Delhi District Court
Praful Prakash vs Jagdish Kr. Sharma on 16 November, 2011
E.No. 127/10
IN THE COURT OF SHRI DEVENDER KUMAR JANGALA:
ADDL. RENT CONTROLLER: NORTH WEST: ROHINI:DELHI.
E. NO. 127/10
Praful Prakash
....... Petitioner
Versus
Jagdish Kr. Sharma
...... Respondent
Date of filing the application: 23.11.10 Date of Order: 16.11.11 ORDER ON LEAVE TO DEFEND
By this order I shall decide an application for grant of leave to defend filed by the respondent.
1. The petitioner filed the eviction petition U/S 14 (1) (e) r/w Section 25B(4) of Delhi Rent Control Act ( herein after called as DRC Act). It is stated by the petitioner that he is the landlord in respect of the Page 1 of 15 E.No. 127/10 whole property bearing No.F14/10, Model Town No.II, Delhi9 . It is stated that the respondent is a tenant with respect to private shop No.3, situated at ground floor measuring approx width 13ft3"
rear half and 4ft10" front half , 11 ft wide, with a total depth approx 11ft and height 11ft, back side lane, situated at F14/10, Model TownII, Delhi10009 suit property. It is stated that the tenancy has been terminated by the petitioner vide notice dated 21.4.09, however the tenant is in wrongful possession of the suit shop by virtue of DRC Act as ' statutory tenant'. It is stated that the suit shop is required by the petitioner and his family members for bonafide use to be used as a ' store room ' for ' sundry storage purpose in general'. It is stated that there is a sundry construction material , tools, cloth paintings, painting material, L.P.G. gas cylinders and other sundry storage material etc., which can in 'no way' be accommodated in the suit shop alone. It is stated that owing to the paucity of space and the limited capacity of the suit shop, to accommodate the said material , the petitioner also intends to initiate separate eviction proceedings with respect to other shops on the ground floor.
Page 2 of 15 E.No. 127/10
2. It is stated that the lot of paint material namely a number of Distemper paint buckets weighing 20 kgs each and number of LPG gas cylinders also stored in the same narrow passage next to the kitchen which is also dangerous. It is further stated that the accommodation available to the petitioner and his extended family members included his two sisters have shown in the site plan in green colour. It is stated that on the ground floor the petitioner has a drawing room, a dressing room, a kitchen with a narrow passage as per photos attached alongwith the eviction petition and a covered varanda, two toilets and a wash room. It is stated that on the first floor the petitioner has a kitchen, small veranda, a bed room , a study room, an enclosed passage which is connected to the study room and the bed room, a pooja/ meditation room. It is further stated that the petitioner requires a children room for his daughter and three nephews and two bed room for two sisters and their husbands. It is stated that in rest of the area shown in blue in the site plan on the ground floor , first floor and second floor., unused construction material both wooden and plastic alongwith the heavy weighing tools like air compressors, the welding Page 3 of 15 E.No. 127/10 machine, the paint material namely a number of distemper paint buckets 20 kgs each are lying in the narrow passage next to the kitchen on ground floor and a number of LPG gas cylinders are also lying in the same narrow passage next to the kitchen. It is stated that all the said material are best stored on the ground floor and since the suit shop is on the ground floor and has an iron shutter with "No" windows, is best suited for a store which is required urgently by the helpless petitioner . It is stated that the ground floor and part of the 1st floor shown in green outline is used by the petitioner , his wife and three years old daughter and the accommodation for his two sisters, their husbands and three children are not sufficient. It is further stated that building is situated in a commercial/ mixed land use block of Model Town wherein ground floor is commercial and rest of the floors are strictly residential. It is stated that the study room alongwith first floor of the property are used by the petitioner for the purpose of his study being L.L.B. graduate. It is prayed that the eviction order may kindly be passed.
3. The notice of the eviction petition under schedule III of D RC Act Page 4 of 15 E.No. 127/10 was served upon the respondent and the respondent filed the leave to defend application. The respondent in his leave to defend application has stated that the petitioner is not the owner of the shop in dispute nor has any locus standi to claim ownership of the property. It is stated that the petitioner has neither disclosed the fact of ownership nor filed the document to establish the ownership in respect of the suit property. It is further stated that the petitioner h as concealed the material facts from this court that he has got the possession in respect of the shop No.2 in September 2008 in a petition bearing E. No. 214/07 from the court of Ms. Kaveri Baweja, the then Ld. ARC and thereafter let out the same recently on a higher rent. It is stated that another shop on the back of the shop was also vacated and the petitioner had removed the shutter and erected the wall and the said shop is now lying vacant and not in use and that shop is bigger in size than the shop in dispute . It is further stated that the petitioner has much more accommodation in his possession at the ground floor itself and the petitioner has deliberately concealed the said fact.
4. It is further stated that the petitioner has stated that he is having Page 5 of 15 E.No. 127/10 four LPG connection which is wrongful and illegal activity. It is stated that as per the norms of Ministry of Petroleum one person cannot have two LPG connection in one house. It is stated that the petitioner is having two separate slips showing that he is having two LPG connection in his own name. It is further stated that the petitioner is also misusing the connection in the name of his mother Smt. Sneh Prakash who had died since long . It is stated that the 4th slip shown in the name of Sh. S.D. Verma , who was earlier tenant on the second floor of premises in dispute and the petitioner is using his name to get another LPG cylinder in his name illegally. It is stated that all the sisters of the petitioner are married and well settled with their husband and children and all the sisters and husband had never visited the petitioner since last number of years, therefore, the question of room required for them never arises and the site plan filed by the petitioner shows enough accommodation on ground floor, first floor and second floor and the petitioner is not having any bonafide requirement.
5. The petitioner filed the reply to the leave to defend application , whereby denied the submissions of the respondent and reaffirmed Page 6 of 15 E.No. 127/10 and reassert the contents of the eviction petition. The petitioner has admitted the filing of the eviction petition bearing E. No. 214/07. The petitioner has also raised some additional pleas which were not raised in the eviction petition in reply to the leave to defend application, however same cannot be considered at this stage. It is denied that one shop on the back of the suit shop has been vacated and the petitioner had removed the shutter and erected the wall. It is stated that the alleged shop is a drawing room of the petitioner's residence, therefore, it is denied that the same is lying empty/ vacant . It is further denied that the petitioner is the only person residing in the suit shop. It is denied that he is using the four LPG connection. It is stated that the petitioner is having only one connection in his name and one connection is in the name of his late father Sh. Prem Parkash and another in the name of his late mother Smt. Snehlata Parkash and another in the name of petitioner's maternal grand father Sh. S.D. Verma , who is still alive. The petitioner further denied that the accommodation available is sufficient for him and his family members.
6. I have carefully perused the material on record and have gone Page 7 of 15 E.No. 127/10 through the submissions of petitioner in person and Ld. counsel for respondent.
7. It is submitted by the Ld. counsel for the respondent that the petitioner is not the owner of the suit shop. Even though the relationship of landlord and tenant is admitted. It is stated that the petitioner is having sufficient accommodation as mentioned in para No. 18 A (1) of eviction petition. It is stated that the petitioner alone is residing in the suit property and his sisters are married and not dependent upon him. It is stated that the requirement of the petitioner is not bonafide and a family can store only two cylinders but the petitioner is alleging storing LPG cylinders obtained on four connection .
8. The petitioner stated that the respondent has failed to disclose any triable issue which needs trial. It is stated that the respondent has no right to challenge the ownership of the petitioner. It is further stated that the respondent has no right to dictate how and in which manner the petitioner should adjust himself in the suit premises without obtaining the possession of the suit property. It is prayed that the leave to defend application may kindly be Page 8 of 15 E.No. 127/10 dismissed. The petitioner has relied upon the following judgments: (1) Pradeep Kumar Sethi Vs. Rajender Kumar Sethi, Rev. No. 127/10:
(2) Rajesh Kumar Vs. Naresh Kumar Goel & Ors. Rev. No. 67/11;
(3) 160 (2009) DLT 726, Tej Pal Gupta Vs. Rattan Singh; (4) 1995, Rajdhani Law Reporter 322, C.R. No. 242, Mrs Meenakshi Vs. Ramesh Khanna etc.;
(5) 2000 (52) DRJ C.R. No. 624/99, Smt. Satya Malhotra & Ors Vs. Mohinder Singh Arora;
(6) 56 (1994) DLT 620 S.S. Sidhu Vs. Ramkishan Khanduja; (7) 174 (2010) DLT 64 Mukesh Kr Vs. Rishi Prakash; (8) 155 (2008) DLT 383 Rajender Kr. Sharma & Ors Vs. Leelawati & Ors.;
(9) 46 (1992) DLT 352 K.K.Sarin Vs. M/S Pigott Chapman & Co.;
(10) Ramesh Chand Vs. Uganti Devi, C R. No. 528/1993, 157 [2009] DLT 450;
(11) Anaro Devi Vs, Lalita, RCR No. 35/2008; (12) 161 (2009) DLT Tagore Education Society Regd. Vs. Kamla Tandon & Anr,: (13) 159 (2009) 210, Mohd Aslam & Ors. Vs. Mohd. Ajmal & Ors.; Page 9 of 15 E.No. 127/10 (14) 67(1997)DLT 783 Rajiv Aggarwal Vs. Om Parkash Soni; (15) 2002 (61) DRJ 410 Nem Chand Daga Vs. Inder Mohan Singh Rana; (16) Reflex International Pvt. Ltd. Vs. Rajinder Dev Chopra RCR No. 33/2008; (17) AIR 1999 SC 100 Sarla Ahuja Vs. United India Insurance; (18) 159 (2009) DLT 101 Ruparel & Company Vs. S. Avtar Singh Puri ( decd.) through LRs & Ors.; (19) Smt. Sudesh Kumar Soni & Anr Vs. St. Prabha Khanna and Anr. , RCR No. 44/04; (20) 135 (2006)DLT 265 John Impex (pvt.) Ltd. Vs. Dr. Surinder Singh and Ors.: (21) CR No. 190/1997, Sudershan Dutta Vs. Krishan Narain ; (22) 81 (1999) DLT 610, Dr.K.D. Nagrath Vs. Mrs.Neena Sarna & Ors.; (23) RCR No. 62/ 2008 Krishan Kumar Gupta Vs. Swadesh Bhushan Gupta; (24) CM (M) 605 of 1997 Avtar Singh Vs. Gurbux Singh ; (25) D.R. No. 162 of 1981 Sh. Hargun Dass Vs. Sh. Rewa Chand ;
(26) CR No. 179/2001 Om Prakash Bajaj Vs. Chander Shekhar; (27) 172 (2010) DLT 611 Surinder Singh Vs. Jasbir Singh Page 10 of 15 E.No. 127/10 (28) RCR No. 101/2005 Subhash Chander Gupta Vs. Vasudev Kumar;
9. The petitioner has filed the present petition U/S 14 (1) (e) of DRC Act on the ground of bonafide requirement. The respondent in his leave to defend application has raised the contention that the petitioner is not the owner of the suit premises. The respondent has admitted the relationship of landlord and tenant with the petitioner. Once the relationship of landlord and tenant is admitted the respondent/ tenant is estopped from challenging the title of the landlord. I have relied upon Section 116 of Indian Evidence Act, which is reproduced as under: "Estoppel of tenant; and of license of person in possession: No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such Page 11 of 15 E.No. 127/10 licence was given."
10. In view of the presumption under the Indian Evidence Act the respondent has no right to challenge the ownership of the petitioner, therefore, on the basis of the presumption U/S 116 of Indian Evidence Act, the contention raised by respondent regarding the ownership of the petitioner is not tenable in the eyes of law.
11. It is stated by the respondent that the petitioner is residing alone in the suit property and sufficient accommodation is available. The petitioner has also stated that he is residing in the suit property alongwith his wife and one daughter and his sisters are occasionally visiting him. The respondent has stated that the sisters of the petitioner has not visited him since a long. It is the admitted case that the sisters of the petitioner are married and they are not dependent upon him for the purpose of residence. The married sisters or daughters need only the guest room for their occasional visit due to love and affection . It cannot be said that if they have not visited since a long they will not visit in future, therefore, requirement of the petitioner can be considered for the Page 12 of 15 E.No. 127/10 guest room for the purpose of his guest. The respondent has stated that the petitioner is having sufficient accommodation available in the suit property itself. The petitioner in reply to the leave to defend application has stated that there are six kitchens in the suit premises. The availability of six kitchens in the suit property itself shows that the suit property is very big in size and space and having sufficient accommodation available. Even the description of the suit premises given by the petitioner primafacie disclose that the accommodation available with the petitioner is sufficient .
12. The petitioner in the eviction petition has stated that he is having four L.P.G connection . It is submitted that the petitioner alone is residing in the suit property but the petitioner is using the gas connection allotted in the name of his deceased mother and father also. The petitioner has failed to explain satisfactorily the connetion in the name of Sh. S.D. Verma . Therefore, it is primafacie clear that storage of LPG gas, cylinders of all the alleged four connection by the petitioner does not seems to be as per law. A person doing unlawful or illegal act cannot claim the discretion of the court Page 13 of 15 E.No. 127/10 on the basis of his unlawful and illegal act. A wrongdoer cannot be allowed to take benefit of his own wrong.
13. In view of the above discussions I am of the considered opinion that the respondent is able to disclose the primafacie issues which need trial on which the petitioner would not be entitled for grant of relief claimed in the eviction petition. The respondent has disclosed the issues which needs trial, therefore, the leave to defend application filed by the respondent is allowed unconditionally.
Written statement be filed within 15 days.
Announced in the open court ( Devender Kr. Jangala) on 16.11.11 Additional Rent Controller:Rohini Page 14 of 15 E.No. 127/10 Page 15 of 15