Delhi District Court
Smt. Sushila Devi vs Dr. Nani Gopal Roy on 31 March, 2015
IN THE COURT OF MS BHAWANI SHARMA: ACJ/CCJ/ARC
SHAHDARA: KARKARDOOMA COURTS: DELHI
E - 101/2013
Unique Identification No.02402C0276872013
Smt. Sushila Devi
W/o Sh. Jagjeet Singh Tomar,
R/o 1/3260A, Ram Nagar Extn.,
Mandoli Road, Shahdara,
Delhi110032. ..... Petitioner
Versus
Dr. Nani Gopal Roy
S/o Sh. P.N. Roy,
R/o 1/2288, Ram Nagar Extn.,
Mandoli Road, Shahdara,
Delhi110032.
Shop situated at:
1/3260A, Ram Nagar Extn.,
Mandoli Road, Shahdara,
Delhi110032. ..... Respondent
Application for Eviction of tenant under Section 14 (1) (e) of the
Delhi Rent Control Act, 1958
Petition filed on : 30.08.2013
Order reserved on : 09.03.2015
E - 101/13
Smt. Sushila Devi vs. Dr. Nani Gopal Roy Page 1 of 21
Date of Order : 31.03.2015
Decision : Leave to defend application of the
respondent dismissed and
eviction order passed.
ORDER
1. This is a petition for eviction of tenant under Section 14 (1) (e) of Delhi Rent Control Act, 1958 (hereinafter referred to as the 'DRC Act').
2. The petitioner Smt. Sushila Devi filed a petition under Section 14 (1) (e) of the DRC Act. Summons under prescribed format were served upon the respondent on 11.12.2013. An application seeking leave to defend the petition was filed on 21.12.2013. Petitioner filed reply to the same.
3. (a) The petitioner has sought an eviction stating that the tenanted premises i.e. a shop situated at ground floor in the property bearing no. 1/3260A, Ram Nagar Extn., Mandoli Road, Shahdara, Delhi110032 as shown in red colour in the site plan, is required bonafide by the petitioner for herself and for the requirement of her grandson namely Kunal Tomar.
(b) It is stated in the petition that the petitioner had purchased the property no.1/3260A situated in Khasra No.147, Ram Nagar Extn., Mandoli Road, Shahdara, Delhi110032 measuring 200 sq. yds. by virtue E - 101/13 Smt. Sushila Devi vs. Dr. Nani Gopal Roy Page 2 of 21 of sale deed dated 26.07.1972. It is submitted that the respondent was inducted as a tenant in the tenanted premises @ Rs.250/ per month excluding other charges and the rent was increased time to time and at present the rate of rent is Rs.400 per month.
(c) It is submitted that the petitioner had disposed off the southern side portion of the aforesaid property measuring 90 sq. yds. Approx. and remaining portion measuring about 110 sq. yds. is still in possession of the petitioner and she is the owner/landlord of the said premises. It is submitted that the entire property measuring 110 sq. yds. Consists of three shops at ground floor towards main road, out of which one shop is in possession of the respondent and other two shops are in possession of the other tenants. It is further submitted that behind these three shops, there is one bedroom, bathroom, toilet, kitchen and store room and on the first floor, there are two bed rooms, one drawing room, kitchen and bathroom & toilet and leading the staircase towards the second floor. The second floor consists of two bed rooms, one drawing room, kitchen and bathroom and toilet. The petitioner and her husband are residing on the ground floor and the younger son of the petitioner namely Satvir Singh Tomar is residing at first floor alongwith his wife and two children. It is submitted that the second floor is in possession of E - 101/13 Smt. Sushila Devi vs. Dr. Nani Gopal Roy Page 3 of 21 the elder son of the petitioner namely Brij Pal Singh, who is doing the job in Chandigarh (Punjab) and residing over there in Govt. accommodation but on each and every occasion, he alongwith his wife visits at the premises of the petitioner. The said son is residing at the second floor alongwith his wife. It is submitted that the petitioner is also having one married daughter who also visits at the house of the petitioner alongwith her family members.
(d) It is submitted that the petitioner, her husband and her two sons are not having any immovable property in Delhi or New Delhi nor the grandchildren of the petitioner are having any immovable property in their names in Delhi or New Delhi as such all the family members of the petitioner are dependent on the petitioner for commercial as well as residential purpose.
(e) It is submitted that the grandson of the petitioner namely Kunal Tomar has completed his B.Tech in the branch of Computer Science & Engineering in the year 2012 from Vivekanand Institute of Technology & Science, Ghaziabad, UP. and after passing the B.Tech, the said grandson Kunal Tomar has also got the experience in the field of computer and now he wants to open a computer shop from the tenanted premises which is in possession of the respondent. It is submitted that the E - 101/13 Smt. Sushila Devi vs. Dr. Nani Gopal Roy Page 4 of 21 said shop is useful for the grandson of the petitioner as such the tenanted shop is bonafidely required by the petitioner for the use of her grandson namely Kunal Tomar, who is totally unemployed and dependent upon the petitioner for his commercial space. It is further stated that the petitioner has no other reasonable suitable alternative accommodation available with her either in Delhi or anywhere else in India except the tenanted premises. It is, therefore, prayed to pass an eviction order against the respondent.
4. (a) Ld. counsel for the respondent has argued that the present petition is false and frivolous and the petitioner has concealed material facts before this Court. It is argued that the respondent was inducted as a tenant in the year 1982 at a monthly rent of Rs.250/ per month which was enhanced time to time and presently the respondent is paying Rs. 400/ pm and last receipt has been issued by the petitioner for rent of the month of December, 2013. It is further argued that the sons of the petitioner are in the service of police and in order to harass the respondent in the year 1997, the petitioner and her sons have tried to demolish the construction of shop and tried to dispossess the respondent forcible from the tenanted premises. It is submitted that in the year 2010, the petitioner has demolished the entire construction of property except E - 101/13 Smt. Sushila Devi vs. Dr. Nani Gopal Roy Page 5 of 21 the tenanted shop. It is argued that after new construction on the property, the property had given two newly built shops on rent on a very higher monthly rent therefore since than the petitioner and his sons are compelling the respondent either to vacate the premises or give the rent of Rs.15,000/ per month.
(b) It is submitted that the respondent is running a clinic on the tenanted shop based on Ayurvedic medicines. The respondent is an old person aged about 63 years and is a high diabetic patient and having several other diseases. He is living in the rented house alongwith his wife and old aged motherinlaw who is a handicapped lady. It is argued that the respondent is neither having any other source of income nor he is able to shift clinic anywhere else being old persons of ill health. It is submitted that if there are two other rented shops of the petitioner than why the petitioner chooses to evict the respondent. The respondent is a poor fellow having no other sources of income and will not be able to set up his small clinic anywhere and if the respondent was evicted then it would be great injustice with the respondents and his family members. It is submitted that the petitioner has no bonafide requirement and the present petition is only a way to seek the eviction of the respondent from the said premises so that the shop can be given on higher rent. The other E - 101/13 Smt. Sushila Devi vs. Dr. Nani Gopal Roy Page 6 of 21 two tenants are paying handsome amount of rent to the petitioner
(c) It is submitted that the property is two sided property having both side roads and in both sided roads, there are shops than one shop can be constructed in the vacant area of the Lobby of property at ground floor shown in site plan. It is submitted that the petitioner wants the tenanted shop for bonafide requirement for her grand son Kunal Tomar but the said property is not tenable because Kunal Tomar is not direct liability of the petitioner if father of Kunal is well settled, who is in services of Delhi. It is submitted that the entire property has been already partitioned by the petitioner between her two sons i.e. Top Floor is given to the elder son, in which son of elder is living with his wife, First Floor has been given to the younger son, Sh. Satbir and ground floor is kept by the petitioner for herself and her husband hence the petitioner cannot filed the case for the requirement of her grandson. It is further submitted that Kunal Tomar has the degree of B.Tech which is specifically meant for the professionals and right now Kunal is doing the job in Noida and getting a handsome salary which is not disclosed by the petitioner. Even otherwise, for opening a shop by any person, he needs the experience but there is no document filed by the petitioner to show he is having enough experience to open a shop of computers. It is also argued that if the E - 101/13 Smt. Sushila Devi vs. Dr. Nani Gopal Roy Page 7 of 21 petitioner has completed the degree in August 2012 than why the petitioner has filed the present petition after one year.
(d) It is submitted that the petitioner has filed wrong site plan because the shop in question is measured as 16 x 8 as mentioned in her petition by the petitioner but the petitioner has filed the site plan of measurement of shop i.e. 9 x 18. It is submitted that the petitioner has disclosed all the properties because the petitioner also having the agricultural land and house in her native village in the name of her husband and the husband of the petitioner and petitioner are getting money from that property.
Thus, it is argued on behalf of the respondent that the respondent has very good defence and sufficient cause and evidence to defeat the case of the petitioner and he is entitled to leave to defend.
5. Before adverting to the submissions of the parties, it would be apposite to encapsulate the legal provision under Section 14 (1) (e) of the Delhi Rent Control Act, 1958, which governs the current litigation. Section 14 (1) (e) provides that:
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 any court or Controller in favour of landlord against a tenant: E - 101/13 Smt. Sushila Devi vs. Dr. Nani Gopal Roy Page 8 of 21 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 ore more of the following grounds only, namely:
(e) that the premises are required bona fide by the landlord for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation.
6. In Shambhoo Singh vs. Triloki Nath Sharma 2012 (2) Rent LR 52, it was held that the essential ingredients to establish a case under Section 14 (1) (e) of the DRC Act are :
(a) The applicant has to be the landlord/owner.
(b) The premises should have been let out for residential or commercial purposes or both.
(c) The said premises are required bona fide by the landlord for occupation for himself or for his family member dependent upon him.
(d) The said landlord or family member dependent upon him has no other reasonably suitable residential accommodation.
7. In the present case the petitioner has filed the petition stating that she is the landlord of the tenant/respondent in respect of a shop situated at ground floor in the property bearing no. 1/3260A, Ram Nagar Extn., Mandoli Road, Shahdara, Delhi110032. The petitioner has also claimed E - 101/13 Smt. Sushila Devi vs. Dr. Nani Gopal Roy Page 9 of 21 that the reason for eviction is a bonafide claim for her grandson namely Kunal Tomar. She has no other property except the declared property in the vicinity of Delhi.
8. What has to be seen now is whether the leave to defend application moved by the respondent has raised any triable issues or not for which evidence is to be led? I shall deal with all the defences raised in the leave to defend application of the respondent in a sequential manner:
9. The first ground on which leave to defend is sought is that the present petition is false and frivolous and the petitioner has concealed material facts before this Court. It is argued that the respondent was inducted as a tenant in the year 1982 at a monthly rent of Rs.250/ per month which was enhanced time to time and presently the respondent is paying Rs.400/ pm and last receipt has been issued by the petitioner for rent of the month of December, 2013. It is further argued that the sons of the petitioner are in the service of police and in order to harass the respondent in the year 1997, the petitioner and her sons have tried to demolish the construction of shop and tried to dispossess the respondent forcible from the tenanted premises.
10. The ground taken by the respondent/applicant that the present E - 101/13 Smt. Sushila Devi vs. Dr. Nani Gopal Roy Page 10 of 21 petition is a false petition, no cogent material to substantiative the contention been filed. In the absence of any material, the ground is not tenable. In this regard reference can also be had to the judgment of Hon'ble High Court of Delhi in Shafiqqudin Vs. Mohd. Ibrahim, in R.C.Rev 502/2012, wherein it was held that "It is important for the tenant, in any leave to defend application to submit relevant documents on record to support any triable issue raised by him. In absence of any material, the ARC cannot come to a conclusion as to the weight of the issue raised by the tenant. Thus impairing his power to decide whether an issue raised is triable or not."
11. Next ground taken by the respondent is that he is running a clinic on the tenanted shop based on Ayurvedic medicines. The respondent is an old person aged about 63 years and is a high diabetic patient and having several other diseases. He is living in the rented house alongwith his wife and old aged motherinlaw who is a handicapped lady. It is argued that the respondent is neither having any other source of income nor he is able to shift clinic anywhere else being old persons of ill health. It is submitted that if there are two other rented shops of the petitioner than why the petitioner chooses to evict the respondent. The respondent is a poor fellow having no other sources of income and will not be able to E - 101/13 Smt. Sushila Devi vs. Dr. Nani Gopal Roy Page 11 of 21 set up his small clinic anywhere and if the respondent was evicted then it would be great injustice with the respondents and his family members. It is submitted that the petitioner has no bonafide requirement and the present petition is only a way to seek the eviction of the respondent from the said premises so that the shop can be given on higher rent. The other two tenants are paying handsome amount of rent to the petitioner.
12. The arguments as advanced on behalf of the respondent to contend the bonafide requirement of the petitioner by stating that she is the widow lady having dependents and she does not have any other residential property except the tenanted premises, does not raise any triable issue for the purpose of adjudication of the present petition. Firstly, the financial status of the respondent or for that matter of the petitioner is not relevant for the purpose of determining whether a triable issue raised or not. Secondly, it is not disputed that the petitioner requires the suit premises for the bonafide requirement for himself and his family members. Thirdly, the bonafide requirement of the petitioner has been generally challenged. In Gurcharan Lal Kumar vs. Smt. Satyawati & Ors. 2013 (2) CLJ 28 (NOC) Del. it was held that it is not necessary for landlord to indicate nature of business intended to start - sons and grandsons of the landlord have no other suitable alternate E - 101/13 Smt. Sushila Devi vs. Dr. Nani Gopal Roy Page 12 of 21 accommodation to carry out business - application for leave to defend dismissed with cost.
13. Another ground taken by the respondent is that in the year 2010, the petitioner has demolished the entire construction of property except the tenanted shop. It is argued that after new construction on the property, the property had given two newly built shops on rent on a very higher monthly rent therefore since than the petitioner and his sons are compelling the respondent either to vacate the premises or give the rent of Rs.15,000/ per month. The property is two sided property having both side roads and in both sided roads, there are shops than one shop can be constructed in the vacant area of the Lobby of property at ground floor shown in site plan. It is submitted that the petitioner wants the tenanted shop for bonafide requirement for her grand son Kunal Tomar but the said property is not tenable because Kunal Tomar is not direct liability of the petitioner if father of Kunal is well settled, who is in services of Delhi. It is submitted that the entire property has been already partitioned by the petitioner between her two sons i.e. Top floor is given to the elder son, in which son of elder is living with his wife, First Floor has been given to the younger son, Sh. Satbir and ground floor is kept by the petitioner for herself and her husband hence the petitioner cannot E - 101/13 Smt. Sushila Devi vs. Dr. Nani Gopal Roy Page 13 of 21 filed the case for the requirement of her grandson. It is further submitted that Kunal Tomar has the degree of B.Tech which is specifically meant for the professionals and right now Kunal is doing the job in Noida and getting a handsome salary which is not disclosed by the petitioner. Even otherwise, for opening a shop by any person, he needs the experience but there is no document filed by the petitioner to show he is having enough experience to open a shop of computers. It is also argued that if the petitioner has completed the degree in August 2012 than why the petitioner has filed the present petition after one year.
14. The ground taken is giving fake information regarding construction in the property of the petitioner in the year 2010 is rejected as for availing benefit of Section 3 (d) of the DRC Act, the fresh construction has to be in the tenanted premises and not at the premises which has not been rented to the applicant/respondent. Admittedly, the applicant/respondent, who is tenant under the landlordship of the petitioner since 1982 in the tenanted premises upon which no fresh construction has taken place (as per para 3 (iii) of the application seeking leave to defend attached).
15. As regards the objection that the person for whose bonafide need the premises are required, does not have any experience is not allowed. In Tej Prakash vs. Idrish & Ors. 2012 (2) R.C.R. (Rent) 536, it was held E - 101/13 Smt. Sushila Devi vs. Dr. Nani Gopal Roy Page 14 of 21 that it was prerogative of the landlord when to remain unemployed or to do his business. No prior experience or arrangement is required by the landlord to start a new business. A person can start a new business even if he has no experience [(2010) 1 SCC 164 relied].
16. In Raghubar Dayal Om Prakash vs. Jai Kishan Rohtagi 2012 (2) Rent LR 36 it is held that it is not for the tenant or court to dictate terms to the landlord as to how and in what manner he has to meet his need for an accommodation. The certificate filed by the petitioner issued by Uttar Pradesh Technical University substantiate the fact that Kunal Tomar is qualified graduate and eligible to do practice the profession and in fact genuinely intended to do so from the tenanted premises.
17. As regards the arguments that Sh. Kunal Tomar for whose bonafide requirement, the tenanted premises is required is not dependent upon the petition nor he is direct liability of the petitioner. The ground taken is not tenable in the light of the fact that requirement of Kunal Tomar, who is grandson of the petitioner can be considered to be requirement of the petitioner and there is a close interrelation as grandmother and grandson or identity nexus between Sh. Kunal and the petitioner (2002 (2) Rent L.R. 1 relied). The word dependent cannot be restricted to financially dependent (It has to be construed in the light of prevailing social E - 101/13 Smt. Sushila Devi vs. Dr. Nani Gopal Roy Page 15 of 21 conditions as well). If members of family of owner landlord cannot set up separate residence, they are said to be the dependent upon landlord owner. (Shri Gurdial Nagdev vs. Smt. Devi Bai 1979 (1) RCR (Rent) 119, relied). The landlord can eject tenant for occupation of himself and those members who are used to live with him as one unit on account of social. Religious customs and for purpose that landlord feels secure with such members (1980 (1) RCR 563 relied). The landlord can eject tenant for occupation of himself and those members who are used to live with him as one unit on account of social religious customs and for purpose that landlord feels secure with such members (1980 (1) RCR (Rent) 563 relied).
18. Dependency does not mean financial dependency but dependency for the building which belongs to the landlord who will constitute the family members has to be determined with regard to social economic mileu of parties. In Indian society, son, daughter, soninlaw, daughter inlaw, brother, sister etc. are members of family and would, in many cases depends upon head of the family (2002 (2) Rent LR 253 and 1970 RCR 511 relied). The word himself under Section 14 (1) (e) of the DRC Act includes the persons with whom the landlord is normally accustomed E - 101/13 Smt. Sushila Devi vs. Dr. Nani Gopal Roy Page 16 of 21 to live (1971 RCR 887 relied). The word "dependency" as used in Section 14 (1) (e) of the DRC Act is primarily economic dependence. In certain cases, dependence may not be economic but may be physical or normal. An invalid person may depend on the help of another person. An unmarried daughter may depend upon her parents. Even if such dependant persons have a sufficient income of their own to set up an independent household, they would still be dependant on others in view of physical, normal and social if not economic reasons (as held in P.D. Sharma vs. Ram Lubhaya 1969, RCR (Rent) 992).
19. In 2009 (2) RCR 455 titled as Ram Babu Agarwal vs. Jay Kishan Das, the Apex Court observed that "However, as regards the question of bonafide 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 business in the new business. That does not E - 101/13 Smt. Sushila Devi vs. Dr. Nani Gopal Roy Page 17 of 21 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, ad sometimes they are successful in the new business also".
20. In Sait Nagjee Purushotham and Company Ltd. vs. Vimalabai Prabhulal and Ors. 2005 8 SCC 252, the Ld. Apex Court has observed that "It is always the 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. 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."
21. Reliance placed upon the learned counsel for the petitioner upon the judgment of the Apex Court reported as Precision Steel & Engineering Works vs. Prem Deva AIR 1982 SC 1518 is misplaced. It is only when a triable issue has arisen that the application for leave to defend has to be granted. No such triable issue having arisen, the impugned judgment dismissing the application for leave to defend suffers from no infirmity.
E - 101/13 Smt. Sushila Devi vs. Dr. Nani Gopal Roy Page 18 of 21
22. Another ground taken by the respondent is that the petitioner has filed wrong site plan because the shop in question is measured as 16 x 8 as mentioned in her petition by the petitioner but the petitioner has filed the site plan of measurement of shop i.e. 9 x 18. The petitioner has also disclosed all the properties because the petitioner also having the agricultural land and house in her native village in the name of her husband and the husband of the petitioner and petitioner are getting money from that property.
23. The contention of the respondent that the petitioner has not filed the correct site plan is not tenable in the light of the fact that apart from mere objection, the applicant/respondent himself has not filed any document/site plan supporting his contention, reducing his objection into "bald assertion.". In the absence of any site plan (alleged to be correct), the argument of the respondent does not hold water and is not tenable. 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 then landlord plan has to be accepted as correct". The said argument is completely misplaced as the petitioner has disclosed the factum of other shops being on tenancy but it is not for the tenant to direct a landlord as to which tenanted premises should be chosen by him for meeting his E - 101/13 Smt. Sushila Devi vs. Dr. Nani Gopal Roy Page 19 of 21 bonafide requirement. The other contention of the respondent that non disclosure of the residence of sons of the petitioners is of no availa in the present petition which is filed for bonafide need of son's son. Conclusion:
24. It is well settled law that leave to defend can be granted to the tenant in case of any triable issue has been raised by him, which can be adjudicated by consideration of additional evidence. The mere existence or averment of any triable issue is not sufficient. The nature of the triable issue raised by the tenant must be such that it would disentitle the landlord from obtaining the eviction order. The whole purpose and import of summary procedure under Section 25B of the Act would otherwise be defeated. The prayer for leave to contest should be granted to the tenant only where a prima facie case has been disclosed by him. In the absence of the tenant having disclosed a prima facie case i.e. such facts which disentitles the landlord from obtaining an order of eviction, the Court should not mechanically & in routine manner grant leave to defend.
25. In the light of the aforesaid legal ratio, all the pleas taken by the respondent seems to be sham and moonshine, which have failed to raise any requisite triable issues. The contents of the application for leave to E - 101/13 Smt. Sushila Devi vs. Dr. Nani Gopal Roy Page 20 of 21 defend have failed to rebut the presumption of bonafide qua the need of the petitioner. The application for leave to defend filed by the respondent is thus rejected.
26. Consequently, an eviction order is passed under Section 14 (1) (e), hop DRC Act against the respondent in respect of suit property i.e. a s situated at ground floor in the property bearing no. 1/3260A, Ram Nagar Extn., Mandoli Road , Shahdara, Delhi110032 as shown in red colour in the site plan filed by the petitioner in this case.
27. However in light of Section 14 (7) DRCA, the aforesaid eviction order shall not be executable for a period of six months from today.
28. The parties are left to bear their own costs.
29. File be consigned to Record Room after due compliance.
(Announced in the open (Bhawani Sharma)
Court on 31.03.2015 ACJ/CCJ/ARC (Shahdara)
(Order contains 21 pages.) Karkardooma Courts, Delhi.
E - 101/13
Smt. Sushila Devi vs. Dr. Nani Gopal Roy Page 21 of 21