Delhi District Court
Courts vs Sh. Vijay Kumar Ahluwalia on 13 August, 2012
//1//
IN THE COURT OF SH. PRITAM SINGH, ARC (CENTRAL) TIS HAZARI
COURTS, DELHI.
E-167/11
13.08.2012
Bishan Chand Maheshwari
s/o Late Sh. Miri Mal Maheshwari
R/o B-31, Second Floor,
Anand Vihar, Delhi-92. ...Petitioner
VERSUS
1. Sh. Vijay Kumar Ahluwalia
son of Late Sh. Ram Parkash
2. Sh. Kishan Kumar Ahluwalia
3. Sh. Sunil Kumar Ahluwalia
All r/o A-363, Surya Nagar,
Ghaziabad, UP
4. Sh. Suraj Kumar Aggarwal,
1548, Nai Sarak, Delhi. ...Respondents
Petition u/s 14 (1) (e) r/w section 25-B of Delhi Rent Control Act.
1. Date of institution of the case : 28.07.2011
2. Date of Judgment reserved : 07.08.2012
3. Date of Judgment pronounced : 13.08.2012
JUDGMENT
By this order I shall dispose of an application u/s 25 B (4) of DRC Act filed on behalf of the respondents. The present petition was filed by the petitioner u/s 14 (1) (e) of the DRC Act on the ground of bonafide requirements. The brief facts of the case are that the shop on the ground floor forming part of property bearing no. 1548/V, Nai Sarak, Delhi-110006, as E-167/11 Bishan Chand Maheshwari Vs. Vijay Kr. Ahluwalia Page 1 of 10 //2// shown in red color in the site plan was owned by Late Sh. Miri Mal Maheshwari, father of the petitioner who let out the said shop to Sh. Ram Prakash, father of the respondent no. 1 to 3 at monthly rent of Ek Ana which was enhanced and at present rent is Rs. 5/- per month. Sh. Ram Prakash, father of the respondent no. 1 to 3 died 15 years back and the respondent no. 1 to 3 became tenant by operation of law but they have sublet the same to respondent no. 4 and getting Rs. 5,000/- per month as rent. It is further stated that the petitioner was working with Northern Railway and retired in the year 2002 but since then not doing any job and he is in search of business. The first floor of the property in question is with Sh. Vivek Maheshwari, another son of the petitioner, who is doing the business of clothes under the name and style of M/s Balaji Fashion and the second floor is being used by both the sons of the petitioner for godown purposes. There is one room set on the third floor which is used by the customers of both the sons of the petitioner. Both the sons of the petitioner are in occupation of the suit property much prior to the retirement of the petitioner. One shop on the ground floor as shown in blue color in the site plan was earlier in possession of tenant Sh. Megh Raj against whom an eviction petition was filed by the petitioner and his mother Smt. Ram Piari and the eviction petition was challenged upto Supreme Court of India by the tenant Sh. Meghraj but he lost SLP and the possession of the shop was given to the petitioner and his son started the business under the name and style of M/s Aarti Saree Emporium as stated above. It is further stated that the petitioner is having knowledge of doing the business of cloth and wants to do independent business but he has no independent accommodation to start his business as he has no alternative suitable accommodation available to him.
2. Leave to defend application alongwith affidavits filed on behalf of E-167/11 Bishan Chand Maheshwari Vs. Vijay Kr. Ahluwalia Page 2 of 10 //3// respondent no. 1 to 3. It is stated on behalf of respondents no. 1 to 3 that petitioner is neither owner nor landlord of the suit premises. Late Sh. Miri Mal Maheshwari was the owner of the suit premises. Late Sh. Miri Mal Maheshwari and his wife Smt. Ram Piari had no issue (child) and both died issueless and after the death of Late Sh. Miri Mal Maheshwari, his wife Smt. Ram Piari had been collecting the rent of the suit premises from respondent no. 1 to 3. After death of Smt. Ram Piari, in the year 1994, she left no heir and therefore, no person came forward to collect the rent. It is further stated that petitioner is also having a property bearing no. 1547, Nai Sarak, Delhi which is four storeyed buidling but this fact has been concealed by the petitioner. It is further stated that the site plan filed by the petitioner is not correct as the size of the accommodation in possession of the petitioner has not been stated. It is further stated that the petitioner and his two sons are jointly doing the business of fashion garments and saris and do not require any additional accommodation. It is further stated that one room on the third floor is lying vacant which has been falsely described to be used by the customers of the sons of the petitioner. It is further stated that Late Sh. Ram Prakash, father of the respondents no. 1 to 3, after his death left behind his three sons and six daughters but the petitioner do not implead all the legal heirs of Late Sh. Ram Prakash. It is denied that the respondent no. 1 to 3 sublet the suit premises to respondent no. 4. All other averments made in the petition were denied.
3. Reply to the leave to defend application alongwith counter affidavit filed on behalf of the petitioner wherein it is stated that petitioner is adopted son of Late Sh. Miri Mal Maheshwari and Smt. Ram Piari. Petitioner has filed registered adoption deed dated 14.03.1978 under which the petitioner was taken in adoption by Smt. Ram Piari. Petitioner has also filed the copy of E-167/11 Bishan Chand Maheshwari Vs. Vijay Kr. Ahluwalia Page 3 of 10 //4// registered Will executed by his natural father namely Sh. Gopal Maheshwari dated 18.07.1989, copy of ration card, house tax receipts, copy of passport to show that he is son of Late Sh. Miri Mal Maheshwari and Smt. Ram Piari. It is further stated that the property bearing no. 1547, Nai Sarak, Delhi is owned by Sh. Vivek Maheshwari, son of the petitioner and not by the petitioner. All other averments made in the leave to defend application were denied.
4. Rejoinder to the reply to the leave to defend application filed on behalf of respondent no. 1 to 3. It is stated by the respondents in rejoinder that petitioner was not adopted by Late Sh. Miri Mal Maheshwari and Smt. Ram Piari. It is further stated that on 14.03.1978, the date of the adoption deed, the petitioner was 36 years old and a person above the age of 15 years cannot be taken into adoption. It is further stated that no adoption deed was executed by Late Sh. Miri Mal Maheshwari and his wife alone cannot take the petitioner in adoption. It is further stated that all other documents filed by the petitioner are self created and false and fabricated. All other averments made in the reply were denied by the respondent and the averments made in the leave to defend application were reiterated and reaffirmed.
5. Arguments heard. Record perused and considered.
6. Ld. Counsel for the respondents relied upon the following rulings :-
(i) Lal Man Vs. Dy. Director of Consolidation and others, (1998) 8 Supreme Court Cases 693.
(ii) Dhanraj Vs. Smt. Suraj Bai, AIR 1975 Supreme Court 1103.
(iii) Rahasa Pandiani (dead) by LRs and others Vs. Gokulananda Panda and others, AIR 1987 Supreme Court 962.
(iv) Inderjeet Kaur Vs. Nirpal Singh, (2001) 1 Supreme Court Cases 706.
The present petition has been filed u/s 14 (1) (e) r/w 25 (B) of DRC Act E-167/11 Bishan Chand Maheshwari Vs. Vijay Kr. Ahluwalia Page 4 of 10 //5// 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.
7. Ownership & Purposes of Letting The respondent contended that petitioner is neither owner nor landlord of the suit premises. It is not denied that the suit premises was owned by Late Sh. Miri Mal Maheshwari and after his death, his wife Smt. Ram Piari was collecting the rent from the respondents and after the death, none of the legal heirs approached the respondents to collect the rent as she died issueless. It is further contended that the adoption deed and other documents filed on behalf of the petitioner are false and fabricated. It is further contended that petitioner was about 36 years old at the time of execution of alleged adoption deed, therefore, he could not be taken in adoption at the age of 36 years. It is further contended that Smt. Ram Piari alone could not adopt the petitioner in the absence of her husband. On the other hand, the petitioner stated that the petitioner was taken in adoption by Late Smt. Ram Piari as she was having no child and natural parents of the petitioner gave the petitioner in adoption to Smt. Ram Piari Devi on 08.02.1952. It is not in dispute that the suit premises was let out by Late Sh. Miri Mal Maheshwari to Late Sh. Ram Parkash, father of respondents no. 1 to 3. It is also not in dispute that Late Sh. Miri Mal Maheshwari and his wife Late Smt. Ram Piari Devi had no natural born son or daughter. According to the petitioner, he had been taken in adoption by Late Smt. Ram Piari vide registered adoption deed dated 14.03.1978. The adoption deed dated 14.03.1978 is duly registered. Section 16 of the Hindu Adoption and Maintenance Act 1956 provides as under :-
Presumption as to registered documents relating to adoption -E-167/11 Bishan Chand Maheshwari Vs. Vijay Kr. Ahluwalia Page 5 of 10
//6// Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.
8. A bare perusal of section 16 makes it clear that whenever there is a registered adoption deed, the court shall presume that the adoption has been made in compliance of provisions of this Act unless and until, it is disproved.
The question arises, whether a tenant can challenge the adoption deed executed by the owner/landlord of the tenanted premises. I am of the considered view that a tenant has no right to challenge the adoption deed executed by owner/landlord of the tenanted premises. The documents such as registered Will dated 18.07.1999 executed by Sh. Gopal Maheshwari, natural father of the petitioner, ration card of the petitioner, passport of the petitioner, other tenant has given the possession of the other premises to the petitioner etc. show that petitioner is son of Late Sh. Miri Mal Maheshwari and Late Smt. Ram Piari. It is also important to mention here that admittedly, the sons of the petitioner are in occupation of the first, second and third floor of the suit property. The question arise, if the petitioner has not been adopted by Late Smt. Ram Piari then how the petitioner came into possession of the suit property. Even tenant namely Sh. Vinod Kumar had handed over the vacant and peaceful possession of the first floor of the property in question to the petitioner being owner/landlord of the property. The rulings relied upon by the Ld. Counsel for the respondents are not applicable to the facts of the present case as the petitioner was taken in adoption by Late Smt. Ram Piari E-167/11 Bishan Chand Maheshwari Vs. Vijay Kr. Ahluwalia Page 6 of 10 //7// under a registered adoption deed and at that time, her husband was already expired and the petitioner was given in adoption by both his natural father and mother. 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. Hence both the ingredients are decided in favour of the petitioner and against the respondent.
9. Alternative accommodation & bonafide requirement The respondent further contended that petitioner owned property bearing no. 1547, Nai Sarak, Delhi which is a three storeyed building having commercial space on all the three floors but this fact has been concealed by the petitioner. The respondent further contended that petitioner is also having a vacant shop on the ground floor and on the third floor also there are accommodation with the petitioner. On the other hand petitioner stated that the property bearing no. 1547, Nai Sarak, Delhi is owned by his son Sh. Vivek Maheshwari. Petitioner further stated that the shop on the ground, first and second floor of the property are also in possession of the sons of the petitioner before the retirement of the petitioner from his service from railway in the year 2002. Respondent has merely stated that the property bearing no. 1547, Nai Sarak, Delhi is owned by the petitioner but the respondent has not filed any documentary proof in this regard. It is held in Rajender Kumar Sharma & Ors. Vs Leela Wati & Ors, 155 (2008) Delhi Law Times 383 "Mere assertion made by the tenant in respect of landlords ownership of other buildings and in respect of alternate accommodation are not be considered sufficient for grant of leave to defend. Only those averments E-167/11 Bishan Chand Maheshwari Vs. Vijay Kr. Ahluwalia Page 7 of 10 //8// in affidavit are to be considered by Rent Controller which have some substance in them and are supported by some material".
10. The petitioner is senior citizen and wants to start his business from the ground floor and therefore, the contention of the respondent that petitioner has a vacant room set on the third floor has no substance. The petitioner has retired from his service in the year 2002 and he needs the shop in question to start his own business. I am of the considered view that it is a bona fide requirement of the petitioner. It was held by Hon'ble Supreme court in Ram Babu Aggarwal Vs. Jay Kishan Das, 2009 (2) RCR 455 "However, as regards the question of bona fide need, we find that the main ground for rejecting the landlord's petition for eviction was that in the petition the landlord had alleged that he required the premises for his son Giriraj who wanted to do footwear business in the premises in question. The High Court has held that since Giriraj has no experience in the footwear business and was only helping his father in the cloth business, hence there was no bonafide need. We are of the opinion that a person can start a new business even if he has no experience in the new business. That does not mean that his claim for starting the new business must be rejected on the ground that it is a false claim. Many people start new businesses even if they do not have experience in the new business, and sometimes they are successful in the new business also".
11. Respondents further contended that the site plan of the petitioner is incorrect. This contention of the respondents has no substance as It was 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 E-167/11 Bishan Chand Maheshwari Vs. Vijay Kr. Ahluwalia Page 8 of 10 //9// respondents that the petition is bad for non joinder of necessary parties as all the legal heirs of original tenant Sh. Ram Parkash have not been impleaded has also no substance because 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".
12. In view of the above discussions, the respondents have failed to raise any triable issue. On the other hand, the petitioner has successfully established that the petitioner bona fidely need the suit premises for himself as he wants to start his independent business from there and the petitioner has no other suitable alternate accommodation with him except the suit premises. The rulings relied upon by the Ld. Counsel for the respondents are not applicable to the facts of the present case as the respondents have failed to raise any triable issue. Hence the petitioner is entitled for an eviction order u/s 14 (1) (e) r/w section 25-B of DRC Act.
13. Accordingly, the application of the respondents 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 25-B of D.R.C. Act is passed in favour of the petitioner and against the respondents in respect of the tenanted premises i.e one shop situated on the ground floor forming part of the property E-167/11 Bishan Chand Maheshwari Vs. Vijay Kr. Ahluwalia Page 9 of 10 //10// bearing no. 1548-V, Nai Sarak, Delhi-110006, more specifically shown in red color in site plan Ex. C-1 (exhibited today while passing the order). However, it is made clear that the petitioner shall not be entitled to get the eviction order 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 13.08.2012) (Pritam Singh)
ARC/Central/Delhi
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