Delhi District Court
Hazari Courts vs M/S Raghubar Dayal Om Parkash on 20 December, 2011
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IN THE COURT OF SH. PRITAM SINGH, ARC (CENTRAL) TIS
HAZARI COURTS, DELHI.
E255/10
20.12.2011
Sh. Jai Kishan Rohtagi
S/o Sh. Pyare Lal,
R/o H.No. 5695/81, Regharpura,
Karol Bagh, New Delhi ...Petitioner
VERSUS
M/s Raghubar Dayal Om Parkash
Through its proprietor,
5695/81, Reghar Pura,
Karol Bagh, New Delhi. ...Respondent
Petition u/s 14 (1) (e) r/w section 25B of Delhi Rent Control Act
1. Date of institution of the case : 25.10.2010
2. Date of Judgment Reserved : 09.12.2011
3. Date of Judgment pronounced : 20.12.2011
JUDGMENT
By this order I shall dispose of an application u/s 25B (3) and (5) of DRC Act filed on behalf of the respondent. The present petition was filed by the petitioners u/s 14 (1) (e) r/w section 25B of the DRC Act on the ground of bonafide requirements. The brief facts of the case are that the petitioner is the owner of property no. 5695/81, Regharpura, Karol Bagh, New Delhi and the E255/10 Page 1 of 14 //2// respondent is the tenant in respect of one shop on the ground floor of the abovesaid property. The premises let out to the respondent for nonresidential purposes. The other coowners executed relinquishment deeds in favour of the petitioner and his brother Sh. Prem Lal Rohatgi. Family of the petitioner consists of petitioner himself, his married two sons namely Girish Kumar and Vijender Kumar and three grand children. Petitioner is contractor by profession and he has no office or shop to run his business for himself. Sh. Vijender Kumar, son of the petitioner is running a chemist shop in shop no. 2 as shown in green color in the site plan. The shop in possession of Sh. Vijender is too small and the shop is also required for him as the said Vijender wants to expand his business. It is further stated that the family of the petitioner is residing on the first floor and the petitioner is residing on the second floor. There is no drawing room, guest room. The portion on the first floor is occupied by his sons. Two rooms having an area of 7.6' X 8.9' and 8.3' X 8.0' are being used as kitchen by the sons. Even the accommodation with the sons to meet their requirement is not sufficient. Hence the premises in question is required bonafide by the petitioner for himself as well as for other family members as the petitioner has no other accommodation in Delhi in his name except the premises in question and the sons are dependent E255/10 Page 2 of 14 //3// upon the petitioner for the purpose of accommodation. The accommodation already available to the petitioner is not sufficient to meet his requirement. It is further stated that the old partition took place between the petitioner and his brother in the year 1983 and the respondent is paying rent to the petitioner. The rent has been paid by the respondent till 31.10.2010.
2. Leave to defend application alongwith affidavit filed on behalf of the respondent. It is stated in the affidavit that the site plan filed by the petitioner is incorrect as the same is not according to the site. It is further stated that the petitioner is not the owner of the tenanted premises and the petitioner is only the colandlord. The petitioner has sufficient and adequate accommodation with him. The present petition is bad for nonjoinder of necessary parties. The suit premises was let out by Sh. Pyare Lal, Late father of the petitioner to Sh. Laxmi Narayan, father of the respondent. Sh. Laxmi Narayan started his business under the name and style of M/s Laxmi Naryan Raghubir Dayal and the shop in question was also registered in the same name. Sh. Laxmi Narayan expired in the year 1978 and after his death his two sons namely Raghbubir Dayal and Sh. Om Prakash was running the business in the shop in question as proprietors of M/s Laxmi Naryan Raghubir Dayal. Sh. Raghubir Dayal expired on 04.11.2008 leaving behind his five legal heirs who also E255/10 Page 3 of 14 //4// become cotenant in the suit premises. The petitioner has also not made his brother Prem Lal Rohtagi as a party, therefore, also petition is bad for non joinder of necessary party. Respondent further stated that the petitioner got constructed two rooms, store, kitchen, bathroom on the second floor in the property in question in March, 2001. The petitioner has again got constructed four more rooms on the second floor in the year 2009 and at present the petitioner and his family members are in possession of six rooms, store, kitchen, bathroom, latrine and open terrace on the second floor. The sons of the petitioner are living separately and do not depend upon the petitioner for residence or in any manner. It is denied that the petitioner is a contractor by profession and he requires any office or shop to run the same on the ground floor. The son of the petitioner is not running a chemist shop. The petitioner wants to increase the rent of the suit premises to Rs. 7,000/ per month, therefore, filed this petition on false grounds.
3. Replication alongwith counter affidavit filed on behalf of the petitioner. It is stated in the counter affidavit that the petition is not bad for non joinder of necessary parties. The respondent became tenant in the property and no business is being carried on in the name of Laxmi Narain Raghubir Dayal. The LRs of Raghubir Dayal were never the cotenants and no right vests with E255/10 Page 4 of 14 //5// them and they never claimed any right or paid any rent. Raghubir Dayal has nothing to do with the premises and they never claimed anything in the premises. It is further stated that Sh. Prem Lal has nothing to do with the portion of the tenanted premises and the portion is owned by the petitioner. Prem Lal is having his separate property and portion. All other averments made in the leave to defend application were denied.
4. The respondent has filed rejoinder to the reply/counter affidavit of petitioner. It is stated that the petitioner already got the vacant possession of five rooms from two tenants in the same property in question. All other averments made in the leave to defend application have been reiterated and reaffirmed and those made in the reply have been controverted.
5. Arguments heard. Record perused and considered.
6. Ld. counsel for the respondent relied upon the following rulings :
(i) Liaq Ahmed Vs. Habeeb Ur. Rehman, 2000 RLR (SC) 316.
(ii) Textile Association (India) Bombay Unit Vs. Balmohan Gopal Kurup and another, AIR, 1990 S.C 2053.
(iii) Mohd. Idrees & Anr. Vs. Mst. Nathi (deceased) through LRs, 90 (2001) DLT 274.
(iv) Uma Devi Khanna & another Vs. Ava Rani Das, 2005 (2) RCR 697. E255/10 Page 5 of 14
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7. The present petition has been filed u/s 14 (1 ) (e) r/w section 25B of DRC Act and in order to succeed in such a petition, petitioner has to prove (i) Ownership of the suit premises ; (ii) Purpose of letting; (iii) Alternative accommodation; and (iv) bonafide requirement;. Let the same be discussed in detail.
8. Ownership & Purpose of letting The respondent contended that petitioner is not the owner of the tenanted premises and the petitioner is only a colandlord. The respondent further contended that the suit premises was let out by Sh. Pyare Lal, Late father of the petitioner to Sh. Laxmi Narayan, father of the respondent. Sh. Laxmi Narayan started his business under the name and style of M/s Laxmi Narayan Raghubir Dayal and the shop in question was also registered in the same name. Sh. Laxmi Narayan expired in the year 1978 and after his death his two sons namely Raghubir Dayal and SH. Om Prakash was running the business in the shop in question as proprietors of M/s Laxmi Naryan Raghubir Dayal. The respondent further contended that Sh. Raghubir Dayal expired on 04.11.2008 leaving behind his five legal heirs who also became cotenant in the suit premises. On the other hand petitioner stated that he is owner/landlord of the shop in question. The respondent has paid rent to the E255/10 Page 6 of 14 //7// petitioner upto October, 2010 and he had issued rent receipts to the respondent. The respondent has admitted that petitioner is a colandlord qua the suit premises. The respondent has also not disputed that the petitioner had issued rent receipts in the name of M/s Raghubir Dayal and Om Prakash to the respondent in respect of suit premises. From these facts, the relationship of landlord and tenant between the petitioner and respondent is established. So far as the contention of the respondent that his father was the original tenant and he was running a business in the name of M/s Laxmi Narayan Raghubir Dayal and after his death his sons namely Raghubir Dayal and Om Prakash became the proprietors in M/s Laxmi Narayan Raghubir Dayal is concerned, the petitioner has not disputed that Sh. Laxmi Narayan, father of the respondent was the original tenant in the suit premises but the petitioner is denied that business was being run in the name of M/s Laxmi Narayan Raghubir Dayal. The petitioner has also denied that legal heirs of Raghubir Dayal became cotenant in the suit premises. It is well settled law that on the death of a tenant his legal heirs become only joint tenant qua the tenanted premises. Therefore, after the death of Late Sh. Laxmi Narayan his son Sh. Om Prakash and Sh. Raghubir Dayal became only joint tenants. It is also well settled law that a landlord is not required to file an eviction petition E255/10 Page 7 of 14 //8// against all the joint tenant and an eviction order is passed against one joint tenant is binding upon other joint tenants, therefore, the contention of the respondent that legal heirs of Sh. Raghubir Dayal are not impleaded as parties in the present petition has no substance. It is held in It was held in Inderpal Khanna Vs. Commander Bhupinder Singh Rekhi, 2008 VIII AD (Delhi) 328 that "It is settled law that on death of tenant, tenancy devolves upon legal heirs as a joint tenancy. LRs are joint tenants and not tenants in common. Where out of many, only one or two LR of deceased tenant are in occupation of premises, an eviction petition by landlord against those who are in occupation of the premises is a valid petition. It is not necessary for landlord to implead all the legal heirs of the deceased tenant or to implead even those who are not in occupation and possession of the premises". The respondent further contended that the petitioner has also not impleaded his brother Sh. Prem Lal Rohtagi as a party, therefore, the present suit is bad for nonjoinder of necessary party. It is well settled law that even a coowner can file an eviction petition against the tenant and the coowner is not required to make all the other coowners as party. If there is any dispute between the coowners of the suit property, the tenant cannot take benefit of the same. The respondent is paying rent to the E255/10 Page 8 of 14 //9// petitioner and as discussed above, there is relationship of landlord and tenant between the petitioner and respondent, therefore, the petitioner is not required to prove absolute ownership as required under the Transfer of Property Act. It was held in Rajender Kumar Sharma & Ors. Vs. Leela Wati & Ors., 155 (2008) Delhi Law Times 383 that "A landlord is not required to prove absolute ownership as required under the Transfer of Property Act. He is required that he is more than a tenant".
9. So far the purpose of letting is concerned, after the judgment of Hon'ble Apex Court in Satyawati Sharma Vs. Union Of India III (2008) SLT 553, an eviction petition is maintainable on the ground of bonafide requirement in respect of the property which were let out for commercial purposes.
10. Alternative accommodation & Bonafide requirement The respondent has contended that the petitioner has sufficient and adequate accommodation in his possession and also in possession of his family members. Respondent further contended that the petitioner has got constructed two rooms, store, kitchen, bathroom on the second floor in the property in question in March, 2001. The petitioner has again got constructed four more rooms on the second floor in the year 2009 and at present the E255/10 Page 9 of 14 //10// petitioner and his family members are in possession of six rooms, store, kitchen, bathroom, latrine and open terrace on the second floor. The respondent further contended in his rejoinder that the petitioner received vacant possession of five rooms from two tenants in the property in question. All these averments repelled by the petitioner. The respondent merely stated that the petitioner has sufficient accommodation with him but where is that sufficient accommodation has not been disclosed. The shop in question is on ground floor and the petitioner wants to start his office and also requires premises for himself and his family members on the ground floor. The petitioner has only one shop on the ground floor measuring 8'9" X 6'3" but the same is in possession of his elder son. The respondent has neither stated nor brought anything on record to show that petitioner has any other shop on the ground floor except the shop which is in possession of his son. It is well settled law that the accommodation on the ground floor is always more suitable for commercial purposes than the accommodation on the upper floors. It is held in Smt. Viran Wali Vs. Sh. Kuldeep Rai Kochhar, Rev. NO. 124/2010 & C.M No. 10165/2010 decided on 12.11.2010 that any business which is being run from the ground floor of the premises, will obviously attract more customers than the business being run from the E255/10 Page 10 of 14 //11// basement. It is settled law, that a tenant cannot dictate the landlord as to how and in what manner the landlord should use his own property.
11. It is held by Hon'ble Supreme Court in Uday Shankar Upadhyay & Ors. Vs. Naveen Maheshwari, VIII (2009) SLT 429 that once it is not disputed that landlord is in bona fide need of premises, it is not for courts to say that he should shift to first floor or any higher floor. Shops and businesses are usually conducted on ground floor, because customers can reach there easily. Court cannot dictate to landlord which floor he should use for his business. As the petitioner is not having any vacant shop on the ground floor and he wants to start his office on the ground floor, thus it is a bonafide need of the petitioner.
12. The respondent has further contended that the sons of the petitioner are living separately and do not depend upon the petitioner for their residence or in any manner. The respondent has not disclosed where the sons of the petitioner are residing and what work or business they are doing. Just stating that the sons of petitioner living separately from the petitioner and do not depend upon the petitioner is not sufficient to raise a triable issue. Even otherwise it is important to mention here that the petitioner also needs accommodation on the ground floor for himself to start office. The respondent E255/10 Page 11 of 14 //12// contended that the petitioner is not a contractor by profession, therefore he does not require any office or shop to run the same on the ground floor. For the sake of argument if it is assumed that the petitioner is not contractor, even then the petitioner has right to start any business or work from the ground floor. It is well settled law that petitioner do not require to disclose that what type of work he wants to start. It was held in Balwant Singh Chowdhary and anothers Vs. Hindustan Petroleum Corporation Limited, 2004 (1) RCR 487 that it is not necessary for the landlord to plead and prove the specific business he wants to set up if the landlord wanted premises for business purposes.
13. The respondent has not filed any site plan, therefore, the site plan filed by the petitioner is deemed to be correct. It is held in Harivansh Lal Vs. Madan Lal, 1997 RLR 383 that "if landlord produces site plan and tenant does not produce counter site plan than landlord plan has to be accepted as correct". The further contention of the respondent that the petitioner wants to increase the rent but the respondent has refused, therefore, the petitioner has filed this false petition and petitioner wants to re let out the suit premises at higher rent. This contention has no substance because there is a protection to the tenant u/s 19 of DRC Act that in case the E255/10 Page 12 of 14 //13// landlord let out or sell the property within three year of its acquisition, tenant can file a petition to get back the possession.
14. In view of the above discussions, the respondent has failed to raise any triable issue. On the other hand, the petitioner has successfully established that the petitioner bona fidely needs the suit premises for himself to run his office/shop from there and also for his family members. The petitioner has no other suitable alternate accommodation with him except the suit premises. Hence the petitioner is entitled for an eviction order u/s 14 (1)
(e) r/w section 25B of DRC Act. The rulings relied upon by the Ld. counsel for the respondent have been considered but the same are not applicable to the facts of the present case.
15. Accordingly, the application of the respondent seeking leave to defend is dismissed and the petitioner is entitled for an eviction order and therefore an eviction order u/s 14 (1) (e) r/w section 25B of D.R.C. Act is passed in favour of the petitioner and against the respondent in respect of the tenanted premises i.e one shop on the ground floor of property bearing no. 5695/81, Regharpura, Karol Bagh, New Delhi, more specifically shown in red color in site plan Ex. C1 (exhibited today while passing the order). However, it is made clear that the petitioner shall not be entitled to get the eviction order E255/10 Page 13 of 14 //14// executed before expiry of six months running from today. No order as to cost.
File be consigned to Record Room.
(Announced in the open court
on 20.12.2011) (Pritam Singh)
ARC/Central/Delhi
E255/10 Page 14 of 14