Delhi District Court
Sh. Ashwani Kumar vs Sh. Shyam Sunder Oberai on 30 November, 2010
1/25
IN THE COURT OF SH. PRASHANT KUMAR CCJ/ARC ROHINI COURTS
DELHI
CASE No. E - 84/09
1. Sh. Ashwani Kumar
S/o. Late Sh. Har Karan Singh
R/o. WP-462, Shiv Market, Wazirpur Village,
Ashok Vihar, Delhi - 110 033 (PETITIONER)
Versus
1. Sh. Shyam Sunder Oberai
Shop No. 1, Ground Floor
WP - 475-A, Shiv Market, Wazirpur,
Ashok Vihar, Delhi - 110 052
Also at :-
Private Shop No. 6, Ground Floor,
WP-469, Shiv Market, Wazirpur,
Ashok Vihar, Delhi - 110 052 (RESPONDENT)
Date of institution of the Petition : 02.12.2009
Date on which order was reserved : 26.11.2010
Date of decision : 30.11.2010
ORDER
1. By way of this Order I shall decide one application for leave to defend filed by the respondent.
CASE No. E - 84/09 2/25 The facts of the case filed by the petitioner in brief are as under that:-
Petitioner has filed this petition u/s. 14 (1) (c) r/w. 25 B of Delhi Rent Control Act seeking eviction of the premises given on rent to the respondent on a monthly rate of rent of the premises is alleged as Rs. 2,420/- p.m. excluding electricity, water & house tax and the nature of tenancy is commercial. It is further alleged by the petitioner that he is the owner/ landlord of the ground floor shop i.e., suit premises. The remaining entire ground floor of the property is owned by M/s. Suraj Bhan Mittal. It is further alleged that in addition to this, petitioner is having 50% undivided share in property no. WP- 475A, jointly with his brother Raj Kumar and was also onwer pertaining to the property no. WP no. 542 and at present is the owner of WP - 462 situated in Wazirpur village. The said properties from his father vide will dt. 25.04.1996. It is further alleged that the property bearing no. WP-542 has been sold by the petitioner to his brother by GPA dt. 19.06.2002. It is further alleged that property bearing number WP-462, situated in Wazirpur Village is situated in interior back side of the market and in the said property the petitioner is residing with his family and the ground floor & is being used for godown purpose and there is no possibility of any commercial use thereof in that condition. It is further alleged that petitioner has got half share in property no. WP-475-A and said property is being co-owned by the brother of petitioner and as per family arrangement the back side portion of the property from the first floor to top came in the share of petitioner whereas the front portion came in the share of brother of petitioner, Rajkumar. It is further alleged by the petitioner that he has no alternative shop available with him for conducting his business. Hence, petitioner is forced to do insurance work for earning to his livelihood for the minor rent income. It is further alleged that expenses of petitioner's family is high as petitioner has five dependent family members, apart from domestic servant. The petitioner even CASE No. E - 84/09 3/25 has to asked his wife to seek a job despite the family restrictions. It is further alleged that respondent is having two shops in the same market having one of the petitioner and WP-475 - A, and another in property bearing number 467, Shiv Market, Wazirpur. The petitioner does not have any shop for carrying his business and for earning good livelihood for his family. Petitioner has further stated that due to the business competitor, he is not disclosing the name of the company from which he has received various offers.
2. In his application seeking leave to defend, the respondent has alleged that petitioner has concealed the material facts from this Hon'ble Court and has not come with he clean hands.
It is further alleged that the petition filed by the petitioner is bad due to non-joinder of necessary parties as his brother Raj Kumar is the joint owner of the property which has been impleaded in the present petition.
Another issue raised by the respondent by way of this application that he has challenged the ownership of the petitioner with regard to the suit property in question alleging that the will dt. 25.04.1996 is not a genuine and valid document and has been manipulated by the petitioner as he has never disclosed about any such will to the respondent in earlier litigations. In this regard, it is further alleged by the respondent that petitioner has failed to explain as to how M/s. Suraj Bhaan become the owner of the remaining ground floor and the property WP - 475 -A, Shiv Market devolved upon the petitioner & his brother Raj Kumar in equal share as per the Will dt. 25.04.1996.
The petitioner intentionally and deliberately has made the false statement that he has sold the property bearing no. WP-542, Shiv Market, Wazirpur, Delhi vide GPA dt. 19.06. 2002. It is further stated by the respondent that mere execution of GPA is not a recognized mode of sale of immovable property. Thus, property no. WP - 542 is exclusive property of the petitioner, as CASE No. E - 84/09 4/25 per Will filed & relied upon by the petitioner.
It is further alleged by the respondent that property no. WP-462 which is of three story building is a commercial property and ground & first floor are being used for commercial purpose by the petitioner himself as he himself has stated that he & his family is residing at second floor. It is further alleged by the respondent in this regard that the ground floor of the property no. 462 is used for godown only and the petitioner has been using the same for commercial activities. If he is using this property for godown only then, he must doing some business somewhere.
The shop forming the part of property bearing no. WP -
469, Shiv Nagar, Delhi is alternative shop which is available to the respondent is not correct statement made by the petitioner. It is stated by the respondent that this shop belonging to the son of respondent who is running his independent business from there.
Petitioner has let out different portion of the property to six - seven tenants namely M/s. Deepsons Metal, M/s. Ankush Imagings, M/s. Sky Enterprises, M/s. Shankar Prints etc. It is further alleged by the respondent that many other portion are lying vacant & petitioner is intending to induct the new tenants. It is further alleged by the respondent that recently three - four months back, petitioner has inducted a new tenant in respect of first shop of the first floor of the property bearing no. 475-A, who is doing the business of hardware from the said shop.
It is further alleged by the respondent that petitioner is not interested to start any business of his own but is more interested in getting the shop vacated from the respondent and let it out to some other company at higher rental income. In this regard, respondent has stated that petitioner has not disclose the nature of business, name of the company, beside his experience in the said field.
CASE No. E - 84/09 5/25 Petitioner is the owner of property no. WP-542, 462, 475- A, Wazirpur, Delhi & property no. 73, Pkt. - 4 & 5, Sector -23, Rohini, Delhi in which ground, first & second floor are commercial in nature and are being used for commercial purpose.
It is further alleged by the respondent that the site plan filed by the petitioner is not correct, as per the site. Petitioner has not filed the complete chain of document pertaining to these properties.
It is further alleged that petitioner is the proprietor of MKS Capital & running his business from WP - 452, Shiv Market, Delhi.
3. In his reply to the leave to defend application, petitioner has stated that respondent cannot questioned the ownership of the petitioner with regard to the suit premises in question. It is further alleged that Will dt. 25.04.1996 is the registered document duly registered with the concerned registrar on 02.05.1996. Respondent being in the capacity of tenant cannot dispute the Will in question as it is a family matter of the petitioner. That M/s. Suraj Bhan Mittal are not the tenant either the petitioner or any of the family member of the petitioner as the petitioner's family has sold the said property as the were in dire need of funds in the year 1996 by the petitioner and his brother. The document of the sale pertaining to this transaction are filed alongwith the petitioner. With regard to the property bearing no. WP - 542, it is stated by the petitioner that it has been sold by the petitioner to his elder brother by execution of GPA.
It is further stated that property number WP - 462 is constructed up to the second floor only which is situated at extreme back of the street of the said village hence, it has no commercial value and this property being used by the petitioner for his own residence where entire family of petitioner is residing. This place has no open access to the running road of main CASE No. E - 84/09 6/25 street of the market. Hence, it is used for godown purpose. The petitioner has no business, hence, the said portion of ground floor has been put on rent for earning bread & butter.
It is further alleged that property number WP-475 is equally divided between the brothers, as mentioned in the registered Will as both the brothers are co-owner of the property.
With regard to the M/s. MKS Capital, it is stated by the petitioner that it is an imaginary name used by the petitioner believing the same to be auspicious for him as MKS represents, Manju, Kishan Kumar & Swati, who is wife, son & daughter of the petitioner and MKS Capital does not have even the bank account and whatever petty income the petitioner is having from rent and insurance work, same is being disclosed in the name of petitioner only and petitioner has been using his family member's name as it is auspicious for him. It is further alleged by the petitioner that his wife was not a working lady at all and due to the rising the demand of the family & children, petitioner and his wife decided for getting a job, therefore, the wife of the petitioner is doing one job and prior to that she was merely a house wife. It is further alleged by the petitioner that even this job of the wife of the petitioner is terminated very soon and she is out of the job.
With regard to the M/s. Suraj Bhan Mittal, it is stated again by the petitioner that he is not a tenant of petitioner. M/s. Deepsons Metal happened to be the tenant of the petitioner & M/s. Amit Sales is not the tenant of the petitioner and petitioner is not aware as to who is Mr. Jain. It is further stated by the respondent that M/s. Ankush Imagings & M/s. Sky Enterprises are the tenant of th petitioner, however, M/s. Shankar Prints is not his tenant. It is further alleged by the petitioner that he is having various proposals for trading of joint venture, however, any name & details of any such business offer is not disclosed because of the business rivalry. It is further alleged by the petitioner CASE No. E - 84/09 7/25 that shop of the petitioner in the said building is half of the property. The front portion of the building is belongs to the elder brother of petitioner whereas back side of the property belongs to the petitioner for which no much tenants are available to occupy the back portion. It is further alleged by the petitioner that he has no intention to get the property vacated and fetch the higher rent from some other person and it is required for doing of his business as he is in dire need of money and wants to doing the business for himself. It is further alleged by the petitioner that there was another property as DDA has alloted in the name of the petitioner falling in Pkt. 4 - 5, Sector - 233, Rohini, Delhi, which was however, sold in the year 1998 itself. It is further alleged that another property bearing no. 475-A, has been sold already in the year 1988 itself. Thus, this property does not belongs to the petitioner. Lastly, it is stated by the petitioner that he does not have any other property nor shop in the entire Delhi or NCR except the shop available with the respondent. It is further submitted by the petitioner that neither the rental income nor insurance income of the petitioner is sufficient to meet the demands of his entire family members. Therefore, petitioner wants to commence a business for earning good income.
4. It is further alleged by the petitioner that certain documents were filed by the respondent after filing of leave to defend application which have been considered and taken on the record.
5. Arguments heard at length. Record perused thoroughly. The fundamental requirement for filing of leave to defend application as per Section 25 (B) of Delhi Rent Control Act is that the respondent/ tenant has to alleged certain facts which necessarily required to be established by the respondent on the basis of leading evidence and they cannot be merely settled on the basis of arguments. Thus, the essential requirement of filing of leave to CASE No. E - 84/09 8/25 defend application is that respondent has raised certain triable issues showing prima facily that certain facts as alleged in the detailed affidavit alongwith leave to defend application require the case put to the test of trial and establishing that respondent is having a good defence to decide the case on merits. In this regard, the respondent has raised various issues in his leave to defend application alongwith the detailed affidavit which are analyzed one by one whether they stood to the test of triable issues or not or whether the issues and defence raised by the respondent is shame defence or not.
6. It is alleged by the petitioner that suit is bad due to non joinder of the parties, as brother of petitioner, Raj Kumar, has not been made & impleaded as a party herein this case, as he is the joint owner of the suit property in question. The counsel for petitioner has stated in this regard that property owned by the petitioner, as alleged in the petition as well as detailed reply to the leave to defend application is the exclusive property belonging to him only. His brother, Raj Kumar, is now separated as family settlement has been arrived at in between the parties and both the brothers have enjoyed their properties. It is further alleged by the petitioner that property in question belongs exclusively and falls in his respective share. It is further alleged by the petitioner that the respondent has not disputed the landlord - tenant relationship in between the parties. It is important to mention Section 116 of Indian Evidence Act, which reads as under: -
"Section 116 - Estoppel of tenant; and of licenseee of person in possession - No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title of such immovable property, and no person who came upon CASE No. E - 84/09 9/25 any immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had title to such possession at the time when such licence was given."
This Section 116 of Indian Evidence Act raises a presumption in certain cases and this presumption is against a lawful tenant and in favour of the lawful landlord that once the relationship in between the parties are admitted, the tenant cannot be questioned the ownership of the landlord. The petitioner has filed certain documents on record in support of his contentions alleging that there are various properties which were within the family i.e., WP - 542, WP-462, WP-475, WP-475A & another plot at Pkt. 4-5, Sector - 23, Rohini, Delhi. It is further alleged by the petitioner that property bearing no. 542 has been sold to his brother by him. With regard to the property bearing no. WP- 462, is the property where the petitioner is residing with his family. Another property WP - 475, is jointly owned by the petitioner and his brother and the shop in question falls under his share. The petitioner has drawn attention towards the rent agreement executed in between the parties. With regard to another property i.e., plot in Pkt. 4-5, Sector - 23, Rohini, it is stated by the petitioner that it has already been sold by the petitioner in the year 1998. It is further alleged by the petitioner that respondent has been paying the rent to him recognizing him the landlord of the property in question. Section 2 (e) of Delhi Rent Control Act is important to mention here which reads as under:-
"Section 2 (e) of DRC Act defines landlord which is as under:- 'Landlord' means a person who for the time being is receiving, or is entitled to receive, the rent of any premises, whether on his own account or on account of or on behalf of, or for the benefit of, any other person or as a trustee, CASE No. E - 84/09 10/25 guardian or received for any other person or who would so receive the rent or be entitled to receive the rent, if the premises were let to a tenant."
Thus, it is reflected that landlord is a person who is receiving or entitled to receive the rent of the premises from the tenant. It is important to mention here & well established principal of law with regard to the term 'Landlord' that it is nowhere synonyms with the owner of the property in question. The landlord may be or may not be the the owner of the property in question but once he is recognized as landlord & receiving the rent from tenant then, he is considered to be the landlord within the definition given within the Section of 2 (e) of Delhi Rent Control Act .In these circumstances, after considering the law laid down under the Delhi Rent Control Act with regard to the term landlord, I am of the opinion that such a plea raised by the respondent that the petition is bad due to non joinder of the parties as Raj Kumar, who is the brother of petitioner, is not impleaded as party in this case, is not a triable issue.
7. Respondent has further alleged by raising another issue that the ownership of the petitioner is disputed. Section 116 of Indian Evidence Act has already been mentioned above. The definition of 'Landlord', as laid down under Section 2 (e) of Delhi Rent Control Act, is also mentioned above. It is further important to discuss certain judgments which are as under: -
i.) "Veeraju V/s. Venkama, AIR 1966 SC 629" It has been held by the Hon'ble Supreme Court of India that during the continuance of the tenancy, a tenant will not be permitted to deny the title of the landlord's title of the landlord at the beginning of the tenancy.
ii.)"Bilas V/s. Desraj, AIR 1915 PC 96". In this case it has been held that a tenant who has been let into possession CASE No. E - 84/09 11/25 cannot deny his landlord's title however defective it may be, so long as he has not openly restored possession by surrender. The reason is that a person who took possession should not be allowed to say that a man under whose title he took possession had not a title.
8. After considering the above mentioned law laid down on this subject and the guidelines so given in the above cited judgment, I am also of the opinion that tenant cannot raised any doubt with regard to the ownership of the petitioner/ landlord. The petitioner has shown the title deeds in support of his contentions. They are perused & prima facily it is reflected that the petitioner is having a share in the tenanted premises in question. Above all the landlordship of the petitioner is not disputed by the respondent. Therefore, respondent cannot be allowed to challenge the ownership of the petitioner with regard to the tenanted premises by alleging that Will dt. 25.04.1996 is not a genuine & valid document and has been manipulated by the petitioner. It is further important to mention here that the landlord is never under a duty to disclose all the details pertaining to his ownership and the manner in which he become the owner of the premises in question. Such a matter is the internal matter of the family of the petitioner/ landlord and respondent who is an outsider to the family of the petitioner cannot raised doubt with regard to the internal arrangement and submissions made by the petitioner/ landlord, for the sake of repetition, it is mentioned again that there is no dispute with regard to the landlord & tenant relationship with regard to the tenanted premises.
9. Respondent has further raised another issue alleging that the property in question cannot be sold through GPA only and it is stated by the respondent that petitioner has manipulated, forged & fabricated documents by CASE No. E - 84/09 12/25 showing on the record and from the papers that he is not having any other suitable accommodation available with him. In this regard, respondent has alleged that documents of sell pertaining to the property bearing no. WP - 542, have been falsely procured by the petitioner and he is at present exclusive owner of the property bearing no. WP - 542. Petitioner, on the other hand, has stated that the documents dt. 19.06.2002 are invalid executed document by which property WP-542 has been transferred by the petitioner in the name of his brother. It is further alleged by the petitioner that executing GPA receipt, Will etc. are valid document and modes by which a property can be transferred by one person to another. The arguments advanced by the petitioner are having force in them, as in Delhi various properties have been sold & still are being sold on the basis of GPA and other documents without executing any Sale Deed. The documents filed by the petitioner in this regard pertaining to the suit property no. WP - 542 are also perused. I am of the opinion that these documents shown by the petitioner are duly executed document as per the law, therefore, I am of the opinion that petitioner has been shown prima facily that the property in question bearing number WP - 542, Shiv Market, Wazirpur, Delhi has been sold by him to his brother. Thus, the contention of the petitioner with regard to the property WP - 542, are considered to be correct. Hence, such an issue alleged by the respondent cannot be termed as a triable issue by the respondent.
10. With regard to another issue raised, it is alleged by him that property bearing no. WP - 462, is having appropriate & suitable accommodation matching the requirement of the petitioner to carry on business/ profession as he is having a sufficient space available at this property bearing no. WP - 462. The petitioner, on the other hand, has stated that WP - 462 is being used by the petitioner for his family where he is residing alongiwth his family members and the said portion of ground floor of the premises bearing no.
CASE No. E - 84/09 13/25 WP- 462 cannot be used for the purpose of running business and as per the requirement of the petitioner as this space has no commercial value with the reason that it is situated at the extreme back of the street of the said village. In this regard it is important to refer certain judgments, which are as under:-
i.) "Shamshed Ahmad and Others V/s. Tilak Raj Bajaj (deceased) 152(2008) Delhi Law Times 301 (SC)". In this case petitioner had filed an application for eviction on the ground of "bonafide requirement" and the tenant/ respondent has stated that the averments made in the application are not correct. The respondent in the above cited case, further stated that landlords were having huge property in Dehradun. They were enjoying high status and were a rich family in the city. They were very rich and having business in timber woods. They did not require the shop for doing business in ready made garments. Matloob Ahmed is in Government service and had not retired.
While considering the contentions raised by the tenant in his leave to defend, the Trial Court has stated that the requirement of Section 14 (1) (e) is "bonafide requirement"
and it has to be seen as per the requirement of the petitioner, even if the petitioner is very rich and having other properties at different places that does not affect his requirement of the premises, as alleged in the petition. Leave to defend application was dismissed. The Hon'ble High Court had reversed this order, however, Hon'ble Supreme Court of India affirm the order of Ld. Trial Court and said that the observation given by the Trial Court were correct.
ii.)In another case, "Joginder Pal V/s. Naval Kishor Behal CASE No. E - 84/09 14/25 (2002) SCC 397", Hon'ble Supreme Court of India has laid down certain considerations to be considered by the Court, while dealing with the contentions of "bonafide requirements", made by the petitioner.
a) The word, "for his own use" as stated in the Act must receive a wide, liberal and useful meaning rather than a strict or narrow construction.
b) The expression landlord requires for his own use is not confined in its meaning to actual physical user by the landlord personally.
c) Test to be applied are whether the requirement are pleaded and proved may properly be regarded as the landlord's own requirement and whether on the facts and in the circumstances of a given case actual occupation and user by a person other than the landlord would be deemed by the landlord as "his own" occupation or user. It depends upon the degree of the relationship.
iii.)"Magan Lal V/s. Nana Sahib 155 (2008) DLT 49 (SC)". In this case petitioner had filed an eviction of the premises on "bonafide requirement". The premises in question, was required by petitioner for his son, for his business, for which purpose he will shift from Gondia to Nagpur, during the pendency of the eviction proceedings application of applicant/ landlord for amendment of pleadings allowed by the Rent Controller that his son and is qualified to start his own business. Therefore, it was observed by the Court that the "bonafide requirement" of landlord is to be seen on the day of petition and subsequent events intervening due to protracted CASE No. E - 84/09 15/25 litigation. It was further stated by the Court that such subsequent event, however, should be of such a nature that they materially change the ground of relief.
iv.) "M.L. Prabhakar V/s. Rajiv Singhal (Supreme Court Cases) (2001) (2) 355", it has been observed by Hon'ble Supreme Court of India that the landlord was having alternative accommodation. The "bonafide requirement" of landlord and suitability of the premises must be determined on the basis of convenience of the landlord and the members of his family as well as the totality of their circumstances including their professions, vocation, life style, habits and background. v.)"Savitri Sahai V/s. Sachinand Prasad (2002) 2 RCR 591, Hon'ble Supreme Court of India". It has been stated by the Hon'ble Supreme Court of India to the extent that if there are two or more premises, the landlord can choose which one would be preferable to him or her and tenant cannot questioned such preferences.
vi.)"Manhor Lal V/s. Mool Chand (1976) RCR 236 Delhi High Court". It has been observed in this case by Hon'ble High Court of Delhi that accommodation was occupied by different tenants, it is the choice of landlord to evict the tenant from accommodation which is more convenient to him.
vii.)"K.K. Ohri V/s. Balraj Seth 2000 (1) RCR 67", Delhi High Court. Hon'ble High Court of Delhi has observed in this case that tenant cannot compel a landlord to leave in a particular fashion and method until and unless requirement of landlord is totally shown as malafied or not genuine.
CASE No. E - 84/09 16/25
11. In the light of the above mentioned judgments relied upon for reference, it is therefore, reflected from the reasonings so given in the above mentioned judgments that with regard to the "bonafide requirement" as alleged by the landlord for seeking eviction under Section 14 (1) (e) , it is the landlord who has to decide and alleged his "bonafide requirement" according to him & his family what is his need & requirement. The respondent may always take defence that the requirement alleged by the petitioner is not "bonafide requirement" as he is not having any such requirement as bonafide as alleged by him, however, it is the perspective of the landlord which has to be considered accordingly while considering the "bonafide requirement" of the landlord/ petitioner. Thus, here in this case with regard to the property bearing no. WP -
462. It is further important to mention here that in one of the judgment "Savitri Sahay", (as mentioned above), it has observed that the petitioner even has the prerogative to chose among the property at his disposal to decide as which of them suits according to his requirement with the most appropriately. Thus, in the light of these observations, I am of the opinionthat such an issue raised by the respondent cannot be termed as triable issue for which case put o trial.
12. Another issue raised by the respondent in his application that the shop bearing number WP - 469 is not belongs to the respondent and rather which belongs to his son who is running his independent business from there. In this regard the counsel for petitioner has shown certain photographs on record alleging that the respondent is having another suitable accommodation available to him from where he is carrying the similar business in the name of 'Cement House'. In this 'Annexure - 6' filed by the petitioner two photographs are shown. One is th signboard of property bearing no. WP - 475 which is the suit property in question and another is signboard of property bearing number WP- 475 with regard to which petitioner has alleged that suitable CASE No. E - 84/09 17/25 accommodation is already available to the respondent. In this regard, respondent has however stated that this shop bearing no. WP - 469 is run by the son of the respondent, who is doing an independent business from his father. Perusal of the photographs filed by the petitioner, however, reflects that both these shops are bearing the same signboard under the similar name i.e., 'Cement House'. It is stated by the petitioner in his argument that the said shop bearing number WP - 469 is being used by the respondent for last more than fifteen years and the son of respondent has joined the business recently as he is just the age of twenty two years. The photographs filed by the petitioner in 'Annexure - 6' are perused again. It has already mentioned that both the shops are bearing similar signboard and telephone number is also same. Thus, it is reflected that whether it is the respondent or is son, which has to be seen & considered in subsequent paras, they both are having business allegedly having same name i.e, ' Cement House' & their contact number mentioned on the signboard is also the same. It is further important to mention here and not disputed by the parties that both these shops are in the same locality. The rejoinder filed by the respondent with regard to the para number 14 of the reply of the leave to defend application is perused again. In this para number 14 of the rejoinder of leave to defend application, the respondent has not disputed two things i.e., shop bearing no. WP - 469 is used by the respondent for last more than 14 years and his son is about the age of 22 years. It is further submitted by the respondent in para no. 14 of the rejoinder that this shop bearing number WP - 469 has been given by him to his son as he has a liability to establish his son, Rahul Oberai. It is further reflected from the para number 14 of the reply to leave to defend application that respondent has not disputed another fact that both the shops are having the similar business i.e., business of plywood etc. are carried on. Thus, in these circumstances, I am of the opinion that petitioner has been able to show prima facily that respondent is having two shops, one is the suit property in question and another is WP- 469 in CASE No. E - 84/09 18/25 the same locality and the business run from both the shops is one of the same. Thus, the petitioner has enable to shown prima facily that alternative shop is available with the respondent though, this fact has to be considered accordingly, as alleged by the respondent that shop bearing no. WP - 469 was initially run by the respondent but now the son of the respondent is also inducted into the business bearing number WP - 469. It is further important to mention here which again support the contention of the petitioner that respondent has not shown anything by way of documentary evidence that said shop WP - 469 is run by the son of the respondent and he is running his independent business from there.
13. Another issue raised by the respondent is that petitioner has let out different portion of property to various tenants so far as details are mentioned in para no. 15 of leave to defend application. In this regard, the petitioner has stated that M/s. Suraj Bhan Mittal is not the tenant of petitioner since 1996. Though, he used to be his tenant prior to the year 1996. With regard to the M/s. Deepsons Metal, petitioner has stated that he used to be his tenant, however, M/s. Amit Sales is his tenant, he has no knowledge about the Mr. Jain, as alleged by the respondent. With regard to the M/s. Ankush Imaging & Sky Enterprises, petitioner has admitted that they are his tenant, however, with regard to the M/s. Shankar Printers, petitioner has stated that he is a stranger to the petitioner. Counsel for petitioner has further stated that though, the above mentioned tenants are inducted by the petitioner, however, he is not drawing huge rental income from them. The counsel for respondent, on the other hand, has stated that petitioner is drawing huge rental income from other tenants, therefore, he cannot be said to be having in dire need of money and the ground taken by the petitioner that he is having financial constraints, does not seems to be appropriate. In this regard, the documents filed by the petitioner, with regard to his income are perused. It is important to discuss the relevant law laid down CASE No. E - 84/09 19/25 by Hon'ble Higher Courts on this subject. "Shamshad Ahmad's case, (SC)", as already mentioned above. It has been observed by the Hon'ble Supreme Court of India that despite the fact that landlord was enjoying high status and were a rich family in the city and were als0 doing the business in timber woods, still their need for the said tenanted shop for their "bonafide requirement" as under
Section 14 (1) (e) Delhi Rent Control Act and eviction order was passed against the tenants by dismissing the leave to defend application. Similar are the facts & circumstances here in this case. The respondent has alleged that petitioner has inducted various tenants from which he is getting rental income, therefore, his need does not seems to be bonafide and he cannot be said to be in financial constraints. In these circumstances, therefore, after relying upon the above cited judgment passed by the Hon'ble Supreme Court of India that petitioner is getting higher rental income from other tenants is not tenable in the eyes of law.
14. Another issue raised by the respondent in his leave to defend application that petitioner has not defined as to what business he has to start. It is further alleged by the respondent that he is not interested in starting any business of his own and is more interested in getting the shop vacated from the respondent and let it out to some other company at a higher rental income. During arguments, the petitioner has stated that he is having financial crises and is in dire need of money. It is further stated by the petitioner, as it has already been discussed above, that the rental income from other tenants under the landlordship is not sufficient for him, therefore, he wants to do certain business from the said premises for which the tenanted premises, in the possession of the respondent, is most appropriate. It is further stated by the petitioner, during arguments, though, not explained in detail in his reply to leave to defend application that he require to do business of dealer shop of hardware & sanitary etc. CASE No. E - 84/09 20/25
15. The respondent has taken another objection and raised an issue in his leave to defend application that petitioner is not disclose any nature of assignment and any offer obtaining by him for supporting any such business. It is important to mention here that it is the need of the landlord for requiring the premises which has to be considered while testing is "bonafide requirement". The petitioner has alleged that he requires the said premises for doing a business for breeding up his family smoothly and to met with the financial crises which he is facing. With regard to the details of the proposals received by the petitioner, it is stated by him that due to a stiff competition he is not going to disclose the name of the company and the offers so received by him as it might be misused by other persons. It is however, stated by the petitioner that if any such requirement is made by the Court, then, he is ready and willing to disclose the name of such company & such offers received. With regard to the disclosing the name of the company and offers, I am of the opinion that concern raised by the petitioner i.e., there is a stiff competition in the market and the disclosing of the proposals and the name of the company might be misused to the disadvantage to the petitioner seems to be correct, therefore, petitioner cannot asked to disclose the name of any such company and other offers, proposals if he does not deem appropriate to do so. Thus, so far as this plea of not disclosing the proposals, offers and name of the company, as raised by the respondent, does not have any merits in the eyes of law and is not tenable in the eyes of law.
16. Another plea taken by the respondent is that petitioner has not disclose his experience in the said field. In this regard, it is important to mention here that this is not the requirement, as per the law, that a person should be having a particular experience on the day of starting of the business. The person who is on the verge of starting a business and wants to venture upon any CASE No. E - 84/09 21/25 adventure, he is subjecting himself to the market forces by putting his labour and money to the test of the marketing competition. Thus, the plea taken by the respondent that petitioner is not having any experience to start with any such business, does not seems to be appropriate in the eyes of law as it is not the fundamental requirement to start any business.
17. Another issue raised by the respondent is that petitioner is having various other properties being the owner i.e., WP-542, WP-462, WWP- 475-A & property no. 73, Pkt. - 4 & 5, Sector - 23, Rohini, Delhi. In this regard, petitioner has stated that he has given the details of the property, as mentioned by the respondent and has alleged that property bearing number WP
- 542 is sold to his brother with regard to which documents have been filed on record. Another property WP - 462 is used by the petitioner for his family and the ground floor is used for godown purpose and is rented to some other person. Detail of which is already filed on record. It is further stated that another property bearing no. WP - 475 is to owned by his brother wherein his brother is having equal share, therefore, petitioner is not having absolute right with regard to the property bearing no. WP - 475. It is further stated by the petitioner that there was another property no. 73, Pkt. - 4 & 5, Sector - 23, Rohini, Delhi, which has already been sold in the year 1998. Arguments heard in this regard and record perused throughly. It has already been discussed that GPA, Agreement to Sell & Will are valid and recognized mode, as per the law, vide which property can be transferred from one person to other person. It is therefore, reflected from the perusal of the record that all the requisite documents, as alleged by the petitioner, have been filed on record and these documents seems to be prima facily genuine and correct. Thus, petitioner has given all the details, as alleged by the respondent, with regard to the above mentioned properties, in these circumstances, it is therefore, reflected that CASE No. E - 84/09 22/25 petitioner has given the details regarding to the property under his exclusive possession as owner, have been explained by him and this fact is not concealed by him. In these circumstances, therefore, I am of the opinion that as the petitioner has explained all the necessary details, as alleged and required by the respondent, therefore, such an issue raised by the respondent that petitioner is having various other properties in his name besides the tenanted premises in question and he is having surplus accommodation at his disposal for the purpose of starting his business is not tenable in the eyes of law. Hence, it cannot be termed as triable issue.
18. Another issue raised by the respondent is that the site plan filed by the petitioner is not correct. It is important to mention here that respondent has not disputed the identification of the suit property in question. It is further reflected from the record that two site plan in detail are filed by the respondent in which respondent has shown the entire rooms available in the building and the respective portion under his possession as tenant. All these issues pertaining to the surplus space and accommodation available with the petitioner, has already been considered at length in the above mentioned paragraphs. The area under the possession of the respondent which is shown in red colour, is not disputed by the parties. Therefore, as the area under the possession of the respondent as tenant, is not disputed by the parties as well as there is no dispute with regard to the identification of the suit property in question, therefore, such an issue raised by the respondent cannot be termed as triable issue. It is further important to mention here that such a defect, if any, i.e., not filing the appropriate site plan is not of such a grave in nature for which case should be put to the test of trial and opportunity should be given to the parties to lead their evidence in this regard. It has already been observed that identification of the suit property in question is not disputed, therefore, such an issue raised CASE No. E - 84/09 23/25 by the respondent cannot be termed as triable issue.
19. The last issue raised by the respondent is that petitioner is proprietor of the M/s. MKS Enterprises and running his business from WP - 452, Shiv Market, in this regard, the petitioner has stated that M/s. MKS Capital is just a paper entity and it has been name after the name of wife, son & daughter of petitioner namely Manju, Kishan & Swati. It is further alleged by the petitioner that such a firm is just a paper entity and this firm is having no bank account and no business have ever been done by this firm. It is further stated by the counsel for petitioner, during arguments, that he has been using this name as he considered this name as auspicious and lucky for him, therefore, certain entries are maintained by him in his statement of account by the name of MKS Capital. The documents filed by the petitioner in this regard are also perused. It is further alleged by the petitioner that he has no intention to concealed any such fact from the record and as his intention is bonafide & genuine because if he would have any intention to conceal the business done under the name of MKS Capital, then, he would not filed any such documents reflecting the name of MKS Capital. During arguments, the respondent has drawn attention towards the certain entries in the documents filed by the petitioner. It is important to mention here that it is the petitioner, who has to explain such entries in the documents filed by him on record. The reason has been given by the petitioner, as mentioned above, after perusal of the documents filed by the petitioner, in this regard, it is therefore, reflected that they are pertaining up to the year of 2008 having the balance sheet and income & expenditure account up to March, 2008 and documents subsequent to that have not been filed. The reply of the petitioner, in this regard is that no such business is being carried on by him. In these circumstances, I am of the opinion that the reason given by the petitioner seems to be prima facily correct, in the light of the documents so furnished on CASE No. E - 84/09 24/25 record. It has already been observed in "Shamshad Ahmad's case", "K. K. Ohri's case" & in "Savitri's case", which are already mentioned above, that it is the preference of the petitioner which has to be seen and considered to see his "bonafide requirement" as alleged by him. In these circumstances, after relied upon these judgments, I am further of the opinion that such an issue raised y the respondent cannot be termed as a triable issue. No other issue has been alleged by the respondent in his leave to defend application. It has already been mentioned above, in the above cited judgments of Hon'ble Supreme Court of India, Hon'ble High Courts & other Higher Courts that if the landlord is able to show his "bonafide requirement" from the record which has to be seen and considered accordingly to his own requirement and not according to the requirement of the tenant/requirement & if the respondent/ tenant is failed to raise any triable issue in his leave to defend application, then, the leave to defend application should be dismissed. Similar are the facts & circumstances, in this case. The respondent has not been able to raise any issue up to the test of triable issue for which case should be put to the test of the trial and evidence should be led, therefore, leave to defend application filed by the respondent is dismissed.
Announced in Open Court (Prashant Kumar)
Dated 30.11.2010 CCJ cum ARC /North-West
Rohini Courts/Delhi
CASE No. E - 84/09
25/25
CASE No. E - 84/09
30.11.2010 Present : None for parties.
Arguments on leave to defend application have already been heard. Vide separate order sheet leave to defend application filed by respondent is dismissed. In these circumstances, petitioner is entitled for an order of eviction order as per Section 14 (1) (e) Read With 25 (B) of Delhi Rent Control Act against the respondent. Thus, an order of eviction is made & respondent is directed to evict & hand over the physical, vacant possession of the suit property bearing shop number - 1, Ground Floor, WP-475-A, Shiv Market, Wazirpur Village, Ashok Vihar, Delhi - 110 052. It is further important to mention here that the landlord/ petitioner shall not be entitled to obtain the possession before the expiration of the period of six months from the date of order.
File be consigned to Record Room.
(Prashant Kumar ) CCJ cum ARC/North-West Rohini Courts, Delhi 30.11.2010 CASE No. E - 84/09