Delhi District Court
Shivanu Mehta vs Sh. Vijay Khurana on 29 June, 2015
Page No. 1 of 31
IN THE COURT OF SH. SUMEDH KUMAR SETHI
ACJ-cum-ARC-cum-CCJ (WEST) THC, DELHI
UID No. 02401C0661702014
E No.97/2014 U/s 14(1)(e) of DRC Act
Date of institution: 24.12.2014
Date of Order: 29.06.2015
Shivanu Mehta
S/o. Late Sh. Rajender Mehta
R/o. C-121. 2nd Flor
Ganesh Nagar, Tilak Nagar
New Delhi 110018. ....... Petitioner
Versus
Sh. Vijay Khurana
S/o. Late. Sh. MR Khurana
Sole Proprietor of M/s. Vijay Cloth House
Portion of Property no. 18,
Shop No. 18B, New Market
Tilak Nagar, New Delhi.
.....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 respondent seeking leave to defend the eviction petition, filed on
08.01.2015.
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
respondent on 24.12.2014.
FACTS
3) The averments made in the petition are that:-
3.1 Property no. 18 (shop no. 18B at ground floor, New Market, Tilak Nagar, New Delhi (herein after called tenanted premises/shop in question), as shown in red colour in the site plan, was let out to the respondent Vijay Khurana at the rate of rent is Rs.350/- per month exclusive of other charges. The tenant E. No. 97/2014 Shivanu Mehta Vs Vijay Khurana Page No. 2 of 31 was inducted in the property in question by late Sh. Uttam Chand, who was the owner of the property bearing shop no. 18B, New Market, Tilak Nagar, New Delhi. The said property was purchased by him from President of India, vide a duly registered Perpetual Lease Deed dated 26.06.1967.
3.2 Sh. Uttam Chand expired on 11.11.1988, leaving behind a registered Will in favour of his wife Smt. Vidyawati, in respect of the said property, vide Will duly registered as document no. 7007 in Additional Book No. III, Volume No. 539 on pages 162-163 dated 15.04.1987 duly registered in the office of Sub-
Registrar, Delhi. Smt. Vidyawati died on 28.06.1996 leaving behind a Will, in favour of her sons namely Sh. Virender Kumar, Sh. Surender Kumar, Sh. Rajinder Kumar and Sh. Rajesh Kumar, regarding the said property vide Will registered as Document No. 51938 in Additional Book No. III, Volume No. 1822, on pages 65-66, of dated 20.11.1992 duly registered in the office of Sub-Registrar-II, Delhi.
3.3 Virender Kumar also died on 26.06.1998 leaving behind five legal heirs Smt. Vinod Sharma (wife), Smt. Chanda Manocha (daughter), Smt. Ekta Sharma (daughter), Sh. Vikas Sharma (son) and Vandana Sharma (daughter) and they became the joint owner of 1/4th share in the said property.
3.4 That Surender Kumar, Rajesh Kumar, Smt. Chanda Manocha, Smt. Ekta Sharma, Sh. Vikas Sharma released and relinquished their shares in the said property in favour of Smt. Vinod Sharma W/o. Late. Sh. Virender Kumar vide relinquishment deed registered as Document No. 34820, in Additional Book No.1, Volume No. 13530, on pages 133-135, of dated 30.12.2005 registered in the office of Sub-Registrar II, Janakpuri, New Delhi.
3.5 That Miss Vandana Sharma D/o. Late Sh. Virender Kumar also released and relinquished her share in the said property in favour of Smt. Vinod Sharma vide relinquishment deed registered as Document No. 22635, in Additional Book No. I, Volume No. 15243, on pages 176-178 of dated 06.11.2007 registered in the office of Sub-Registrar II, Janak Puri, New Delhi.
E. No. 97/2014 Shivanu Mehta Vs Vijay Khurana Page No. 3 of 31 3.6 That Smt. Vinod Sharma became the absolute owner of 3/4th undivided share of the said property in question. Smt. Vinod Sharma widow of late Sh. Virender Kumar Sharma sold the property comprising of 18.4 sq. mt., one shop on the ground floor, without roof right to the petitioner, after receiving the due consideration of Rs. 4,10,000/- and this fact was brought to the knowledge of the tenant namely Sh. Vijay Khurana on 21.12.2009. In that consideration, Smt. Vinod Sharma executed agreement to sell and purchase in favour of the petitioner, in respect of one shop of 18.4 sq. mt of property bearing no. 18, New Market, Tilak Nagar, New Delhi. This shop is in portion of property bearing no. 18 and is described as shop no. 18B. The number of the shop was described by them privately with intent to specify the property; the same was shown in the site plan attached as red. The said agreement to sell and purchase was duly registered with the office of Sub-Registrar, Janak Puri, New Delhi vide registration no. 22488, in addition Book no.1, Volume No. 17268, on pages 84 to 89 of dated 23.12.2009. The copy of the same is enclosed herewith. Thereafter, the petitioner became the absolute owner of 3/4th undivided share of the property comprising of one shop of property bearing no. 18, New Market, Tilak Nagar, New Delhi. This shop is in portion of property bearing no. 18 and is described as shop no.18B and the same was shown in the site plan attached as red. This fact has already been brought to the knowledge of the tenant by said Smt. Vinod Sharma as well as petitioner.
3.7 That the respondent tendered the rent of the shop in question to Smt. Vinod Sharma, even knowing this fact that the petitioner has become the owner of 3/4th share of the property in question. By virtue of law, the tenant/respondent has become the tenant of the petitioner.
3.8 That the petitioner requires the aforesaid tenanted premises bonafide, for his own use as well as for the use of his younger brother. The petitioner is a married person and his younger brother namely Sh. Ankush Mehta, who is depending upon him. The petitioner is not having his parents. The younger brother of the petitioner is dependent upon him. The petitioner was earlier doing the job in a confectionery shop and thereafter he was removed from the E. No. 97/2014 Shivanu Mehta Vs Vijay Khurana Page No. 4 of 31 job by its employer now the petitioner wants to do the business of his own and for that business the petitioner is not having any site/premises for doing the business except the tenanted premises, which was occupied by the respondent. The petitioner required the tenanted shop in question particularly shown in the site plan attached bonafidely for his own use and for the use of his younger brother who is dependent upon him. Due to financial crisis he is unable to afford the money for taking the commercial space in the market, for that reason, the petitioner requested the respondent to vacate the premises and the petitioner required the same for his own use as well as for the use of his younger brother who is dependent upon him for commercial purposes. The respondent failed to pay any heed to the request of the petitioner then the petitioner has no other alternative except to file the present petition.
3.9 That the family of the petitioner was also disturbed. The wife of the petitioner left her matrimonial home and filed a divorce petition against the petitioner before the family court, the same is pending before the Court of Sh. Brijesh Sethi, ld. Family Court Judge, Tis Hazari Court, Delhi. The petitioner wants to do his own business for that reason he required the tenanted premises. The petitioner has no other property in Delhi or NCR, except the tenanted premises and hence, the petitioner required the tenanted premises for doing his own business.
3.10 That the respondent is a man of means. He is having the other properties in Delhi as well as in NCR. The respondent sold one of the property bearing no. 13/34A, 3rd Floor, Tilak Nagar, New Delhi-18, after receiving the huge consideration. The respondent is having the property in the vicinity of Kamla Nagar/Shakti Nagar, Delhi.
3.11 That the respondent has filed a suit for permanent and mandatory injunction against the petitioner before the Senior Civil Judge, District West, Tis Hazari Courts, Delhi and the same was assigned to the Court of Smt. Swati Katiyar, ld. Civil Judge, Tis Hazari Courts, Delhi and the same was registered as Suit no. 151/2010.
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4) The respondent has filed application for leave to defend along with affidavit wherein he has raised the following defences:
4.1 That according to the petitioner's own allegations, he requires the said premises for his as well as his brother's bonafide requirements. The eviction petition may kindly be perused once again to determine true scope thereof.
4.2 That the respondent/applicant has been intimated of the institution of this petition only by summons/notice issued to him by the process server on 25th December, 2014 (through the said day was public holiday). Alongwith the aforesaid summons/notices, the respondent/applicant has also received copies of eviction petition and the various documents purportedly annexed to the eviction petition, in all 69 in number. It is submitted that the summons accompanied with the petition and set of documents, mentions the total number of pages as 75 and as such, the aforesaid alleged service can not be deemed to be proper and effective service in the eyes of law.
4.3 That the eviction petition on its own face deserves to be summarily rejected, more so as the sole purpose (manifest on the face of the record) behind the institution of this eviction petition is certainly not to use the premises in suit for the purposes of residence (as is the mandatory requirement of law) but to set up an (business) additional office for the purposes which is strictly prohibited by law, rules, bye rules and notifications of the Central as well as State Govt.
4.4 That this eviction petition has been instituted to pressurize the respondent/applicant herein to concede to the petitioner's illegal demand(s) firstly to vacate the premises in suit so that the petitioner may earn a handsome premium by re-letting the same or to put undue pressure upon the respondent to pay enhanced/escalated rentals (at the rate commensurate with the market rate (qua the premises in suit).
4.5 That the present petition is being proceeded by suppressing material facts with regards to availability of alternative accommodation with the petitioners E. No. 97/2014 Shivanu Mehta Vs Vijay Khurana Page No. 6 of 31 and the accommodation available with the alleged dependents of the petitioners is not disclosed.
4.6 That the petitioner is neither the owner nor the landlord qua the property in question. The alleged transfer of property in favour of the petitioner is neither legal nor valid. It is submitted that as per the lease deed dated 26.06.1967 executed by President of India in favour of Late Sh. Uttam Chand, the property in question i.e. Shop no.18, New Market, Tilak Nagar, could not have been sold, assigned or transferred in favour of any person, without prior permission, in writing, of the lessor. It is submitted that there is no document on record or even any averment, which suggests that any prior permission, in writing was even taken by late Sh. Uttam Chand or any of his predecessor, before allegedly selling the property in question, from the Lessor and as such the alleged sale being in contravention of the aforesaid stipulation contained in the lease deed is void and does not confer any title of the property upon the petitioner. In addition thereto, it is submitted that the petitioner alleges to be himself the owner of the part of the property. As per another stipulation contained in the Lease Deed, the property could not have been subdivided without prior permission of the Lessor and that too in writing. It is further stipulated in the Lease Deed that before sale of the property, the Lessor would have prior and pre-emptive rights to purchase the property. The said sale, as such contravenes the said provisions of the Lease Deed, which are binding on the parties. The said Lease Deed further stipulates that in case of breach of any of the stipulations contained in the Lease Deed, the Lease Deed shall come to an end on account of clause of forfeiture and shall vest with the Lessor.
4.7 That legal heirs of Late Sh. Uttam Chand have been litigating over the properties of Late. Sh. Uttam Chand i.e. property bearing no. 13/42B, Tilak Nagar, New Delhi and shop no.18, New Market, Tilak Nagar, New Delhi. It is submitted that the there is suit bearing no. 230/02 (New No. 365/07) which is pending adjudication in the Court of Civil Judge, Tis Hazari regarding the partition and separate possession of aforesaid two properties. It is submitted E. No. 97/2014 Shivanu Mehta Vs Vijay Khurana Page No. 7 of 31 that the respondent has also been arrayed as defendant no.14 in the said suit. It is submitted that the Ld. Civil Judge, Delhi had passed orders there by directing the parties not to sell, transfer, part with and alienate the properties in question. The said orders were passed on 12.01.2006 and 13.11.2007, respectively. As per the case of the petitioner, he has allegedly purchased the property at much later date. It is submitted that since the property in question has been allegedly purchased by the petitioner at much later date i.e. much later after passing of the aforesaid stay orders qua the properties which were subject matter of the aforesaid suit, the said alleged transfer, if any, is against the orders passed by the Court and are illegal, null and void.
4.8 That the petitioner is alleging himself to be the owner of the property on the basis of Agreement to Sell and GPA. It is trite in law that Agreement to Sell and GPA do not confer any valid title qua the property in favour of the purchaser. It is submitted that after the judgment of Suraj Lamps, the Hon'ble Apex Court has made position absolutely clear by holding that no other document, except the duly registered Sale Deed, can effect legal and valid transfer of the property in question in favour of the purchaser.
4.9 That there is no relation of landlord and tenant between the parties. It is submitted that admittedly the respondent was not inducted as tenant by the petitioner. Admittedly at no point of time, the respondent has ever remitted or tendered rent of the shop in question to the petitioner. It is submitted that father of the respondent was inducted as tenant by Late Sh. Uttam Chand. It is submitted that after demise of Late Sh. Uttam Chand, all his legal heirs have become co-landlords and co-owners of the property and shop in question.
4.10 That the original tenant in the property in question was father of the respondent. It is submitted that after demise of father of respondent, all his legal heirs have become tenants in the property. The petitioner has not impleaded other legal heirs of Late Sh. Munshi Ram, father of respondent, as respondents in the present petition and as such, the present petition is bad for E. No. 97/2014 Shivanu Mehta Vs Vijay Khurana Page No. 8 of 31 non joinder of the ncessary parties and is liable to be dismissed.
4.11 That the alleged seller Smt. Vinod Sharma who was allegedly co-owner of the property of undivided and un-partitioned share could not have sold specific share in the property and could not have delivered possession of any portion of the property in question.
4.12 That the property in question is partitioned after determining shares of all the legal heirs of Late Sh. Uttam Chand and they are not put in separate possession of their respective shares each and every legal heir of Late Sh. Uttam Chand is co-owner of the property and is deemed to be having symbolic possession of the property. The petitioner has failed to implead all the legal heirs of Late Sh. Uttam Chand as petitioners in the present petition.
4.13 That the petitioner has filed a site plan with the petitioner allegedly showing the shop in question and the area thereof. Without prejudice to other rights and contentions of the respondent and while denying the genuineness of the said site plan, it is submitted that the said alleged site plan shows the area of the shop to be 12x10 sq. mt i.e. about 10.5 sq. mtrs. As per the alleged papers got illegally executed by the petitioner in his favour from the alleged owners of the property, the area under transfer has been shown to be 18.4 sq. mtrs. The petitioner has not disclosed as to what is the status remaining area of approximately 8 sq. mtrs, under his disposal, as per his own case. The respondent, however, submits that the shop of the respondent is admeasuring approximately 10x10 i.e. 100 sq. ft i.e. roughly 9 sq. mtrs. As such, as per the alleged documents, balance area of approximately 9.4 sq. mtrs, should be in possession of the petitioner.
4.14 That the petitioner had also filed a suit titled as Shivanu Mehta Vs. Surender Bhatia, alleging that he owns a part of the property of Surender Bhatia. The said suit was dismissed and the petitioner has not disclosed as to whether he has filed any appeal against the same or not. However, the gist of the argument is that the petitioner has claimed and alleged to have a portion of land out of property of Surender Bhatia.
E. No. 97/2014 Shivanu Mehta Vs Vijay Khurana Page No. 9 of 31 4.15 That the brother does not qualify to be a dependent person either in statutory or in personal law. It is submitted that the alleged brother of the petitioner is an adult human being and as such, by no stretch of imagination, he can be said to be dependent upon the petitioner.
4.16 That the petitioner is gainfully employed in Kotak Mahindra Bank at Gurgaon. It is submitted that he is drawing a handsome salary from his job. Besides this, the side business of the petitioner and his alleged brother is property dealing. It is submitted that the petitioner and his brother deal in disputed properties and then they threaten the tenants to vacate the property and if the tenant does not vacate the property then they initiate frivolous proceedings against them.
4.17 That even before the expiry of five years from the date of execution of alleged documents, the petitioner has filed the present petition which even otherwise, is barred by law.
4.18 That the petitioner has concealed that his alleged brother is gainfully working as a property dealer in the area of Tilak Nagar and its vicinity. It is submitted that the petitioner, his alleged brother and other persons namely Shrawan Yadav, Vijay Singh Yadav etc. work in collaboration and partnership with each other and deal in the properties. It is submitted that all of them, as a group make a huge money to the tune of Rs. 5 Lacs and more per month. Out of which, the share of the alleged brother of the petitioner comes out to be Rs. 1 Lac per month. 18
5) The petitioner has filed a reply to the application for Leave to Defend along with affidavit and in the affidavit the petitioner has denied the defences taken by the respondent.
6) No Rejoinder to the reply to the application was filed by the respondent.
7) Arguments were heard on the application under consideration on behalf of both the parties. Material on record has been perused. Submissions considered.
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REQUIRMENTS
8) 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 her family dependent upon him.
iii.That he has no other reasonably suitable accommodation
9) The defences which are taken by respondent are discussed below and the same are as under:-
DEFENCES
10) Requirement is not clear:
10.1 The respondent has averred that according to the petitioner's own allegations, he requires the said premises for his as well as his brother's bonafide requirements. The eviction petition may kindly be perused once again to determine true scope thereof.
10.2 It is pertinent to mention here that only those averments in an application for leave to defend have to be looked into which disentitle the landlord from an order of eviction.
10.3 It is noteworthy that the provisions of Section 14(1)(e) of the DRC Act are clear in this respect that the requirement can be of the land lord or any of the members of his family dependent upon him. Thus, the requirement can be of the petitioner as well as a member of his family. The petitioner has clearly stated that he requires the tenanted premises for himself as well as his brother.
10.4 Therefore, this defence does not raise any triable issue.
11) Copy of petition has not been served completely:
11.1 The respondent/applicant submitted that he has been intimated of the E. No. 97/2014 Shivanu Mehta Vs Vijay Khurana Page No. 11 of 31 institution of this petition only by summons/notice issued to him by the process server on 25th December, 2014 (through the said day was public holiday).
Alongwith the aforesaid summons/notices, the respondent/applicant has also received copies of eviction petition and the various documents purportedly annexed to the eviction petition, in all 69 in number. It is submitted that the summons accompanied with the petition and set of documents, mentions the total number of pages as 75 and as such, the aforesaid alleged service can not be deemed to be proper and effective service in the eyes of law.
11.2 It is noteworthy that during the pendency of the petition and even during the course of arguments the ld. Counsel for the respondent never raised this objection that he does not have a complete copy of the petition or the documents annexed therewith. Moreover, this is not a ground that would disentitle the petitioner from an order of eviction.
11.3 Hence, this defence does not disentitle the petitioner from the relief of eviction and thus, does not raise any triable issue.
12) Requirement is not for residential purpose:
12.1 The respondent averred that the eviction petition on its own face deserves to be summarily rejected, more so as the sole purpose (manifest on the face of the record) behind the institution of this eviction petition is certainly not to use the premises in suit for the purposes of residence (as is the mandatory requirement of law) but to set up an (business) additional office for the purposes which is strictly prohibited by law, rules, bye rules and notifications of the Central as well as State Govt.
12.2 In this regard, it is noteworthy that 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.
12.3 Hence, the defence taken, does not even prima facie, raise any triable E. No. 97/2014 Shivanu Mehta Vs Vijay Khurana Page No. 12 of 31 issue.
13) The petitioner is neither the owner nor land lord:
13.1 The repondent has stated that the petitioner is neither the owner nor the landlord qua the property in question. The alleged transfer of property in favour of the petitioner is neither legal nor valid. As per the lease deed dated 26.06.1967 executed by President of India in favour of Late Sh. Uttam Chand, the property in question i.e. Shop no.18, New Market, Tilak Nagar, could not have been sold, assigned or transferred in favour of any person, without prior permission, in writing, of the lessor. There is no document on record or even any averment, which suggests that any prior permission, in writing was even taken by late Sh. Uttam Chand or any of his predecessor, before allegedly selling the property in question, from the Lessor and as such the alleged sale being in contravention of the aforesaid stipulation contained in the lease deed is void and does not confer any title of the property upon the petitioner. The petitioner alleges to be himself the owner of the part of the property. As per another stipulation contained in the Lease Deed, the property could not have been subdivided without prior permission of the Lessor and that too in writing. It is further stipulated in the Lease Deed that before sale of the property, the Lessor would have prior and pre-emptive rights to purchase the property. The said sale, as such contravenes the said provisions of the Lease Deed, which are binding on the parties. The said Lease Deed further stipulates that in case of breach of any of the stipulations contained in the Lease Deed, the Lease Deed shall come to an end on account of clause of forfeiture and shall vest with the Lessor.
13.2 It was further allegd that legal heirs of Late Sh. Uttam Chand have been litigating over the properties of Late. Sh. Uttam Chand i.e. property bearing no. 13/42B, Tilak Nagar, New Delhi and shop no.18, New Market, Tilak Nagar, New Delhi. There is suit bearing no. 230/02 (New No. 365/07) which is pending adjudication in the Court of Civil Judge, Tis Hazari regarding the partition and separate possession of aforesaid two properties. The respondent E. No. 97/2014 Shivanu Mehta Vs Vijay Khurana Page No. 13 of 31 has also been arrayed as defendant no.14 in the said suit. The Ld. Civil Judge, Delhi had passed orders there by directing the parties not to sell, transfer, part with and alienate the properties in question. The said orders were passed on 12.01.2006 and 13.11.2007, respectively. As per the case of the petitioner, he has allegedly purchased the property at much later date. Since the property in question has been allegedly purchased by the petitioner at much later date i.e. much later after passing of the aforesaid stay orders qua the properties which were subject matter of the aforesaid suit, the said alleged transfer, if any, is against the orders passed by the Court and are illegal, null and void.
13.3 It is further alleged that the petitioner is alleging himself to be the owner of the property on the basis of Agreement to Sell and GPA. It is trite in law that Agreement to Sell and GPA do not confer any valid title qua the property in favour of the purchaser. After the judgment of Suraj Lamps, the Hon'ble Apex Court has made position absolutely clear by holding that no other document, except the duly registered Sale Deed, can effect legal and valid transfer of the property in question in favour of the purchaser. The alleged seller Smt. Vinod Sharma who was allegedly co-owner of the property of undivided and un-partitioned share could not have sold specific share in the property and could not have delivered possession of any portion of the property in question. The property in question is partitioned after determining shares of all the legal heirs of Late Sh. Uttam Chand and they are not put in separate possession of their respective shares and each and every legal heir of Late Sh. Uttam Chand is co-owner of the property and is deemed to be having symbolic possession of the property. The petitioner has failed to implead all the legal heirs of Late Sh. Uttam Chand as petitioners in the present petition. There is no relation of landlord and tenant between the parties. The respondent was not inducted as tenant by the petitioner. Admittedly at no point of time, the respondent has ever remitted or tendered rent of the shop in question to the petitioner. The father of the respondent was inducted as tenant by Late Sh. Uttam Chand. It is submitted that after demise of Late Sh. Uttam Chand, all his legal heirs have become co-landlords and co-
E. No. 97/2014 Shivanu Mehta Vs Vijay Khurana Page No. 14 of 31 owners of the property and shop in question.
13.4 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 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.
13.5 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.
13.6 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.
13.7 In the present case the defence raised by the respondent as regards ownership is not tenable even prima facie for the simple reason that the respondent has himself admitted that his father was inducted as tenant by the E. No. 97/2014 Shivanu Mehta Vs Vijay Khurana Page No. 15 of 31 Late Sh. Uttam Chand, by virtue of which, the respondent admitted the the said Uttam Chand as landlord.
13.8 The petitioner has also stated that the property was purchased from one of the legal heirs of Uttam Chand. The Court of the Rent Controller is not to decide the title of the petitioner or otherwise. Thus, this Court cannot go into the aspects of violation of the original lease deed. Likewise, whatever little interest is derived by the petitioner by way of documents such as GPA, etc., though may not amount to absolute title, but would still remain more than the interest of an admitted tenant. Even if the petitioner has got the property in violation of a stay order, he will face the consequences in the suit and before the court which passed such order. The tenant cannot raise this plea in these proceedings, especially in view of the fact that the petitioner is not a party to the suit in which the stay order has been passed. It is apparent from the perusal of the record that the respondent was paying rent to the predecessor in interest of the petitioner. Thus, now when eviction petition has been filed by petitioner, he 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.
13.9 Even if it is the case of the respondent that all the legal heirs of Uttam Chand are Co-owners of the property and the petitioner has purchased the share from just one co-owner, it amounts to saying 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. 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;
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Mohinder 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.
13.10 Thus, this defence raised by the respondent is a vague and sham defence and it does not raise any triable issue.
14) Alternative accommodation is available to the petitioner:
14.1 The respondent has alleged that the present petition is being proceeded by suppressing material facts with regards to availability of alternative accommodation with the petitioners and the accommodation available with the alleged dependents of the petitioners is not disclosed. The same has been denied by the petitioner in his reply.
14.2 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 Controller 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 assertions 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."
14.3 In his application, the respondent has merely stated that the petitioner has not mentioned about the other properties which he is having at different places. There is not a single averment in the application about what all alternative and suitable accommodations are available with the petitioner for E. No. 97/2014 Shivanu Mehta Vs Vijay Khurana Page No. 17 of 31 the purpose of his alleged requirement. On the other hand the petitioner has come out clean and averred that only the shop in question caters to his bonafide requirement. Thus, mere bald assertions on part of the respondent regarding availability of alternative accommodation cannot be relied upon.
14.4 Accordingly, this defence raised by the respondent as regards bonafide requirement and as regards alternate accommodation is a sham defence and it does not raise any triable issue.
15) The petitioner and his brother are gainfully employed and his brother is not dependent upon him:
15.1 The respondent stated that the brother does not qualify to be a dependent person either in statutory or in personal law. The alleged brother of the petitioner is an adult human being and as such, by no stretch of imagination, he can be said to be dependent upon the petitioner.
15.2 It was also stated that the petitioner is gainfully employed in Kotak Mahindra Bank at Gurgaon. He is drawing a handsome salary from his job. Besides this, the side business of the petitioner and his alleged brother is property dealing. The petitioner and his brother deal in disputed properties and then they threaten the tenants to vacate the property and if the tenant does not vacate the property then they initiate frivolous proceedings against them.
15.3 The petitioner has concealed that his alleged brother is gainfully working as a property dealer in the area of Tilak Nagar and its vicinity. The petitioner, his alleged brother and other persons namely Shrawan Yadav, Vijay Singh Yadav etc. work in collaboration and partnership with each other and deal in the properties. All of them, as a group make huge money to the tune of Rs. 5 Lacs and more per month. Out of which, the share of the alleged brother of the petitioner comes out to be Rs. 1 Lac per month.
15.4 All these submissions have been denied by the petitioner.
15.5 In a recent judgment it has been observed by our own High Court that it E. No. 97/2014 Shivanu Mehta Vs Vijay Khurana Page No. 18 of 31 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 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 E. No. 97/2014 Shivanu Mehta Vs Vijay Khurana Page No. 19 of 31 life and to contribute his best to see him economically independent."
15.6 In the present case, rather than the father, it is the elder brother who is trying to settle a younger brother which is completely understandable keeping in view the India social ethos, especially in view of the absence of their parents. Moreover, the petitioner has sought the premises for himself also. Even otherwise, 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 Rajender Kumar Sharma & Ors. v. Leela Wati and Ors.,155 (2008) DLT 383 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."
In the present case, the respondent has leveled mere bald averments that the petitioner and his brother are gainfully engaged in various activities. There is nothing on record to substantiate these pleas. Hence, the same cannot be looked into.
15.7 Further, even if it is assumed that the petitioner's brother is in fact earning 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 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.
15.8 Assuming the aforesaid averment of the respondent to be true would make the present case similar to the case of Joginder Singh (supra) as in the E. No. 97/2014 Shivanu Mehta Vs Vijay Khurana Page No. 20 of 31 present case the tenanted premises is required by the landlord petitioner for business of his younger brother who, as per the respondent, is having some other employment which the petitioner has categorically denied. Thus, this defence of the respondent does not raise any triable issue.
15.9 Every parent wants to settle his children in the best possible manner and in the Indian social context, in the absence of the parents, it is not uncommon for an elder brother to play a parental role and if the petitioner has found it proper to help his younger brother to start his business 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. It is also settled law that details of any such proposed business are not required to be given by the petitioner.
15.10 In the opinion of the Court it is the right of every person to excel in life. If the brother of the petitioner and the petitioner is of the opinion that it would be better in life to start a business from the tenanted premises than merely doing what they are at present (although there is nothing on record to second this submission of the respondent), 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 brother of the petitioner to give up his dreams of excelling in life and to establish his own business from a premises owned by his brother. Though the success of the business to be established by the brother of the petitioner 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. This also draws support from the submission that the petitioner is already facing marital discord and the Court cannot find reason to doubt the intention of the petitioner to atleast settle his brother in these circumstances. 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.
E. No. 97/2014 Shivanu Mehta Vs Vijay Khurana Page No. 21 of 31 15.11 As regards the petitioner's brother not being dependent upon him, it is noteworthy that the petitioner in his petition has categorically stated that his brother is unemployed. In the counter affidavit filed by the petitioner he has clearly stated that his brother is wholly dependent upon him. In this regard 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 E. No. 97/2014 Shivanu Mehta Vs Vijay Khurana Page No. 22 of 31 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. 15.12 Thus, it is for the respondent to show that the brother of the petitioner is not dependent on him and there is nothing pertinent on record to show the same, especially in view of the fact the petitioner has categorically averred that his brother is unemployed and is dependent upon him. Thus, this defence raised by the respondent does not raise any triable issue.
16) The petitioner has not impleaded all the legal heirs of the original tenant:
16.1 The respondent has taken the defence that the original tenant in the property in question was father of the respondent. After demise of father of respondent, all his legal heirs have become tenants in the property. The petitioner has not impleaded other legal heirs of Late Sh. Munshi Ram, father of respondent, as respondents in the present petition and as such, the present petition is bad for non joinder of the necessary parties and is liable to be dismissed.
16.2 It has been held in the case of Sh. Inder Pal Khanna v. Commander Bhupidner Singh Rekhi(rtd.), (Delhi) 2008(8) A.D.(Delhi) 328 that:
"9. Where out of many, only one or two LR of deceased tenant are in occupation of premises, an eviction petition by landlord against those who are in occupation of the premises is a valid petition. It is not necessary for the landlord to implead all the legal heirs of the deceased tenant or to implead even those who are not in occupation and possession of the premises. In the present case, since only two brothers were in possession of the premises, his impleading only two brothers as defendants was good enough and receipt of personal summons by one of the brother, who was joint tenant was valid service of summons on both the joint tenants in the eyes of law. Service of one of the joint tenant has to be considered service on the E. No. 97/2014 Shivanu Mehta Vs Vijay Khurana Page No. 23 of 31 other joint tenant because in joint tenancy, the tenancy remains one. It is not separate tenancy and right of each of the joint tenants is in whole of the premises. "
16.3 Further, in the case of Rakesh Kumar vs Nitin Garg & Anr. decided by the Hon'ble High Court of Delhi on 3 January, 2014 in CM(M) No. 1331/2012 & C.M. No.20431/2012 reference has been made to other decisions of the Hon'ble Supreme Court of India and the Hon'ble High Court of Delhi to the effect that:
"4. In the case of Kanji Manji vs. Trustees of the Port of Bombay, AIR 1963 SC 468, it was observed by the Supreme Court that "Where the tenancy was a joint tenancy, notice to one of the joint tenant was sufficient and the suit against one of the joint tenant not impleading rest of the joint tenants was good and the suit cannot be dismissed on this ground. The plea of the petitioner that the petitioner was separately required to be served personally if therefore not tenable."
"5. In another case titled as Rajender Kumar Sharma & Ors. vs. Leela Wati & Ors., 155 (2008) DLT 383, it was observed by this Court that "When original tenant dies, the legal heirs inherit the tenancy as joint tenants and occupation of one of the tenant is occupation of all joint tenants. It is not necessary for landlord to implead all legal heirs of the deceased tenant, whether they are living in the property or not. It is sufficient for the landlord to implead only those persons who are living in the property, as party. There may be a case where landlord is not aware of all the legal heirs of deceased tenant and impleading only those LRs who are in occupation of the property is sufficient for the purpose of filing Eviction Petition. An eviction petition against one of the joint tenants is an Eviction Petition against all the joint tenants and all joint tenants are bound by order of the Rent Controller as joint E. No. 97/2014 Shivanu Mehta Vs Vijay Khurana Page No. 24 of 31 tenancy is one tenancy and is not a tenancy split into different legal heirs. Thus, the plea of the tenants on this count must fail."
16.4 There is nothing on record to show that the other legal heirs of late Sh. Munshi Ram are in possession of the tenanted premises. They have not even asserted their right to the tenanted premises before this Court or any other (as is apparent from the record). Rather, it is the respondent who as per his own submissions is in the possession of the premises in question and also filed civil suit against the petitioner. Hence, service upon him constitutes service upon all other legal heirs of late Sh. Munshi Ram.
16.5 Hence, this defence does not raise any triable issue.
17) Site Plan - Incorrect:
17.1 The respondent has alleged that the petitioner has filed a site plan with the petitioner allegedly showing the shop in question and the area thereof. Without prejudice to other rights and contentions of the respondent and while denying the genuineness of the said site plan, it is submitted that the said alleged site plan shows the area of the shop to be 12x10 sq. mt i.e. about 10.5 sq. mtrs. As per the alleged papers got illegally executed by the petitioner in his favour from the alleged owners of the property, the area under transfer has been shown to be 18.4 sq. mtrs. The petitioner has not disclosed as to what is the status remaining area of approximately 8 sq. mtrs, under his disposal, as per his own case. The respondent, however, submits that the shop of the respondent is admeasuring approximately 10x10 i.e. 100 sq. ft i.e. roughly 9 sq. mtrs. As such, as per the alleged documents, balance area of approximately 9.4 sq. mtrs, should be in possession of the petitioner. Thus, the plea of the respondents as regards site plan of petitioner is incorrect, vague and baseless.
17.2 It is noteworthy that the respondent has not filed a site plan of his own and the objections raised against the site plan filed by the petitioner can be rejected outrightly on this ground alone. Even otherwise, the respondent has E. No. 97/2014 Shivanu Mehta Vs Vijay Khurana Page No. 25 of 31 himself taken the plea that the petitioner has purchased the 3/4th 'undivided' share in the property. The petitioner has also affirmed the same. In these circumstances, the respondent cannot be allowed to take a mutually destructive plea of demanding that the petitioner should disclose the exact portion of the property owned by him. This is especially in view of the fact that this Court has already observed that even a co-owner of undivided property can bring an eviction proceeding against the tenant.
17.3 Moreover, 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. Thus, the petitioner has got complete freedom in determining the premises which is best suitable to his requirement and if he states that the tenanted premises best suits his requirement then the court or the tenant cannot dictate him to use some other portion of the property.
17.4 As far as the minor discrepancy in the size of the shop is concerned, the same is not material to deciding this case as the identity of the shop stands admitted as well as established. This draws support from the case of Inderjeet Singh vs Harish Chandra Bhutani (supra) wherein it has been held by the Hon'ble High Court of Delhi that:
"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 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 E. No. 97/2014 Shivanu Mehta Vs Vijay Khurana Page No. 26 of 31 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."
17.5 Thus, this defence raised by the respondent does not raise any triable issue.
18) Petitioner wants to re-let premises and enhance rent:
18.1 The respondent has averred that this eviction petition has been instituted to pressurize the respondent/applicant herein to concede to the petitioner's illegal demand(s) firstly to vacate the premises in suit so that the petitioner may earn a handsome premium by re-letting the same or to put undue pressure upon the respondent to pay enhanced/escalated rentals (at the rate commensurate with the market rate (qua the premises in suit). The petitioner has denied the same in his reply.
18.2 This defence 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..."
E. No. 97/2014 Shivanu Mehta Vs Vijay Khurana Page No. 27 of 31 18.3 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 imposed in the special procedure.
18.4 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 Rajender Kumar Sharma & Ors. v. Leela Wati and Ors., 155 (2008) DLT 383 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."
18.5 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."
18.6 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. 97/2014 Shivanu Mehta Vs Vijay Khurana Page No. 28 of 31 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.
18.7 A similar observation was made in judgment titled Krishna Chopra & Anr. Vs. Smt. Raksha: 2000 Rajdhani Law Reporter 83.
18.8 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.
18.9 Thus, this defence raised by the respondent is a sham defense and it does not raise any triable issue.
19) The petitioner has sued one Surender Bhatia:
19.1 The responent has alleged that the petitioner had also filed a suit titled as Shivanu Mehta Vs. Surender Bhatia, alleging that he owns a part of the property of Surender Bhatia. The said suit was dismissed and the petitioner has not disclosed as to whether he has filed any appeal against the same or not. However, the gist of the argument is that the petitioner has claimed and alleged to have a portion of land out of property of Surender Bhatia.
19.2 It is settle law that only those defences have to be taken into consideration which may disentitle the landlord from the relief of eviction. In the present case, it is not clear which Surender Bhatia is the respondent referring to. Moreover, in case the respondent is referring to one of the legal heirs of late Sh. Uttam Chand, then the petitioner has already averred that the said Surender Kumar has relinquished his share in favour of Smt. Vinod Sharma, who in turn sold her share to the petitioner.
19.3 In any case, this is not an issue that would disentitle the petitioner from E. No. 97/2014 Shivanu Mehta Vs Vijay Khurana Page No. 29 of 31 an order of eviction and hence, it does not raise a triable issue.
20) The petition is barred u/s 14(6) of the DRC Act:
20.1 The respondent has alleged that even before the expiry of five years from the date of execution of alleged documents, the petitioner has filed the present petition which even otherwise, is barred by law.
20.2 It is noteworthy that tenant cannot challenge the documents of title of the owner. For that matter, the respondent has not questioned the documents of the petitioner in the first place. Further, the documents through which the petitioner claims interest in the suit property were purported to be executed on 21.12.2009. However, the same were registered on 23.12.2009. The petition was filed on 22.12.2014 and was listed for the first time before this Court on 24.12.2014.
20.3 In this regard, this Court is of the view that the date referred to as the date of execution of the documents is relevant as compared to the date of registration for the purpose of calculating the period of five years. Section 23 of the Registration Act, 1908 itself provides that "subject to the provisions contained in sections 24, 25 and 26, no document other than a will shall be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution.". This means that the date of execution can be different from the date of registration. Hence, whatever little interest that the unregistered documents created (which in any case is a little more than the interest of an admitted tenant) can be looked into by this Court for the purpose of this petition after considering the documents relied upon by the petitioner.
20.4 Even otherwise, it is pertinent to note that Section 14(6) of the DRC Act states that the "no petition for recovery of possession of such premises shall lie under sub-section (1), on the ground specified in clause (e) of the proviso thereto, unless a period of five years have elapsed from the date of acquisition." It does not mean that the petition 'cannot be filed'. Even, if the E. No. 97/2014 Shivanu Mehta Vs Vijay Khurana Page No. 30 of 31 date of registration is to be considered, the petition in this case was filed only one day before five years from the date of registration were over. This constitutes substantial compliance of Section 14(6) of the DRC Act, especially in view of the fact that the petition is being decided much after the expiry of 5 years of the registration.
20.5 Hence, this defence does not raise a triable issue.
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 prove that the requirement is not genuine.." (emphasis supplied) E. No. 97/2014 Shivanu Mehta Vs Vijay Khurana Page No. 31 of 31
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 respondents 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 respondents is thus rejected.
24) As a consequence thereof, an eviction order is passed U/s. 14 (1) (e), DRC Act against the respondent regarding the tenanted premises i.e one shop bearing no.
18B situated at the ground floor part of the property bearing no.18, New Market, Tilak Nagar, New Delhi measuring 18.4 sq. mtr, 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 day of 29th June, 2015 (SUMEDH KUMAR SETHI)
ACJ/ARC/CCJ(West)/29.06.2015
E. No. 97/2014 Shivanu Mehta Vs Vijay Khurana