Delhi District Court
Ashok Kumar Goel vs Sh. Rajiv Dhawan on 19 April, 2014
IN THE COURT OF NAVEEN K. KASHYAP, COMMERCIAL CIVIL
JUDGE-CUM-ADDITIONAL RENT CONTROLLER (WEST), TIS
HAZARI COURTS, DELHI.
E-88/2013.
1. Ashok Kumar Goel
S/o Late Sh. Hukum Chand Goel,
2. Sh. Raj Kumar Goel,
S/o Late Sh. Hukum Chand Goel,
3. Sh. Des Raj Goel,
S/o Late Sh. Hukum Chand Goel,
All Residents of
House No. B-18 B,
Mansarovar Garden,
New Delhi - 110015. ...Petitioners
Versus
1. Sh. Rajiv Dhawan,
S/o Sh. Durga Dass
R/o F-51, Sector - 40,
Golf Links, Noida, U.P
2. Smt. Khima Dhawan,
W/o Late Sh. Durga Dass,
R/o F-51, Sector - 40,
Golf Links, Noida, U.P
3. Sh. Rohit Dhawan,
S/o Late Sh. Prithvi Nath Dhawan,
R/o 27/24, Shakti Nagar, Delhi - 110007
Also at: Shop No. B-8, Tagore Garden,
Kirti Nagar, New Delhi - 110015.
4. Sh. Sanjiv Dhawan,
S/o Late Sh. Prithvi Nath Dhawan,
R/o B-436, New Friends Colony,
New Delhi - 110065.
Also at: Shop No. B-8, Tagore Garden,
Kirti Nagar, New Delhi - 110015.
......Respondents
E88/2013 Ashok Kr. Goel and others Vs. Rajiv Dhawan and others page no1 of 24
Date of institution : 02/07/2013.
Date of decision : 19/04/2014.
O R D E R
THE FACTS:
1. The present petition u/s 14 (1) (e) of Delhi Rent Control Act, 1958 is filed by three petitioners against the present four respondents for their eviction from a Shop in B-8, Tagore Market, Kirti Nagar, New Delhi-110015, as shown in red in site plan filed with the petition (hereinafter referred as suit property), on the ground of bonafide requirement of the petitioners and their three sons.
2. The brief facts as stated by the petitioners in the petition are that the petitioners are the absolute owners of the suit property. It is further stated that the entire property, in which the suit property is also situated, comprise of three floors i.e Ground, First and Second. The same was earlier owned by one Smt. Pushpa Kher who sold the same to Smt. Lakshmi Devi (grand mother of the petitioner).
That after the demise of Smt. Lakshmi Devi and her husband Sh. Asa Ram Goyal, the entire property including the suit property was inherited jointly by her two sons namely Om Prakash Goyal and Mange Ram Goyal, one daughter namely Smt. Prem Gupta, daughter-in-law Smt. Pan Pouri, three grand sons (i.e the present petitioners) and one grand daughter Smt. Sarla Garg. That thereafter Smt. Pan Pouri and Smt. Sarla Garg relinquished their shares out of the entire property vide RD dated 08.10.2002 duly registered. That further Smt. Prem Lata also executed a relinquishment deed dated 08.10.2002 duly registered. That thereafter the entire property was partitioned among the remaining joint owners vide partition deed dated 22.10.2002 duly registered and by virtue of such partition, the present three petitioners became joint absolute owners of the entire ground floor of the E88/2013 Ashok Kr. Goel and others Vs. Rajiv Dhawan and others page no2 of 24 property in question.
It is further stated that respondent no. 1 & 2, being the legal heirs of Late Sh. Durga Dass, are the tenants in respect of the suit property. But in a separate eviction petition filed under Section 14 (i)(b) of DRC Act, all the present four respondents have jointly claimed that respondent no. 1 & 2 have now no concern with the suit property and tenancy right and possession of the suit property was acquired by Sh. Prithvi Nath Dhawan i.e Late father of respondent no. 3 & 4, who inducted respondent no. 3 & 4 into their business. As such all the respondents have been impleaded in the present petition.
It is further stated that suit property is required by the petitioners for bonafide need of themselves as well as their three sons as stated in the petition. It is further stated that petitioners also own and possess the second / adjoining shop in the ground floor of the property in question i.e B-8, Tagore Market, Kirti Nagar, New Delhi, as shown in the site plan in blue colour, from where all the three petitioners jointly and in a partnership have been running their business of hardware and sanitary material in the name and style of M/s Lakshmi Hardware and Sanitary Hardware since 1989. It is further stated that petitioner does not have any other commercial property in Delhi and that because of paucity of place the petitioners are constrained to store their hardware and sanitary ware in their residential property bearing Flat no. A-59, Ground Floor, Double Storey, Ramesh Nagar, New Delhi. As such the petitioners require the entire suit property for expansion of their already existing business as well as setting up a new business of trading and sale of paints and allied items on the front side of the suit property for their three sons.
The petitioner also disclosed that they also own two residential properties i.e property B-12, Kirti Nagar, New Delhi and above mentioned Flat no. A-59, Ground Floor, Double Storey, Ramesh Nagar, New Delhi. It is further disclosed E88/2013 Ashok Kr. Goel and others Vs. Rajiv Dhawan and others page no3 of 24 that out of these two residential properties, a Fair Price shop (FPS) is being run since 1976 in the name of uncle of petitioners Sh. Om Prakash Goyal from the property bearing no. B-12, Kirti Nagar. It is stated that in any case as it is a residential property, therefore, only a Fair Price Shop is permitted to be operated from Ground Floor as per law.
It is further stated that all three petitioners have one son each who are not gainfully employed. It is further disclosed that Sh. Ajay Goyal, who is the eldest of three sons, is sitting on the shop of the petitioners as he does not have any separate place to start his own business. It is further stated that sons of the petitioners do not own any alternative commercial place or property in Delhi to run their new business of sale and trading of paints and allied items.
It is further stated that respondent no. 3 & 4 are having many commercial space / shops in Delhi.
3. Notice of this eviction petition was sent to the respondents in the prescribed format which was duly served on Respondent No-1,3 and 4 . In response to which the respondent no-1, 3 and 4 have filed their separate leave to defend applications.
4. At this stage it is pertinent to mention that in view of report dated 28/10/2013 on the summon sent to the Respondent no-2, Smt. Khima Dhawan, she is also deemed to be served, as it is stated by the process server that Respondent No-2 was met and she instructed her servant to sign on the summon. Still she did not file leave to defend application till date. That being the situation, necessarily on account of non filing of leave to defend application, the petitioner is entitled to a decree of eviction in respect of the suit property, as far as Respondent No-2 Smt. Khima Dhawan is concerned. I may herein rely upon a E88/2013 Ashok Kr. Goel and others Vs. Rajiv Dhawan and others page no4 of 24 judgment passed by Hon'ble Delhi High Court which rules out the need of any scrutiny of the contents of the eviction petition in case no leave to defend is filed. In "Krishan Kumar Vs. Vinod Kumar & Anr."[148 (2008) DLT 668] Hon'ble High Court relied on two earlier decisions of Hon'ble High Court of Delhi reported in "Shri Bachan Singh vs Shri Khem Chand[1987 (1) RCR 556; and "Smt. Bhuvneshwari Devi v. Col. Kalyan Singh,[1993 (3) RLR 133].
In "Shri Bachan Singh (supra)" case, while interpreting Section 25B(4) of the Act Hon'ble Delhi High Court held that the said provision is mandatory and if no application for leave to defend is filed, it is obligatory for the Rent Controller to accept the statement made by the owner landlord and order eviction. In "Smt. Bhuvneshwari Devi (supra)" decision as well, Hon'ble Delhi High Court has held that if the tenant on whom the summons are duly served in the form specified in the Schedule does not contest the prayer for eviction by filing an affidavit seeking leave to defend, the Controller is bound to take the statements made by landlord in the application for eviction as correct. In Bhuvneshwari Devi (supra) the Additional Rent Controller, instead of taking the statements made by the petitioner in the Eviction Petition as correct, had proceeded to analyse the facts and came to conclusion that the grounds of eviction had not been made out. Hon'ble Delhi High Court upset that decision and allowed the landlord's revision petition. The ratio of the said case clearly applies to the facts herein i.e. there cannot be any scrutiny of the eviction petition in the absence of leave to defend as far as respondent no-2 is concerned. It is not akin to adjudicate the leave to defend in a suit under Order 37 CPC. The eviction decree has to follow.
5. As a consequence thereof, an eviction order is hereby passed U/s. 14 (1)
(e), DRC Act against the respondent no-2 regarding the suit property i.e. Shop in property No-B-8, Tagore Market, Kirti Nagar, New Delhi -110015 as shown in red E88/2013 Ashok Kr. Goel and others Vs. Rajiv Dhawan and others page no5 of 24 colour in the site plan Ex. P-1 (As put by the Court today itself) filed by the petitioners. However in light of Section 14 (7) DRCA, the aforesaid eviction order shall not be executable for a period of six months from the date of this order.
6. As far as remaining respondent no-1, 3 and 4 are concerned, in their separate but similar leave to defend applications, it is stated by them that the present application is not maintainable as no supporting affidavit is filed with the petition.
It is further stated that even the sub-tenants are impleaded as respondents in present petition as such present petition in summary form cannot be entertained.
Further the respondents have denied that petitioners alone are the landlords of the suit property.
It is further stated that requirement of bonafide is false and fabricated. It is further stated that in any case, the premises are not required for the children of the petitioners. It is further stated that children of the petitioners are already gainfully employed. It is further stated that Sh. Ajay Goyal is already assisting the petitioners in running of their business of M/s Lakshmi Hardware and Sanitary wares and he does not have any intention to start any new business.
It is further stated that petitioners have sufficient alternative accommodation. It is further stated that the petitioners have filed an absolute incorrect site plan of the ground floor of the property in dispute. It is further claimed that there are three shops and not one shop already in possession of the petitioners in the property in dispute, detail of which is given in para 10 of the affidavit to leave to defend applications.
It is further stated that petitioner no. 1 is the partner alongwith Sh. Om Prakash Goyal in the firm M/s Hukum Chand Om Prakash, which firm is carrying a E88/2013 Ashok Kr. Goel and others Vs. Rajiv Dhawan and others page no6 of 24 business B-12, Kirti Nagar, New Delhi.
It is stated by the participating respondents that Smt. Rashmi Mehra, sister of Respondent no-3 and 4, Sh. Ram Saran and LRs of Smt. Pawan Sabharwal, daughter of Sh. Durga Dass Dhawan are not joined as respondents in present petition. Thus the same suffer from the defect of non-joinder of necessary parties.
It is further claimed that on one ground or the other the petitioner wants to evict the respondents.
7. The petitioners have filed their reply to all the separate leave to defend applications of participating respondents no. 1, 3 & 4. In nutshell, the petitioners have specifically denied the assertions made by the respondents in their leave to defend application. In their reply, the petitioners have reasserted their bonafide requirement of the suit premises for themselves and their sons. It is further stated that respondents failed to raise any triable facts.
8. Thereafter the respondents no. 1, 3 & 4 even filed a rejoinder to the leave to defend applications.
9. Arguments in detailed already heard from both sides. Further, both sides relied on many case laws in support of their respective arguments. Further, petitioners even filed written arguments in support of their case. I have heard Ld. Counsels for the parties at length and gone through the records including the case law relied by the parties .
THE LAW:
E88/2013 Ashok Kr. Goel and others Vs. Rajiv Dhawan and others page no7 of 24
10. Before proceeding further it would be worthwhile to state that Chapter IIIA of Delhi Rent Control Act deals with summary trial of certain applications expressly stating that every application by a landlord for recovery of possession on the ground specified in clause (e) of the proviso to sub- section (1) of Section 14 of the Act, or under Section 14A or 14B or 14C or 14D shall be dealt with in accordance with the special provisions prescribed in Section 25B of the Act. The provisions in Chap. IIIA confer a real, effective and immediate right to obtain possession by confining the trial only to such cases where the tenant has such a defence as would disentitle the landlord from obtaining an order for eviction under s.l4(1)(e) or under s. 14A. Chap. IIIA seeks to strike a balance between the competing needs of a landlord and a tenant and has therefore provided that the tenant shall have a right to apply for leave to contest. As per the broad scheme of this Chapter a tenant is precluded from contesting an application filed for eviction on the grounds mentioned in the aforementioned provisions unless he obtains leave from the Controller to contest the eviction petition. In default of obtaining leave to defend or leave is refused to him an order of eviction follows. It appears recourse to summary trial is adopted having due regard to nature of the grounds on which the eviction is sought with a view to avoid delay so that the landlord should not be deprived or denied of his right to immediate possession of premises for his bona fide use. The defence must also be bonafide and if true, must result in the dismissal of landlord's application. Defences of negative character which are intended to put the landlord to proof or are vague, or are raised mala fide only to gain time and protract the proceedings, are not of the kind which will entitle the tenant to the grant of leave. The Controller cannot set down the application for hearing without making an order in terms of sub-s. (5) of s. 25B. The trial must be confined only to such grounds as would disentitle the landlord to any relief.
E88/2013 Ashok Kr. Goel and others Vs. Rajiv Dhawan and others page no8 of 24
11. A landlord, who bona fidely requires a premises for his residence and occupation should not suffer for long waiting for eviction of a tenant. At the same time, a tenant cannot be thrown out from a premises summarily even though prima facie he is able to say that the claim of the landlord is not bona fide or untenable and as such not entitled to obtain an order of eviction. Hence the approach has to be cautious and judicious in granting or refusing leave to defend to a tenant to contest an eviction petition within the broad scheme of Chapter IIIA and in particular having regard to the clear terms and language of Section 25B(5) of DRC Act .
THE FINDINGS:
12. With this background, this tribunal turns to the facts of the case in hand. The respondents have raised many issues in the leave to defend applications which have been stated to be triable issues. Same are dealt one by one.
Present case is filed against tenant as well as against sub-tenant :
13. The participating respondents no-1, 3 and 4 raised the plea that in the para no-16 of main petition, the petitioners themselves claim that respondent no-3 and 4 are sub-tenants. As such the present petition u/s 25B DRC Act in summary manner is not tenable.
Ld. Counsel for both the sides relied on many case laws in support of their contentions on this issue. But in view of the judgment of "Umesh Verma Vs. Jai Devi Bhandari [AIR 1998 SC 2343], this tribunal is unable to agree with the contention of the respondents. It was held by Hon'ble Supreme court in this judgment that if the landlord joins as respondent, the person who according to him E88/2013 Ashok Kr. Goel and others Vs. Rajiv Dhawan and others page no9 of 24 is the tenant and also the person who claims to be the real tenant and is in possession of the premises, then the dispute as to who is the real tenant loses all its relevance.
Further it is pertinent to note that in any case it is not the case of any of the participating respondents themselves that respondents no-3 and 4 are the sub- tenants. In fact, as per the claim of the participating respondents, Respondents no-3 and 4 are the tenants in actual possession because of their internal arrangements. And this fact was disclosed by the petitioners side also in the main petition itself. And it was further stated by the petitioners in the main petition itself that because of such stand taken by the respondents in other petition between the parties u/s 14(1)(b) DRC Act, all the four respondents are made party in present petition.
Further the stand taken by the respondents themselves in related petition u/s 14(1)(b) is that Respondents no-3 and 4 are not sub-tenants.
Therefore, the present contention of the respondent does not raise any triable issue of such a nature that would disentitle the landlord from obtaining an order for the recovery of possession of the suit premises.
Non-Joinder of necessary parties:
14. It is stated by the participating respondents that Smt. Rashmi Mehra, sister of Respondents no-3 and 4, Sh. Ram Saran and LRs of Smt. Pawan Sabharwal, daughter of Sh. Durga Dass Dhawan are not joined as respondents in present petition. Thus the same suffer from non-joinder of necessary parties.
But on a bare perusal of the leave to defend application, it is clear that it is no where claimed by the participating respondents that Smt. Rashmi Mehra, sister of Respondents no-3 and 4, Sh. Ram Saran and LRs of Smt. Pawan Sabharwal, E88/2013 Ashok Kr. Goel and others Vs. Rajiv Dhawan and others page no10 of 24 daughter of Sh. Durga Dass Dhawan are in physical possession of the suit property.
Further the law in this regard it settled that it is sufficient if the Legal heirs in actual physical possession of the suit property are joined as a party and it is not necessary to bring on record each and every LR of the deceased.
Thus it is not necessary to implead Smt. Rashmi Mehra, sister of Respondents no-3 and 4, Sh. Ram Saran and LRs of Smt. Pawan Sabharwal, daughter of Sh. Durga Dass Dhawan as respondent in present case. As such the present contention of the respondents does not raise any triable issue of such a nature that would disentitle the landlord from obtaining an order for the recovery of possession of the premises.
Petitioner is not the owner of the tenanted premises:
15. The respondent has contended that the petitioner is not the owner of the tenanted premises.
In rent control legislation, the landlord can be said to be owner, if he is entitled in his own legal right, as distinguished for and on behalf of someone else, to evict the tenant and then to retain, control, hold and use the premises for himself.
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.
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 E88/2013 Ashok Kr. Goel and others Vs. Rajiv Dhawan and others page no11 of 24 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 the present petition, in their affidavits to leave to defend applications, the respondents have merely submitted that petitioners have falsely alleged that Smt. Pan Poori Goel and Smt. Sarla Garg relinquished their share vide relinquishment deed dated 08/10/2002 and that Smt. Prem Lata also relinquished her share vide RD dated 08/10/2002. This is just a bald statement without any supporting documents. On the other hand, the petitioners placed on record the copy of relevant relinquishment deeds. Further in their leave to defendant application, it is admitted by the respondents that they were paying rent to smt. Pani Poori, who is the mother of the petitioners, who expired on 11/01/2009 and before that executed the Relinquishment deed in favor of the petitioners.
Further the respondents denied the partition vide partition deed dated 22/10/2002 but without any substantive plea to the contrary. In this regard it was held in "Rajender Kumar Sharma & Ors. Vs. Leela Wati & Ors."[ 155 (2008) DLT 383] that 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 are not to be E88/2013 Ashok Kr. Goel and others Vs. Rajiv Dhawan and others page no12 of 24 considered sufficient for grant of leave to defend.
Further the petitioner has already disclosed in the petition itself that a partition was arrived amongst family members/remaining joint owners, which was duly registered and vide such partition the suit property came into the possession of the petitioners. The respondents being tenants cannot challenge such family partition.
In Bipin Behari Tawakley Vs. Kishori Lal Mehra & Ors.[1981 (2) DRJ 60] it has been held by the Hon'ble High Court of Delhi that even if there is no writing of the family arrangement and alleged to be oral only, same is sufficient and no writing or registration is necessary for family settlement and its a internal matter between the family members and the tenant has no right to challenge the family settlement. In view of this judgment, respondent cannot challenge the family settlement between the parties in present petition.
Further even if it is assumed for the sake of the arguments that no family settlement arrived between the family members of the petitioners, it has been held by the Hon'ble High Court of Delhi in Tejbir Kaur Vs. Devinder Singh [1996 RLR 106] and M/s India Umbrella Manufacturing Co. Vs. Bhagbandei Agarwalla [2004 (3) SCC 178] that the co-owner can maintain a suit for eviction against the tenant. In view of this law laid down by the Hon'ble Court, the respondent cannot challenge the partition deed of the petitioners and this petition may be maintained by the petitioner even in the capacity of the co- owner and it is not a triable issue.
Further it is pertinent to note that in any case the respondents did not disclose that if according to them petitioners are not the landlord then who is their landlord.
Therefore, in view of above mentioned position of law, the present contention of the respondent does not raise any triable issue of such a nature that E88/2013 Ashok Kr. Goel and others Vs. Rajiv Dhawan and others page no13 of 24 would disentitle the landlord from obtaining an order for the recovery of possession of the premises.
No Bonafide Requirement :
16. The respondents have taken the plea that the petitioners as well as their three sons are very well settled and as such do not require the tenanted premises bonafidely. It is further stated by the respondents that petitioners do not require the suit property for expanding their present business.
It is further stated by the respondents that one of the son, Ajay Goel is already assisting the business of M/s Laxmi Hardware and Sanitary wares for last 10 years and he has no intention to start any new business. And further that petitioner no-1 is not attending this business.
It is further stated by the respondents that another son of the petitioner namely Sh. Sumit Goel is a computer engineer and not interested in carrying out any business.
It is further stated by the respondents that another son Sh. Sushant Goel is only about 19 years and is studying and has no intention to start business.
It is further stated by the respondents that petitioner no-1 is a partner with Sh. Om Prakash Goel in the firm M/s Hukum Chand Om Prakash, which business is being carried out from the ground floor of property bearing no-B-12, Kirti Nagar, New Delhi. That as such the petitioner no-1 is carrying out that other business.
It is further stated by the respondents that in any case the intended business can very well be carried out from the existing shop of the petitioners and does not require any separate shop.
On the other hand, the petitioners in their counter affidavits to leave to defend has categorically and specifically denied all such allegations of the E88/2013 Ashok Kr. Goel and others Vs. Rajiv Dhawan and others page no14 of 24 respondents.
In the judgment of Pawan Kumar Vs. Sant Lal [R.C.Rev 303/2012 decided on 6.8.2012 ] it has been observed by our own Hon'ble High Court that it is the moral duty of a father to help establish his son. It was observed :
"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 dependent 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."
17. 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 E88/2013 Ashok Kr. Goel and others Vs. Rajiv Dhawan and others page no15 of 24 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.
18. The present case is similar to the case of Joginder Singh (supra) as in the present case the tenanted premises is also required by the petitioners for the business of their sons, including Sh. Sumit Goel who is presently doing a job at present as no commercial space is available to carry out business by him.
It may be noted that the Respondents have not denied that the sons of petitioner cannot start a business, the respondents have merely contended that one of the son is already engaged in the business of petitioners and others are studying or doing job.
But the fact remains that every parent wants to settle his children in the best possible manner and if the petitioners have found it proper to help their sons to start their separate 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 her own requirements and that of the requirements of her family.
In the judgment titled as Ragavendra Kumar v. Firm Prem Machinary [AIR 2000 S.C.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.
In the judgment tiled as "Sarla Ahuja v. United India Insurance Co. Ltd."[AIR 1999 S.C. 100] it was held:
"...The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a E88/2013 Ashok Kr. Goel and others Vs. Rajiv Dhawan and others page no16 of 24 prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself...."
(emphasis added) Further in the judgment tiled as Ram Babu Aggarwal v. Jay Kishan Das 2009(4) R.C.R.(Civil) 748 (SC), the Hon'ble Supreme Court observed;
".......6. However, as regards the question of bonafide need, we find that the main ground for rejecting the landlord's petition for eviction was that in the petition the landlord had alleged that he required the premises for his son Giriraj who wanted to do footwear business in the premises in question. The High Court has held that since Giriraj has no experience in the footwear business and was only helping his father in the cloth business, hence there was no bonafide need. We are of the opinion that a person can start a new business even if he has no experience in the new business. That does not mean that his claim for starting the new business must be rejected on the ground that it is a false claim. Many people start new businesses even if they do not have experience in the new business, and sometimes they are successful in the new business also...."
In the said judgment the Apex Court has observed to the extent that requirement of landlord for setting up his son who has no experience in business is a bona fide requirement.
In the opinion of this tribunal it is the right of every person to excel in life. If the sons of the petitioners and the petitioners is of the opinion that it would be better in life to start a new business from the tenanted premises for petitioners' sons than merely doing a job or assisting their father, then it would not be just for this court to direct the petitioners otherwise and thereby stop the financial growth of the family of the petitioners. The court cannot ask the petitioner's sons to give up their dreams of excelling in life by establishing their own business. Though the E88/2013 Ashok Kr. Goel and others Vs. Rajiv Dhawan and others page no17 of 24 success of the business to be established by the sons of the petitioners is not guaranteed, but, at the same time, the court cannot predict the failure of the same and thereby decline the petitioners an opportunity to establish their sons own new business from a premises owned by them.
As such, in the opinion of the court, the requirement of the petitioners for their sons is a bonafide requirement and there is no reason for the court to find any malafide intention behind the same.
Further as the premises are also required for new business of the sons, it can not be said to be a case of additional accommodations only. Thus the case law relied by the respondents on the point of additional accommodation is not of much use in the facts and circumstances of present case.
Further even if the petitioner no-1 is also a partner in another firm, same is not of much consequence, as the core issue remains that in any case the suit property is required for the bona fide need of all the petitioners as well as their sons.
Therefore, in view of above mentioned position of law, the present contention of the respondent does not raise any triable issue of such a nature that would disentitle the landlord from obtaining an order for the recovery of possession of the premises.
Alternative accommodation and incorrect Site Plan:
19. In leave to defend application, respondents have taken objection that petitioner has filed a absolutely false site plan of the property in dispute, but still respondents have not filed any contrary site plan showing the proper details of property in dispute. But the respondents gave description of adjourning property in possession of the petitions. As per the claim of the respondents, the petitioners E88/2013 Ashok Kr. Goel and others Vs. Rajiv Dhawan and others page no18 of 24 were in possession of three shops on the ground floor of the disputed property in question. Details of the same is given in the para no-10 of the affidavit of leave to defend of the respondents. It is asserted by the respondents that there were two independent shops at the back side with separate doors and such two shops at the back were commercial in nature, hence equally suitable for the so called requirements of petitioners and their sons. Further it is stated by the respondents that there is a basement in the shop of the petitioners.
On the other hand, the petitioners vehemently denied such allegations of the respondents that petitioners are in possession of three shops in the disputed property. Further the petitioners even filed photographs and CD in support of their contention, in addition to the site plan.
In V. S. Sachdeva Vs. M. L. Grover,[67 (1997) DLT 737], Hon'ble Delhi High Court stated that if the tenant fails to file any site plan, then the site plan filed by the landlord should be accepted.
In the absence of any contrary site plan of the respondent, plea of the respondent is rejected being bald averment without any substance. Moreover, there is no dispute between the parties as regards the tenanted premises.
Further, even if for the sake of arguments it is presumed that two independent shops at the back side of shop of the petitioners or that basement is not disclosed by the petitioners, still same can not fatal to the claim of the petitioners. As such the same can not be termed as suppression of material facts. On a bare perusal of the photographs placed on record it is clear that so called two shops can not be equally suitable shops in comparison to tenanted premises, because they are on the back side lane as against the main road of tenanted suit property. Reliance is rightly placed by petitioners in this regard on para -8 of the judgment of "Shri Gurucharan Lal Kumar Vs. Srimati Satya Wati and others" [RC Rev 285/2012 dated 25/04/2013 decided by Hon'ble Delhi High E88/2013 Ashok Kr. Goel and others Vs. Rajiv Dhawan and others page no19 of 24 Court].
Further it has been held by the Hon'ble High Court of Delhi in "Surinder Singh V.s Jasbir Singh" [172 (2010) DLT 611] that if the property is not suitable to the requirement of the petitioner then non disclosure of the same is not fatal to the case. Even otherwise, only those accommodation are required to be disclosed which may serve the purpose of alternative accommodation to satisfy the needs of the petitioner.
Further, as far as other property of the petitioners at B-12, Kirti Nagar ,Delhi and Flat no-A-59, Ground floor, Ramesh Nagar, Delhi is concerned, it is specifically stated by the petitioners that both of them are residential properties. That in the property bearing no-B-12, ration shop is allowed to be run as per law and as such a ration shop is being running since 1976. The petitioners even placed on record the copy of title documents of both these properties on record.
Despite such specific assertions with supporting documents, the respondents just made a bald statement denying all the facts stated by the petitioner in this regard, without any supporting documents.
Further in any case property bearing no- B-12, Kirti Nagar ,Delhi is not vacant. Further on a bare perusal of record it is clear that both these properties are residential in nature. Thus, in any case same can not be considered as suitable property when the need is for commercial purpose. Therefore, such property can not be termed as equally suitable alternative accommodation.
Further it is not expected of the Court to ask the petitioner to either vacate thier own home or to close down the ration shop so as to provide space to sons to start the business, despite being the owner of the tenanted premises in possession of the tenant/respondents.
20. Therefore, in view of above mentioned position of law, the present contention of the respondent also does not raise any triable issue of such a nature E88/2013 Ashok Kr. Goel and others Vs. Rajiv Dhawan and others page no20 of 24 that would disentitle the landlord from obtaining an order for the recovery of possession of the premises.
Re-let at higher rate of rent
21. Respondents contended that the petitioners with malafide intention wants to get vacated the tenanted shop from the respondent and then to re-let the same to the new tenant for earning handsome amount.
On the other hand the same has been vehemently denied by the petitioner in their replies to leave to defend applications.
It is 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- entitle 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.
A similar observation was made in judgment titled Krishna Chopra & Anr. Vs. Smt. Raksha [2000 Rajdhani Law Reporter 83].
Thus, on the basis of the above said case-law 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 E88/2013 Ashok Kr. Goel and others Vs. Rajiv Dhawan and others page no21 of 24 cases protection/remedy is 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.
Thus the present contention of the respondent also does not raise any triable issue of such a nature that would disentitle the landlord from obtaining an order for the recovery of possession of the premises.
22. It is also asserted by the respondents that there is no supporting affidavit with the present petition and that the counter affidavit is not properly verified as per law. Further certain case law is also relied in this regard. Further it is argued that as per rule 23 of the DRC Rules, guidance is to be taken from CPC and CPC provide for such supporting affidavit.
On the other hand it is stated by Ld. counsel for the petitioners that requirements for a civil suit are different from the petition filed u/s 25B DRC Act . It is further argued that present petition is governed by DRC Rules. As per such rules such petition is to be filed as per "Form A" and the same is accordingly filed by the petitioners.
I have gone through the objects and reasons for introducing the supporting affidavit along with the plaint in a civil suit. The same is not relevant in present case. In present situation it is the leave to defend application, which is at the core of the issue. Further the Rule 23 of DRC Rules only stated that in deciding any question relating to procedure not specifically provided by the Act and these rules the Controller and the Rent Control Tribunal shall, as far as possible, be guided by the provisions contained in the Code of Civil Procedure, 1908. But there is a specific form "A" for filing a petition u/s 14(1)of DRC Act. Further in any case at this stage this tribunal is to see the leave to defend application of the respondents E88/2013 Ashok Kr. Goel and others Vs. Rajiv Dhawan and others page no22 of 24 and in any case the same does not raise any triable issue of such a nature that would disentitle the landlord from obtaining an order for the recovery of possession of the premises, as already discussed above.
The Conclusion :
23. 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.
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. 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.."
E88/2013 Ashok Kr. Goel and others Vs. Rajiv Dhawan and others page no23 of 24
24. 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 legal proposition, all the pleas taken by the respondent have failed to raise any triable issues. 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.
25. As a consequence thereof, an eviction order is passed u/s. 14 (1) (e) DRC Act against the respondents no-1, 3 and 4 also regarding the suit property i.e. Shop in property No-B-8, Tagore Market, Kirti Nagar, New Delhi -110015 as shown in red colour in the site plan Ex. P-1 (As put by the Court today itself) filed by the petitioners.
26. However in light of Section 14 (7) DRCA, the aforesaid eviction order shall not be executable for a period of six months from the date of this order. The parties are left to bear their own costs. File be consigned to Record Room after due compliance.
Announced in the open Court on 19/04/2014 (This judgment contains 24 pages) (NAVEEN K. KASHYAP) CCJ-CUM-ARC, WEST DISTRICT, THC, DELHI.
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