Delhi District Court
Sh. Rajan Kathuria vs M/S Om Parkash Naveen Kumar Sahani on 15 December, 2015
1
In the Court of Ms. Namrita Aggarwal
CCJ Cum Additional Rent Controller1 (Central)
Tis Hazari Courts, Delhi.
Case No. E 172/14
Unique I.D. No. 02401C0366332014
In the matter of :
Sh. Rajan Kathuria
S/o Late Sh. Ved Parkash Kathuria
R/o 207, Deepali Enclave, Pitampura,
Delhi110034. ...........Petitioner
Versus
1. M/s Om Parkash Naveen Kumar Sahani
Shop no. 5745/2, Jogiwara, Nai Sarak,
Delhi110006.
2. Smt. Chanchal Sahani
W/o Late Sh. O.P. Sahani
3. Sh. Naveen Kumar Sahani
S/o Late Sh. O.P. Sahani
4. Sh. Nitin Sahani
S/o Late Sh. O.P. Sahani
First Address:
(i) Shop no. 5745/2, Jogiwara, Nai Sarak,
Delhi110006.
Page 1 of 20 Rajan Kathuria Vs. M/s Om Parkash Naveen Kumar Sahani & Ors. E 172/14
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Second Address:
(ii) All R/o H. No. 301302,
Block G, Pocket 21,
Sector7, Rohini,
Delhi110085. ...........Respondents
ORDER
15.12.2015
1. Vide this order, I shall dispose off the application moved by respondents for grant of leave to defend the eviction petition filed by the petitioner u/s 14(1)(e) of the Delhi Rent Control Act, 1956 [in short, 'the DRC Act'].
2. An eviction petition has been filed by the petitioner Sh. Rajan Kathuria against the tenants/respondents for vacation of the tenanted premises, i.e., a commercial shop admeasuring 11'9" x 8' and known as 5745/2, Jogiwara, Nai Sarak, Delhi110006, as shown in colour red in the site plan annexed alongwith the petition on the ground of bonafide requirement under Section 14 (1) (e) of the DRC Act.
3. The case of the petitioner is that the petitioner is the owner of the tenanted premises. That earlier, the property bearing no. 57445750, Ward Page 2 of 20 Rajan Kathuria Vs. M/s Om Parkash Naveen Kumar Sahani & Ors. E 172/14 3 No. VI situated at Jogiwara, Nai Sarak, Delhi, was jointly owned by Sh. Ashok Kumar Kathuria, Sh. Ved Parkash Kathuria and Sh. Subhash Chand Kathuria, being the sons of late Sh. Wazir Chand Kathuria. That Sh. Ved Parkash Kathuria died on 09.05.2008 and on his death, his 1/4th undivided share came into the hands of his widow Smt. Pushpa Kathuria and sons Sh. Rajan Kathuria and Sh. Vikram Kathuria. That the aforesaid coowners partitioned the aforesaid property, i.e., property bearing no. 57445750, Ward No. VI situated at Jogiwara, Nai Sarak, Delhi, which is a three storeyed building by way of a duly registered Partition Deed dated 24.03.2014. The site plan of the entire building was also duly filed with the Partition Deed. That the potion shown in red colour on all the floors came to the share of the legal heirs of late Sh. Ved Parkash Kathuria, whereas, the portion shown in green colour came to the share of Sh. Subhash Chand Kathuria and the portion shown in the blue colour went to the share of Sh. Ashok Kumar Kathuria. That thereafter, the legal heirs of late Sh. Ved Parkash Kathuria further partitioned their holdings in all the three floors of property bearing no. 57455749, situated at Jogiwara, Nai Sarak, Delhi, by means of a duly registered Partition Deed dated 07.04.2014. A site plan was also annexed alongwith the said Partition Deed, by virtue of which the tenanted premises came to the share of Sh. Rajan Kathuria, i.e., the petitioner herein and thus, the petitioner became the exclusive owner of the shop in question , i.e., shop bearing no. 5745/2, Jogiwara, Nai Sarak, Delhi. Page 3 of 20 Rajan Kathuria Vs. M/s Om Parkash Naveen Kumar Sahani & Ors. E 172/14 4
4. It is averred by the petitioner that the tenanted premises is bonafidely required by the petitioner for his own occupation and that neither the petitioner nor any member of his family has got any other reasonable suitable accommodation available with them. That the petitioner at present is operating from his residence at 207, Deepali Enclave, Pitampura, Delhi and doing his business of Computer Hardware, Software, Stationery and repair work, etc, since 01.05.2014. That prior to 01.05.2014, the petitioner was doing his business from G2, Ground Floor, Building no. IIIA, Community Centre, Krishna Plaza, Sector8, Rohini, Delhi. However, the said shop is absolutely owned by Sh. Vikram Kathuria, the brother of the petitioner. The petitioner has no legal right to operate from the said shop of Sh. Vikram Kathuria and was stopped to operate from the said shop, as such, the petitioner has started operating from his residence. Further, it is averred that the premises in question is bonafidely required by the petitioner for his personal use and that the petitioner has no other reasonable suitable accommodation available with him in Delhi to do his business and earn his livelihood.
5. Further, it is averred by the petitioner that at his residence at 207, Deepali Enclave, Pitampura, Delhi, the petitioner has three rooms at his disposal alongwith a drawingcumdining. Since, he has no place of business, therefore, he is using one of the three rooms for his commercial Page 4 of 20 Rajan Kathuria Vs. M/s Om Parkash Naveen Kumar Sahani & Ors. E 172/14 5 activities and he is in dire need of the premises in question. The petitioner has two grown up children besides his wife. Son is of marriageable age. The petitioner, as such, requires the premises in question bonafidely as Chandni Chowk is a commercial hub and the petitioner has got presently 15 to 20 clients in hand.
On the above stated grounds, the petitioner filed the present eviction petition for eviction of the respondents from the tenanted premises in question.
6. Summons were served upon the respondents who filed leave to defend application on the various grounds interalia:
a) That the premises in question was initially under the tenancy of Late Sh. O.P. Sahani, who died leaving behind the respondents as their legal heirs including Ms. Anju Sahani, i.e., his unmarried daughter. That Ms. Anju Sahani, being the oldest one next to respondent no. 2 is controlling business alongwith her brothers but she has not been impleaded as a party by the petitioner and hence, the present petition is bad for nonjoinder of necessary parties.
b) That the tenanted premises was taken on rent from Sh. Ved Parkash Kathuria and even a pagri amount of Rs. 42,000/ was paid by the husband of respondent no. 2 to Sh. Ved Parkash Kathuria at the time of inception of tenancy.
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c) That there is no relationship of landlord and tenant between the petitioner and the respondents since the respondents were paying the rent regularly to the legal heirs of late Sh. Ved Parkash Kathuria.
d) That the petitioner was initially running his business of computer, etc. from the shop bearing no. 5745/1C at Jogiwara, Nai Sarak, Delhi but since the business of the petitioner was not flourishing in the said premises, therefore, petitioner shifted his business to G2, Ground Floor, Building no. IIIAQ, Community Centre, Krishana Plaza, Sector8, Rohini, Delhi, which is owned by the petitioner as well as his brother Sh. Vikram Kathuria jointly. That the petitioner is still in possession of the said shop and also running his business from the said shop at Rohini.
e) That the premises bearing no. 5745/1C was rented out in the year 2007.
f) That as per the partition deed, the petitioner is also owner of the shop bearing no. 5745/3, which was rented out in 198081 to Sh. Ramesh Sabarwal. Tenant of the said premises have subletted the said shop to Sh. Girdhar Gopal Sharma in the year 2001.
g) That the petitioner is also having one shop on the first floor of the suit property, as has been mentioned in the partition deed.
h) That the petitioner is having sufficient accommodation at his residential house at 207, Deepali Enclave, Pitampura, Delhi for Page 6 of 20 Rajan Kathuria Vs. M/s Om Parkash Naveen Kumar Sahani & Ors. E 172/14 7 running his business.
7. Reply to the application for leave to defend has been filed by the petitioners wherein the petitioners have denied all the averments made by the respondents in their leave to defend application. Further, it is submitted by the petitioner that late Sh. Ved Parkash Kathuria was the father of the petitioner. It is denied that any pagri amount of Rs. 42,000/ was ever given by late Sh. O.P. Sahani. It is averred by the petitioner that after the death of Sh. O.P. Sahani, respondent no. 3, alongwith respondent no. 2 & 4 are looking after the business run by late Sh. O. P. Sahani and after his death Ms. Anju Sahani has got nothing to do with the tenancy in question. She is in service and got full time employment. It is denied that Ms. Anju Sahani is in any manner controlling the business of respondent no. 1. It is submitted that only respondents no. 2 to 4 have started looking after the business of respondent no. 1 after the death of Sh. O.P. Sahani. It is further submitted by the petitioner that Ms. Anju Sahani is at present employed with "Dairy Craft (India) Pvt. Ltd. at 32, 2nd Floor, Main Market, Hudson Lane, Kingsway Camp, Near G.T. B. Nagar Metro Station, Gate No. 4, Delhi, on a monthly salary of Rs. 25,000/ (approx.). Petitioner admittedly is one of the legal heirs of late Sh. Ved Parkash Kathuria. It is stated that there was a duly registered partition deed executed between the various coowners of the property and shop in question has fallen to the share of the petitioner. It is Page 7 of 20 Rajan Kathuria Vs. M/s Om Parkash Naveen Kumar Sahani & Ors. E 172/14 8 denied that the shop no. G2, Ground Floor, Krishna Plaza, Community Centre, Sector8, Rohini, Delhi85 is any more owned by the petitioner. It is further denied that the petitioner is in occupation or possession of the said shop. There being a dispute amongst the brothers, i.e., the petitioner and Sh. Vikram Kathuria, as such, the petitioner relinquished his share in the said shop by means of Deed of Relinquishment dated 28.04.2014, copy of which is placed on record. Regarding shop no. 5745/1C, it is submitted that the same has fallen to the share of Smt. Pushpa Kathuria as per the partition deed and that the petitioner has got nothing to do with the said shop. Further, it is averred that shop no. 5745/3 is on rent with one Sh. Ramesh Sabhwarwal since 1980. The said shop is very small in size and more over without prejudice the petitioner submits that he contemplates to take action against the said tenant. The shop on first floor is also with a tenant but does not suit petitioner's business. Further, it is averred by the petitioner that the premises in Deepali Enclave is residential and not fit or suitable for the purpose of running regular business, nor the same is profitable.
8. Rejoinder has been filed by the respondents wherein the respondents have reaverred what was averred by them in their leave to defend application. Further, it is averred by the respondent that the said Relinquishment Deed is nothing but crocodile tears just to mislead the court. Page 8 of 20 Rajan Kathuria Vs. M/s Om Parkash Naveen Kumar Sahani & Ors. E 172/14 9
9. I have heard the arguments and perused the material available on record.
10. Proviso (e) to Section 14(1) is a special provision which has been enacted by the legislature for the class of landlords who require the premises genuinely and their requirement is bonafide and they do not have any suitable accommodation. The essential ingredients for attracting the proviso (e) of the Section 14(1) are :
a) The said premises are bonafide required by the landlord either for himself or for his family member.
b) The landlord or the family member has no other reasonable suitable accommodation.
These twin thresholds are to be satisfied conjunctively in order to attract the provisions of Section 14(1)(e) and the absence of even one of the said ingredients clearly makes the said provision inapplicable.
11. The satisfaction of the two requirements of bonafide need and no reasonably suitable accommodation has been time and again emphasized by the Supreme Court of India in several cases and more recently in the case Deena Nath Vs. Pooran Lal, (2001) 5 SCC 705 wherein the Supreme Court observed thus: Page 9 of 20 Rajan Kathuria Vs. M/s Om Parkash Naveen Kumar Sahani & Ors. E 172/14 10 "The Legislature in enacting the provision has taken ample care to avoid any arbitrary or whimsical action of a landlord to evict his tenant. The statutory mandate is that there must be first a requirement by the landlord which means that it is not a mere whim or a fanciful desire by him; further, such requirement must be bonafide which is intended to avoid the mere whim or desire. The 'bonafide requirement' must be in presenti and must be manifested in actual need which would evidence the Court that it is not a mere fanciful or whimsical desire. The legislative intent is made further clear by making the provision that the landlord has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. This requirement lays stress that the need is pressing and there is no reasonably suitable alternative for the landlord but to get the tenant evicted from the accommodation.
Similar statutory provision is made in subsection (e) of Section 12(1) of the Act in respect of accommodation let for residential purposes. Thus, the legislative mandate being clear and unambiguous, the Court is dutybound to examine not merely the requirement of the landlord Page 10 of 20 Rajan Kathuria Vs. M/s Om Parkash Naveen Kumar Sahani & Ors. E 172/14 11 as pleaded in the eviction petition but also whether any other reasonably suitable nonresidential accommodation in his occupation in the city/town is available. The judgment/order of the court/authority for eviction of a tenant which does not show that the court/authority has applied its mind to these statutory requirements cannot be sustained and the superior court will be justified in upsetting such judgment/order in appeal/second appeal/revision. Bonafide requirement, on a first look, appears to be a question of fact. But in recording a finding on the question the court has to bear in mind that statutory mandate incorporated in Section 12(1)(f). If it is found that the court has not applied the statutory provisions to the evidence on record in its proper perspective then the finding regarding bonafide requirement would cease to be a mere finding of fact, for such erroneous finding illegally arrived at would vitiate the entire judgment."
12. Chambers 20th Century Dictionary defines bona fide to mean "in good faith and genuine i.e. without fraud or deceit". Requirement is not a mere desire. The degree of intensity contemplated by "requires" is much Page 11 of 20 Rajan Kathuria Vs. M/s Om Parkash Naveen Kumar Sahani & Ors. E 172/14 12 more higher than in mere desire. The phrase "required bonafide" is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with mere pretense or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of the landlord and its bonafides would be capable of successfully withstanding the test of objective determination by the court. In short, the concept of bonafide need or genuine requirement needs a practical approach instructed by the realities of life. It is no concern of the Courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own.
13. The meaning of "bonafide" in the context appears to be in two folds.
(a) the need of the landlord must be a genuine one and not a frivolous one.
(b) landlord is not motivated by extraneous considerations in trying to recover the possession from the tenant with a view to let it out again to another tenant at a higher rent.
Page 12 of 20 Rajan Kathuria Vs. M/s Om Parkash Naveen Kumar Sahani & Ors. E 172/14 13 Ownership as well as landlordtenant relationship:
14. In the present case, the respondents have disputed the existence of landlordtenant relationship between the petitioner and themselves on the ground that the respondents were paying the rent regularly to the legal heirs of late Sh. Ved Parkash Kathuria and therefore, there is no relationship between the petitioner and the respondents. However, it has nowhere been disputed by the respondents that the petitioner is the legal heir of late Sh. Ved Parkash Kathuria and being the legal heir of late Sh. Ved Parkash Kathuria, the petitioner becomes the coowner of the property in question and thus, entitled to file the present eviction petition against the respondents. Even otherwise, the petitioner has filed the copy of duly registered Partition Deed, by virtue of which 1/4th share of late Sh. Ved Parkash Kathuria was divided amongst his legal heirs and the tenanted premises in question fell into the share of the petitioner. Since the Partition Deed filed by the petitioner is a registered document, therefore, the ownership of the petitioner as well as existence of landlordtenant relationship between the petitioner and the respondents, being the legal heir of late Sh. Ved Parkash Kathuria stands duly proved.
15. It is further submitted by the respondent that the petitioner has failed to implead all the legal heirs of the original tenant late Sh. O.P. Sahani as Page 13 of 20 Rajan Kathuria Vs. M/s Om Parkash Naveen Kumar Sahani & Ors. E 172/14 14 late Sh. O.P. Sahani had one unmarried daughter Ms. Anju Sahani as well, who has not been impleaded as party in the present case. It is submitted by the respondents that after the death of Sh. O.P. Sahani, Ms. Anju Sahani is managing the business of respondent no. 1 company. However, as per the case of the petitioner, Ms. Anju Sahani is presently employed with Dairy Craft (India ) Pvt. Ltd. and therefore, she has got nothing to do with the business of respondent no. 1. The petitioner has specifically given the name of the company and its address from where Ms. Anju Sahani is presently working and also mentioned her salary, which she is drawing from the said company, meaning thereby that the petitioner has not made a vague averment regarding the employment of Ms. Anju Sahani. Even otherwise, it has not been disputed that no prejudice would be caused to the respondents if Ms. Anju Sahani is not made a party by the petitioner as her interest is duly represented by her mother and brothers, i.e, respondents no. 2 to 4 in the present petition. Further, it is a settled law as has been held in Mohd. Usman Vs. Surayya Begum, 1990 (3) Delhi Lawyer 163 and in Kanji Manji Vs. Trustees of Port of Bombay, AIR 1963 SC 498 that : "On the death of a tenant, the legal heirs inherits the tenancy rights as joint tenants and not as tenants in common. In joint tenancy two or more tenants take identical interests simultaneously with each other. The joint tenancy differ from tenancy in common. In joint tenancy, incidents of tenancy are the same as those enjoyed by original tenant and if one of the legal heir is not made a party, the other legal heirs who are joint tenants represents the tenancy".
Hence, the present eviction petition is perfectly maintainable against the respondents.
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16. It is also averred by the respondents that late Sh. O.P. Sahani had paid pagri amount of Rs. 42,000/ to Sh. Ved Parkash Kathuria at the time of inception of tenancy. However, no documentary proof has been filed by the respondents to substantiate the same and hence, the said contention of the respondents remains to be a mere bald averment without any substance. Bonafide requirement:
17. It is averred by the petitioner that the tenanted premises is bonafidely required by him to run his business of computer hardware, software, etc. since the petitioner is presently carrying on his business from his residential premises at 207, Deepali Enclave, Pitampura, Delhi. It is submitted by the petitioner that due to paucity of accommodation in the said premises since it is residence of the petitioner, he wants to shift his business to the tenanted premises in question. Further, it is submitted by the petitioner that his one son is of marriageable age and therefore, one separate room is required by him, one room is required by the petitioner and his wife and one for the other child. Per contra, it is submitted by the respondents that the petitioner was initially running his business of computer, etc. from the shop bearing no. 5745/1C at Jogiwara, Nai Sarak, Delhi but since the business of the petitioner was not flourishing in the said premises, therefore, petitioner shifted his business to G2, Ground Floor, Building no. IIIAQ, Community Page 15 of 20 Rajan Kathuria Vs. M/s Om Parkash Naveen Kumar Sahani & Ors. E 172/14 16 Centre, Krishana Plaza, Sector8, Rohini, Delhi, which is owned by the petitioner as well as his brother Sh. Vikram Kathuria jointly. Further, it is submitted by the respondents that the petitioner is still in possession of the said shop and also running his business from the said shop at Rohini, in addition to business from residential premises. Further, it is submitted that the shop bearing no. 5745/1C was rented out in the year 2007 by the petitioner. Even if the said contention of the respondent is believed to be true that the petitioner was earlier carrying on his business from 5745/1C, Jogiwara, Nai Sarak, Delhi, then also the said contention of the respondents does not hold any substance because as on date, the said premises is tenanted and is not lying vacant which can be used by the petitioner for carrying on his business.
18. As far as property at G2, Ground Floor, Building No. IIIAQ, Community Center, Krishna Plaza, Sector8, Rohini, Delhi is concerned, it is submitted by the petitioner that the said property is owned by his brother. The petitioner has also filed a duly registered Relinquishment Deed in respect of the said property, by virtue of which, he had transferred his right, title and interest over the said property in favour of his brother. Copy of the said Relinquishment Deed has also been placed on record by the petitioner. On the other hand, the respondents have failed to file any document to substantiate that even presently, the petitioner is carrying on his business Page 16 of 20 Rajan Kathuria Vs. M/s Om Parkash Naveen Kumar Sahani & Ors. E 172/14 17 from the said shop at G2, Ground Floor, Building No. IIIAQ, Community Center, Krishna Plaza, Sector8, Rohini, Delhi. In these circumstances, by placing on record the duly registered Relinquishment Deed in respect of the said property by the petitioner, it stand proved that the petitioner is no more concerned with the property bearing no. G2, Ground Floor, Building No. III AQ, Community Center, Krishna Plaza, Sector8, Rohini, Delhi and hence, the petitioner cannot use the said property for his business purposes.
19. Further, it is averred by the respondent that the petitioner is having sufficient accommodation in his residential house at 207, Deepali Enclave, Pitampura, Delhi, from where the business can be run by the petitioner. However, it cannot be denied that the residential premises of the petitioner cannot be termed as suitable for carrying on business of computer hardware, software, etc. by the petitioner as it is not safe to carry out business activities from the residential premises. Even otherwise, it is submitted by the petitioner that he is having paucity of accommodation in the said premises and he needs at least three rooms for his family members to live comfortably, i.e., one room for his son who is of marriageable age, one room for the petitioner and his wife and one for the other child. The respondents have not disputed the family size of the petitioner or area of accommodation available to the petitioner in his residential premises at 207, Deepali Enclave, Pitampura, Delhi. Thus, it is proved that there is no Page 17 of 20 Rajan Kathuria Vs. M/s Om Parkash Naveen Kumar Sahani & Ors. E 172/14 18 surplus accommodation available with the petitioner in his residential premises at 207, Deepali Enclave, Pitampura, Delhi, which can be used by him for his business purposes. Petitioner cannot be forced to carry on his business from his residential accommodation when he has in his ownership the tenanted premises in question which is situated at commercial hub at Chandni Chowk, Delhi, which would definitely be much more suitable and profitable for the business of the petitioner. Hence, the bonafide requirement of the petitioner qua the tenanted premises stands duly proved. Availability of alternative suitable accommodation:
20. It is averred by the respondent that the petitioner is also owner of the shop bearing no. 5745/3, Jogiwara, Nai Sarak, Delhi, which was rented out in the year 198081 to Sh. Ramesh Sabarwal and the said tenant subletted the said shop to Sh. Girdhar Gopal Sharma. The petitioner has admitted the said contention of the respondent but since the said shop is not lying vacant, therefore, it cannot be said that it is an alternative suitable accommodation available to the petitioner from where he can run his business. Moreover, it is a settled law that a tenant cannot dictate terms upon the landlord as to which premises he should get vacated. It is the will of the landlord to choose the premises he wants to get vacated for starting his business. In these circumstances, since the premises bearing no. 5745/3, Jogiwara, Nai Page 18 of 20 Rajan Kathuria Vs. M/s Om Parkash Naveen Kumar Sahani & Ors. E 172/14 19 Sarak, Delhi is not lying vacant, as has been admitted by the respondent as well, therefore, it cannot be termed as an alternative suitable accommodation available to the petitioner for starting his business.
21. It is also averred by the respondent that the petitioner is also owner of one shop at the first floor of the suit property. However, the said shop is also occupied by the tenant as per the contention of the petitioner. Respondent has not disputed the same nor has stated that the said shop is lying vacant and hence, the said shop also cannot be termed as an alternative suitable accommodation available with the petitioner to meet out his bonafide need.
22. Thus, from the discussion made above, respondents have failed to raise any triable issue, which requires evidence to be proved. The petitioner, on the other hand, has clearly established his bonafide requirement regarding tenanted premises. Hence, the application for leave to defend filed by respondents is ordered to be dismissed. Consequently, eviction order is liable to be passed against the respondents u/s Section 25 B (4) of the Act. In view of above, petitioner is held entitled for recovery of the tenanted premises, i.e., a commercial shop admeasuring 11'9" x 8' and known as 5745/2, Jogiwara, Nai Sarak, Delhi110006, as shown in red colour in the site plan annexed with the petition. However, the petitioner would not be Page 19 of 20 Rajan Kathuria Vs. M/s Om Parkash Naveen Kumar Sahani & Ors. E 172/14 20 entitled to initiate execution proceedings for recovery of possession of the tenanted premises before expiration of six months from today in view of provisions given in Section 14 (7) of the Act.
Announced in open Court (Namrita Aggarwal)
th
on 15 Day of December, 2015. CCJ cum ARC1 (Central)
[This order contains 20 pages.] Tis Hazari Courts, Delhi
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