Delhi District Court
S. Inderjit Singh vs Sh. Ranjit Singh Hora on 31 March, 2012
IN THE COURT OF SH. LALIT KUMAR, CCJ-CUM-ARC, CENTRAL,
DELHI.
E-45/2011
S. Inderjit Singh
s/o. Late S. Bhagwan Singh,
r/o. 298, Sector-21A,
Faridabad, Haryana. ...... Petitioner
Versus
Sh. Ranjit Singh Hora
s/o. Late Sh. I.S. Hora
r/o. C-12, East of Kailash,
New Delhi-65. .......Respondent
ORDER
31.01.2012
1. Vide this order, I shall dispose of the application filed on behalf of respondent/tenant for grant of leave to defend the eviction petition under section 25-B (4) of the Delhi Rent Control Act.
2. Brief facts which are relevant for the disposal of present application are that petitioner has filed the present eviction petition under section 14(1) (e) of the Delhi Rent Control Act against the respondent on the averments that he acquired the ownership rights of part of the property known as Jaubbal House at 1-E/5, Jhandewalan Extn., New Delhi-55 under a decree of Delhi High Court of Partition, making an award the rule of the court in the suit no.453-A of 1968 titled as 'Sh.Jaswant Singh vs. Sh.Mahender Singh & Ors." The respondent was inducted as tenant for non-residential/office purposes in respect of the suit premises by the petitioner, more particularly shown in red colour in the site plan, at a monthly rent of Rs.483.25p. The respondent has sublet the tenanted premises to Sh.Satish Lamba. The petitioner field a suit for recovery of possession and mesne-profits against the respondent which was E45/2011 1/13 dismissed by Sh.Samar Vishal, Civil Judge vide order dated 21.05.2010 and after that, an appeal against the said order is still pending for adjudication.
It is further averred that petitioner is an old man of about 77 years of age and has not been able to start his business of sale, purchase and repairs of cars which he wants to do with his younger son Sh.Rubinder Singh. Petitioner is a qualified Engineer but due to paucity of accommodation, he is sitting idle and pulling on his life with difficulty.
It is further averred that Sh.Rubinder Singh and his wife Smt.Anita Singh are educated and qualified persons but for the want of business place, they have not been able to carry on their business. Smt.Anita Singh is compelled to earn her living by giving tuition to children and her husband has no other option but to earn his living by way of working as a commission agent in the sale and purchase of old cars. The rented shop at 1032, Gali no.17018, Nai Wala, Karol Bagh, New Delhi which is measuring 7'x15' is too small to do the business of sale and purchase of cars as there is no space for parking of cars or keeping the record/articles.
It is further averred that Sh.Man Mohan Singh, the elder son of the petitioner is also a graduate having an experience of auto finance but has not been able to start his business. Earlier, he was doing the business of sale and purchase of old cars at 2898, Arya Samaj Road, Karol Bagh, New Delhi (under the tenancy of his mother) but the said premises had to be closed due to action taken by the Govt. against the residential premises being used for commercial purposes.
It is further averred that petitioner himself does not own any property anywhere in Delhi. Though his wife is a tenant in respect of a small at 2898, Arya Samaj Road but the same is lying closed since 2008 due to action taken by the Govt. against the residential premises being used for commercial purposes and otherwise, the same is very small and not suitable for running the business of sale and purchase and repair or E45/2011 2/13 cars.
In view of above, it is submitted by the petitioner that he needs the tenanted premises bonafidely for running the activities himself and also for running the activities of his son/daughter-in-law from the said premises and Both his son and daughter-in-law are dependent upon the him for the commercial space.
3. In the leave to defend application supported by affidavit, the respondent has raised the several objections.
The respondent has contended that petitioner has deliberately and intentionally filed the site plan only in respect of the property under the tenancy of respondent and infact, the property in which suit property is situated is quite a big property having independent units and petitioner has concealed the accommodation available in the building in which the suit property is situated.
The respondent has also contended that the tenant in the premises is Modern Machine tools now a partnership concern w.e.f. 01.07.2006 but the real tenant in respect of suit premises has not been impleaded in the petition.
It is submitted that on 07.10.2008, the petitioner served a legal notice to him wherein petitioner has falsely stated that he has illegally sublet, assign or otherwise parted with possession of tenanted premises to one Sh.Satish Lamba. It is contended that neither in said legal notice dtd.07.10.2008 nor in plaint of the suit for possession, mesne profits filed by petitioner, it has ever pleaded by the petitioner that the premises in question is required by him bonafide.
It is further contended that petitioner is resident of Sector-21A, Faridabad, Haryana where is working as a property dealer.
It is further contended that son of petitioner Sh.Rubinder Singh is doing his own independent business of sale purchase of cars in the name of Rubi Motors in shop no.1032, Gal no.17-18, Nai Wala, Karol E45/2011 3/13 Bagh, New Delhi. The said shop in which the said business is carried out is on 100 ft. wide road in Karol Bagh while there is no ample space in front of the suit premises or nearby. The said son is having his own independent banglow in Section 21, Faridabad. The wife of Sh.Rubinder Singh is qualified teacher and is doing teaching work in Faridabad only.
It is further contended that the elder son of petitioner Sh. Manmohan Singh is doing the sale and purchase of property alongwith his father in Faridabad in Sector-21 A besides his business of sale & purchase of cars in Karol Bagh. It is denied that said business was closed due to action of Govt. It is alleged that from shop no.2898, elder son of petitioner is still doing the business and not even a single shop has been sealed in the entire lane by the Government.
In view of above grounds, it is submitted that petitioner has no bonafide requirement of the tenanted premises and hence, it is prayed that respondent be granted leave to defend the case.
4. In the counter affidavit, the petitioner has denied all the contentions raised by the respondent and reiterated the averments made in the petition. Respondent also filed rejoinder.
5. I have already heard the arguments on the application. During course of arguments, counsel for respondent has cited AIR 2009 Supreme court 2462. On the otherhand, Counsel for petitioner has cited 2008 (2) RCR 534; 2008(2) RCR 346; 2008(2) RCR 84; 2008(2) RCR 118; 155(2008) DLT 383; 2009 VIII AD (Delhi) 445; AIR 2008 SC 773; 167 (2010) DLT 80; 172 (2010) DLT 112; 172 (2010) DLT 551; 172 (2010) DLT 611; 173(2010) DLT 189; 174(2010) DLT 328; 170 (2010) DLT 797 and 168 (2010) DLT 78.
6. In order to succeed in present petition u/s.14(1) (e) read with section 25-B of DRC Act, the petitioner has to prove (i) ownership over E45/2011 4/13 the suit premises; (ii) purpose of letting; (iii) bonafide requirement and
(iv) alternative accommodation.
7. I have seen the entire file carefully and my findings with respect to above mentioned four conditions are as follows:-
8. Ownership over the suit premises:-
As per petitioner, he acquired the ownership rights of part of the property known as Jaubbal House at 1-E/5, Jhandewalan Extn., New Delhi-55 under a decree of Delhi High Court of Partition, making an award the rule of the court in the suit no.453-A of 1968 titled as 'Sh.Jaswant Singh vs. Sh.Mahender Singh & Ors." The respondent has not raised any objection in this regard. Therefore, it is held that petitioner is owner of the suit premises.
However, the respondent has contended that he is in possession of the tenanted premises since 1969 and previously, the premises was under the tenancy of Pal Motors a partnership concern and thereafter, the petitioner after taking premium/pugree from the respondent had changed the tenancy from Pal Motors to Modern Machine Tools under the sole proprietorship of respondent. Later on an agreement was executed between the respondent and petitioner on 25.10.1978 and he was specifically allowed by petitioner to carry on any other industry or business either in the proprietorship or in the partnership in the suit premises. In terms of said agreement, the respondent had changed his proprietorship business to partnership business in the partnership of Sh.Satish Lamba w.e.f. 01.07.2006. Therefore, it is contended that the tenant in the premises is Modern Machine tools now a partnership concern w.e.f. 01.07.2006 but the real tenant in respect of suit premises has not been impleaded in the petition. I have seen the entire file carefully. The respondent himself has admitted that he is in possession of E45/2011 5/13 premises since 1969, therefore, it is clear the respondent is tenant in premises irrespective of the fact by which name and style or nature in which he is carrying on the commercial activities from the tenanted premises. So far as the controversies whether Modern Machine tools is now a partnership concern w.e.f. 01.07.2006 and whether Sh. Satish Lamba is a sub-tenant in the tenant premises, are concerned I feel that the same cannot be decided by this Court as these are not relevant for the present proceedings which have been filed u/s.14(1) (e) of the DRC Act and thus, under present proceedings, this Court is not competent to give findings on these controversies. Therefore, the objection raised by the respondent that Modern Machine Tools is not impleaded in the present petition is dismissed.
9. Purpose of letting The petitioner has averred that the tenanted premises was let out to respondent for office purposes. The respondent has denied the same and submitted that premises was let out manufacturing-cum-office purpose.
I feel that the purpose of letting is no more an issue since the purpose of letting has lost its significance and is no more a stigma in passing an order of eviction in case of bonafide requirement. I am supported by the judgment of Hon'ble Apex Court in Satyawati Sharma vs. Union of India III (2008) SLT 553.
10. Bonafide requirement As per petitioner, he required the tenanted premises bonafidely for himself as he wants to do the business of sale, purchase and repairs of cars alongwith his younger son Sh. Rubinder Singh. The contention of the respondent with respect to petitioner is that he is resident of Sector-21A Faridabad Haryana where he is working as a property dealer. In counter affidavit, the petitioner has denied the same. I E45/2011 6/13 feel that respondent while raising the contention that petitioner is a property dealer, he has failed to file any document i.e. photograph, visiting card, sign-board etc. which suggest that petitioner is doing the business of property dealing. Moreover, the respondent has not disclosed from where i.e. whether from shop or from the premises at Faridabad, the petitioner is doing the alleged business of property dealing. Even otherwise, there is no law of the Country which prohibits a person to do one business at a time. Therefore, the contention of respondent with respect to requirement of tenanted premises by petitioner for himself, is dismissed and in my opinion, the requirement of petitioner of tenanted premises for himself cannot be termed as fanciful.
With respect to his younger son Sh.Rubinder Singh, petitioner has averred that he has not been able to carry on business of sale, purchase and repair of cars due to paucity of commercial accommodation and he compelled to work as a commission agent in the sale and purchase of cars. The contention of the respondent with respect to younger son of petitioner Sh.Rubinder Singh is that he is doing his own independent flourishing business of sale purchase of cars in the name of Rubi Motors in shop no.1032, Gali no.17-18, Nai Wala, Karol Bagh,New Delhi and said shop is suitable to the petitioner as there is ample parking space in front of said shop. In counter affidavit, the petitioner has submitted that shop no.1032 is a small and a rented shop which is not suitable to him. He also submits that in the said shop his son was doing the business till 2004-05 when the MCD objected to the same and the said business had to be stopped and an STD was started but the said STD also lost its business. I feel that while raising the contention that younger son of petitioner Sh.Rubinder Singh is doing the business from shop no.1032, he has not filed any document i.e. photograph, voucher/bill etc. in support to said contention. The respondent has not raised any objection to the effect that shop no.1032 is not a rented shop or that same E45/2011 7/13 is owned by petitioner himself. In the absence of same, this Court has no option except to accept that shop no.1032 is a rented shop. Hence, this Court cannot compel the petitioner to use that shop of which he is not the owner. So far as suitability of shop no.1032 is concerned, the petitioner has placed on record certain photographs to show that said shop is not suitable to him. On the otherhand, respondent has failed to show any document which suggest that there is ample space for parking in front of said shop. Moreover, I feel that if the said shop is not suitable to the petitioner then this Court cannot compel the petitioner to do the business from the shop which is not suitable to him as it is well established proposition of law that landlord is the best judge of his requirement. Therefore, the contention of respondent with respect to requirement of tenanted premises by petitioner for his younger son Sh.Rubinder Singh, is dismissed and in my opinion, the requirement of petitioner of tenanted premises for his said son cannot be termed as fanciful.
The petitioner also need the tenanted premises for his daughter-in-law Smt.Anita Singh who has completed certificate course of Art & Culture from the National Museum Institute of History of Art, Conservation & Museology besides her graduation and B.Ed., intends to start a workshop of art and culture. The respondent has contended that she is a qualified teacher and is doing teaching work in Faridabad only. The petitioner in petition himself disclosed that his daughter-in-law Smt. Anita is giving tuition to children but averred that she intends to start a workshop of art and culture and due to paucity of commercial space, she is unable to do so. The petitioner has placed on record copy of certificate course of Art & Culture issued by National Museum Institute of History of Art, Conservation & Museology in the name of Smt.Anita. After perusal of same, it is clear that she is specialized in the work of Art & Culture and hence, in my opinion, if Smt.Anita wants to start her own workshop of art and culture in which she is specialized then this Court cannot prevent her to do so and to compel her to keep giving the tuition to the children.
E45/2011 8/13Therefore, the contention of respondent with respect to requirement of tenanted premises by petitioner for his daughter-in-law, is dismissed and in my opinion, the requirement of petitioner of tenanted premises for her daughter-in-law cannot be termed as fanciful.
In view of above, it is held that requirement of petitioner is bonafide.
11. ALTERNATIVE ACCOMMODATION:-
As per respondent, the petitioner has deliberately and intentionally filed the site plan only in respect to the property under his tenancy. In my opinion, there is no requirement of law which make it compulsory to petitioner to file the entire site plan of property in question.
The respondent has also contended that suit property is a big property having independent units and petitioner has concealed the other accommodation available in the building in which the suit property is situated. In counter affidavit, the petitioner has submitted that he is owner of only of the suit premises and has nothing to do with respect to other portion of said building. I feel that while raising the contentions that suit property is a big property having independent units and petitioner has concealed the other accommodation available in the building in which the suit property is situated, the respondent has failed to disclose the details/ particulars of other alternative accommodation in the suit property which the petitioner has concealed. Even he has not filed site plan of the suit property which suggest that petitioner is having sufficient alternative accommodation which he concealed from this Court. The petitioner clearly mentioned in the counter affidavit that there are two other old tenants under the petitioner in the same building i.e. M/s. Metallurgical Lab Services & Sales Corp. being possession of a portion measuring approx. 20'x8' and Jagdish Kapoor & Sanjay Kapoor being in possession of 2 E45/2011 9/13 cabins) but no space is available to the petitioner or his family members for their own use. The respondent has not raised any contention with respect to above said two tenants. Since, the remaining portion is already in possession of two tenants namely M/s. Metallurgical Lab Services & Sales Corp. and Jagdish Kapoor & Sanjay Kapoor, therefore, the said space cannot be said to be available or lying vacant.
The respondent also contended that shop no.1032, Gali no. 17-18, Nai Wala, Karol Bagh,New Delhi is also available to the petitioner. This contention has already been dismissed while deciding bonafide requirement of the petitioner in preceding para.
The respondent next contended that elder son of petitioner Sh.Manmohan Singh is doing the sale and purchase of property alongwith his father in Faridabad in Sector-21 A besides his business in Karol Bagh. On the otherhand, petitioner has denied the same and submitted that his son Sh.Manmohan Singh was doing the business of sale and purchase of old cars at 2898, Arya Samaj Road, Karol Bagh, New Delhi (under the tenancy of his mother) but the said premises had to be closed due to action taken by the Govt. against the residential premises being used for commercial purposes. The respondent has admitted that said shop is in the tenancy of the wife of the petitioner. Since, the said shop is a rented one, therefore, this Court cannot compel the petitioner to use that shop of which he is not the owner. Moreover, the respondent has not placed on record any document i.e. photograph, invoice/bill etc. which suggest that son of petitioner is still doing the business of sale and purchase of cars from the shop no.2898.
The respondent has contended that all the shops in the line where shop no.2898 is situated, in which the said son of the petitioner is doing business, are functioning and not even single shop has been sealed in the entire land by the Govt. The petitioner has placed on record photographs and site plan to show that only hotels/restaurants/guests houses are functioning in the neighbourhood and there is no office of any E45/2011 10/13 sale/purchase of cars. I have perused the same and satisfy that no business of sale and purchase of cars is going on in the neighbourhood of premises no.2898. Moreover, it is well established proposition of law that a tenant cannot dictate terms to the landlord as to which premises is suitable to him or not.
The respondent has also contented that suit premises is highly unsuitable for running the business of sale, purchase and repair of cars as not even a single car can be parked either in front of the suit premises or near by. The petitioner has denied the same and submitted that in the neighbourhood of the suit premises, already car showrooms, car workshops are functioning and moreover, the tenanted premises is a two side open property with rock facing one of its sides and both the roads are not main roads which make the premises in question ideal for the business of car sale/purchase/repair. The petitioner has placed on record several photographs in support of above submissions. I have seen the photographs and agree with the submissions made by the petitioner that tenanted premises is suitable to him. On the otherhand, respondent has not filed any photograph or site plan which suggest that tenanted premises is suitable to the petitioner or that there is no sufficient space for parking. Therefore, this contention of the respondent is dismissed.
Besides above, the Hon'ble Supreme Court in case of Maganlal vs. Nanasaheb, VIII (2008) SLT 659, observed in para no.16 as under:-
16. This court in Sait Nagjee Purushotham & co. Ltd. v. Vimalabai Prabhulal & Ors., VIII (2005) SLT 559=(2005) 8 SCC 252 held that it is always a 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 landlords are already having their business at Chennai and Hyderabad, therefore, it is not genuine need. Further, it is held that it is not the tenant who can dictate the terms of 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 the business."E45/2011 11/13
Besides above, in the catena of judgment Hon'ble Supreme Court has held that the petitioner is the best judge of his requirement and neither the tenant nor the Court can dictate its own terms regarding the period from which need arises or as to how he can adjust/accommodate himself in the premises already available with him and, thus, it appears that above mentioned contentions have been taken for the sake of defence without having any substance.
12. The respondent also contended that neither in said legal notice dtd.07.10.2008 nor in plaint of the suit for possession, mesne profits filed by petitioner, it has ever pleaded by the petitioner that the premises in question is required by him bonafide.
I have seen the file. The copy of legal notice dated 07.10.2008 and the copies of two orders passed in the said suit have been placed on record. I have seen the same. By said notice, the petitioner has terminated the tenancy of respondent on the ground of subletting and the said suit was filed after giving said notice. While the present petition has been filed on the ground of bonafide requirement. The present petition and the said civil suit has been filed on two different grounds and I feel that there is no need to the petitioner to disclose his bonafide requirement in said civil suit. Even otherwise, if the petition is allowed and after vacating the tenanted premises from the respondent, the petitioner re-lets the premises in question to other person or sell the same instead of using it for his bonafide requirement, the respondent will always have remedy u/s.19 of the Act. Therefore, this objection is also dismissed.
13. In Nem Chand Daga v. Inder Mohan Singh Rana, 94 (2001) DLT 683 it was held that before leave to defend is granted, the respondent must show that some triable issues which disentitled the applicant from getting the order of eviction against the respondent and at E45/2011 12/13 the same time entitled the respondent to leave to defend existed. The onus is prima facie on the respondent and if he fails, the eviction follows.
14. Considering the whole facts and circumstances, I am of the view that petitioner has completely satisfied this Court about his bonafide need. The petitioner has further satisfied that besides tenanted premises, he has no other reasonably suitable accommodation. On the other hand, the respondent has failed to reveal any fact which could raise any triable issue. Therefore, petitioner is entitled for eviction of respondent with regard to the tenanted premises.
15. Accordingly, the application for leave to defend is dismissed and consequently, eviction order is hereby passed in favour petitioner and against the respondent with regard to tenanted premises i.e. part of property no. E-1/5, Jhandewalan Extn., New Delhi-55 more particularly shown in red colour in the site plan exhibited today as Ex.X. It is made clear that this order will not be executable till expiry of six months from today. File be consigned to record room.
Announced in open court LALIT KUMAR
on 31st March, 2012 CCJ-cum-ARC(Central)
THC: DELHI
E45/2011 13/13