Delhi High Court
Krishna Devi Sharma (Since Deceased) ... vs Yadukul Guglani & Ors on 24 August, 2017
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 24th August, 2017
+ RC.REV. No.568/2015 & CM No.24067/2015 (for stay)
KRISHNA DEVI SHARMA
(SINCE DECEASED) THR LRS & ANR ..... Petitioners
Through: Mr. Suhail Khan, Adv.
Versus
YADUKUL GUGLANI & ORS ..... Respondents
Through: Mr. Ravi Gupta, Sr. Adv. with Mr.
Amit Sethi, Mr. Sachin Jain, Ishan
Khanna and Ms. Mallika Bhatia,
Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This petition under Section 25B(8) of the Delhi Rent Control Act,
1958 impugns the order (dated 23rd April, 2015 in E.No.24/10 of the Court of
Additional Rent Controller, Patiala House Court, New Delhi) dismissing the
application of the two petitioners namely Krishna Devi Sharma and Raj
Gupta and another application of the respondent no.3 Neeta Sharma and
respondent no.4 Varun Sharma, both for leave to defend the petition for
eviction under Section 14(1)(e) of the Act filed by the respondents no.1&2 /
landlords namely Yadukul Guglani and Vipin Guglani and the consequent
order of eviction of the two petitioners and the respondents no.3 to 5 from
Shop No.8/1 below staircase no.3 situated on the ground floor in Regal
Building, Parliament Street, Connaught Place, New Delhi.
2. The petition was entertained and notice thereof issued.
RC Rev. No.568/2015 Page 1 of 11
3. The senior counsel for the respondents no.1&2 / landlords appearing
on advance notice on 19th October, 2015 assured that the order of eviction
shall not be executed. Vide subsequent order dated 29th March, 2016,
continuation of the stay of the order of eviction impugned in the petition was
made subject to the petitioners paying use and occupation charges @
Rs.15,000/- per month to the respondents no.1&2 / landlords. Vide yet
subsequent order dated 27th April, 2016, the rate of use and occupation
charges was reduced to Rs.10,000/- per month.
4. The counsels have been heard.
5. The first contention of the counsel for the petitioners is that the
respondents no.1&2 / landlords in some other proceedings had claimed the
petitioners to be trespassers in the premises aforesaid and thus the petition
for eviction under the Rent Act is not maintainable. However on enquiry as
to what is the stand of the petitioners i.e. whether they are in possession of
the premises as tenants or in any other capacity, the counsel for the
petitioners states that the petitioners had come into possession of the
premises as tenants under the earlier owner thereof. On being prodded
further as to the status of the petitioners in the premises today, the counsel
states that today also, the petitioners are tenants. On further enquiry as to
whether the petition for eviction from which this petition arises was
instituted by the respondents no.1&2 / landlords pleading the petitioners to
be trespassers or tenants, it is stated that the petition for eviction was filed
claiming the petitioners to be tenants. Once that is so, then the argument
urged is misconceived. Once the position is that according to the respondents
no.1&2 / landlords as well as according to the petitioners also the petitioners
RC Rev. No.568/2015 Page 2 of 11
are tenants in the premises, merely because the respondents no.1&2 /
landlords may have at earlier stage claimed the petitioners to be trespassers,
would not prevent the respondents no.1&2 / landlords from accepting the
petitioners, who have always been claiming themselves to be tenants, as
tenants and instituting the petition for eviction.
6. The next argument of the counsel for the petitioners / tenants is that
the respondents no.1&2 / landlords are not the owners of the premises in the
tenancy of the petitioners and thus were not entitled to maintain the petition
for eviction under Section 14(1)(e) of the Act. It is argued that though the
respondents no.1&2 / landlords along with the petition for eviction did not
file any documents of their title to the premises in the tenancy of the
petitioners but produced the same at the fag-end of arguments of the leave to
defend i.e. after the filing of the application for leave to defend by the
petitioners / tenants and the petitioners / tenants thus did not have any
opportunity to take pleas with respect to the said documents in the
application for leave to defend.
7. In this context, it has emerged that the petition for eviction was filed in
the year 2010 and the title documents are claimed to have been filed by the
respondents no.1&2 / landlords on 12th November, 2013. Leave to defend as
was dismissed on 23rd April, 2015.
8. Before proceeding further, I am constrained to observe that it is
unfortunate that the petition for eviction on the ground under Section
14(1)(e) and for which the legislature, by providing a period of 15 days only
from service of the summons for filing leave to defend, has indicated an
element of urgency, has remained pending for nearly five years at the stage
RC Rev. No.568/2015 Page 3 of 11
of consideration of leave to defend and in which time, the petition for
eviction after trial also should have been over.
9. Coming back to the arguments of the counsel for the petitioners /
tenants, I have enquired from the counsel for the petitioners / tenants as to
who is the owner of the premises in the tenancy of the petitioners according
to the petitioners and to whom they have been paying rent.
10. The counsel for the petitioners / tenants states that Mr. Sandeep Sethi
was the owner of the premises and the petitioners / tenants were paying rent
to him and have paid rent to him till 2003 since whereafter the respondents
no.1&2 / landlords have been claiming rent. However at the stage when the
order is being dictated, the counsel for the petitioners / tenants states that
Sandeep Sethi did not claim rent after 2003 and on the petitioners / tenants
making enquires, Sandeep Sethi informed them to pay rent to M/s. K.N.
Financial Services and the respondents no.1&2 / landlords have been
claiming rent since August, 2010.
11. On further enquiry, whether anyone else has claimed rent of the
premises from the petitioners / tenants, the counsel for the petitioners /
tenants replies in the negative.
12. The counsel for the petitioners / tenants has also contended that even
the documents of title subsequently submitted by the respondents no.1&2/
landlords / tenants are defective and there is a discrepancy therein. It is stated
that though in the documents of title in favour of the respondents no.1&2/
landlords / tenants there is a mention of the premises in the tenancy of the
petitioners / tenants but in the documents in support of the chain of title, in
an earlier document, there is no mention of the premises in the tenancy of the
RC Rev. No.568/2015 Page 4 of 11
petitioners. It is also stated that the petitioners / tenants have been depositing
the rent in the Court.
13. Per contra, the senior counsel for the respondents no.1&2 / landlords
in this regard has contended (i) that one Pandit Jagdish Ram was the tenant
in the subject premises; (ii) the petitioner no.1 (since deceased) is the widow
of the said Pandit Jagdish Ram and the petitioner no.2 is the daughter of
Pandit Jagdish Ram; (iii) that Pandit Jagdish Ram, besides the widow and
daughter, also had a son and two more daughters and which son has also
since died and whose wife and son were the respondents no.2&3 in the
petition for eviction filed; (iv) that though the said wife and son of the said
son of Pandit Jagdish Ram had also contested the petition for eviction filed
by the respondents no.1&2 / landlords by filing an application for leave to
defend and which has also been dismissed but have not challenged the order
of eviction; (v) that after the death of Pandit Jagdish Ram it was the said son
of Pandit Jagdish Ram only who was carrying on the business earlier being
carried on by Pandit Jagdish Ram therefrom; (vi) that the respondents
no.1&2 / landlords had got issued a Notice (at page 239 of the paper book) to
the said son of Pandit Jagdish Ram and he had give a reply thereto (at page
245 of the paper book) and in which reply he had (at page 247 of the paper
book) admitted the ownership of the respondents no.1&2 / landlords and also
tendered rent to the respondents no.1&2 / landlords; (vii) that after the
demise of the said son, his wife and son had also tendered rent to the
respondents no.1&2 / landlords (vide letter at page 262 of the paper book);
(viii) that the petitioners / tenants in the petitions filed by them under Section
27 of the Rent Act have been impleading the respondents no.1&2 / landlords
as parties thereto; (ix) that there is thus an admission by the person who after
RC Rev. No.568/2015 Page 5 of 11
Pandit Jagdish Ram was in occupation of the tenanted premises, of
ownership of the respondents no.1&2 / landlords and atonement in favour of
respondents no.1&2 / landlords and the petitioners / tenants who are carrying
on the business in the shop after the demise of the said son and after reaching
a settlement with the wife and son of the son of Pandit Jagdish Ram cannot
wriggle out of the said admissions; and, (x) that there is no inconsistency or
discrepancy in the title documents.
14. In the aforesaid scenario, I am of the view that the respondents no.1&2
are the owners of the premises in the tenancy of the petitioners within the
meaning of Section 14(1)(e) of the Rent Act and in terms of the judgment in
Smt. Shanti Sharma Vs. Smt. Ved Prabha 1987 SCC (4) 193 where the
Supreme Court has held that the concept of ownership in Section 14(1)(e) of
the Rent Act is not of absolute ownership but merely of something more than
the tenant. From the bare fact, that none-else besides the respondents no.1&2
has claimed to be owner or landlord of the premises in the tenancy of the
petitioners for the last several years, it is evident that the respondents no.1&2
are the owners of the premises in tenancy of petitioners, for the purpose of
Section 14(1)(e) of the Act. This court in Milk Food Ltd. Vs. Kiran Khanna
51 (1993) DLT 141 has held that when the person instituting the petition for
eviction under Section 14(1)(e) of the Rent Act has been claiming to be the
owner for a long number of years, the same is also ownership within the
meaning of Section 14(1)(e) of the Act. There is thus no merit in the plea of
the petitioners / tenants, of the respondents no.1&2 being not owners and it
cannot be said that on such pleas the respondents no.1&2 / landlords can be
disentitled from obtaining an order of eviction under Section 14(1)(e) of the
Act.
RC Rev. No.568/2015 Page 6 of 11
15. The counsel for the petitioners / tenants has next argued that the
eviction sought by the respondents no.1&2 / landlords of the petitioners /
tenants and of respondents no.3 to 5 is for additional accommodation and "it
is settled in law" that when the requirement is of additional accommodation,
leave to defend has to be granted. Attention in this regard is invited to para18
(a) of the petition for eviction where the respondents no.1&2 / landlords have
pleaded that they are carrying on business of Travel Agents from a small
portion of the property bearing no.8 adjoining to the premises in the tenancy
of the petitioners, in the name and style of M/s. Joy Travels Pvt. Ltd. in
which the respondent no.1 is the Managing Director and the respondent no.2
along with his daughter are the only other Directors and the premises in
occupation of the respondents no.1&2 / landlords is small and all the
employees of the said business of the respondents no.1&2 / landlords have to
squeeze themselves in the small space available and the premises in the
tenancy of the petitioners and respondents no.3 to 5 is required for expansion
of the said business.
16. The senior counsel for the respondents no.1&2 / landlords has in this
context referred to Anil Bajaj Vs. Vinod Ahuja 210 (2014) DLT 58 (SC)
where it has inter alia been held that the fact that the landlord is doing
business from various other premises cannot foreclose his right to seek
eviction from the tenanted premises so long as he intends to use the said
tenanted premises for his own business and the grounds on which leave to
defend was sought by the tenant and had been granted by this Court, run
counter to the fundamental principles governing the right of a tenant to
contest the claim of bona fide requirement under Section 14(1)(e) of the Rent
Act. It was held that merely because the landlord is in occupation of other
RC Rev. No.568/2015 Page 7 of 11
premises, does not constitute a triable issue to entitle the tenant to grant of
leave to defend.
17. It is evident from the aforesaid judgment that the contention of the
counsel for the petitioners / tenants of "the settled position of law", without
citing any judgment, is not correct and the Supreme Court in any case has
held contrary thereto.
18. The senior counsel for the respondents no.1&2 / landlords has in this
regard also drawn attention to the site plan at page 132 of the paper book and
the photographs of the premises in the tenancy of the petitioners and the
premises in occupation of the respondents no.1&2 / landlords at page 131 of
the paper book and wherefrom it is evident that the juxtaposition of the
premises in occupation of the respondents no.1&2 / landlords and the
premises in the tenancy of the petitioners is such that the premises in the
tenancy of the petitioners will merge with the existing accommodation in
possession of the respondents no.1&2 / landlords.
19. The senior counsel for the respondents no.1&2 / landlords has also
drawn attention to pages 64 & 65 of the paper book, being paras 21 and 22 of
the impugned order where it is recorded that the petitioners / tenants who
were respondents no.1&4 before the Additional Rent Controller did not even
challenge the bona fides of the respondents no.1&2 / landlords as mentioned
in the petition and did not dispute the fact that the respondents no.1&2 /
landlords required the shop in question for expanding their own business of
Travel Agency and did not dispute that the premises in occupation of the
respondents no.1&2 / landlords were insufficient for the business of the
respondents no.1&2 / landlords or that the respondents no.1&2 / landlords
RC Rev. No.568/2015 Page 8 of 11
have any other accommodation available to them for such expansion of their
business.
20. The counsel for the petitioners / tenants in rejoinder has argued that it
is only the petitioner no.2 who is in possession of the premises after the
demise of Pandit Jagdish Ram. However on enquiry whether Pandit Jagdish
Ram has left any Will, the answer is in the negative. Once it is pleaded that
Pandit Jagdish Ram was the tenant and proprietor of the business being
carried on from the tenancy premises, on the demise of Pandit Jagdish Ram,
the tenancy rights as well as the business would be succeeded by his widow,
daughters and son and without any plea or proof that it was only the
petitioner no.2 who was carrying on the business, no benefit can be availed
thereof.
21. I can only observe that the counsel for the petitioners / tenants during
his argument including in rejoinder did not urge anything on the said aspects
though now while this order is being dictated states "that he has mentioned
everything in his leave to defend application".
22. The next argument of the counsel for the petitioners / tenants is that
another tenant in the same property and against whom also the respondents
no.1&2 / landlords had filed a petition for eviction was also refused leave to
defend by the Rent Controller but vide order dated 3rd September, 2012 in
RC.Rev. No.369/2012 the said other tenant was granted leave to defend.
Attention is invited to the said order at page 525 of the paper book and to
leave to defend filed by that tenant at page 535 of the paper book and it is
contended that the pleas urged by the said other tenant in the leave to defend
were the same as the pleas urged by the petitioners / tenants herein.
RC Rev. No.568/2015 Page 9 of 11
23. I have perused the order dated 3rd September, 2012 in RC. Rev.
No.369/2012 and which is a two paragraphs order and I do not find the same
to be discussing any facts or law. The order of Rent Controller was reversed
after hearing the counsels and merely by observing that some of the pleas
which were taken by the tenant regarding bona fide requirement of the
respondents no.1&2 / landlords had not been dealt with by the Additional
Rent Controller and some triable issues arose. The same cannot constitute a
precedent to be followed qua petitioners / tenants also. In the present case,
there is a finding of the petitioners / tenants having not challenged the bona
fides of the respondents no.1&2 / landlords.
24. The last argument of the counsel for the petitioners / tenants is of the
description of the premises in the tenancy of the petitioners in the petition for
eviction being wrong. On enquiry, it is contended that even in the site plan
filed with the petition for eviction the premises in the tenancy of the
petitioners are not shown correctly. However on enquiry whether the
petitioners / tenants filed any site plan of their own, the answer is in the
negative and explanation is sought to be given that no documents were
served with the summons of the petition for eviction.
25. As aforesaid, the application for eviction for leave to defend remained
pending before the Additional Rent Controller for unduly long time of five
years and as per settled practices, the petitioners / tenants, even if had not
been served with the documents, ought to have inspected the Court file and
thereafter filed the correct site plan and the same having not been done, such
vague arguments cannot entitle the tenant to leave to defend.
26. No other argument has been urged.
RC Rev. No.568/2015 Page 10 of 11
27. None of the arguments urged by the counsel for the petitioners /
tenants disclose any error requiring correction within the jurisdiction of
Section 25B(8) in the impugned order or disclose any such facts which
would disentitle the respondents no.1&2 / landlords from an order of
eviction under Section 14(1)(e) of the Act.
28. There is thus no merit in the petition.
Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J.
AUGUST 24, 2017 „pp‟..
RC Rev. No.568/2015 Page 11 of 11