Delhi District Court
Shri Jaspal Singh Kapoor vs M/S Bantam Enterprises Private Limited on 27 February, 2012
In the Court of Mr. Manoj Kumar : Rent Controller of New Delhi District at
Patiala House Courts, New Delhi
E. No. 70/08
ID No. 02403C0736952005
In the matter of:
1. Shri Jaspal Singh Kapoor,
son of Sh. Mela Singh Kapoor,
resident of 21/402, Heritage City,
M. G. Road, Gurgaon, Haryana.
2. Smt. Gian Kaur,
W/o Sh. Mela Singh Kapoor,
R/o 11, Patel Road,
West Patel Nagar,
New Delhi (the name of the
petitioner no.2 ordered to be
struck off from the array of
the parties vide order dated 07.09.2006) ....................Petitioners
VERSUS
1. M/s Bantam Enterprises Private Limited
(formerly known as Bansi dhar Associates Pvt. Ltd.)
Old No. 80/48, First Floor,
Chanakya Puri, New Delhi
New No. 29, Rajdoot Marg,
Chanakya Puri, New Delhi
Second Address:
Sanskrit Bhawan, Jhandewalan,
E. No. 70/08 Page no. 1 of 15
New Delhi110055
2. Mr. Dalip Singh Kapoor
Jl. Pintu Air Raya No. 36E,
Jakarta 10710 (Indonesia)
3. Mr. Dalbir Singh Kapoor
JL. Jend A Yani 89,
Medan (Indonesia)
4. Mr. Jagjot Singh Kapoor
Apt. 543, The Embassy,
15, Ali Askar Road,
Bangalore, India.
5. Mrs. Prakash K. Mayeli,
40, Jay Road,
Stamford,
Connecticut06905
6. Mrs. Taru Kanwar,
3/3, Shanti Niketan,
New Delhi.
7. Mrs. Pritpal Sethi
16, Fernwood Drive,
Fair Lawn,
New Jersey07410
U.S.A.
(Respondents no. 2 to 7 are the
proforma parties being the legal
heirs of Smt. Gian Kaur, who was
E. No. 70/08 Page no. 2 of 15
the petitioner no.2 earlier
in the present application). ......................Respondents
Date of Institution : 04.10.2005
Date of Arguments : 24.02.2012
Date of Judgment : 27.02.2012
APPLICATION FOR EVICTION OF TENANT UNDER SECTION 14 (1)
(d) OF THE DELHI RENT CONTROL ACT, 1958.
JUDGMENT
This is an application for recovery of possession of premises bearing old no. 80/48, First floor, Chanakya Puri, New Delhi, New no. 29, Rajdoot Marg, Chanakya Puri, New Delhi under clause (d) of proviso to subsection (1) of section 14 of the Delhi Rent Control Act, 1958 (Act 59 of 1958) originally made by applicants Mr. Jaspal Singh Kapoor and Smt. Gian Kaur (since deceased) against respondent Bantam Enterprises Pvt. Ltd.
2. It is stated in the application that the premises were let out to the respondent for residential purposes only for any one of its Directors/Executives and their families but no body was staying in the said premises for the last more than two years, before making the present application, and the premises in question is lying locked; that the premises comprises of two bed rooms with attached baths, drawing cum dining room, kitchen situated on first floor of the property alongwith barsati and garage on the ground floor of the property bearing no. 80/48, first floor, Chanakya E. No. 70/08 Page no. 3 of 15 Puri, New Delhi (Old) and 29, Rajdoot Marg, Chanakya Puri, New Delhi as shown in red colour in the site plan have been let out at monthly rent of Rs. 1350/ exclusive of electricity and water charges; that previously the premises were owned by the applicant no.1, his brothers Mr. Dalip Singh Kapoor, Mr. Jagjot Singh Kapoor and Mr. Dalbir Singh Kapoor besides their mother Smt. Gian Kaur, the applicant no.2 but subsequently dispute arose between the applicant no.1, his mother and his brothers leading upto the institution of a suit for partition before the Hon'ble Delhi High Court wherein a partition decree was passed and the premises had gone to the share of the applicants, who had become the exclusive owners of the premises; that as nobody is staying in the premises for the last more than two years immediately before the filing of the present application therefore, a cause of action has arisen in favour of the applicants and against the respondent. It is also stated in the application that an eviction order be passed against the respondent in respect of the premises.
3. The application is contested by the respondent by way of a written statement of defence wherein the applicant no.1 is not admitted as the landlord by the respondent. In the written statement it is admitted that the municipal number of the premises in the tenancy of the respondent is 29, Rajdoot Marg, Chanakya Puri, New Delhi and the municipal number represented earlier to be 80/48, Chanakya Puri, New Delhi, however, it is denied that only the first floor of the property is in the tenancy of the E. No. 70/08 Page no. 4 of 15 respondent. It is stated that the first as well as the second floor of the property are in the tenancy of the respondent and the application for eviction with respect to only a part of the premises is not maintainable and is liable to be dismissed. It is further stated the rent of the first floor and second floor of the premises no. 29, Rajdoot Marg, Chanakya Puri, New Delhi has been paid by account payee cheque in the name of Smt. Gian Kaur only and the respondent no. 1 has never paid the rent to applicant Mr. Jaspal Singh Kapoor or to any of his other brothers. In the written statement it is denied that the premises are residential and have been let out to the respondent for residential purposes only or only for its Directors or Executives and their family members. It is denied that nobody is staying in the premises for the last more than two years or that the premises are lying locked. It is further stated in the written statement that the application for eviction is without merit and the same be dismissed.
4. A replication is filed on behalf of the applicants to the written statement of the respondent wherein the defence taken by the respondent is disputed and denied and the averments made in the application for eviction are reiterated.
5. During the pendency of the application, the respondent no. 2 expired on 18.10.2005 and by order dated 07.09.2006 passed by the learned predecessor on an application under Order XXII Rule 3 of the Code of Civil Procedure, 1908 (CPC) her name was deleted from the array of the parties E. No. 70/08 Page no. 5 of 15 and the respondents no. 2 to 7 were added as proforma respondents, who did not contest the claim of the petitioners and did not file any written statement.
6. In support of their case the applicants got examined PW1 Mr. Ashok Kumar, LDC from Record Room of Delhi High Court and PW2 Mr. Jaspal Singh Kapoor. During the examination of the witnesses produced on behalf of the applicants documents Ex. PW1/A, Ex. PW1/B, Ex. PW1/1, mark PW1/2, Ex. PW1/4 and mark PW1/5 were also tendered in evidence and thereafter, evidence on behalf of the applicants was closed.
7. On behalf of the respondent RW1 Mr. S. K. Jain was examined who during his examination tendered documents Ex. RW1/1 to Ex. RW1/6 and Ex. RW1/8 to Ex. RW1/14. After cross examination of Mr. S. K. Jain evidence on behalf of the respondent was closed.
8. I have heard counsel for the parties and gone through the material on record carefully.
9. Having drawn my attention on Ranjit Singh and another v. Smt. Inez Richards, 93 (2001) DLT 299, Mohd. Usman and another v. Abdul Ghani, 1988 (1) RCR 207, Ranjit Singh v. B. S. Sethi, 49 (1993) DLT 531, Sushil Chander Gupta v. Radha Krishan Bathija, 1980 (1) RCR 712, the testimony of PW1 and PW2 and the documents tendered by them it is submitted by counsel for the applicants that from the testimony of PW2 Mr. Jaspal Singh Kapoor it has been established that no one on behalf of the E. No. 70/08 Page no. 6 of 15 respondent was residing at the premises for a period of two years immediately before the making of the present application, therefore, an eviction order be passed against the respondent. It is also submitted by counsel for the applicants that the evidence led by the respondent is not reliable and it has failed to prove by leading cogent evidence that immediately before the making of the present application the premises was being used for residential purpose by the Director or Executives or their family members.
10. Per contra, having drawn my attention on the testimony of PW2 Mr. Jaspal Singh Kapoor it is submitted by counsel for the respondent that the testimony of PW2 Mr. Jaspal Singh Kapoor is not reliable and the applicants have failed to prove affirmatively that immediately before making of the present application for a period of six months the premises were not being used for residential purpose by the Director of the respondent. It is further submitted by counsel for the respondent that immediately before making of the present application the premises were being used by Mrs. Vimla Kaul, one of the Directors of the respondent and thus, the applicants have failed to establish a ground for eviction specified in clause (d) of proviso to subsection (1) of section 14 of Act 59 of 1958.
11. I have given my thoughtful consideration to the submissions made on behalf of the parties.
12. In the present application for eviction the applicants/landlords E. No. 70/08 Page no. 7 of 15 have sought eviction of the tenant on the ground prescribed in clause (d) of the proviso to sub section (1) of section 14 of the Act 59 of 1958 which reads as follows:
14. Protection of tenant against eviction.(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by and court or Controller in favour of the landlord against a tenant:
Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely: * * * * * *
(d) that the premises were let for use as a residence and neither the tenant nor any member of his family has been residing therein for a period of six months immediately before the date of the filing of the application for the recovery of possession thereof;
* * *
13. In their application for eviction of the tenant it has been asserted by both the applicants including applicant no. 1 Mr. Jaspal Singh Kapoor that they are the landlord in respect of the premises. In the written statement the respondent has admitted that respondent no. 2 has been the landlord in respect of the premises but has denied that the applicant no. 1 is also the landlord.
14. In the application the applicants have also asserted that the premises were let out for residence of the Directors or Executives of the respondent whereas in the corresponding paragraph of the written statement the respondent has also denied these assertions made by the applicants.
E. No. 70/08 Page no. 8 of 15
15. The applicants have also stated that immediately before the making of the present application for eviction no director or executive of the respondent had been residing in the premises for six months, whereas these assertions have also been disputed by the respondent. In these circumstances the points which arise for the consideration of this court are, namely:
(a) Whether there exists relationship of landlord and tenant between the parties?
(b) Whether the premises were let out to the respondent for residential purpose?
(c) Whether immediately before making of the present application neither the director nor any executive or their family members were residing in the premises?
16. From the testimony of PW2 Mr. Jaspal Singh and documents Ex. PW1/A (also tendered as Ex. PW1/4 by PW2) and Ex. PW1/B it has been established that both the applicants have become the owner of the premises at the strength of a compromise decree passed by the Hon'ble Delhi High Court. Thus, there is no merit in the contention of the respondent that the applicant no. 1 Mr. Jaspal Singh is not the landlord in respect of the premises.
17. To establish the fact that the premises were let out for residence PW2 Mr. Jaspal Singh Kapoor on 13.8.2008 filed his affidavit E. No. 70/08 Page no. 9 of 15 dated 12.8.2008 and sought to tender the same during his examination in chief. In his affidavit filed on 12.8.2008 Mr. Jaspal Singh Kapoor made reference to four documents, namely, a site plan which was sought to be tendered as Ex. PW1/1, a copy of lease deed dated 31.12.1980 entered into between the parties which was sought to be tendered as Ex. PW1/2, copies of proceedings pertaining to suit no. 293/2003 instituted in the Hon'ble High Court of Delhi which were sought to be tendered as Ex. PW1/4 and copy of will dated 28.1.2004, purportedly executed by Smt. Gian Kaur, sought to be tendered as Ex. PW1/5.
18. In the wake of the filing of affidavit dated 12.8.2008 an application was made on behalf of the respondent on 08.7.2009 for de exhibiting the documents Ex. PW1/2 and Ex. PW1/5 sought to be tendered by Mr. Jaspal Singh Kapoor during his examination in chief. Having received a written reply to application dated 08.7.2009 and after hearing counsel for the parties the said application was allowed by my learned predecessor by his order dated 13.8.2009 and it was directed that the documents sought to be tendered as Ex. PW1/2 and Ex. PW1/5 be marked as mark PW1/2 and mark PW1/5 respectively.
19. Against the order dated 13.8.2009 passed by the learned predecessor an application was made on 24.9.2009 for modification of the said order and the said application was also dismissed by my learned predecessor on 24.4.2010.
E. No. 70/08 Page no. 10 of 15
20. Subsequently, on 15.12.2010 Mr. Jaspal Singh Kapoor was examined as PW2 and during his examination in chief his affidavit Ex. P2 dated 12.8.2008 was tendered alongwith documents Ex. PW1/1, mark PW1/2, Ex. PW1/4 and mark PW1/5.
21. Documents mark PW1/2 and mark PW1/5 have not been proved as per the provisions of the Indian Evidence Act, 1872 (Act 1 of 1872) and therefore, no reliance can be placed on the same. As the original of mark PW1/2 was undervalued for the stamp purpose, therefore, in view of the provisions of section 35 of the Indian Stamp Act, 1899 (Act 2 of 1899) the same cannot be seen even for collateral purposes.
22. From the testimony PW2 Mr. Jaspal Singh Kapoor it has been proved that the terms and conditions of the lease between the parties in respect of the premises were reduced into writing.
23. As per the provisions of section 91 of Act 1 of 1872 evidence of terms of contracts, grants and other disposition of property reduced to form of a document shall be given in proof of such contract, grant or other disposition of property only by proving the document itself. In the present case as the applicants have failed to prove that document of the lease entered into between them and the respondent as per the provisions of section 91 of Act 1 of 1872, therefore, the oral testimony of PW2 Mr. Jaspal Singh Kapoor to the effect that the premises were let out for residential purpose cannot be relied upon and is to be eliminated in view of the E. No. 70/08 Page no. 11 of 15 provisions of sections 91 and 92 of Act 1 of 1872 and the provisions of section 35 of Act 2 of 1899. The applicants have failed to prove by leading proper evidence as per Act 1 of 1872 that the premises were let out for the residential purpose.
24. In so far as the third point for determination is concerned in his affidavit Ex. P2, PW2 Mr. Jaspal Singh Kapoor has deposed that site plan Ex. PW1/1 of the premises was prepared by Mr. M.N. Alam (Saif) draftsmen. During his examination in chief PW2 Mr. Jaspal Singh Kapoor also deposed that the premises were let out to the respondent with effect from 01.1.1981 by way of lease deed dated 31.12.1980. During his examination PW2 Mr. Jaspal Singh Kapoor further deposed that nobody had been staying in the premises for the last more than two years immediately before the date of filing of the present application. During his cross examination when counsel for the respondent asked the witness as to who had prepared the site plan Ex. PW1/1, PW2 Mr. Jaspal Singh Kapoor could not answer as to who had prepared the site plan but stated it was got prepared in 2003 and at that time the premises were lying open and unlocked and the son of Mr. Vanshi Dhar was residing in the premises. During his crossexamination PW2 Mr. Jaspal Singh Kapoor could not tell the name of the son of Mr. Vanshi Dhar who was residing at the premises when the site plan was got prepared. During his crossexamination PW2 Mr. Jaspal Singh Kapoor admitted that before filing of the present E. No. 70/08 Page no. 12 of 15 application he had not visited the premises in dispute, however, after filing of the application he kept a watch on the persons residing at the premises. During his crossexamination when counsel for the respondent put to the witness that site plan Ex. PW1/1 was not correct, he did not answer directly by taking a categorical stand and instead deposed that he could not say if the plan Ex. PW1/ was not correct according to site and further added that he had to check it. During his examination in chief PW2 Mr. Jaspal Singh Kapoor deposed that the premises were let out in the year 1981 but during his crossexamination he changed his stand by stating that the premises were let out in the year 1970 and subsequently added that he could not tell as to when the premises in dispute were let out and he would have to check it from his record. During his crossexamination PW2 Mr. Jaspal Singh Kapoor also deposed that he did not know as to who was residing at the premises in the year 2005 and further stated that at that time the premises were lying vacant. During his crossexamination PW2 Mr. Jaspal Singh Kapoor further deposed that he could not tell by whom the premises had been occupied at different period from the dated of letting out. During his crossexamination PW2 Mr. Jaspal Singh Kapoor further deposed that he had never went inside the premises from the date of letting out till date (PW2 deposed on 15.12.2010). During his crossexamination PW2 Mr. Jaspal Singh Kapoor also deposed that he could not tell the month of 2005 when he had visited the premises in dispute and further stated that he had E. No. 70/08 Page no. 13 of 15 heard from his cousin sister Baby that after 2004 the premises were lying vacant.
25. From the testimony of PW2 Mr. Jaspal Singh Kapoor it can be discerned that on many material facts the witness has taken a stand contrary to the stand taken by him in his affidavit Ex. P2. From the testimony of PW2 Mr. Jaspal Singh Kapoor it has also established that PW2 had no personal knowledge that immediately before the making of the present application at least for a period of six months the premises were lying vacant so much so as per the admission of PW2 Mr. Jaspal Singh Kapoor himself, after letting out the premises, he had never visited the premises. From the testimony of PW2 Mr. Jaspal Singh Kapoor it has also been established that his testimony and claim that the premises were lying vacant immediately before making of the present application was based on derivative knowledge gained through his cousin sister Ms. Baby, who was never examined as a witness in this court. The testimony of PW2 Mr. Jaspal Singh Kapoor is not reliable and the court is of the view that he is not a witness of truth. The applicants have failed to establish that immediately before making of the present application the premises were lying vacant for a period of six months or more.
26. The judgments relied upon by the learned counsel for the applicants are not relevant because the ratio of those judgments can only by resorted to if the applicants can establish by proving, unambiguously, that E. No. 70/08 Page no. 14 of 15 the premises were not being occupied on behalf of the respondent for a period of six months immediately before making of the present application. Since the testimony of PW2 Mr. Jaspal Singh Kapoor is non reliable, therefore, it cannot be held that the onus of proof had been shifted on the respondent to show that the premises were being occupied on its behalf by any director, executive or other person.
27. In view of my above discussion it is found that the applicants have failed to prove the ground of eviction prescribed in clause (d) of proviso to subsection (1) of section 14 of Act 59 of 1958. The application for eviction is dismissed with costs. File be sent to records.
Announced in the open court (Manoj Kumar)
on this day of 27th February, 2012 Rent Controller : New Delhi
27.02.2012
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