Delhi District Court
Sh. Mohan Pal Singh vs Sh. Girdhari Lal on 18 February, 2015
1
IN THE COURT OF SH. GAGANDEEP SINGH, ARCCUM
ADMINISTRATIVE CIVIL JUDGE (NORTH WEST), ROHINI
COURTS, DELHI
E.No. : 9/14
Sh. Mohan Pal Singh
S/o. Late Sh. Harbans Singh
R/o. WZ925,
Rani Bagh,
New Delhi110 034.
...Petitioner
Versus
Sh. Girdhari Lal
S/o. Not known
Shop At WZ925,
Rani Bagh,
New Delhi110 034.
Also At :
A56, Rishi Nagar,
Rani Bagh,
New Delhi110 034.
...Respondent
Date of Institution : 04.02.2014
Date of Arguments : 03.11.2014
Date of order : 18.02.2015
E. No. 9/14 Mohan Pal Singh Vs. Girdhari Lal 1
2
PETITION UNDER SECTION 14 (1) (e) r/w/s 25B OF THE DELHI
RENT CONTROL ACT
ORDER
1. Vide this order, I shall dispose of an application for grant of leave to defend filed on behalf of the respondent.
2. The brief facts are that father of the petitioner Sh. Harbans Singh was the owner of the property bearing no. WZ925, Rani Bagh, Delhi110 034 and after his death all his legal heirs released their shares in the favour of their mother Smt. Mohan Kaur. Thereafter Smt. Mohan Kaur executed the registered Will dt. 30.12.1994 in respect of the ground and first floor of the property including the tenanted premises in favour of the petitioner.
The respondent was inducted as tenant by the mother of the petitioner in the year 1984 in one shop/window/space measuring 2' X 6' at the ground floor at monthly rent of Rs. 200/ excluding electricity charges E. No. 9/14 Mohan Pal Singh Vs. Girdhari Lal 2 3 which is now Rs. 330/ p.m. after increase from time to time. The said portion was let out of the nonresidential purpose and is being used for doing business of radio repairing etc. After the death of mother of the petitioner he himself started collecting the same against duly issued rent receipt.
3. The first floor of the property is being used by the petitioner for residential purpose and he is also running a shop of artificial jewellery/bangles for the last 29 years at the ground floor. The petitioner is 55 years old unmarried person having history of heart disease for last more than 2530 years and had undergo open heart surgery in the year 1999. Thereafter, he remain unwell and is unable to take physical stress. He has to undergo regular checkups and frequently visit to the doctors. Again on 08.04.2010 doctors conducted open heart surgery and he remained admitted in hospital for 10 days and is under medical advice to take minimum physical stress to prevent unhealthy condition.
4. Further for the last few months, he is suffering from joint/knee E. No. 9/14 Mohan Pal Singh Vs. Girdhari Lal 3 4 pain problem and wants to live in the portion where he is running his business of selling artificial jewellery/bangles etc. He wants tenanted premises for running his business of selling jewellery/bangles etc. to earn his livelihood in keeping pace with his health problem. The another shop is under the tenancy of Sh. Rakesh Kumar under the name and style of M/s. Kunal Beauty Palace since 1994 at monthly rent of Rs. 330/ p.m. That the respondent is also having his own shop at A56, Rishi Nagar, Rani Bagh, Delhi in the name and style of M/s. Winner Interior and hence, occupying the tenanted premises just to extort money from the petitioner. That the petitioner is not having other reasonable suitable alternative commercial accommodation for making any alternative arrangement of doing business. Hence, the present petition seeking eviction of respondent.
5. After service of the summons of the eviction petition, the leave to defend/contest was filed by the respondent submitting therein that the site plan filed by the petitioner does not correctly depict the situation nor the extent of the property as a whole. Further that the petitioner has also deliberately failed to give complete description of the residential E. No. 9/14 Mohan Pal Singh Vs. Girdhari Lal 4 5 accommodation available to him in the suit property of which the tenanted premises is a part. Further he holds another property including House no. A1/449/FF, Sector6, Rohini, Delhi which is a residential property and can fulfill the requirement of the petitioner. None of the medical documents filed by the petitioner disclose any advisory to him which support the bonafide ground of the petitioner in the present petition.
6. The reply to the leave to defend of the respondent has also been filed on behalf of the petitioner reiterating the facts alleged in the application and denying the contents of leave to defend filed by the respondent.
7. I have heard Sh. Viney Sharma, adv. for the petitioner and Sh.Yudhishter Sharma, adv. for the respondent perused the record carefully.
8. The petition under Section 14 (1) (e) and leave to defend filed under Section 25 (B) of DRC Act has to be decided on the following parameters :
E. No. 9/14 Mohan Pal Singh Vs. Girdhari Lal 5 6
i) The relationship of landlord and tenant between the parties and the landlord being the owner of the premises
ii) Bonafide requirement of the landlord for the tenanted premises and
iii) No other alternative accommodation being available with the landlord so as to satisfy his/her requirement RELATIONSHIP OF LANDLORD AND TENANT
9. The relationship of landlord and tenant is admitted by both the parties. The respondent has not disputed that the petitioner is the landlord of the tenanted premises though he claimed that the petitioner has not become the owner by virtue of Will dt. 30.12.1994. Further another document relied upon by the petitioner i.e. the release deed executed by the legal heirs of late Smt. Harbans Kaur has not been filed. Thus, the said issue itself raises a triable issue in favour of the respondent.
The petitioner on the other hand has contended that he became owner of the entire property in question after death of his mother Smt. Mohan Kaur on 30.11.1997. Initially his father was the owner of the property having purchased it through registered sale deed dt. 18.03.1952. E. No. 9/14 Mohan Pal Singh Vs. Girdhari Lal 6 7 After death of his father all the legal heirs released their shares in favour of their mother Smt. Mohan Kaur.
10. In the entire leave to defend application the status of the petitioner as a landlord is not disputed. It is also not disputed that the respondent has been paying rent to the petitioner only. The dispute has only been raised with respect to the contents of Will dt. 30.12.1994 and previously to that the relinquishment deed of the LRs of original owner Late Sh. Harbans Singh. The respondent is admittedly the tenant in the present case and is the stranger to both the Will as well as the relinquishment deed. He has got no right to question as to the legality or authenticity of the Will and relinquishment deed. The petitioner has placed on record the copy of the Will dt. 30.12.1994 wherein whole of the property bearing no. WZ925, Rani Bagh, Delhi has been bequeathed in favour of the petitioner herein. The tenanted premises also falls on the ground floor of the said property. Even otherwise it is well settled law that for purposes of the rent petitions, the landlord has to only show that he is more than tenant only. The Section 116 of the Indian Evidence Act would also apply and the tenant is estopped E. No. 9/14 Mohan Pal Singh Vs. Girdhari Lal 7 8 from challenging the title of the landlord even if the same is defective. To support this view I am guided by the judgment of Hon'ble Delhi High Court in case titled as Ramesh Chand vs. Uganti Devi cited 2008 (2) RCR 567. Thus no triable issue is raised on the aspect of ownership of the petitioner herein.
BONAFIDE REQUIREMENT OF THE LANDLORD
11. The issue of the bonafide requirement of the landlord and grounds of leave to defend has to be judged on the basis of principles as pronounced by Hon'ble Supreme Court of India in landmark case titled as Charan Dass Duggal vs. Brahma Nand 1983 1 SCC 301. The relevant paragraph of the said judgment is reproduced herein :
"The genesis of our procedural laws is to be traced to principles of natural justice, the principal amongst them being that no one shall suffer civil or evil or pecuniary consequence at his back without giving him an adequate and effective opportunity to participate to disprove the case against him and provide his own case. Summary procedure does not clothe an authority with power to enjoy summary dismissal. Undoubtedly E. No. 9/14 Mohan Pal Singh Vs. Girdhari Lal 8 9 wholly frivolous defence may not entitle a person leave to defend. But equally a triable issue raised, enjoins a duty to grant leave. May be in the end the defence may fail. It is necessary to bear in mind that when leave to defend is refused the party seeking leave is denied an opportunity to test the truth of the averments of the opposite party by crossexamination and rival affidavits may not furnish reliable evidence for concluding the point one way or the other. It is not for a moment suggested that leave to defend must be granted on mere asking but it is equally improper to refused to grant leave though triable issues are raised and the controversy can be properly adjudicated after ascertainment of truth through crossexamination of witnesses who have filed their affidavits. We are, therefore, satisfied that this is a case in which triable issues were raised and both the learned Rent Controller and the High Court were in error in refusing to grant the leave.
12. In the present case in hand the respondent has challenged the present petition of the petitioner by arguing that a false and fabricated requirement has been created by the petitioner. The medical record relied upon by the petitioner no where specifies against climbing the stairs by the E. No. 9/14 Mohan Pal Singh Vs. Girdhari Lal 9 10 petitioner. It was also argued by relying upon the CD filed along with the rejoinder that the petitioner has been carrying out his normal job without any medical hindrance.
The petitioner on the other hand has contended that he is more than 55 years old unmarried person. He is suffering from heart disease for the last more than 2530 years. In the year 1999 he had to undergo a heart surgery. In the year 2006 he again went through various tests. Further in the year 2010 a open heart surgery was conducted upon him. He remained in hospital for 10 days. Thus, he has been advised to take minimum physical stress. Therefore, the requirement pleaded by the petitioner is bonafide.
13. The petitioner has pleaded that at present he is residing on the first floor of the premises in question. He is also running his own shop selling artificial jewellery etc. which is just adjoining to that of the tenanted premises. That due to his aggravated medical condition he wishes to start residing in the shop where he at present is running the business. He further wishes to shift his own business to the tenanted premises which his more suitable being adjoining to his own shop.
E. No. 9/14 Mohan Pal Singh Vs. Girdhari Lal 10 11
The petitioner has placed on record a plethora of medical documents with respect to his heart disease. The first document is the discharge summary dt. 13.04.1999. He was operated upon at Escorts Hospital and AORTIC volve replacement was done. He was advised to do normal activity but was given medicines as a follow up. The second document is dt. 10.04.2006 wherein certain tests were again conducted related to the heart disease only. The last document is the discharge summary dt. 15.04.2010. He was again operated upon with a major heart surgery. All the said documents have not been disputed in the entire leave to defend application. Thus, the petitioner has been able to show that he is suffering from heart disease since the year 1999 and had been operated twice. Though there is no specific written advice, but it is very much natural conduct of every patient to ensure minimum stress after going through two major surgeries. In the said backdrop the bonafide requirement as pleaded has to be appreciated. Therefore, the argument of the respondent that no written medical advice regarding no using the stairs is devoid of merit and does not raise any triable issue. Further the evidence filed by respondent with rejoinder cannot be considered. To support this view, I am guided by E. No. 9/14 Mohan Pal Singh Vs. Girdhari Lal 11 12 judgment of Hon'ble Delhi High Court in Shyam Dunder Vs. Inder Pal Chauhan in RC (Rev.) No. 68/2013 dt. 21.07.2014.
14. The second ground on which the leave to defend has been sought by the respondent is that petitioner with malafide intent has filed the present petition. If the contention of the petitioner is correct then the more suitable shop for setting up his living area should be the bigger shop as shown in the green colour of the site plan. The petitioner would able to construct his kitchen as well as washroom in the said area.
On the contrary the tenanted premises is having depth of only 2 feet and is not suitable for fulfilling the requirement of the petitioner.
15. The petitioner on the other hand has contended that at present he is residing at the first floor of the premises. He has to frequently to up and do for preparing meal etc. He wishes to shift his own shop to the tenanted premises and wants to convert his shop into living area. E. No. 9/14 Mohan Pal Singh Vs. Girdhari Lal 12 13
16. The petitioner has filed on record the site plan of the entire property. There is no counter site plan to the plan of the petitioner and hence, the same is taken to be true and correct. On the ground floor of the entire property there are three shops besides stairs. The shop shown in yellow colour is in possession of petitioner and red in the possession of the respondent. Both the said shops are having the opening on the same road. They are just segregated by the stairs in between. Thus, the intention of the petitioner to shift his own business of artificial jewellery etc. to the tenanted premises is the most natural conduct as his customers would face no difficulty in locating the same. Even otherwise, the said contention of the respondent that petitioner should have his living area in the bigger shop as shown in green colour would amount to dictating the landlord as to how and in what manner he should live. In this regard reliance is placed upon the judgment of Hon'ble Supreme Court in case titled as Sait Nagjee Purushotham and Co. Ltd. Vs. Vimalabai Prabhulal and Ors. cited as 2005 8 SCC 252 wherein the rights of the landlord has been discussed as under :
"It is always the prerogative of the landlord that if he E. No. 9/14 Mohan Pal Singh Vs. Girdhari Lal 13 14 requires the premises in question for his bona fide 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. It is not the tenant who can dictate the terms to 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 business."
17. Further the other grounds which have been raised by the respondent in his leave to defend are not supported by any material on record but are mere bald assertions only. In this regard the Hon'ble High Court of Delhi in Krishan Kumar Gupta vs. Swadesh Bhushan Gupta 2008 152 DLT 556 is relevant. The relevant paragraph is reproduced herein under for the sake of convenience :
"All sorts of objections are generally raised whenever an eviction petition is filed by the landlord. Even the ownership of the landlord, the relationship of the landlordtenant, the purpose of letting and bonafide requirement are denied by the tenant and fake allegations are made that the landlord has other properties. Many allegations are raised only for the sake of raising. Unless, E. No. 9/14 Mohan Pal Singh Vs. Girdhari Lal 14 15 the learned ARC scrutinizes each of the objections raised by the tenant with the help of documents and the material placed on record, the entire purpose of providing summary proceedings in respect of the eviction proceedings fails. Thus, it is incumbent upon the ARC to scrutinize all objections carefully in the light of law laid down and in the light of the material placed on record. It cannot be argued that the learned ARC was not required to go into the details of the objections and come to a conclusion on the basis of affidavits and once objections are raised leave to defend must be granted. Leave to defend can be granted only in those cases where the tenant is able to show by material on record that the petition was filed by the landlord malafidely. The facts stated by him about his age, family accommodation were false.
18. Thus, the requirement which has been pleaded by the petitioner of tenanted shop for his use cannot be termed as malafide one or his desire only.
ALTERNATIVE ACCOMODATION
19. The last factor which has to be considered is that no other E. No. 9/14 Mohan Pal Singh Vs. Girdhari Lal 15 16 reasonable alternative accommodation being available with the petitioner for satisfying his requirement. The petitioner has categorically stated that apart from the tenanted premises he has one more shop which is already in occupation of other tenant. Apart from this he has no other alternative accommodation.
20. The respondent on the other hand contended his application for leave to defend that the petitioner purchased a flat bearing no. A1/449/F, Sector6 having two rooms accommodation. The same has been rented out recently to some other tenant. This fact has been deliberately concealed by the petitioner. The said alternative accommodation can easily be used for fulfilling the requirement of the petitioner.
21. The petitioner in his reply to the leave to defend has specifically contended that he purchased the said flat in the year 2005. He sold the same for his sister Smt. Harbhajan Kaur on 22.03.2010. Even otherwise the said property is situated at a distance of 56 k.mtrs. and that too at first floor. The respondent barely denied the said averment of the petitioner without E. No. 9/14 Mohan Pal Singh Vs. Girdhari Lal 16 17 producing any contrary material. The petitioner has also filed on record the transfer document of said plot vide transfer documents dt. 22.03.2010 duly registered with subregistrar, VI, Rohini. There is no reason to disbelieve the said document. Thus, the said property is not available with the petitioner as of today and the same has been disposed off in the year 2010, more than four years before the filing of the present petition.
Even otherwise, the said property cannot be termed as reasonable, suitable alternative accommodation as the same is situated at the first floor at the distance of about 56 k.mtrs. from where the petitioner is running his business. The requirement of the petitioner is that of living space which is nearby to his business space in view of his medical ailments. The said requirement cannot be satisfied through the said alternative accommodation as suggested by the respondent. To support this view I am also guided by the judgment of Hon'ble Delhi High Court in case titled as Sukhbir Singh vs. I.P.SIngh cited as 2012 (2) RCR Rent 409. Thus, no triable issue is raised on the aspect of alternative accommodation.
22. In view of the abovesaid reasons, I am of considered opinion E. No. 9/14 Mohan Pal Singh Vs. Girdhari Lal 17 18 that in the leave to defend of respondent no triable issues are raised by the respondent which requires trial and evidence to be led by the parties. Accordingly, the leave to defend is dismissed and the petition of the petitioner under Section 14 (1) (e) of DRC Act is allowed.
Announced in the open court (GAGANDEEP SINGH)
on 18.02.2015 ACJCUMARC NORTHWEST
ROHINI COURTS/ DELHI.
(This judgment contains eighteen pages and each page bears my signature.) E. No. 9/14 Mohan Pal Singh Vs. Girdhari Lal 18 19 E. No. 9/14 Mohan Pal Singh Vs. Girdhari Lal 18.02.2015 Present: None Vide separate order of even date, the leave to defend is dismissed and the petition of the petitioner under Section 14 (1) (e) of DRC Act is allowed. The respondent is directed to vacate the tenanted one shop/window/space measuring 2' X 6' at the ground floor out of property bearing no. WZ925, Rani Bagh, Delhi110 034 as shown in site plan in red colour.
The order of eviction shall not be executable for the period of six months from today in terms of Section 14 (7) DRC Act.
File be consigned to Record Room.
(GAGANDEEP SINGH) ACJcumARC (North West) Rohini Courts, Delhi/18.02.2015 E. No. 9/14 Mohan Pal Singh Vs. Girdhari Lal 19