 are residing. Further, the ground floor of premises no, 7609, Quresh Nagar, Sadar Bazar, Delhi under the stairs leading to first floor is used by one Haroon to store his goods/fridge as the said premises is measuring 3' x 7' with height of about 5 ft. and a shutter has been installed by the petitioner in the said premises. The petitioners have also inherited property bearing no. 11551160, Rakab Ganj, Turkman Gate, Delhi which was far away from residence of petitioner and was in a narrow gali. The said premises was in unauthorized occupation of different persons and the petitioners finding themselves unable to get the same vacated, sold the same to Mr. Sami and Mohd. Aslam in the year 2005 & 2008. That petitioner no. 1 is also owner of 7331, 2 nd Floor situated in Gali Gurudwara Wali, Quresh Nagar, Sadar Bazar, Delhi where petitioner no. 3 is residing alongwith his family members. Petitioner no. 2 is residing in property no. 6237, Gali Jharsaiya, Quresh Nagar, Sadar Bazar, Delhi alongwith her husband and one son in which Page 5 of 29 Saira & Ors. Vs. Riyazuddin & Ors. E. No. 165/15 6 her fatherinlaw is an old tenant and other petitioners have no concern with the same.
9. Summons were served upon the respondents, who filed their leave to defend application which was dismissed vide order dated 01.12.2014 and an eviction order was passed in favour of the petitioners and against the respondents. Thereafter, a Revision Petition against the order dated 01.12.2014 was filed by the respondents herein before the Hon'ble Delhi High Court, which was allowed vide order dated 05.05.2015 passed by Hon'ble Ms. Justice Mukta Gupta and the respondents herein were directed to file written statement within four weeks of the said order.
10. Thereafter, respondents filed written statement stating that the petitioners had, in the year 2008 filed a similar petition for eviction on the ground of alleged bonafide requirement which was registered as eviction case No. 132/2008, in the predecessor Court. Leave to defend and contest the said case was granted to the respondents by the learned predecessor of the Hon'ble Court vide order dated 16.01.2010, and the case was posted for trial. Thereafter, revision was filed against the said order and on 30.08.2012, when the said revision petition came up for final hearing, the petitioners after some arguments finding the Hon'ble High Court, in disagreement with them chose to withdraw the said Revision Petition, to avoid adverse observations against the petitioners. The revision petition was then withdrawn on 30.08.2012. Thereafter also the petitioners failed to lead any evidence to support their case, and finally withdrew the same on false assertions that the case suffered from technical defect, though no tehnical defect was disclosed in the application for withdrawal. The Hon'ble Court was pleased to allow the withdrawal of the eviction petition without giving opportunity to the respondent to file reply. No change of circumstances has been shown for filing fresh petition after the withdrawal of the earlier petition on same ground in the year 2012. It is further averred by the respondents that the petitioners have also acquired another property bearing no. 5137, Sadar Nala Road, Sadar Bazar, Delhi, which has been concealed by the petitioners, to mislead the Hon'ble Court. It is further submitted that the petitioners own and possess properties bearing no. 1155 to 1160, Mohalla Raqab Ganj, Turkman Gate, New Delhi, Page 6 of 29 Saira & Ors. Vs. Riyazuddin & Ors. E. No. 165/15 7 which is a built up three storied house with the ground floor being commercial and the upper stories being residential. The said house is built up on an area of over 126 sq. yards/meters. The said house was earlier owned by Sh. Ahsan Elahi and on his death, the said property devolved upon the petitioners who claim themselves to be the legal heirs of late Sh. Ahsan Elahi. The said property and or its alleged sale were concealed by the petitioners in the earlier eviction petition filed before the Court in 2008. It is submitted that the said house is fully accessible with all vehicles. Nor have the petitioners filed with the eviction petition, the documents of alleged sale of the said property, its house tax record and photographs, etc, which if filed would have revealed the falsity of the pleas of the petitioners. Rather, it is now averred that the said property was sold in 2008. Further, it is averred that the petitioners also own and possess built up property bearing no. 7692, Gali Daroga Wali, Sadar Bazar, Delhi. The said property is built up property on over plot of 200 sq. meters. The said property was held in the name of Fatima Bi wife of Karam Ilahi. The said Karam Ilahi was the grandfather of petitioners no. 2 to 9. Both the said Fatima Bi and Karam Ilahi have since expired and the said property on their death, has devolved upon the present petitioners who claim themselves to be the heirs of late Sh. Ahsan Elahi. It is further averred that besides the aforesaid, part of the property bearing no. 73857386, Qasabpura, is also owned and possessed by petitioners, which is also a built up property. The full plan of the said property has not been filed by the petitioners, nor has the portion thereof in possession of the petitioners correctly given. Three shops on the ground floor and three stories built above thereon are all in possession of the petitioners and in fact, part of the portion of the said property so owned and possessed by the petitioner is lying vacant and from one shop PCO business is being run by petitioner no. 9 Mohd. Imran. In another portion of the said property on the ground floor, petitioner no. 7 is operating his office as an Advocate. Moreover, petitioner no. 7 is also having another office at T1D, Tehsil Lane, Tis Hazari, Delhi. The petitioners also own and possess another property no. 6053, Gali Haider Wali, Nawab Road, Basti Harphool Singh, Sadar Bazar, Delhi, which has not at all been disclosed by the petitioners. That besides the fact that the properties of daughters of late Sh. Ahsan Elahi, who are also the petitioners in the present eviction petition, have not been disclosed in the eviction petition. It is submitted that petitioner no.
Page 7 of 29 Saira & Ors. Vs. Riyazuddin & Ors. E. No. 165/15 83 was earlier wrongly shown to be the resident of 7609, First Floor, Quresh Nagar, Sadar Bazar, Delhi. In fact, said petitioner no. 3 alongwith her husband was living in property no. 6305, Gali Amir Baksh Marwari, Quresh Nagar, Sadar Bazar, Delhi, which is a four storied built up house and owned by the said petitioners. Besides the said property, the petitioners also own and possess another four storied built up house bearing no. 7331, Gali Gurdware Wali, Quresh Nagar, Sadar Bazar, Delhi. It is further submitted that the petitioner own and possess built up property bearing no. 7347, Ghasmandi, which is a four storied building at Sadar Nala Road, Sadar Bazar, Delhi and is built on land measuring more than 150 sq. yds. Besides the above, petitioners also own and possess built up property no. 6237, Gali Jharsaiyan, Quresh Nagar, Delhi, which is also a built up property owned and possessed by the petitioners. It is further averred that the petitioners also own and possess property bearing no. 519, Gali No. 1, Vishwas Nagar, Karkari Mord. Shahdara, Delhi. The said property is also a built up property double storied and on the ground floor in one shop, petitioner no. 6 is carrying on the business of sale of meat under the name and style of Fresh Halal Meat, while the rest of the portion is occupied by the said petitioner for residence. That the petitioners have also concealed the fact that they own and possess two built up shops/garages in property no. 6661, Gali Munshi Abdul Rahim, Sardar Nala Road, Delhi. In fact, the said property is also a four storied built up property and appears to have been built up by builders out of which two shops/garages on the ground floor have been purchased by the petitioners. Besides the said vacant shops/garages, petitioner no. 8 is already carrying on and running his clinic at Frash Khana which is very commodatious and another large accommodation with the said petitioner no. 8 at 7228, Gali Garahiya, Quresh Nagar, Delhi. It is further averred that another shop in property no. 7609 was recently let out to a new tenant Mohd. Harun for doing business of Fridge and A.C. It is denied by the respondents that the property no. 73817386 measures only 21 sq. yds., as falsely alleged.
11. Replication to the written statement has been filed wherein the petitioners have denied all the averments made by the respondents in their written statement. Further, it is submitted by the petitioners that the earlier eviction petition filed by the petitioner was not Page 8 of 29 Saira & Ors. Vs. Riyazuddin & Ors. E. No. 165/15 9 similar to the present petition and the same was filed for the bonafide requirement of all petitioners and the order dated 16.01.2010 granting leave to defend to the respondent was non speaking order and for this reason, the same was assailed before the Hon'ble Delhi High court and the rent revision was withdrawn due to delay in hearing of the matter before the Hon'ble High Court as a period of two years passed but no effective hearing was conducted due to non cooperative conduct of the counsel of the respondents before the Hon'ble High Court. It is further submitted that in the earlier eviction petition the residential/commercial need of all the petitioners in respect of the tenanted premises had created a lot of confusion and hence, the petitioners withdrew the earlier eviction petition with liberty to file a fresh petition in respect of bonafide need of the petitioner no. 7 and 8 and the Hon'ble Court of Sh. Vivek Kumar Gulia, the then Ld. ARC, allowed to withdraw the earlier petition with liberty to file a fresh petition in presence of the respondents thereby granting them the opportunity of hearing. However, this order was never challenged by the respondents before any Forum. It is denied that the petitioners have also acquired another property bearing no. 5137, Sadar Nala Road, Sadar Bazar, Delhi. It is submitted that the petitioners have no concern with the property bearing no. 5137, Sadar Nala Road, Sadar Bazar, Delhi. It is further denied that the petitioners own and possess properties bearing no. 1155 to 1160, Mohalla Raqab Ganj, Turkman Gate, New Delhi. It is submitted that the said house is only about 54.14 sq. yds. having half covered area and constructed on the ground floor, consisting of only two residential rooms and a barsati floor only for residential purpose of the unauthorized occupant who are the relatives of the respondent. Copy of the site plan has already been filed by the petitioners alongwith the sale deed in respect of the said property. Moreover, the said house was far away from the residence of the petitioners and was not at any point of time suitable for the bonafide requirement of the petitioners no. 7 &8 for their commercial as well as professional need. The requirement is for professional as well as commercial need and the parking of the vehicles and no one would choose to park their vehicles about 5 k.m. far away from their house and moreover, the said house was in very narrow gali of 4 ft. and no car can enter in the said gali. It is not denied that property bearing no. 7692, Gali Daroga Wali, Sadar Bazar, Delhi was held in the name of Fatima Bi wife of Karim Elahi. It is also not denied that eviction petition is Page 9 of 29 Saira & Ors. Vs. Riyazuddin & Ors. E. No. 165/15 10 totally silent with respect to the said property as the said property was sold on 29.10.1975 by Smt. Fatima Bi to Sh. Mohd. Ashqeen and Mohd. Yasin and in this regard, the certified copy of the sale deed dated 29.10.1975 executed by Smt. Fatima Bi in favour of said purchaser is on record. Further, it is denied that property bearing no. 73857386, Qasabpura, is also a built up property or the full plan of the said property has not been filed by the petitioners nor has the portion thereof in possession of the petitioners correctly given. It is submitted that on the ground floor of the said property three shops exist and in this respect the details have already been mentioned in the eviction petition. It is further submitted that one shop measuring 3' x 6' approximately have been vacated by the statutory tenant after filing the eviction petition and the surrender deed has been filed on record by the petitioners. The said shop is not suitable to petitioners no. 7 & 8 as even a single tablechair cannot be put in the said shop. It is denied that petitioner no. 7 is also having another office at T1D, Tehsil Lane, Tis Hazari, Delhi or the petitioners also own and possess another property no. 6053, Gali Haider Wali, Nawab Road, Basti Harphool Singh, Sadar Bazar, Delhi. It is submitted that the Chamber No. T1D is allotted by the Delhi Bar Association in the name of Saiful Islam, Advocate, who is the Senior Advocate of petitioner no. 7 and the petitioners have alrady filed the Chamber Transfer receipt from its previous allottee to Saiful Islam Advocate. It is submitted that all the details regarding the properties of all the petitioners have been disclosed in the eviction petition itself. Moreover, petitioners no. 7 & 8 have no concern with their married sister's properties in any manner. It is further denied that petitioner no. 3 alongwith her husband was living in property no. 6305, Gali Amir Baksh, Marwari, Quresh Nagar, Sadar Bazar, Delhi, which is a four storied built up house and owned by the said petitioners. It is also denied that besides the said property, the petitioners also own and possess another four storied built up house bearing no. 7331, Gali Gurudwara Wali, Quresh Nagar, Sadar Bazar, Delhi. It is submitted that any of the petitioners have no concern or in possession in respect of property no. 6305, Gali Amir Baksh Marwari, Quresh Nagar, Sadar Bazar, Delhi. It is further submitted that the property bearing no. 7331 belongs to petitioner no. 1, which is residential one and petitioner no. 7 and 8 have no concern with the said property and the details of the said property have already been mentioned in the eviction petition. It is Page 10 of 29 Saira & Ors. Vs. Riyazuddin & Ors. E. No. 165/15 11 further denied that the address of petitioner no. 4 had been falsely described to be resident of 7609 and 738586, Quresh Nagar, Delhi or the petitioner own and possess built up property bearing no. 7347, Ghas Mandi, which is a four storied building at Sadar Nala Road, Sadar Bazar, Delhi, and is built on land measuring more than 150 sq. yds. It is submitted that the present place of residence of the said petitioner has been shown in the array of parties, which is definitely not four storied building and not owned by her as she is residing on the first floor in an area measuring 25 sq. yds., which is owned by her fatherin law and other petitioners have no concern with the same except the petitioner no. 4. It is denied by the petitioners that petitioners also own and possess built up property no. 6237, Gali Jharsaiyan, Quresh Nagar, Delhi, which is also a built up property owned and possessed by the petitioners or the full building plan of the said property has also not been filed by the petitioners. It is submitted that the said property belongs to the fatherinlaw of petitioner no. 2 and the petitioner no. 2 alongwith her family member is residing in the small kothri measuring 6' x 12' sq. yds. which is clearly mentioned in the caption of the petition. It is submitted that the details of property no. 519, Gali no. 19, Karkari Mor, Vishwas Nagar, Shahadra, Delhi, is mentioned in the eviction petition in para no. 18 (a) (11) of the eviction petition. Further, it is averred by the petitioners that the petitioners have no concern with property no. 6661, Gali Munshi Abdul Rahim, Sadar Nala Road, Delhi. It is further submittd that petitioner no. 8 has nothing to do with clinic at 7228, Gali Gharaiya, Quresh Nagar, Delhi, where some other Doctor is running his clinic and the said petitioner is a visiting consultant there which services he has accepted, so that the area persons would acquant with him which might be beneficial to him. Copy of the rent deed in the name of Shiv Majuraf Pandey regarding the said property is already on record. It is denied that another shop in property no. 7609, was recently let out to a new tenant Mohd. Harun for doing business of Fridge and A.C. It is submitted that the said shop/portion has been mentioned by the respondents, in order to mislead the Court. The said portion is simply measuring 3' x 7' sq. yds with height 5'6" in which the said person under need have been allowed to put his Fridge in the summer season and the same is under the staircase/below staircase which is being used for going to the first floor of his premises and the same is of no use for the requirement of petitioner no. 7 & 8.
Page 11 of 29 Saira & Ors. Vs. Riyazuddin & Ors. E. No. 165/15 1212. During evidence, Sh. Surya Prakash, Record Keeper from the Office of Sub Registrar1, Kashmere Gate, Delhi, was examined as PW1, who brought with him registered Sale Deed dated 04.06.2013. This witness could not produce the record with respect to the year 1972 since the said department was transferred.
13. Sh. S. K. Sharma, LDC from the Office of SubRegistrarIII, Asif Ali Road, New Delhi, was examined as PW2, who brought with him a registered Sale Deed dated 02.12.2005 Ex. PW2/1 with respect to property bearing no.11561160, Mohalla Raqab Ganj, Turkman Gate, New Delhi and also registered Sale Deed Ex. PW2/2 with respect to other portion of the same property.
14. PW3, Sh. Surender Kumar, Record Keeper fro Sheikh Sarai Authority, New Delhi, South Zone, brought with him R.C. with respect to vehicle bearing no. DL 3C DL 1528 registered in the name of Mohd. Elahi and got exhibited as Ex. PW3/1.
15. PW4, Sh. Mohd. Zamil, Record Clerk from the Office of Motor Registeration Authority, Mal Road, Delhi, brought with him R.C. with respect to vehicle no. DL 1SL 6702 registered in the name of Mohd. Elahi and got exhibited the same as Ex. PW4/1.
16. PW5, Sh. Santoshi Lal, LDC from the Office of Motor Registration Authority, Sarai Kale Khan, Delhi, brought with him R.C. with respect to vehicle no. DL 6SAM 0785 registered in the name of Mohd. Elahi and got exhibited the same as Ex. PW5/1. Further, the said witness also brought with him record in respect of vehicle no. DL 6SAD 7919 registered in the name of Kumari Rashmi Singh and record in respect of vehicle no. DL 6SAS 3020 registered in the name of Mohd. Imran Qureshi in the name of Mohd. Imran Qureshi and got exhibited the same as Ex. PW5/2 & Ex. PW5/3 respectively.
17. PW6, Sh. Iqbal Ahmed brought with him Partnership Deed dated 19.06.2013 entered into between him and Dr. Fazle Elahi, photocopy of which is Ex. PW6/1.
Page 12 of 29 Saira & Ors. Vs. Riyazuddin & Ors. E. No. 165/15 1318. PW7, Sh. Santoshi Lal, LDC from the Office of Motor Registration Authority, Sarai Kale Khan, Delhi, brought with him record in respect of vehicle bearing registration no. DL 6SAD 7918 registered in the name of Dr. Fazle Elahi, computer generated copy of which is Ex. PW7/1.
19. PW8, Sh. Shawaz Ahmed, UDC from the Office of Delhi Bhartiya Parishad, Tibiya College, Karol Bagh, New Delhi, brought with him registration certificate of Dr. Fazle Elahi and is ID Card issued by Parishad, copy of which is Ex. PW8/1 (colly.).
20. PW9, Sh. Shivajit, Record Attendant, Department of Delhi Archives situated at 18A, Satsang Vihar Marg, Special Institution Area, New Delhi, brought with him documents exhibited as Ex. PW9/1, Ex. PW9/2 and Ex. PW9/3.
21. PW10, Ms. Nirmala Rani, Food & Supply Officer, Circle22, Ballimaran, Civil Supply Building, Tis Hazari, Delhi, brought with her Ration Card in the name of Mohd. Alhlak son of Late Shafiquddin and Ration Card in the name of Mohd. Nafis son of late Babuddin got exhibited the computer generated copy of the same as Ex. PW10/1 and Ex. PW10/2 respectively.
22. PW11, Sh. Prahlad, UDC, from the office of MCD, House Tax Department, SP Zone, Delhi, brought with him Survey Reports of property bearing no. 6237, Quasab Pura, Sadar Bazar, Delhi, property bearing no. 7228, Quasab Pura, Sadar Bazar, Delhi and property bearing no. 6305, Quasab Pura, Sadar Bazar, Delhi, copy of which are exhibited as Ex. PW11/1, Ex. PW11/2 and Ex. PW11/3 respectively.
23. Sh. Mohd. Elahi stepped into the witness box as Ex. PW12, who deposed on the lines of the petition. Further, he relied upon the following documents :
1) Copy of compromise dated 04.12.2002 : Ex. PW12/A
2) Site plan of the suit premises : Ex. PW12/B
3) Site plan of property bearing no. 7386, Quresh Nagar, : Ex. PW12/C Sadar Bazar, Delhi
4) Site plan of property no. 73817386, Quresh Nagar, : Ex. PW12/D Sadar Bazar, Delhi Page 13 of 29 Saira & Ors. Vs. Riyazuddin & Ors. E. No. 165/15 14
5) Surrender Deed dated 06.03.2013 : Ex. PW12/E
6) Copy of the enrollment certificate of petitioner no . 7 : Ex. PW12/F as an Advocate
7) Copy of registration certificate of vehicles in the name : PW12/G to PW12/I of petitioner no. 7
8) Partnership Deed dated 01.07.2009 : Mark 'C'
9) Copy of the registration certificate of vehicles belong : Ex. PW12/K & PW12/L to petitioners no. 8 & 9
10) Copy of the site plan of property no. 519/1, Vishwas Nagar, : Ex. PW12/M Shahdra, Delhi.
11) Copy of site plan of the shop under the staircase in premises : Ex. PW12/O no. 7609, Quresh Nagar, Sadar Bazar, Delhi.
12) Copy fo Sale Deed in respect of property bearing no. 7331, : Ex.PW12/O1 Iind Floor situated in Gali Gurdwara Wali, Quresh Nagar, Sadar Bazar, Delhi.
13) Copy of order dated 08.10.2012 : Ex. PW12/P
14) Site plan in respect of property no. 7692, Gali Munshi Abdul : Ex. PW12/Q
Rahim, Quresh Nagar, Sadar Bazar, Delhi.
15) Rent Agreement dated 15.11.2011 : Mark 'D'
16) Rent Deed dated 15.11.2011 : Mark 'A'
17) Photocopy of a photograph : Mark 'B'
18) Photograph of shop forming part of property no. 738186 : Ex. PW12/U
19) Receipt of Delhi Bar Association with regard to transfer of : Ex. PW12/V
chamber
20) Site plan of property no. 7331, Gurdware Wali Galii, Quresh : Ex. PW12/W
Nagar, Sadar Bazar, Delhi.
24. The respondent Sh. Miftahuddin entered into the witness box as RW1 and deposed on the lines of written statement. Further, he relied upon the following documents :
1) Certified copy of eviction petition no. 132/2008 : Ex. PW12/RX1
2) Affidavit filed by petitioner no. 7 in the petition bearing : Ex. RW1/2 no. 132/08
3) Certified copy of order granting leave to defend in : Ex. RW1/3 eviction petition no. 132/08
4) Postal cover : Ex. PW12/RX4
25. Proviso(e) to Section 14(1) is a special provision which has been enacted by the legislature for the class of landlords who require the premises genuinely and their requirements is bonafide and they do not have any suitable accommodation. The essential ingredients for attracting the proviso(e) of the section 14(1) are:
(a) The said premises are bona fide required by the landlord either for himself off or his family member.Page 14 of 29 Saira & Ors. Vs. Riyazuddin & Ors. E. No. 165/15 15
(b) The landlord or the family member has no other reasonable suitable accommodation.
These twin thresholds are to be satisfied conjunctively in order to attract the provisions of section 14(1)(e) and the absence of even one of the said ingredients clearly makes the said provision inapplicable.
The Satisfaction of the two requirements bonafide need and no reasonably suitable accommodation has been time and again emphasized by the Supreme Court of India in several cases and more recently in the case Deena Nath Vs. Pooram Lal, V(2001) SLT 195=(2001)5 SSC705, wherein the Supreme Court observed thus:
"The legislature in enacting the provision has taken ample care to avoid any arbitrary or whimsical action of a landlord to evict his tenant. The statutory mandate is that there must be first a requirement by the landlord which means that it is not a mere whim or a fanciful desire by him; further, such requirement must be bonafide which is intended to avoid the mere whim or desire. The 'bonafide requirement' must be in praesenti and must be manifested in actual need which would evidence the Court that it is not a mere fanciful or whimsical desire. the legislative intent is made further clear by making the provision that the landlord has not other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. This requirement lays stress that the need is pressing and there is no reasonably suitable alternative for the landlord but to get the tenant evicted from the accommodation . Similar statutory provision is made in Subsection(e) of Section12(1) of the Act in respect of accommodation let unambiguous,the Court is duty bound to examine not merely the requirement of the landlord as pleaded in the eviction petition but also whether any other reasonably suitable nonresidential accommodation in his occupation in the city/town is available. The judgment/order of the Court/authority for eviction of a tenant which does no show that the Court/authority has applied its mind to these statutory requirements cannot be sustained and the superior Court will be justified in upsetting such judgment/order in appeal/second appeal/revision. Bonafide requirement, on a first look, appears Page 15 of 29 Saira & Ors. Vs. Riyazuddin & Ors. E. No. 165/15 16 to be a question of fact. But in recording a finding on the question the Court has to bear in mind the statutory mandate incorporated in Section 12(1)(f). If it is found that the Court has not applied the statutory provisions to the evidence on record in its proper perspective then the finding regarding bonafide requirement would cease to be a mere finding of fact, for such erroneous findings illegally arrived at would vitiate the entire judgment".
26. The principals requiring considerations for grant of leave to defend application in the eviction petition have been laid down by the Hon'nble Supreme Court wayback in the year 1982 in the case of Charan Dass Duggal v. Brahma Nand, 21 (1982) DLT 378 and which have been reiterated in various judicial pronouncements and can be noted thus:
"What should be the approach when leave to defend is sought for? There appears to be a mistaken belief that unless the tenant at that stage makes out such a strong case as would nonsuit the landlord, leave to defend is sought for, the tenant must make out such a prima facie case raising such pleas that a triable issue would emerge and that in our opinion should be sufficient to grant leave. The test is the test of a triable issue and not the final success in the action(see Santosh Kumar V. Bhai Mool Singh). At that stage of granting the leave parties rely in support of their rival contentions on affidavits and assertions and counterassertions on affidavits may not afford such incontrovertible evidence to lead to an affirmative conclusion one way or the other. Conceding that when possession is sought for on the ground of personal requirement, an absolute need is not to be satisfied but a mere desire equally is not sufficient. It has to be something more than a mere desire. And being an enabling provision, the burden is on the landlord to establish his case affirmatively."
It is also settled that the at the stage of granting leave to defend, the test that is applied is whether in the facts disclosed in the affidavit, filed seeking leave to defend, prima facie shows that the landlord would be dis entitled to obtain an eviction order and Page 16 of 29 Saira & Ors. Vs. Riyazuddin & Ors. E. No. 165/15 17 not, where at the end, the defence taken by the tenant may fail. If the application filed under Section 25B disclosed some substantial triable issues, then it would be grave injustice to brush them outrightly, without testing the veracity of the claims made by the tenant/applicant. The law in this regard is well settled in various pronouncements and reference can also be made to Inderjeet Kaur V. Nirpal Singh, VII(2001) SLT 602=(2001) 1 SCC 706, wherein it was held as under:
" A landlord, who bona fidely requires a premises for his residence and occupation should not suffer for long waiting for eviction of a tenant. At the same time, a tenant cannot be thrown out from a premises summarily even though prima facie he is able to say that the claim of the landlord is not bona fide or untenable and as such not entitled to obtain an order of eviction. Hence the approach has to be cautious and judicious in granting or refusing leave to defend to a tenant to contest an eviction petition within the board scheme of Chapter IIIA and in particular having regard to the clear terms and language of Section 25B(5)".
Further, there is also no dispute with regard to legal proposition that if the tenant bring up some well fonded and worth considering subsequent events to the notice of the Court, these need to be considered, and not ignored, for the purpose of examining and evaluating the bona fide requirements of the tenanted premises of the landlord. Reference can be made here to the decision of the Supreme Court in the case of Hasmat Rai V. Raghunath Prasad, (1981) 3 SCR 605, wherein it was held that:
"If the tenant is in a position to show that the need or requirement no more exists because of subsequent events, it would be open to him to point out such events and the Court including the appellate Court has to examine, evaluate and adjudicate the same. Otherwise the landlord would derive an unfair advantage. An illustration would clarify what we want to convey. A landlord was in a position to show he needed possession of demised premises on the date of the suit as well as on the date of the decree of the trial Court. When the matter Page 17 of 29 Saira & Ors. Vs. Riyazuddin & Ors. E. No. 165/15 18 was pending in appeal at the instance of the tenant, the landlord built a house or bungalow which would fully satisfy his requirement. If this subsequent event is taken into consideration, the landlord would have to be nonsuited. Can the Court shut its eyes and evict the tenant? Such is neither the spirit nor intendment of Rent Restriction Act which was enacted to fetter the unfettered right of reentry. Therefore when an action is brought by the landlord under Rent Restriction Act for eviction on the ground of personal requirement, his need must not only be shown to exist at the date of the suit, but must exist on the date of the appellate decree, or the date when a higher Court deals with the matter.
During the progress and passage of proceeding from Court to Court if subsequent events occur, which if noticed would non suit the plaintiff, the Court has to examine and evaluate the same and mould the decree accordingly".
27. Though, I am conscious of the fact and to which, there is no dispute that the landlord is the best judge of his affairs and also choices, and the tenant cannot dictate as to how the landlord has to live and utilize his premise; but, at the same time, it is also settled principles of law in such cases that the mere wish or desire of the landlord or his decision to get the tenanted premises vacated is not the decisive factor. It is not that whatever he would say, in every case, would be taken to be a gospel truth. If that was so, then, on the mere asking of every landlord that he needs the premises for setting up an office for his or his family member's business and he is the judge and master of his decisions and choices, the statutory protection afforded to the tenant, would become meaningless. That is not the intent of the legislation. The applicability of above proposition is only after the landlord is able to demonstrate that his assertion of requirement of the tenanted premises is authentic and genuine. If he is able to show and demonstrate so, then certainly neither the tenant nor this Court could dictate terms upon him as to how and in what manner he should utilize his premises. The projected requirement of the tenanted premises, based on his subjective decision, is required to be tested by the Court.
Page 18 of 29 Saira & Ors. Vs. Riyazuddin & Ors. E. No. 165/15 19Ownership as well as landlord/tenant relationship.
28. The ownership as well as landlordtenant relationship are not disputed between the parties.
Bonafide requirement.
29. It is averred by the petitioners that the tenanted premises is bonafidely required for professional needs and requirements of petitioners no. 7 & 8. That petitioner no. 7 is a practicing Advocate aged about 42 years who started his practice in the year 1998 and is presently carrying on the same from a small office measuring 6' x 12' sq. ft. on the ground floor of property no. 7386, Quresh Nagar, Sadar Bazar, Delhi since the husband of petitioner no. 1 was a part owner of property bearing no. 73817386, Quresh Nagar, Sadar Bazar, Delhi. The said shop on the ground floor is insufficient for petitioner no. 7 since he is having a long practice and now he wants to set up his fullfledge office having a separate library, computer room, sitting place for clerk, store room, waiting room as well as consultation room, for which larger space is required and which can be done only if the tenanted premises is got vacated. It is further averred that petitioner no. 7 also own a car and two scooters, which he parks on road and if the tenanted premises is got vacated, the petitioner no. 7 can reconstruct and reshape the same and use that portion as garage as well. Further, the tenanted premises is also required for the bonafide requirement of petitioner no. 8, who is a practicing doctor in modern as well as unani medicines who passed his BUMS Degree in 1997 and started his practice in 1998. That petitioner no. 8 is presently doing his practice from several rented accommodations since 1998 and presently running his clinic from property bearing no. 1071, Main Road, Farash Khana, Delhi under landlordship of Sh. Iqbal Ahmed and was paying him Rs. 6,500/ per month as use and occupation charges in terms of partnership deed dated 01.07.2009 entered into between petitioner no. 8 and said Iqbal Ahmed. It is averred that the petitioner no.8 has now gained lot of clientage in the area and therefore, he wants to set up his practice in his own premises which is nearest to his residence as petitioner no. 8 always remain under the threat of vacating the tenanted premises. Further, it is averred that petitioner no. 8 Page 19 of 29 Saira & Ors. Vs. Riyazuddin & Ors. E. No. 165/15 20 also required separate consultation room, dressing room, pharmacy room, assistant room and waiting room alongwith parking space. However, it is averred by the respondents that petitioner no. 7 is already having another office at T1D, Tehsil Lane, Tis Hazari, Delhi and also own and possess property no. 6053, Gali Haider Wali, Nawab Road, Basti Harphool Singh, Sadar Bazar, Delhi, which have been deliberately concealed by the petitioners.
30. I have heard the contentions of both the parties.
31. It is an admitted fact that shop at ground floor of property bearing no.73857386, Qasabpura under the possession of petitioner no. 7 is measuring 6' x 12' (site plan of which has already been filed) and thus, is insufficient for petitioner no. 7 to expand his office having a separate library, computer room, consultation room, etc.. It is also proved by the petitioners that petitioner no. 7 own a car as well as two scooters, the registration certificates of which are also exhibited which he parked on road and if the tenanted premises is got vacated, the petitioner no. 7 can reconstruct and reshape the same and use that portion as garage as well.
32. Further, the contention made by the respondents with respect to property bearing no. T1D, Tehsil Lane, Tis Hazari, Delhi is concerned, the same is a bald averment made by the respondents since the petitioners have filed an allotment letter for chamber no. T 1D, Tis Hazari Courts, Delhi wherein the said chamber has been allotted to one Sh. Divya Darshan Sharma and not to petitioner no. 7 and the said chamber was later on transferred to Sh. Saiful Islam vide receipt 12.09.2012 and thus, the said chamber is not in the name of petitioner no. 7 and therefore, the petitioner no. 7 does not have an additional office at T1D, Tis Hazari Courts, Delhi.
33. It is also averred by the respondents that petitioners also have property no. 6053, Page 20 of 29 Saira & Ors. Vs. Riyazuddin & Ors. E. No. 165/15 21 Gali Haider Wali, Nawab Road, Basti Harphool Singh, Sadar Bazar, Delhi in their possession, whereas, the petitioners have filed sale deed, by virtue of which Mohd. Mukeem had sold the property to Raisa Begum and the petitioner was just a witness to the said sale deed. Perusal of the said sale deed clearly shows that the petitioner no. 7 does not have possession of the said property as well. Therefore, both the contentions of the respondent regarding availability of additional accommodation with petitioner no. 7 for running his office are proved to be mere bald allegation without any substance. The respondents have failed to file even a single document to prove possession of either of these properties, as stated above with petitioner no. 7. Further, it cannot be disputed that a room measuring 6' x 12' cannot meet the requirement of petitioner no. 7, who wants to enhance and expand his practice of advocacy and thus, his bonafide requirement stands duly proved.
34. As far as petitioner no. 8 is concerned, it is averred by the respondents that he has purchased two shops on the ground floor of property bearing no. 6661, Gali Munshi Abdul Rahim, Sadar Nala Road, Delhi and is also carrying on his clinic at Frash Khana and also having another accommodation at 7228, Gali Garahiya, Quresh Nagar, Delhi. Per contra, it is stated by the petitioners that the petitioner no. 8 is running his clinic from property no. 1071, Main Road, Frash Khana, Delhi under the landlordship of Sh. Iqbal Ahmed and is paying a sum of Rs. 7,500/ per month as use and occupation charges in terms of partnership deed dated 01.07.2009. It is asserted that the petitioner no. 8 has now gained a lot of clientage and he wants to set up his own practice in his own premises which is nearest to his residence. It is further submitted that petitioner no. 8 wants to set up his full fledge clinic having separate consultation room for his patients, dressing room, pharmacy room, assistant room, waiting room, etc. Petitioners have also filed partnership deed Ex. PW6/1 executed between petitioner no. 8 and Sh. Iqbal Ahmed, by which it was agreed between both the partners that they would run the clinic in the name of "Faizal Clinic" and petitioner no. 8 shall pay monthly rent to Sh. Iqbal Ahmed for using the said premises. Moreover, it is contended by the petitioners that petitioner no. 8 has nothing to do with Page 21 of 29 Saira & Ors. Vs. Riyazuddin & Ors. E. No. 165/15 22 property at 7228, Gali Garahiya, Quresh Nagar, Delhi where some other doctor is running his clinic and the petitioner no. 8 is merely a visiting consultant there. In order to prove the same, the petitioners have also placed in record document Ex. PW11/2 showing that the said property is not under the ownership/possession of petitioner no. 8.
35. It is further submitted by the petitioners that they have nothing to do with two shops on the ground floor of property no. 6661, Gali Munshi Abdul Rashim, Sadar Nala Road, Delhi. The respondents, in order to prove their contention, have failed to file even a single document or photograph to prove that the petitioners are the owners or in possession of two shops on the ground floor of the said property, meaning thereby that the averment of the respondent with respect to two shops on the ground floor of property no. 6661, Gali Munshi Abdul Rashim, Sadar Nala Road, Delhi are mere bald averments.. Thus, it stands duly proved that the tenanted premises is also required by petitioner no. 8 to set up his own clinic from his own premises nearest to his residence and not be dependent upon the same landlord where he would always be under threat of eviction. Thus, the bonafide requirement of petitioner no. 7 and petitioner no. 8 qua the tenanted premises to start their own independent professions stands duly proved.
36. Further, it is not stated by the respondents that the petitioners have any other accommodation which can be used by them as garage for parking the vehicles in their names and which have been proved to be in which name by the witnesses summoned by the petitioners. Thus, the bonafide requirement of the petitioners to have gargage to park their vehicles also stands duly proved.
Availability of alternative suitable accommodation.
37. Property bearing no. 73857386, Qasabpura, Sadar Bazar, Delhi It is averred by the respondents that the petitioners are in possession of three shops on the ground floor Page 22 of 29 Saira & Ors. Vs. Riyazuddin & Ors. E. No. 165/15 23 and three stories built up area, all in possession of the petitioners. Further, it is submitted that the other portion of the said property which is alleged to have fallen to the share of Mst. Mussavira Khatoon is not being set out. Further, it is contented that part of the property so owned and possessed by the petitioners in the said premises is lying vacant and in one shop PCO business is being run by petitioner no. 9 Mohd. Imran, whereas, in another portion of the said property on the ground floor, the petitioner no. 7 is running his office as an advocate. On the other hand, the petitioners have denied all the averments of the respondents stating that the portion which falls into the share of petitioners is 21 sq. yds., which has been built up to three stories, for which compromise deed was entered into between husband of petitioner no. 1 and Smt. Mussavira Khatoon, who left her share with respect to the suit property, i.e,, 7609, Quresh Nagar, Sadar Nala Road, Sadar Bazar, Delhi and received portion of property bearing no. 73817386, Quresh Nagar, Near Ghante Wali, Sadar Bazar, Delhi. It is further averred that the ground floor of the said property under possession of petitioners comprises of two shops, out of which in one shop petitioner no. 7 is running his office as an advocate. The shop which is used by petitioner no. 7 for his office measures 6' x 12' and one portion measuring 8' x 12' is in possession of petitioner no. 9 who is running his business of general store in the said shop and the third portion is in joint tenancy of Mohd. Furkan, Mohd. Sadiq and Mohd. Abid, who are jointly running business of general store from the said shop. It is further submitted that said shop on the ground floor of property bearing no. 7386 measuring 3' x 6' has been vacated by the statutory tenant by way of surrender deed dated 06.03.2013 but the said property is not suitable for the bonafide requirement of petitioners no. 7 & 8 as it is a very small property. The first floor portion of property no. 73817386 is used by petitioner no. 7 for his residential accommodation and the second floor of the said property is used by petitioner no. 8 and his family members and third floor is used by petitioner no. 9 and his family members for residential accommodation. Hence, none of the floors of the said property is lying vacant which can be used by the petitioners no. 7 & 8 for their bonafide requirements. The petitioners have also filed photographs of the surrendered shop measuring 3' x 6', which show that the said shop is not suitable for actual requirement by petitioners no. 7 & 8.
Page 23 of 29 Saira & Ors. Vs. Riyazuddin & Ors. E. No. 165/15 2438. Property bearing no. 519, Gali no. 1, Vishwas Nagar, Karkari Mord. Shahadra, Delhi. It is averred by the respondent that the petitioners also own and possess the said property which is a built up double storied property and on the ground floor, there is one shop from where petitioner no. 6 is carrying on his business of sale of meat and other portion is used by the said petitioner for his residence. Per contra, it is submitted that father of the petitioners no. 2 to 9 was owner of the said property measuring 10' x 10' during his lifetime and petitioner no. 6 is running his business of sale of meat in the said premises after getting it vacated from one tenant in 2009. Even the respondents have admitted that the said property is used by petitioner no. 6, who is carrying on business of sale of meat from there and therefore, it can be said that this property cannot be used by the petitioners no. 7 & 8 to enhance their professions.
39. Two built up shops in property no. 6661, Gali Munshi Abdul Rahim, Sadar Nala Road, Delhi. It is submitted by the petitioners that they have no concern with this property and that no shops have been purchased by the petitioners in the said premises. Further, the respondents have failed to file any proof or substantiate their claim with respect to ownership or possession of the petitioner with respect to the said property and therefore, the contention of the respondent with respect to said property remains mere a bald allegation without any substance.
40. Property bearing no. 6237, Gali Jharsaiyan, Quresh Nagar, Delhi. It is contended by the respondent that the petitioners owned and possessed the said property. Per contra, it is averred by the petitioners that the petitioners neither owned nor possessed the said property no. 6237, Gali Jharsaiyan, Quresh Nagar, Delhi. Further, it is submitted that the said property belongs to fatherinlaw of petitioner no. 2 and petitioner no. 2 alongwith her family members are residing in the small kothri measuring 6' x 12' sq. yds and therefore, the petitioners have no concern with the said property and thus, cannot be Page 24 of 29 Saira & Ors. Vs. Riyazuddin & Ors. E. No. 165/15 25 used by petitioners no. 7 & 8 to meet out their bonafide requirements. Further, document Ex. PW11/1 has been filed to prove that the petitioners have nothing to do with the said property which is under ownership of fatherinlaw of petitioner no. 2, who is married daughter of the petitioners.
41. Property no. 7692, Gali Daroga Wali, Sadar Bazar, Delhi It is averred by the respondents that the said property is built up on a plot of 200 sq. meters which was the property in the name of Fatima Bi wife of Karam Elahi. Karam Elahi was the grandfather of petitioners no. 2 to 9 and after the death of grandfather and grandmother of petitioners no. 2 to 9, the same devolved upon the petitioners. Per contra, it is submitted by the petitioners that they have nothing to do with the said property and that they are neither in possession of the same nor have ownership rights over the same. Petitioners have placed on record Sale Deed dated 29.10.1975 Ex. PW9/1 in order to prove that the said property was sold way back in the year 1975 and thus, petitioners have no right over the said property and thus, the same cannot be termed as an alternative suitable accommodation available with the petitioners to meet out their bonaifde requirements. Petitioners have also denied that the said property was in the name of Sh. Ahsan Elahi and the petitioners have succeeded to it. It is stated that the house tax of the said property has been malafidely deposited by the respondents in the name of grandmother of the petitioners for creating false grounds. Further, the respondents have failed to bring on record any cogent evidence to prove that the petitioners are infact owners of the said property and it is well established that a mere house tax receipt does not devolve any right, title or interest on a person paying house tax of the concerned property as payment of house tax is no proof of ownership. Thus, it is proved that the petitioners are not in possession of the said property and thus, the same cannot be used by petitioners no. 7 & 8 to meet out their bonafide requirements.
42. Availability of additional accommodation with the sisters of petitioners no. 2 Page 25 of 29 Saira & Ors. Vs. Riyazuddin & Ors. E. No. 165/15 26 to 9 - It is also contended by the respondents that petitioners no. 2, 3, 4, & 5 have several properties in their names or in the name of their family members and these properties can be used by the petitioners no. 7 & 8 to meet their bonafide requirement. Further, it is contended that the petitioner no. 3 (daughter of petitioner no. 1) alongwith her husband is living in property no. 6305, Gali Amir Baksh, Marwari, Quresh Nagar, Sadar Bazar, Delhi, which is a four storied built up house. Besides that petitioner no. 3 also owns house bearing no. 7331, Gali Gurdware Wali Quresh Naagar, Sadar Bazar, Delhi. That petitioner no. 4 has been wrongly described to be resident of 7609 and 738586, Quresh Nagar, Delhi whereas, infact, the said petitioner owns and possess property bearing no. 7347, Ghasmandi, which is a four storied building at Sadar Nala Road, Sadar Bazar, Delhi. Per contra,as per the case of the petitioners they have nothing to do with the said properties which are under ownership of their married sisters and their family members. Petitioners have also placed on record documents Ex. PW11/3 to prove that petitioner no. 3, i.e., married daughter of petitioner no. 1 is the resident of the said property and that petitioners no. 2 to 9 have nothing to do with the said property. The petitioners have also placed on record Ration Card in the name of Mohd. Nafis son of late Sh. Bahuddin exhibited as Ex. PW10/2 to prove that petitioners no. 2 to 9 have nothing to do with the said property.
43. Portion in property bearing no. 7609, Quresh Nagar, Sadar Nala Road, Sadar Bazar, Delhi. It has been averred by the respondents that the said property has been recently let out to one tenant, namely, Mohd, Haroon. Whereas, as per the case of the petitioners, the said portion is simply measuring 3' x 7' with a height of 5' ft. (approx.), wherein one Mohd. Haroon is allowed to put his fridge in summer session as the said portion is under the staircase and cannot be used by petitioners no. 7 & 8 for any purpose. Petitioners have also filed photograph with respect to the said portion of property to prove that the said portion cannot be termed as an alternative suitable accommodation available with the petitioners. Further, RW1 himself admitted in his crossexamination tha the said portion is under the staircase leading to first floor which is being used by Mohd. Haroon for keeping his Fridge. However, the respondents, in order to prove the area of the said Page 26 of 29 Saira & Ors. Vs. Riyazuddin & Ors. E. No. 165/15 27 portion, have failed to file any counter site plan to disprove the site plan filed by the petitioners and hence, the site plan filed by the petitioners with respect to the said property deemed to be admitted and thus, the said portion cannot be termed as an alternative suitable accommodation available with the petitioners.
44. Property bearing no. 11551160, Mohalla Raqab Ganj, Turkman Gate, New Delhi. It is averred by the respondents that the petitioners owns this property which is built up to three stories on an area of over 126 sq. yds.. That the said house was earlier owned by Sh. Ahsan Elahi and upon his death, the said property devolved upon the petitioners being the legal heirs of late Sh. Ahsan Elahi. Per contra, it is averred by the petitioners that the said house was built up on a area of about 54.14 sq. yds. having half covered area and constructed on the ground floor only comprising of two residential rooms and a barsati floor, which was under occupation of unauthorized occupants. Further, it is submitted that the said house was sold to Mr. Sami and Mohd. Aslam in 2005 & 2008 as it was far away from the residence and place of work of petitioners and was in a very narrow gali in which even a motorcycle could not go. Further, it is not disputed by both the parties that the said property has already been sold. The petitioner has also filed on record the Sale Deeds Ex. PW2/1 and Ex. PW2/2 to prove that the said property was sold off on 02.12.2005 and 07.08.2008 respectively. Thus, these properties also cannot be said to be available with the petitioners for their bonafide needs. Furthermore, the contention of the respondent that the said property was commercial property built on much larger area is not supported by any documentary proof or survey report of MCD to show that the said property is commercial in nature, since as per the petitioners the same is residential, far away from the residence of the petitioners and thus, not suitable for the petitioners to carry on their professions.
45. It is further averred by the respondents that the petitioners earlier had filed an eviction petition in the year 2008 against the respondents with respect to the same Page 27 of 29 Saira & Ors. Vs. Riyazuddin & Ors. E. No. 165/15 28 property on the ground of alleged bonafide requirement, which was registered as Eviction Case No. 132/2008, copy of which is Ex. RW1/1. That in the said eviction petition, leave to defend application was allowed by the Ld. Predecessor of this Court on 16.01.2010, certified copy of which is Ex. RW1/3. Against the said order, the petitioners had filed Revision Petition but when the said Revision Petition came up for final hearing, the same was withdrawn by the petitioners on 30.08.2012 and thereafter, petitioners failed to lead any evidence in support of their case and withdraw the same as well on the technical grounds. That there are no change of circumstances since then and therefore, the present eviction petition cannot be filed. It is further submitted that the petitioners had concealed ownership of several properties in the said eviction petition and had even sold off several properties even after filing of said eviction petition, proving malafide of the petitioners. Per contra, it is submitted by the petitioners that the said eviction petition which was earlier filed and in which leave to defend application was allowed was filed for the bonafide requirement of all the petitioners. Since the said petition was for the requirement of all the petitioners, there was a great confusion in the said petition due to which it was withdrawn with the permission to file a fresh eviction petition. The application for the withdrawal of the said eviction petition as well as permission to file a fresh petition was filed in presence of the respondents. However, at that time, the respondents had not disputed the said application. It is submitted that the respondents also did not file any revision/appeal against the said order, meaning thereby that the respondents had no issue with the withdrawal of the said eviction petition on technical grounds.
46. The contention of the respondents that there is no change of circumstances is not tanable since the present petition has been filed for the bonafide requirement of petitioners no. 7 & 8, whereas, earlier eviction petition was filed for the bonafide requirement of all the petitioners.
47. As far as contention of the respondents that the petitioners had malafidely sold off Page 28 of 29 Saira & Ors. Vs. Riyazuddin & Ors. E. No. 165/15 29 property bearing no. 11551160, Mohalla Raqab Ganj, Turkman Gate, New Delhi, after filing of earlier eviction petition is concerned, it is averred by the petitioners that the said properties were purely residential properties situated in a narrow gali and far away from the house of the petitioners and thus, was not suitable for the petitioners. Even otherwise, the said properties were under the unauthorized occupation of illegal persons and therefore, same was required to be sold off. Perusal of Sale Deeds of these two properties clearly shows that one property was sold on 02.12.2005, i.e., before passing of judgment titled as "Satyawati Sharma v. Union of India" reported as AIR 2008 SUPREME COURT 3148, wherein "the scope of the section has been enlarged so as to include premises let out for commercial purposes within the scope and ambit of a petition under section 14(1)(e) of DRC Act", meaning thereby that there was no provision of eviction of the tenanted premises for commercial use at that time. Moreover, since these properties were situated in a narrow gali, far away from the house of the petitioners, therefore, these properties cannot be termed as alternative suitable accommodation in comparison to the tenanted premises which is situated in commercial hub and near to the residence of the petitioners.
48. Thus, from the discussion made above, eviction petition filed by the petitioners against the respondents for vacation of the tenanted premises, i.e. one shop measuring 116 sq. yds, on the ground floor of property bearing no. 7609, Quresh Nagar, Sadar Nala Road, Sadar Bazar, Delhi06, as shown in colour red in the site plan annexed alongwith the petition on the ground of bonafide requirement under Section 14 (1) (e) of the DRC Act, is allowed. However, the petitioners would not be entitled to initiate execution proceedings for recovery of possession of the tenanted premises before expiration of six months from today in view of provisions given in Section 14 (7) of the Act.
Announced in open Court (Namrita Aggarwal)
th
on 06 Day of August, 2016. CCJ cum ARC1 (Central)
[This order contains 29 pages.] Tis Hazari Courts, Delhi.
Page 29 of 29 Saira & Ors. Vs. Riyazuddin & Ors. E. No. 165/15