Delhi District Court
Shri Gopal Krishan Puri vs Shri Harish Kumar Anand on 27 September, 2014
Page no. 1 of 27
IN THE COURT OF SH. SUMEDH KUMAR SETHI
ACJ-cum-ARC-cum-CCJ (WEST) THC, DELHI
UID No. 02401C0334472011
E No.246/2011 U/s 14(1)(e) of DRC Act
Date of institution: 27.07.2011
Date of Order: 27.09.2014
Shri Gopal Krishan Puri
S/o Late Sh. Badri Nath Puri
R/o B-7, First Floor, Tagore Market
Kirti Nagar, New Delhi-15. ......Petitioner
Versus
Shri Harish Kumar Anand
S/o Sh. Inderjeet Anand
R/o F-48A, Bali Nagar
New Delhi-110015
Also at
Shri Boutique
B-7, Ground Floor, Tagore Market
Kirti Nagar, New Delhi-15
....Respondent
Order deciding Leave to Defend in Eviction petition
U/sec. 14(1)(e) r/w Section 25-B of DRC Act, 1958
1)Vide this order the Court shall dispose of the application U/s 25-B (4 & 5) of DRC
Act of the respondents seeking leave to defend the eviction petition, filed on
29.09.2011.
2)The eviction petition U/sec. 14(1)(e) Section 25-B of the Delhi Rent Control Act,
1958 (hereinafter referred to as DRC Act) was filed by the petitioner against the
respondents on 27.07.2011.
FACTS
3)The averments made in the petition are that:-
3.1 One shop measuring 11'-6''ft X 26'-2.5''ft.(area 28 sq. meters), situated at the ground floor of the property No. B-7, Ground Floor, Tagore Market, Kirti E. No. 246/2011 Gopal Krishan Puri Vs Harish Kumar Anand Page no. 2 of 27 Nagar, New Delhi-110015. (herein after called tenanted premises/shop in question), as shown in red colour in the site plan, was let out by the late father of the petitioner Sh. Badri Nath Puri to the respondent on 01.05.1984 for commercial purpose at the rate of rent of Rs.375/- per month exclusive of other charges.
3.2 That there is no rent agreement executed between the parties.
3.3 That the father of the petitioner died on 18.03.1987 and also executed a will in favour of the petitioner dated 20.12.1978 and thereafter the petitioner became the absolute owner of the premises in question.
3.4 That the petitioner was working in National Council of Educational Research and Training and got retired on 31.03.2010.
3.5 That the petitioner is having two sons namely Rajeev Puri and Dipesh Puri. Both the sons of the petitioner were working in the private sector but due to the recession, both of them have lost their respective jobs because of uncertainty in the private sector job and both the sons of the petitioner want to start their own business of restaurant alongwith the petitioner from the tenanted premises and they have handsome chances of growth in the said business.
3.6 That the petitioner and his sons are not having any other place/accommodation for carrying out their business.
3.7 That the petitioner has received money from his provident fund and therefore he wants to utilize the same in establishing a business with his sons so that they can run the business properly and into profits.
3.8 That the premises in question is situated on ground floor of the residence of the petitioner and in this way the petitioner can also help their sons in their business of restaurant.
4) The respondent has filed application for leave to defend along with affidavit wherein he admitted the following facts:
4.1 That the respondent was inducted as tenant by Shri Badri Nath Puri, the E. No. 246/2011 Gopal Krishan Puri Vs Harish Kumar Anand Page no. 3 of 27 father of the petitioner in the year 1984.1
5) Respondents have raised certain defenses in the application for leave to defend and the same are as under:
5.1 In para 3 (b) of the petition, the name of the tenant is mentioned as Harish Kumar Anand and whereas in the prayer clause eviction is being sought against the respondent in respect of the tenanted premises i.e. Shri Boutique which the name of a firm.
5.2 It is no where stated by the petitioner in the entire petition that his two sons namely Rajeev and Dipesh Puri, who want to start their business in the tenanted premises are the members of his family dependent on him for the purpose of starting the business of restaurant. Thus, the essential ingredients of Section 14 (1)(e) of DRC Act are missing.
5.3 Petitioner has deliberately not filed the complete site plan of the entire premises bearing no. B-7, Tagore Garden, Kirti Nagar, New Delhi-15. In the site plan annexed with the petition, the petitioner has deliberately not shown the back portion of ground floor which is partly in occupation of UCO Bank as tenant and partly in possession of the petitioner who is residing alongwith the wife in that portion. Besides this, the petitioner has first floor and second floor which are in occupation of his two sons named above. The second floor portion is being used by his elder son Rajeev who is carrying on the business of Advertising Agency and whereas both the sons of the petitioner are independently residing on the first floor alongwith their families. The correctness of the site plan is denied.
5.4 The alleged requirement of the petitioner for running the business of restaurant alongwith his two sons in the tenanted premises i.e. a shop measuring approximately 26' x 11.5' after his retirement from government service on 31.03.2010 and without any knowledge of such business cannot be taken to have arisen all of sudden.
5.5 The contention of the petitioner is that he has become absolute 1 Para 3 (i) of the application under consideration.
E. No. 246/2011 Gopal Krishan Puri Vs Harish Kumar Anand Page no. 4 of 27 owner/landlord of the said property bearing no. B-7, Tagore Market, Kirti Nagar, New Delhi under a 'Will' dated 20.12.1978 alleged to have left by his father, after his death, who expired on 18.03.1987. A photocopy of the said Will has been placed on record by the petitioner. A careful perusal of the contents of the alleged Will reveals that he had nine children i.e. two sons and seven daughters including the petitioner who infact are the legal heirs of the deceased Shri Badri Nath Puri, father of the petitioner. It is submitted by the respondent that Will is not a document of title. It does not create any legal right, title or interest in favour of the petitioner qua the property in question unless and until it is established that it is a genuine "Will".
5.6 The said 'Will' is unregistered and not witnessed by two witnesses as required under law.
5.7 The alleged 'Will' has never been acted upon even inter-se between the legal heirs of the deceased landlord/owner Sh. Badri Nath Puri. The petitioner never became the owner/landlord in respect of the suit premises.
5.8 Both the sons of the petitioner are married and they are gainfully employed and have also been living separately and they are not dependent on the petitioner as 'family members'.
5.9 The daughter in law of the petitioner i.e. wife of his elder son Mrs. Pooja Puri is employed in Hans Raj Model School, Punjabi Bagh, New Delhi and drawing a salary of around Rs. 35,000/- per month. The second daughter in law of the petitioner is also gainfully employed.
5.10 After his retirement, the petitioner has also gained some job. It is highly impossible that the sons of the petitioners want to shift to the business due to uncertainty of the employment, though, without disclosing the nature and other details of the employment of his sons.
5.11 The petition is not maintainable that to knowledge of the respondent, the area and the location of the suit property is not notified under the Delhi Rent Control Act.
5.12 The petitioner has failed to substantiate his contentions regarding the E. No. 246/2011 Gopal Krishan Puri Vs Harish Kumar Anand Page no. 5 of 27 business of restaurant and he also failed to file any proof about the infrastructure and paraphernalia in respect thereof. Be that as it may, the respondent has only 28 sq. meters of the tenanted premises and the alleged business and the requirement of the petitioner/his sons cannot be fulfilled in any way whatsoever for running a business of restaurant.
5.13 The petitioner is seeking the eviction of the respondent in order to pressurize him to enhance the rent manifolds.
6) The petitioner has filed a reply to the application for Leave to Defend along with counter affidavit and in the counter affidavit the petitioner has denied the defences taken by the respondents. The petitioner further submitted as under:
6.1 The petitioner retired on 31.03.2010 from National Council of Educational Research and Training.
6.2 Both the sons of the petitioner were working in private sector but due to recession both of them had lost their respective jobs.
6.3 The respondent/tenant i.e. Harish Kumar Anand is the proprietor of Shri Boutique.
6.4 The front portion of the premises is more suited for the purpose and requirement of the petitioner. The first and second floor of the suit premises is used for residential purpose by the petitioner and his family. It is denied that the second floor is being used by the elder son of the petitioner for carrying on business of advertising agency.
6.5 The second floor is only used as the "Barsati".
6.6 Petitioner has become the owner/landlord of the said property bearing no. B-7, Tagore Market, Kirti Nagar, New Delhi, under a Will dated 20.12.1978 left by the father of the petitioner after his death on 18.03.1987. On 24.09.2009, all the legal heirs of late Sh. Badri Nath Puri has executed the relinquish deed in the favour of the petitioner. After the death of Sh. Badri Nath Puri, the respondent is giving rent to the petitioner. Now the petitioner is the real owner of the suit premises after the death of his father.
E. No. 246/2011 Gopal Krishan Puri Vs Harish Kumar Anand Page no. 6 of 27
7) Rejoinder to the reply to the application was filed by the respondent wherein respondent has submitted that:
7.1 The elder son of the petitioner namely Rajeev Puri is still in service and he is working as Executive with M/s. Bharat Matrimonial, at Mohan Cooperative Society, Okhla, New Delhi.
7.2 The younger son Depesh Puri is carrying on his own business of advertising agency at the second floor of the said premises.
7.3 According to the petitioner, all the legal heirs of late Shri Badri Nath Puri have executed the relinquishment deed dated 24.09.2009 in favour of the petitioner duly registered on 26.09.2009 with the office of the Sub-Registrar-
II, Janak Puri, New Delhi. Assuming for the sake of arguments though not admitting the ownership of the petitioner, the question for determination is whether the present petition is barred U/s. 14 (6) of DRC Act because under this Section the application for eviction on the ground of 14 (1)(e) on the ground of bonafide requirement does not lie unless holiday period of 5 years has been elapsed from the date of acquisition/transfer of the said property.
8) Vide order dated 23.07.2013, the ld. Predecessor had allowed the respondent to file additional affidavit raising two more defences. These were:
8.1 That an eviction order qua an adjoining shop measuring 28 sq. meters has been passed by this Court on 22.04.2013 in favour of the petitioner and as such the petitioner is now in possession of a shop for his business.
8.2 That the petitioner has filed registered relinquishment deed dated 24.09.2009 and as such the petition is barred by Secftion 14 (6) of the DRC Act.
9) In response to the same, the petitioner filed Counter additional affidavit wherein he alleged that:
9.1 That the respondent in the other case has gone in appeal before the Hon'ble High Court of Delhi and the petitioner has not obtained possession of the adjoining shop. The petitioner needs both shops for starting his restaurant E. No. 246/2011 Gopal Krishan Puri Vs Harish Kumar Anand Page no. 7 of 27 business. Hence, both petitions were filed together.
9.2 That the relinquishment deed had been brought on record with the reply to the leave to defend application and the second ground could have been taken by the respondent in the rejoinder itself. Moreover, the relinquishment deed was a mere stamp of recognition of the petitioner's rights which he had acquired through the will of his late father after his death.
10) Arguments were heard on the application under consideration on behalf of both the parties. Material on record has been perused. Submissions considered.
REQUIRMENTS
11) In order to succeed in a petition for eviction filed under section 14(1)(e) of the Delhi Rent Control Act the petitioner must establish that:
i.He is the owner and landlord in respect of the tenanted premises.
ii.That he requires the premises bonafide for himself or for any member of his family dependent upon him.
iii.That he has no other reasonably suitable accommodation.
12) The scope of the section has been enlarged in view of the judgment of the Hon'ble Supreme Court titled as Satyawati Sharma v. Union of India: AIR 2008 SUPREME COURT 3148 so as to include premises let out for commercial purposes also within the scope and ambit of a petition under section 14(1)(e) of DRC Act. The defences which are taken by respondents are discussed below and the same are as under:-
DEFENCES
13) Petitioner is not the exclusive owner of the tenanted premises; petition barred by section 14(6) of DRC Act:
13.1 The present litigation is for eviction of an admitted tenant and as such the Court is not required to give a finding as regards absolute ownership of the property. In rent control legislation, the landlord can be said to be owner, if he E. No. 246/2011 Gopal Krishan Puri Vs Harish Kumar Anand Page no. 8 of 27 is entitled in his own legal right, as distinguished from for and on behalf of someone else, to evict the tenant and then to retain, control, hold and use the premises for himself.
13.2 In M.M.Quasim Vs Manohar Lal Sharma: (1981) 3 SCC 36 it was observed by the Apex Court that an "owner-landlord" can seek eviction on the ground of his personal requirement is one who has a right against the whole world to occupy the building in his own right and exclude anyone holding a title lesser than his own.
13.3 It was observed in Shanti Sharma Vs Smt Ved Prabha: AIR 1987 SC 2028 that the term "owner" has to be understood in the context of the background of the law and what is contemplated in the scheme of the Act. The Act has been enacted for protection of the tenants. But, at the same time, it has provided that the landlord under certain circumstances will be entitled to eviction and bona fide requirement is one of such grounds. Ordinarily, the concept of the ownership may be absolute ownership in the land as well as of the structure standing thereon. But in the modern context, where all lands belong to the State, the persons who hold properties will only be lessees or the persons holding the land on some term from the Government or the authorities constituted by the State. The legislature, when it used the term "owner" in s.
14(1)(e), did not think of ownership as absolute ownership. The meaning of the term "owner" is vis-a-vis the tenant i.e. the owner should be something more than the tenant. In cases where the plot of land is taken on lease, the structure is built by the landlord and he is the owner of the structure.
13.4 The defence taken by the respondent in the present case is that the contention of the petitioner is that he has become absolute owner/landlord of the said property bearing no. B-7, Tagore Market, Kirti Nagar, New Delhi under a 'Will' dated 20.12.1978 alleged to have left by his father, after his death, who expired on 18.03.1987. A photocopy of the said Will has been placed on record by the petitioner. A careful perusal of the contents of the alleged Will reveals that he had nine children i.e. two sons and sever daughters including the petitioner who infact are the legal heirs of the E. No. 246/2011 Gopal Krishan Puri Vs Harish Kumar Anand Page no. 9 of 27 deceased Shri Badri Nath Puri, father of the petitioner. It is submitted by the respondent that Will is not a document of title. It does not create any legal right, title or interest in favour of the petitioner qua the property in question unless and until it is established that it is a genuine "Will".
13.5 The respondent has also submitted that the said 'Will' is unregistered and not witnessed by two witnesses as required under law.
13.6 He has also alleged that the 'Will' has never been acted upon even inter- se between the legal heirs of the deceased landlord/owner Sh. Badri Nath Puri. The petitioner never became the owner/landlord in respect of the suit premises.
13.7 The petitioner has countered that the petitioner has become the owner/landlord of the said property bearing no. B-7, Tagore Market, Kirti Nagar, New Delhi, under a Will dated 20.12.1978 left by the father of the petitioner after his death on 18.03.1987. On 24.09.2009, all the legal heirs of late Sh. Badri Nath Puri has executed the relinquish deed in the favour of the petitioner. After the death of Sh. Badri Nath Puri, the respondent is giving rent to the petitioner. Now the petitioner is the real owner of the suit premises after the death of his father.
13.8 In his rejoinder the respondent has submitted that according to the petitioner, all the legal heirs of late Shri Badri Nath Puri have executed the relinquishment deed dated 24.09.2009 in favour of the petitioner duly registered on 26.09.2009 with the office of the Sub-Registrar-II, Janak Puri, New Delhi. Assuming for the sake of arguments though not admitting the ownership of the petitioner, the question for determination is whether the present petition is barred U/s. 14 (6) of DRC Act because under this Section the application for eviction on the ground of 14(1)(e) on the ground of bonafide requirement does not lie unless holiday period of 5 years elapsed from the date of acquisition/transfer of the said property.
13.9 In the additional affidavit filed with the permission of the Court, one of the defences raked up by the respondent also pertains to the petition being E. No. 246/2011 Gopal Krishan Puri Vs Harish Kumar Anand Page no. 10 of 27 barred u/s 14 (6) of the DRC Act.
13.10 To this, the petitioner has countered that the relinquishment deed had been brought on record with the reply to the leave to defend application and the second ground could have been taken by the respondent in the rejoinder itself. Moreover, the relinquishment deed was a mere stamp of recognition of the petitioner's rights which he had acquired through the will of his late father after his death.
13.11 In the present case the defence raised by the respondent as regards ownership is not tenable even prima facie for the simple reasons that the respondent has admitted that the respondent was inducted as tenant by Shri Badri Nath Puri, the father of the petitioner in the year 1984.2 Now when eviction petition has been filed by petitioner, they cannot challenge/deny the relationship between the parties. Provisions of Section 116 of the Evidence Act are also attracted; the tenant is stopped from questioning the ownership or title of the landlord. The respondent has not stated that if the petitioner landlord is not the owner of the tenanted premises, then, who is.
13.12 Even if it is the case of the respondent that the petitioner does not have exclusive ownership of the suit premises it amounts to indirectly admitting that the petitioner is the owner of the premises but not exclusive owner of the premises. Even if the will and relinquishment deed relied upon by the petitioner is taken out of the picture, then also it cannot be denied that the Petitioner is atleast a co-owner of the property in question after the death of his father. Thus, the petitioner is having a right against the whole world to occupy the tenanted premises in his own right and exclude anyone holding a title lesser than his own. Consequently, he is entitled to file the present petition. Further, it is not essential that the eviction petition is to be filed by all the co-owners of the property. As a co-owner petitioner can file eviction petition without impleading other co-owners. Reliance is placed on judgments Kanta Udharam Jagasia Vs C.K.S Rao: (1998)1 SCC 403; Surender Kumar Jhamb Vs Om Prakash Shokeen: 2000(2) RCR 540; Mohinder 2 Para 3 (i) of the application under consideration.
E. No. 246/2011 Gopal Krishan Puri Vs Harish Kumar Anand Page no. 11 of 27 Prasad Jain Vs Manohar Lal Jain: (2006) 2 SCC 724; India Umbrella Manufacturing Co Vs Bhagadandei Aggarwal: (2004) 3 SCC 178; Sri Ram Pasricha Vs Jagannath: (1976)4 SCC 184.
13.13 As far as the applicability of section 14(6) of the DRC Act is concerned, it is to be noted that the petitioner has not claimed ownership on the basis of the relinquishment deed, but on the basis of the will purported to be executed by his father. Be that as it may, these proceedings can neither be converted into proceedings for determination of title nor the respondent being a tenant can challenge the will in favour of the petitioner. Reliance is placed on judgments such as Ram Chander vs Ram Pyari: 109 (2004) DLT 388 and Plashchemicals Company vs Ashit Chadha and Anr.: 114 (2004) DLT 408.
13.14 The other LRs of the petitioner were not precluded from executing a subsequent relinquishment deed despite the existence of the will in question. Even otherwise, if the will and the relinquishment deed are not taken into consideration, then also the petitioner became a co-owner of the property in question when his father died in the year 1987. Thus, as far back as 1987, the petitioner was holding better title to the property as against the respondent (being an admitted tenant). Therefore, there is no question of the petition being barred by section 14(6) of the DRC Act.
13.15 Moreover, imperfectness of title of the petitioner does not entitle the respondent for leave to defend. In this regard, reliance is place on the case of Ramesh Chand Vs Uganti Devi: 157 (2009) DLT 450, wherein it was held:
"7. It is settled preposition of law that in order to consider the concept of ownership under Delhi Rent Control Act, the Court has to see the title and right of the landlord qua the tenant. The only thing to be seen by the Court is that the landlord had been receiving rent for his own benefit and not for and on behalf of someone else. If the landlord was receiving rent for himself and not on behalf of someone else, he is to be considered as the owner howsoever imperfect his title over the premises may be. The imperfectness of the title of the premises cannot stand in the way of an eviction E. No. 246/2011 Gopal Krishan Puri Vs Harish Kumar Anand Page no. 12 of 27 petition under Section 14(1)(e) of the DRC Act, neither the tenant can be allowed to raise the plea of imperfect title or title not vesting in the landlord and that too when the tenant has been paying rent to the landlord. Section 116 of the Evidence Act creates estoppels against such a tenant. A tenant can challenge the title of landlord only after vacating the premises and not when he is occupying the premises. In fact, such a tenant who denies the title of the landlord, qua the premises, to whom he is paying rent, acts dishonestly."
13.16 Thus, this defence raised by the respondent is a vague and sham defence and it does not raise any triable issue.
14) Site plan incorrect; alternative accommodation available:
14.1 The respondent has contended that the petitioner has deliberately not filed the complete site plan of the entire premises bearing no. B-7, Tagore Garden, Kirti Nagar, New Delhi-15. In the site plan annexed with the petition, the petitioner has deliberately not shown the back portion of ground floor which is partly in occupation of UCO Bank as tenant and partly in possession of the petitioner who is residing alongwith the wife in that portion. Besides this, the petitioner has first floor and second floor which are in occupation of his two sons named above. It is submitted that the second floor portion is being used by his elder son Rajeev who is carrying on the business of Advertising Agency and whereas both the sons of the petitioner are independently residing on the first floor alongwith their families. The correctness of the site plan is denied.
14.2 The petitioner has countered that the front portion of the premises is more suited for the purpose and requirement of the petitioner. The first and second floor of the suit premises is used for residential purpose by the petitioner and his family. It is denied that the second floor is being used by the elder son of the petitioner for carrying on business of advertising agency. He has also submitted that the second floor is only used as the "Barsati".
E. No. 246/2011 Gopal Krishan Puri Vs Harish Kumar Anand Page no. 13 of 27 14.3 It has been observed in judgment titled as Rajender Kumar Sharma & Ors. Vs. Leela Wati & Ors.: 155 (2008) DLT 383 by Hon'ble Delhi High Court as under:
"11)....Thus, the affidavit filed by the tenant was shown to be false by the landlady on the basis of documents placed by it. No Rent Con-
troller is supposed to grant leave to the tenant on the basis of a false affidavit and false averments and assertions. Such affidavit should be outrightly rejected by the Rent Controller. Only those averments in the affidavit are to be considered by the Rent Controller which have same substance in it and are supported by some material. Mere as- sertions made by a tenant in respect of landlord's ownership of other buildings and in respect of alternate accommodation are not to be considered sufficient for grant of leave to defend."
14.4 In his application, the respondent has himself stated that the back portion of the premises is partly in possession of a bank and partly being used by the petitioner as his residence. This amounts to an admission on behalf of the respondent that the petitioner does not have any portion of the premises vacant on the ground floor. The first floor has also been admitted to have been used as residence. As far as second floor is concerned, it would be absurd if the Court was to allow the respondent to dictate terms to the petitioner for opening his restaurant business on the second floor rather than on the ground floor. As even if it is assumed that the second floor is being used for running an advertising agency, then the petitioner cannot be expected to run his restaurant business from the second floor of his residence as against the ground floor as the dynamics and requirements of both businesses are very different and if the petitioner considers the ground floor of his property most appropriate for running his restaurant, then neither the court nor the respondent can be allowed to interfere in this requirement. Moreover, the respondent has not stated how the site plan of the petitioner is incorrect and he has not filed any site plan of his own. It has been held in the case of Rishal Singh vs Bohat Ram & Ors. Decided by Hon'ble High Court of Delhi on 21 July, 2014 it has been held that:
E. No. 246/2011 Gopal Krishan Puri Vs Harish Kumar Anand Page no. 14 of 27 "...Apropos the contention that the site plan filed by the landlord is incorrect as it fails to disclose two shops lying vacant in the same area, it is without merit as the tenant has not filed any site plan to show the inconsistency. It is well settled law that when the tenant contents the accuracy of the site plan filed by the landlord, he is required to file a copy of the site plan he believes to be correct so as to guide the Court in finding the discrepancies of the site plan filed by the landlord. Without such site plan being filed, mere contentions raised to this effect will be considered meritless. In the absence of the same, the court has no reason to doubt the site plan filed by the petitioner."
14.5 Accordingly, this defence raised by the respondent as regards site plan and as regards alternate accommodation is a sham defence and it does not raise any triable issue
15) Shop in question is only a small shop and cannot be used for the business sought to be started; petitioner has already acquired another shop during the pendency of the petition:
15.1 In the judgment titled as Ragavendra Kumar v. Firm Prem Machinary:
AIR 2000 SUPREME COURT 534 the Hon'ble Supreme Court held that it is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter. Moreover, as has been held in a plethora of cases, neither the Court nor the tenant cannot dictate terms to the landlord regarding the suitability of the premises or even the extent of the business proposed to be carried out.
15.2 In the present case, it is not for the respondents to judge the suitability of the shop in question with respect to the requirement of the petitioner for his restaurant business.
15.3 Further, it is noteworthy that for the purpose of deciding an application for leave to defend filed against a petition u/s 14(1)(e) of the DRC Act, the facts and circumstances that exist at the time of filing the petition have to be E. No. 246/2011 Gopal Krishan Puri Vs Harish Kumar Anand Page no. 15 of 27 considered. Reliance is placed on the case of Dharam Pal Gupta Vs. Anand Prakash: 155 (2008) DLT 681 wherein it was held that in such cases the Court has to stick to the cause of action which was there at the time of filing of the petition. Thus, the subsequent event of eviction orders being passed for another shop, which, for the record are under appeal (and the petitioner has not gained possession) would not raise a triable issue as the petitioner has clarified in his counter additional affidavit that he requires both shops and hence he had filed both eviction petitions together.
15.4 Moreover, the respondent's shop is about 28 sq. meters and the adjacent shop is also stated by the respondent to be about 28 sq. meters. Interestingly, the respondent has himself stated that the shop in his possession is not sufficient for starting restaurant business of the petitioner. These are mutually self destructive defences. This only fortifies the version of the petitioner that he had filed both eviction proceedings together as he wanted both shops to start his restaurant business and no useful purpose would be served by allowing the respondent to lead evidence on this point as he has already supported the version of the petitioner with regard to a single shop being insufficient to start the petitioner's business.
15.5 Therefore, it is hereby held that the defence being deliberated upon does not raise any triable issue.
16)Petitioner's sons already working & the petitioner has not mentioned in his petition that his sons are dependent upon him:
16.1 In a recent judgment it has been observed by our own High Court that it is the moral duty of a father to help establish his son. The relevant portion of the judgment titled Pawan Kumar Vs Sant Lal R.C.Rev 303/2012 decided on 6.8.2012 by Honorable Mr Justice M.L.Mehta is as under:-
"16. Further, submissions of learned counsel for the petitioner that Dr. Ankit was not financially dependent upon his father and so the tenanted premises could not be got vacated for his requirement, is also only noted for rejection. It is trite that the landlord is entitled to help E. No. 246/2011 Gopal Krishan Puri Vs Harish Kumar Anand Page no. 16 of 27 his son, establish his business. In Labhu Lal Vs. Sandhya Gupta 2011(1) RCR,(Rent) 231 (Delhi), it has been held by this Court that the children are very much dependant on the landlord for the purpose of setting up their business and such a requirement is a bonafide one. The right of the landlord for possession of his property for setting up a business for his son has been also recognized by the Apex Court in Ram Babu Aggarwal Vs. Jay Kishan Das 2009(2) RCR
455. The moral duty of a father to help establish his son was also recognized by the Apex Court in Joginder Pal Singh Vs. Naval Kishore Behal AIR 2002 SC 2256 in the following words:
"24........Keeping in view the social or socio-religious milieu and practices prevalent in a particular section of society or a particular region, to which the landlord belongs, it may be obligation of the landlord to settle a person closely connected with him to make him economically independent so as to support himself and/or the landlord. To discharge such obligation the landlord may require the tenancy premises and such requirement would be the requirement of the landlord. If the requirement is of actual user of the premises by a person other than the landlord himself the Court shall with circumspection inquire: (i) whether the requirement of such person can be considered to be the requirement of the landlord, and (ii) whether there is a close inter-relation or identify nexus between such person and the landlord so as to satisfy the requirement of the first query. Applying the overlaid tests to the facts of the present case it is clear that the tenancy premises are required for the office of the landlord's son who is a chartered accountant. It is the moral obligation of the landlord to settle his son well in his life and to contribute his best to see him economically independent."
16.2 In the present case, it has been clearly stated by the petitioner that the tenanted shop is required by him for the restaurant business to be started by him along with his sons.
16.3 Further, even if it is assumed that the petitioner's sons are earning from other ventures then it may be noted that in Joginder Pal Singh Vs. Naval Kishore Behal: AIR 2002 SC 2256 (as referred to in aforesaid judgment) the situation was similar to the present case, as in the said case before the Apex Court the landlord had filed eviction petition for the office of his son who was E. No. 246/2011 Gopal Krishan Puri Vs Harish Kumar Anand Page no. 17 of 27 a chartered accountant who was residing with him. Honorable Mr. Justice R.C. Lahoti observed in the said judgment that such a requirement of the landlord is a genuine requirement. In the said case the Apex Court evicted the tenant from the premises for the said requirement of the landlord.
16.4 Assuming the aforesaid averment of the respondents to be true would make the present case similar to the case of Joginder Singh (supra) as in the present case the tenanted premises is required by the landlord petitioner for restaurant business alongwith his sons.
16.5 Every parent wants to settle his children in the best possible manner and if the petitioner has found it proper to start a restaurant with the help of his sons at the tenanted premises, then it would not be proper for the Court to interfere in such decision of the petitioner, as the petitioner is the best judge of his own requirements and that of the requirements of his family.
16.6 In the opinion of the Court it is the right of every person to excel in life. If the petitioner and his sons are of the opinion that it would be better in life to start a restaurant business from the tenanted premises rather than doing something else, then it would not be just for this Court to direct the petitioner otherwise and thereby stop the financial growth of the family of the petitioner. The Court cannot ask the the petitioner and his sons to give up their dreams of excelling in life and to establish their own business from a premises owned by them. Though the success of the business to be established is not guaranteed, but, at the same time the Court cannot predict the failure of the same and thereby decline the petitioner and his family an opportunity to establish their own business from a premises owned by them. Moreover, the petitioner or his sons cannot be expected to sit idle till they succeed in getting the tenanted premises vacated and till they set up their restaurant business and they being involved in other ventures till they succeed in opening a restaurant would not act as a bar against the relief sought by them. Thus, the requirement of the petitioner is a bona fide requirement and there is no reason for the Court to find any malafide intention behind the same.
16.7 As regards the petitioner merely not averring exactly in the petition that E. No. 246/2011 Gopal Krishan Puri Vs Harish Kumar Anand Page no. 18 of 27 his son is dependent upon him, it is noteworthy that it has been held by the Honorable High Court of Delhi in Inderjeet Singh vs Harish Chandra Bhutani: in R.C.REV. 98/2010 decided on 06.07.2012 that:
"6. On the perusal of record, it is evident that the Ld. ARC has opined that the son of the petitioner is financially independent on the basis of his credit card statements. In my opinion such an observation was patently erroneous. Holding a credit card is a common practice and not a yard stick to the financial status of a person. In any case, this issue is irrelevant to the current proceedings due to the fact that even if the son of the petitioner is carrying on his business still as a father the petitioner is obliged to make efforts for setting up a business in a suitable place for his son. Such a requirement is quite reasonable and justified and cannot be termed as malafide. It is not the case of the respondent that the petitioner is in possession of any alternate accommodation from where his son could carry his business. If a person is owner of a commercial property, but is forced to pay rent towards a tenanted premises, then his requirement for possession of his property is bonafide and must be recognized. The respondent has failed to show as to how the son of the petitioner is not dependent on him for the requirement of the premises for carrying his business. I find no merit in this plea taken up by the respondent and admitted by the ARC. Such unfounded pleas cannot become a reason for denying the petitioner the right to use his property for setting up a shop for his son. In Labhu Lal Vs. Sandhya Gupta 2011(1) RCR,(Rent) 231 (Delhi), it has been held by this Court that the children are very much dependant on the landlord for the purpose of setting up their business and such a requirement is a bonafide one. The right of the landlord for possession of his property for setting up a business for his son has been also recognized by the Apex Court in Ram Babu Aggarwal Vs. Jay Kishan Das 2009(2) RCR 455.
7. Regarding the bald plea of the respondent that there is discrepancy in the amount of rent payable for the tenanted premises and the payer E. No. 246/2011 Gopal Krishan Puri Vs Harish Kumar Anand Page no. 19 of 27 of the rent, it is sufficient to say that these minor discrepancies are not fatal to the case of the petitioner and not patently germane to the case. It is immaterial that who pays the rent for the tenanted shop being used by the petitioner's son. The fact of bonafide requirement and lack of any other accommodation for business purposes has been amply established by the petitioner. His son is in fact carrying out his business from a tenanted accommodation; he has no other alternate suitable accommodation. In this view of the matter, this submission of the tenant is clearly without force."
16.8 Thus, it is for the respondents to show that the sons of the petitioner are not dependent on him and there is nothing pertinent on record to show the same. Thus, merely not writing the word 'dependent' would not be fatal to the case of the petitioner as the same is nothing by a minor discrepancy. Even otherwise, mere non-repetition of the ingredients of the provision in the petition is of no consequence and does not raise any triable issue.
16.9 It has also been held in the case of Mukesh Kumar vs Rishi Prakash:
2009 (2) RCR 485 that:
"14. It has been held in K.K. Sarin (supra) that due to paucity of accommodation the tenants are likely to plead facts with a view to create triable issues even in a case where there may be none, so as to seek leave to defend the eviction petition filed on the ground of bona fide requirement of the landlord. This is so because upon grant of leave to defend, the eviction proceedings are likely to take considerable time for disposal as a regular trial would ensue. Therefore, even if a tenant has no triable issue to raise, he still endeavors to prolong the litigation so as to postpone the date when he is faced with eviction...."
"25. The Courts have repeatedly held that mere failure to plead even the necessary ingredients in an eviction petition is not fatal to its maintainability [see Laxmi Kant Mukt V. Jitender Kumar Aggarwal, 1980(18) DLT 40; M.M.Mehta V. Chaman Lal Kapur, ILR 1980(1) Del E. No. 246/2011 Gopal Krishan Puri Vs Harish Kumar Anand Page no. 20 of 27 94; Amrit Lal V. Jagpal Singh Verma, 1996 (63) DLT 621; Ram Gopal V. Basheshar Nath, 1979 (16) DLT 215; Mohan Lal Duggal V. Inder Mohan Sharma, 1999(81) DLT 655 and Narain Devi V. Vinod Kumar, 1979 (16) DLT 258]."
"29. The tenant, no doubt, is entitled to raise all defences available to him in his application seeking leave to defend, but he cannot be seen to be shooting in the dark and raising all and sundry frivolous pleas in an irresponsible manner, only with a view to somehow get the desired leave to defend the eviction petition. Such conduct of the tenant will certainly mar his credibility and the Controller will see through such tactics on his part. He will not succumb to such moves of the tenant. Else, the same would defeat the purpose of providing a summary procedure for the disposal of such cases, and would lead to miscarriage of justice."
16.10 Thus, this defence raised by the respondent does not raise any triable issue.
17) Eviction of Firm has been sought:
17.1 The respondent has submitted that in para 3 (b) of the petition, the name of the tenant is mentioned as Harish Kumar Anand and whereas in the prayer clause eviction is being sought against the respondent in respect of the tenanted premises i.e. Shri Boutique which the name of a firm.
17.2 The petitioner has countered that the respondent/tenant i.e. Harish Kumar Anand is the proprietor of Shri Boutique.
17.3 It is noteworthy in this regard that the respondent has already admitted that the respondent was inducted as tenant by Shri Badri Nath Puri, the father of the petitioner in the year 1984.3 It is not the case of the respondent that the premises was let out to a firm. The petitioner has sought eviction of the said firm as it is being run from the tenanted premises. The respondent has not denied that the said firm is a proprietorship firm with the respondent as 3 Para 3 (i) of the application under consideration.
E. No. 246/2011 Gopal Krishan Puri Vs Harish Kumar Anand Page no. 21 of 27 proprietor. That being the case, the firm does not have any separate legal entity and is not required to be sued in its own name.
17.4 Hence, this defence raised by the respondents does not raise any triable issue.
18) Petitioner not experienced; no details of business given:
18.1 Another defence taken by the respondent is that the petitioner has failed to substantiate his contentions regarding the business of restaurant and he also failed to file any proof about the infrastructure and paraphernalia in respect thereof.
18.2 The petitioner has already stated in his petition that he retired on 31.03.2010 from National Council of Educational Research and Training.
18.3 It has been held in the case of Manika Rani Ghosh & Ors. vs Dharwinder Kaur: 197 (2013) DLT 18 that:
"8. I subscribe to the view taken by the Ld. RC in deciding the eviction petition. It is often contended by the tenants that the landlord has no prior business experience, capacity or that the suit premises are not suitable for the business proposed by the landlord. For instance, simi- lar contentions were raised by the tenants before this Court in the case of Shashi Kant Jain v. Tilak Raj Salooja & Anr., R. C. Rev. 167/2010 and have been refuted. Such allegations whereby the tenant tries to raise questions regarding the age of the landlord or lack of business experience or suitability of the suit shop for the business proposed by the landlord and which are invariably vague do not consist a triable issue. The tenants/petitioners made assertions before the Ld. RC re- garding the landlady possessing alternative properties, but were un- able to furnish sufficient documentary evidence to substantiate the al- legations. There is no dispute that the business cannot be profitably carried from the residential premises and thus, the plea that the land- lady could start the business form her residence is untenable. More- over, it is not for this Court to examine the viability of the business at E. No. 246/2011 Gopal Krishan Puri Vs Harish Kumar Anand Page no. 22 of 27 the suit premises or assess if it may be a profitable venture for the landlady."
Thus, it is not for the respondent to question the age of the petitioner and his ability to conduct business or the lack of his experience. For the same reason, it has been held in a number of cases that a tenant is not entitled to seek or question the details of the business sought to be started by the land lord and it is not incumbent upon the land lord to disclose such details.
18.4 Therefore, it is hereby held that the defence being deliberated upon does not raise any triable issue.
19)Petitioner seeking enhancement of rent in garb of this petition:
19.1 The respondent has contended that the petitioner is seeking the eviction of the respondent in order to pressurize him to enhance the rent manifolds. By this the respondent seeks to raise doubt against the bonafide of the landlord's requirement. In the judgment titled as Sarwan Dass Bange Vs. Ram Prakash: 167 (2010) DLT 80 the Hon'ble High Court of Delhi referring to the judgment of Baldev Singh Bajwa v. Monish Saini: (2005) 12 SCC 778 observed in para 17 as under:
"..It was held that the legislative intent is of expeditious disposal of the application for ejectment of tenant filed on the ground of requirement by the landlord of the premises for his own occupation; a special category of landlords requiring the premises for their own use has been created; if there is any breach by the landlord, the tenant is given a right of restoration of possession; the landlord who evicts a tenant on the ground of own requirement is not only prohibited from letting out the premises or disposing of the same but also required to use the same for his own residence only..."
19.2 Thus, it is clear that the special summary procedure provided for u/s 25B of the DRC Act is an exception to the general intent to the Act. The intention of the legislature is to provide an expeditious remedy to landlords who seek eviction on the ground of bonafide requirement under the stringent conditions E. No. 246/2011 Gopal Krishan Puri Vs Harish Kumar Anand Page no. 23 of 27 imposed in the special procedure. Thus, the mere bald averment of the respondent to the effect that the petitioner wants to enhance rent cannot disentitle the petitioner from relief that he is entitled to get after fulfilling the stringent requirements provided for in the special procedure. Thus, this submission of the respondents is found to be untenable.
19.3 It is well settled law that bald allegation without any material on record to substantiate the same could not be looked into as the mere bald allegations are not enough for grant of leave to defend. It is held by the Hon'ble High Court of Delhi in Rajinder Kumar Sharma and Ors. Vs. Leelawati and Ors. (supra) that:
11....."Only those averments in affidavit are to be considered by Rent Controller which have some substance in it and are supported by some material."
19.4 Moreover, It is held by the Hon'ble High Court of Delhi in a case tiled as Hari Shanker Vs. Madan Mohan Gupta: 111 (2004) DLT 534 that:
"Summary procedure in Section 25-B of Delhi Rent Control Act, 1958 cannot be defeated by merely making frivolous and vague allegations which can never be substantiated."
19.5 It is also held by Hon'ble High Court of Delhi in Vinod Kumar Bhalla Vs. Sh. Nanak Singh: 1982 (2) RCR (Rent) 715 that in all applications for leave to defend the common defence raised by almost all the tenants, is that the landlord wanted to enhance the rent or to sell the property after getting it vacated. It was observed by the High Court that such types of allegations are without any foundation and that after an order of eviction is passed under section 14 (1)(e), the tenant is granted six months time to vacate the premises and the landlord is required to occupy the same within two months and the landlord is further dis-entitled for re-letting or alienating the whole or any part of the premises within three years from the date of obtaining possession from the tenant. Thus, the landlord is not in a position either to sell or re-let the tenanted premises for a period of three years and if a landlord does sell or re-
E. No. 246/2011 Gopal Krishan Puri Vs Harish Kumar Anand Page no. 24 of 27 let the premises within the said period then the tenant may proceed against the landlord for restoration of the possession under section 19 of the Act.
19.6 A similar observation was made in judgment titled Krishna Chopra & Anr. Vs. Smt. Raksha: 2000 Rajdhani Law Reporter 83.
19.7 Thus, on the basis of the aforesaid legal propositions the contention of the respondent is rejected as the same is a mere assertion without any substance. Moreover the contention of the respondent is not tenable because in such kind of cases protection/remedy available/provided for such tenants under the DRC Act itself as they can file petition for repossession if the premises are re-let or transferred by the landlord after evicting the tenant, but certainly the leave cannot be granted solely on this ground.
19.8 Thus, this defence raised by the respondents is a sham defense and it does not raise any triable issue.
20) DRC Act not applicable:
20.1 The respondent has submitted that the petition is not maintainable that to knowledge of the respondent, the area and the location of the suit property is not notified under the Delhi Rent Control Act.
20.2 As regards applicability of the DRC Act is concerned, the Court can take judicial notice of the fact that the shop in question is situated in Tagore Market in Kirti Nagar which is an old urban area. The Hon'ble Supreme Court of India and the Hon'ble High Court of Delhi have decided numerous cases pertaining to premises in Kirti Nagar under the DRC Act. For instance, in Gopal Dass Gogia vs Shashi Prabha decided by the Hon'ble High Court of Delhi on 10 September, 2014 the premises in question was one shop on the ground floor of property No.D-62, Kirti Nagar, Delhi. In M/S. Rahabhar Production Pvt. Ltd vs Rajendra K. Tandon decided by Hon'ble Supreme Court of India on 26 March, 1998 the premises in qustion was G-47, Kirti Nagar, New Delhi. In Jagan Nath (Deceased) Through ... vs Chander Bhan And Others: AIR 1988 SC 1362 the premises in question was No. N-80, Kirti Nagar, New Delhi. In none of these cases has the applicability of the DRC Act E. No. 246/2011 Gopal Krishan Puri Vs Harish Kumar Anand Page no. 25 of 27 to Kirti Nagar been ever called into question. Moreover, in Mukesh Kumar vs Rishi Prakash(Supra) it has been held that a tenant cannot be allowed to shoot in the dark so that leave to defend can be somehow granted to him. The respondent in the present case has made a desperate attempt to raise all conceivable defences without bothering to back them with any substance in any manner.
20.3 Such mere bald averments cannot be said to have given rise to a triable issue and it is clear that the defence raise is a sham defence.
CONCLUSION
21)It is well settled that leave to defend is granted to the tenant in case any triable issue is raised by him, which can be adjudicated by consideration of additional evidence. The mere existence of any triable issue is not sufficient. The nature of the triable issue raised by the tenant must be such that it will disentitle the landlord from obtaining the eviction order.
22)In the judgment titled as Sarwan Dass Bange Vs. Ram Prakash (supra) the Hon'ble High Court of Delhi referring to the judgment of Baldev Singh Bajwa v. Monish Saini (2005) 12 SCC 778 observed in para 17 as under:
"...the landlord who evicts a tenant on the ground of own requirement is not only prohibited from letting out the premises or disposing of the same but also required to use the same for his own residence only. It was held that these restrictions and conditions inculcate in built strong presumption that the need of the landlord is genuine; the conditions and restrictions imposed on the landlord make it virtually improbable for the landlord to approach the Court for ejectment of tenant unless his need is bona fide - no unscrupulous landlord in all probability, under this Section, would approach the Court for ejectment of the tenant considering the onerous conditions imposed on him. It was further held that this inbuilt protection in the Act for the tenants implies that whenever the landlord would approach the Court his requirement shall be presumed to be genuine and bona fide. It was further held that a heavy burden lies on the tenant to E. No. 246/2011 Gopal Krishan Puri Vs Harish Kumar Anand Page no. 26 of 27 prove that the requirement is not genuine.." (emphasis supplied)
23) 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 cannot mechanically and in routine manner grant leave to defend. In the light of the aforesaid facts, circumstances and legal propositions, all the pleas taken by the respondent have failed to raise any triable issues regarding the ownership of the petitioner or the land lord-tenant relationship; the bonafide requirement of the landlord; or the availability of any alternative suitable accommodation. The contents of the application for leave to defend have failed to rebut the presumption of bonafide qua the requirement of the petitioner. The application for leave to defend filed by the respondent is thus rejected.
24)As a consequence thereof, an eviction order is passed U/s. 14 (1) (e), DRC Act against the respondents regarding the tenanted premises i.e One shop measuring 11'-6''ft X 26'-2.5''ft.(area 28 sq. meters), situated at the ground floor of the property No. B-7, Ground Floor, Tagore Market, Kirti Nagar, New Delhi-110015, as shown in red colour in the site plan
25)However in light of Section 14 (7) DRCA, the aforesaid eviction order shall not be executable for a period of six months from today.
26)The parties are left to bear their own costs.
27)File be consigned to Record Room after due compliance.
Announced in the open Court on 27th day of September, 2014 (SUMEDH KUMAR SETHI) ACJ/ARC/CCJ(West)/27.09.2014 E. No. 246/2011 Gopal Krishan Puri Vs Harish Kumar Anand Page no. 27 of 27 E. No. 246/2011 Gopal Krishan Puri Vs Harish Kumar Anand