Delhi District Court
Sh. Sunil Pawar vs Sh. Murari Chaudhary on 6 June, 2019
IN THE COURT OF SH. AJAY NAGAR,
ADDITIONAL RENT CONTROLLER (WEST),
TIS HAZARI COURTS, DELHI.
ARC No.- 148/2017
1. Sh. Sunil Pawar
S/o Sh. Ramesh Chand
R/o WT-81, Baljeet Nagar
New Delhi-110008.
2. Smt. Jafri Khatun
W/o Sh. Rahis Ahmed
R/o T-571, Prem Nagar Road
Baljeet Nagar
New Delhi-110008.
3. Sh. Sanjay Kumar
S/o Sh. Iswar Lal
R/o AT-52/2A, Baljeet Nagar
New Delhi-110008. ....Petitioners
VERSUS
Sh. Murari Chaudhary
S/o Sh. Indrakant Chaudhary
T-673, Gali No. 21, Ground Floor,
Near Hanuman Mandir
Baljeet Nagar
New Delhi-110008. ....Respondent
Date of Filing : 03.10.2017
Date of Order : 06.06.2019
ORDER ON LEAVE TO DEFEND
1. Present petition U/Sec. 14 (1) (e) of Delhi Rent Control Act, 1958 (hereinafter referred to as "DRC Act") has been filed by the petitioners for eviction of the respondent in respect of one shop forming part of property No. 673, Gali No. 21, Ground floor, Near ARC No. 148/2017 Sunil Pawar & Ors. Vs. Murari Chaudhary -2- Hanuman Mandir, Baljeet Nagar, New Delhi-110008, as shown in red lines in the site plan attached with the petition (hereinafter referred to as 'tenanted premises') in favour of the petitioners and against the respondent.
2. The case of the petitioner is that the petitioners are the owners and landlords of the property bearing No. T-673, Ground floor with terrace/ roof rights, Gali No. 21, area measuring 55 sq. yards, Near Hanuman Mandir, Baljeet Nagar, New Delhi, with super structure havng purchased the same from Sh. Yogender Sharma, Sh. Chetan Sharma, Sh. Nand Kishore, Sh. Sanjay Sharma and Smt. Usha Sharma against the lawful sale consideration to the tune of Rs. 7,00,000/- on 19.05.2012.
It is further averred by the petitioners that the previous owner had inducted respondent as a tenant in respect of one shop at property no. 673, Ground floor, Gali No. 21, Near Hanuman Mandir, Baljeet Nagar, New Delhi.
It is further averred by the petitioners that the respondent filed one false and concocted suit bearing No. 877/2012 for injunction against dispossession before the Civil Court against the petitoners and the same was decreed ex-parte in favour of the respondent. That the respondent in order to cause further harassment to petitioners, also filed a false petition U/Sec. 45(2) D.R.C. Act and the said petition was allowed by the court of Ms. Charu Aggarwal, Ld. CCJ-cum-ARC (West), Delhi.
It is further averred by the petitioners that the petitioners had to file a civil suit bearing no. 475/2014 for possession, arrears of rent, damages, permanent and mandatory injunction against the respondent. That the petitioner No. 1 has three sons. Out of these ARC No. 148/2017 Sunil Pawar & Ors. Vs. Murari Chaudhary -3- sons, his one son Sh. Amit Pawar is residing with the petitioner but he is busy in doing the preparation for the U.P.S.C. Examination. That the younger son of the petitioner is not much educated and is totally unemployed and jobless. That the petitoner no. 1 thus bonafidely requires the tenanted premises for setting up and establishing the business for his younger son namely Sh. Chetan Pawar which is urgently required for the immediate and effective employment for the said son who is totally dependent on the petitioner No. 1 for his daily needs and survival.
It is further averred by the petitioners that the son of the petitioner no. 1 wants to start a 'Mobile-Zone" shop for sale and purchase of Mobile phones of various brands, mobile accessories, recharge coupons, internet connection and other allied sevices relating to mobile phones and connection at the tenanted premises.
That the petitoner no. 1 is doing a private job and he has no sufficient source of income and he is not in a position to settle his son. That the tenanted premies is very suitable and profitable for petitioner no. 1 to settle his younger son. That the petitioner no. 1 has no alternative reasonably suitable accommodation for running the said business in Delhi. Lastly, it is prayed that the tenanted premises may be ordered to be evicted.
3. Notice of this eviction petition was sent to the respondent in the prescribed format which was duly served on the respondent and the leave to defend was filed by the respondent accompanied by the affidavit raising several pleas which will be discussed later on exhaustively.
ARC No. 148/2017 Sunil Pawar & Ors. Vs. Murari Chaudhary -4-
4. The petitioners filed the reply to leave to defend contradicting the pleas raised by the respondent in the leave to defend which will also be discussed later on.
THE LAW:
It is well settled that burden placed on a tenant is light and limited in that if the affidavit filed by him discloses such facts as would dis-entitle the landlord from obtaining an order for the recovery of the possession of the premises on the ground specified in clause
(e) are good enough to grant leave to defend.
It is further well settled that at a stage when the tenant seeks leave to defend, it is enough if he prima-facie makes out a case by disclosing such facts as would dis-entitle the landlord from obtaining an order of eviction. Unless the tenant at that stage itself establishes a strong case as would non-suit the landlord leave to defend should not be granted when it is not the requirement of Section 25 B(5). A leave to defend sought for cannot also be granted for mere asking or in a routine manner which will defeat the very object of the special provisions contained in Chapter IIIA of the Act, leave to defend cannot be refused where an eviction petition is filed on a mere design or desire of landlord to recover possession of the premises from a tenant. Refusing to grant leave in such a case leads to eviction of a tenant summarily resulting in great hardship to her and her family members, if any, although he could establish if only leave is granted that a landlord would be disentitled for an order of eviction.
It is also well settled at the stage of granting leave to defend, parties rely on affidavits in support of the rival contentions. Assertions and counter assertions made in affidavits may not afford ARC No. 148/2017 Sunil Pawar & Ors. Vs. Murari Chaudhary -5- safe and acceptable evidence so as to arrive at an affirmative conclusion one way or the other unless there is a strong and acceptable evidence available to show that the facts disclosed in the application filed by the tenant seeking leave to defend where either frivolous, untenable or most unreasonable.
It is also well settled that when a possession is sought on the ground of personal requirement, a landlord has to establish his need and not his mere desire.
In short and substance wholly frivolous and totally untenable defence may not entitle a tenant to leave to defend but when a triable issue is raised a duty is placed on the rent controller by the statute itself to grant leave. On the other hand, when a tenant is denied leave to defend although he had fair chance to prove his defence, will suffer great hardship. In this view a balanced view is to be taken having regard to competing claims.
There appears to be a mistaken belief that unless the tenant at that stage makes out such a strong case as would non-suit the landlord, leave to defend cannot be granted. This approach is wholly improper. When leave to defend is sought for, the tenant must make out such a prima facie case raising such pleas that a triable issue would emerge and that in our opinion should be sufficient to grant leave. The test is the test of a triable issue and not the final success in the action.
5. I have carefully and minutely gone through petition, leave to defend application accompanied by affidavit, reply, documents, case law and material on record.
6. One of the pleas taken by the respondent is that the ARC No. 148/2017 Sunil Pawar & Ors. Vs. Murari Chaudhary 6 petitioners have filed the present petition with malafide intention and ulterior motive with the sole object to harass and humiliate the poor handicapped tenant/respondent by concealing and suppressing the true and correct facts from their petition and with sole object to get eviction order by hook or by crook or by any means at any cost. That the respondent has no source of income for his livelihood except the tenanted premises. That the respondent is very much regular and punctual in making the payment of rent and rent upto 31.07.2016 stands paid but petitioners refused to issue the rent receipt of the rent paid by the respondent.
On the other hand, petitioners have categorically denied the pleas taken by the respondent and have submitted that the alleged pleas of the respondent is absolutely false and manipulated one as the respondent has not raised any plausible defence regarding the availability of any shop with the petitioner to settle his son. It is further averred by the petitioners that there is no accommodation/shop available to the petitioner other than the present tenanted premises to settle his unemployed son. It is further averred by the petitioners that after purchasing of the tenanted premises from the previous owners and on 20.05.2012, the petitioners had asked respondent to pay the entire arrears of rent @ Rs. 4,000/- per month excluding electricity charges since January 2012 upto May 2012. And in response thereto, the respondent assured and promised to pay petitioners and to vacate the tenanted premises on or before 10.06.2012. Unfortunately, neither the respondent vacated the tenanted premises nor paid the arrears of rent @ Rs. 4,000/- per month along with electricity arrears to the petitioners. It is further averred by the petitioners that in counter blast to the requests and reminders of the petitioners, the respondent filed ARC No. 148/2017 Sunil Pawar & Ors. Vs. Murari Chaudhary 7 a false suit for injunction to harass the petitioners. That respondent also filed a petition U/Sec. 45 of D.R.C. Act which was allowed by the then Ld. CCJ-cum-ARC (West), Delhi.
Perusal of the record clearly shows that these are not triable issues which could dis-entitle the petitioners to obtain the order of eviction against the respondent.
In the case titled as Raj Kumar Khanna vs. Parduman Singh passed in RC Rev. No. 548/2012 and C.M. No. 18936/2012 on 04.10.2013; the Hon'ble High court of Delhi observed as under:-
"17. In the case of Mohd. Ayub vs. Mukesh Chand (2012) 2 SCC 155 it was observed that the hardship appellants would suffer by not occupying their own premises would be far greater than the hardship the respondent would suffer by having moved out to another place. We are mindful of the fact that whenever the tenant is asked to move out of the premises some hardship is inherent. We have noted that respondent is in occupation of the premises for a long time. But in our opinion, in the facts of this case that circumstance cannot be sole determinative factor."
In my considered view, this plea of the respondent certainly draws the sympathy of this court towards the respondent but it is also well settled that this kind of pleas are not to be weighed while deciding the leave to defend application filed U/S 14(1)(e) of DRC Act.
It is expedient to reproduce Sec. 19 of the D.R.C. Act, which is as under:-
"19. Recovery of possession for occupation and re-entry. -
(1) Where a landlord recovers possession of any premises from the tenant in pursuance of an order ARC No. 148/2017 Sunil Pawar & Ors. Vs. Murari Chaudhary -8- made under clause (c) of the proviso to sub-section (1) of section 14 [or under sections 14A, 14B, 14C, 148 and 21], the landlord shall not, except with the permission of the Controller, obtained in the prescribed manner, re-let the whole or any part of the premises within three years from the date of obtaining such possession, and in granting such permission, the Controller may direct the landlord to put such evicted tenant in possession of the premises.
(2) Where a landlord recovers possession of any premises as aforesaid and the premises are not occupied by the landlord or by the person for whose benefit the premises are held, within two months of obtaining such possession, or the premises having been so occupied are, at any time within three years from the date of obtaining possession, re-let to any person other than the evicted tenant without obtaining the permission of the Controller under sub-section (1) or the possession of such premises is transferred to another person for reasons which do not appear to the Controller to be bona fide, the Controller may, on an application made on him in this behalf by such evicted tenant within such time as may be prescribed, direct the landlord to put the tenant in possession of the premises or to pay him such compensation as the Controller thinks fit."
As such, statute clearly lays down that the petitioner/ landlord has to occupy the vacated tenanted premises within two months and the landlord cannot re-let to any person other than the evicted tenant within three years from the date of obtaining possession and in case he does so, the evicted tenant may approach the Rent Controller seeking direction to the landlord to put the tenant in possession of the premises. As such, it is not a triable issue.
As far as punctuality in making the rent is concerned, in my considered view an eviction petition U/Sec. 14(1)(e) of the D.R.C. Act can be filed even when the tenant/ respondent is making payment of rent regularly to the petitioner/landlord. Moreover, the respondent has also raised plea of non issuance of rent receipts to ARC No. 148/2017 Sunil Pawar & Ors. Vs. Murari Chaudhary -9- the respondent by the petitioner.
In my considered view, the respondent had the opportunity and right to move the Court of Rent Controller in case he was not issued the rent receipts.
As such, these contentions/pleas of the respondent do not have any triable issue which could dis-entitle the petitioners to obtain the order of eviction against the respondent.
7. One of the pleas taken by the respondent is that the rent stands paid upto 31.07.2016, thereafter the petitioners refused to accept the rent. That the tenant/ respondent took the tenanted premises on rent from Sh. Nand Kishore and his brothers in the year 2004 and paid the rent to them regularly upto May 2012. Another plea of the respondent is that the petitioners attempted to dispossess the respondent from the tenanted premises by using criminal force on 30.05.2012 in collusion with the landlord of the respondent but they failed. That the respondent lodged a complaint against the petitioners.
On the other hand, petitioner has categorically denied the plea taken by the respondent and has submitted that in the civil suit bearing No. 475/14/12 of the petitioners, the respondent took a false plea that petitioners are not the owners of the tenanted premises and rate of rent was Rs. 1,000/- per month and not Rs. 4,000/- per month. And in the said suit the respondent falsely asserted that respondent is the tenant under petitioners @ Rs. 1,000/- per month and the monthly rent upto May 2012 stands paid but subsequently rent tendered by the respondent and the same was refused by petitioners. That after passing judgment in the said suit, the petitioners without prejudice to their rights and contentions admitted ARC No. 148/2017 Sunil Pawar & Ors. Vs. Murari Chaudhary 10 the respondent as tenant under petitioners @ Rs. 1200/- per month w.e.f. 20.05.2012 and has also served a legal notice dated 19.09.2016 which was replied by the respondent.
Perusal of the record clearly shows that the respondent has admitted Sh. Nand Kishore and his brothers as landlords of the tenanted premises and also admitted to have paid the rent regularly upto May 2012.
As such relationship of landlord and tenant between previous landlord and respondent is admitted by the respondent. Moreover, record shows that petitioners have also admitted to have purchased the tenanted premises from Sh. Nand Kishore and his brothers for a sale consideration.
Perusal of the record shows that the petitioners have placed on record a copy of SPA, Agreement to sell and purchase, affidavit, receipt, possession letter and Will executed between the previous owner and the petitioners.
In case titled as Jiwan Lal Vs. Gurdial Kaur & Ors. 1995 RLR 162 a Bench of Hon'ble High Court of Delhi while dealing with the concept of ownership in a pending eviction petition under Section 14(1)(e) of the DRC Act had noted as follows:
"There is a tendency on the part of tenants to deny ownership in cases under Section 14(1)(e). To test the substance of such a plea on the part of the tenants the Courts have insisted that they should state who else is the owner of the premises if not the petitioner. In the present case it is not said as to who else is the owner. Further these cases under Section 14(1)(e) are not title cases involving disputes of title to the property. Ownership is not to be proved in absolute terms. The respondent does not claim the owner of the premises."
Further, in the case titled as Smt. Shanti Sharma & Ors. Vs Smt Ved Prabha & ors 1987 AIR 2028, the Hon'ble Supreme Court ARC No. 148/2017 Sunil Pawar & Ors. Vs. Murari Chaudhary 11 observed :-
"That the meaning of term 'owner' is vis a vis the tenant i.e. the owner should be something more than the tenant."
It is well settled proposition of law that the petitioner/ landlord is not required to prove his ownership in absolute terms. It is sufficient if he is able to prove or show that he is something more than a tenant.
Perusal of record shows that in the present case, the petitioners have been able to prove that they are something more than the respondent and in my considered view, in view of settled proposition of law, the petitioners need not to prove their ownership in absolute terms. As far as refusal of acceptance of rent is concerned, this plea of the respondent does not have any merit as he always had the opportunity and right to move the application U/Sec. 27 of the D.R.C. Act to deposit the rent in the Court.
As such, landlord and ownership are proved and these pleas of the respondent do not raise any triable issue in this regard.
Perusal of the record clearly shows that the respondent has also raised the plea that petitioners attempted to dispossess the respondent from the tenanted premises illegally and complaint was lodged.
In my view, these are not the triable issues. The respondent always has and had opportunity to go for legal remedy in this regard and this issue are not a triable issue which could dis-entitle the petitioners to obtain the order of eviction against the respondent.
8. One of the pleas taken by the respondent is that the respondent filed a civil suit for injunction against the petitioners on ARC No. 148/2017 Sunil Pawar & Ors. Vs. Murari Chaudhary 12 07.07.2012 bearing suit no. 877/12, titled as "Murari Chaudhary Vs. Nand Kishore & Ors. and the same was decreed with cost in favour of respondent. Another plea taken by the respondent is that the petitioner has disconnected the electricity supply to the tenanted premises and the respondent found no other option and instituted a petition U/Sec. 45 of D.R.C. Act and the petitioners were directed to restore the electricity supply to the tenanted premises. That the new electricity meter had been installed in the name of respondent.
On the other hand, petitioner has categorically denied the plea taken by the respondent and has submitted that the actual facts of the present case is that after purchasing the tenanted premises from the previous owners and on 20.05.2012, the petitioners had asked respondent to pay the entire arrears of rent @ Rs. 4,000/- per month excluding electricity charges since January, 2012 upto May 2012. Thereafter, both the parties were indulged in some litigations.
In my considered view, both the pleas as taken by the respondent are not triable issue even if the respondent was given relief in a Civil Suit for Injunction by the Ld. Civil Court and U/Sec. 45 of the D.R.C. Act by Ld. A.R.C., it does not restrict the petitioner to file the eviction petition U/Sec. 14(1)(e) of D.R.C. Act.
As these issues as raised by the respondent are not triable issue which could dis-entitle the petitioners to obtain the order of eviction against the respondent.
9. One of the pleas taken by the respondent is that the petitioner lodged a false, frivolous, vexatious and baseless criminal complaint that the respondent is doing the illegal and unlawful act of re-filling of LPG Gas from Big cylinder to small cylinder from the tenanted shop and got registered a FIR bearing No. 13/2013. Another plea of the ARC No. 148/2017 Sunil Pawar & Ors. Vs. Murari Chaudhary 13 respondent is that petitioners to harass and humiliate and evict the respondent from tenanted shop in the year 2012 instituted a civil suit bearing No. 475/14/12, titled as "Jafri Khatoon & Ors. Vs. Murari Chaudhary for possession, damages, recovery of rent @ Rs. 4,000/- per month and permanent and mandatory injunction which was rejected by the then Ld. Civil Judge.
On the other hand, petitioner has categorically denied the plea taken by the respondent and has submitted that since inception of tenancy, the respondent was doing the electric works at the tenanted shop but later the respondent changed his trade and business and started to misuse the tenanted premises by doing the hazardous work of filling of LPG in small cylinder from the big LPG cylinder and till date the respondent is continuously doing such illegal trade/business despite requests, complaints/ FIR. It is averred by the petitioner that due to illegal trade and activity of respondent in the tenanted premises, a criminal case bearing FIR no. 13/2013, P.S. Patel Nagar, U/Sec. 285/336 IPC was registered against the respondent and the said criminal case is still pending. It is averred by the petitioner that in a civil suit bearing No. 475/12/14 filed by the petitioners, respondent took a false plea that petitioners are not the owners of the tenanted premises and rate of rent was Rs. 1,000/- per month and not Rs. 4,000/- per month. That in the said suit, the respondent falsely asserted that respondent is the tenant under petitioners @ Rs. 1,000/- per month and the monthly rent upto May 2012 stands paid bu subsequently, rent tendered by respondent and the same was refused by petitioners.
Record manifestly shows that these are not triable issue which could dis-entitle the petitioners to obtain the order of eviction against the respondent.
ARC No. 148/2017 Sunil Pawar & Ors. Vs. Murari Chaudhary 14
10. One of the pleas taken by the respondent is that the petitioners with malafide intention and ulterior motive to harass and humiliate and evict the respondent from the tenanted premises had filed an eviction petition U/Sec. 14(1)(c) of D.R.C. Act. One of the pleas taken by the respondent is that the petitioners with malafide intention and ulterior motive to harass and humiliate and evict the respondent had filed an eviction petition U/Sec. 14(1)(a) of D.R.C. Act on 18.03.2017. That the rent upto 31.07.2016 stood already paid to the petitioners and the rent w.e.f. 01.08.2016 has been refused to accept the petitioners.
On the other hand, petitioner has categorically denied the plea taken by the respondent and has submitted that the respondent is a regular defaulter in payment of monthly rent and have thus fallen in arrears thereof w.e.f. 20.05.2012 @ Rs. 1200/- per month till date along with interest @ 12% per month on the above amount to be paid by respondent to petitioners as per observation and holding of order/judgment dated 26.08.2015 in the suit No. 475/2014 passed. That after passing the above said judgment/order, the petitioners without prejudice to their rights and contentions admitted the respondent as tenant @ Rs. 1200/- per month since 20.05.2012 under the tenanted premises. That when the concerned court issued warrants of attachment against the respondent for the satisfaction of the execution petition of petitioners against arrears thereof w.e.f. 20.05.2012 @ Rs. 1200/- per month till date along with interest @ 12% per month on the said amount and only then the respondent paid the arrears through two cheques which ultimately dishonoured and only then after passing of about 02 months, the respondent paid the arrears of rent till 26.08.2015 and in the said execution, in the month of November 2017 and as such the said irregularities in the ARC No. 148/2017 Sunil Pawar & Ors. Vs. Murari Chaudhary 15 payment of the monthly rent by the respondent compelled the petitioners to institute the eviction petition U/Sec. 14(1)(a) D.R.C. Act against the respondent.
Perusal of the record clearly shows that these are not the triable issues as discussed earlier as the respondent always has the opportunity to file the application U/Sec. 19 of the D.R.C. Act. Moreover, as discussed earlier, the respondent always had the opportunity to file the D.R. Petition U/Sec. 27 of D.R.C. Act in case rent was refused by the petitioners. Moreover, in the present plea, the respondent has himself admitted that the rent was paid upto 31.07.2016 to the petitioners. As such, indirectly respondent has himself admitted the landlordship of the petitioners.
Record manifestly shows that these are not triable issue which could dis-entitle the petitioners to obtain the order of eviction against the respondent.
11. One of the pleas taken by the respondent is that the petitioners with malafide intention and ulterior motive to harass and humiliate and evict the respondent from the tenanted premises instituted the present petition on 30.10.2017. That petitioner no. 1 is a builder by profession and occupation and he is involved in getting eviction of the property from the tenants and thereafter to construct the multi-storey flats and sell out on higher prices. That the petitioner no. 1 has occupied many residential/ commercial houses in the locality which are as under:-
(i). House bearing No. T-690, Prem Nagar Road, Near Community Centre, Baljit Nagar, New Delhi-110008 constructed ground floor, first floor,second floor and third floor, each floor have three residential rooms sets and big shop at ground floor was sold ARC No. 148/2017 Sunil Pawar & Ors. Vs. Murari Chaudhary -16- out by the petitioner No. 1 to Sh. Pappu Sindhi for more than Rs. 40 Lakh in March, 2017;
(ii). House No. T-754/B, Gali No. 7, Prem Nagar Road, New Delhi-110008 is built upto 3 rd floor and each floor is having two rooms set and the two shops at the ground floor had been sold out to Ms. Savitri Devi in the months of May and June 2017 for more than Rs. 30 Lakh by the petitioner No. 1.
(iii). That House No. T-81, Gali No. 21, Baljit Nagar, New Delhi-110008 is constructed upto third floor and each floor have three rooms set and the same are in possession and occupation of the petitioner No. 1.
(iv). That House No. T-609/J-1, Gali No. 8, Baljit Nagar, New Delhi-110008 is built upto 4th floor and each floor have three rooms, toilet and bathroom including the ground floor are in use, occupation and possession of the petitioner no. 1.
(v). That property No. 673, Gali No. 21, Near Hanuman Mandir, Baljit Nagar, New Delhi-110008 there are three rooms at the ground floor and one room at the first floor are in possession of petitioner no. 1 excluding the shop in question is in use and occupation of the respondent.
(vi). That H. No. T-563/CA/7/1, Prem Nagar Road, Near Community Centre, Baljit Nagar, New Delhi-110008 is under construction by the petitioners. That the petitioner No. 1 is also carrying out his traditional business of Cloth washing/ironing/ drycleaning from a big shop situated in Baljit Nagar, Delhi with the help of his wife and children.
(vii). That the petitioner No. 2 is carrying out the occupation of construction of the building as well as the business of manufacturing and selling Bakery, Bread and Biscuits from a big ARC No. 148/2017 Sunil Pawar & Ors. Vs. Murari Chaudhary 17 shop at main Road, Baljit Nagar, New Delhi and also having outlets at many places throughout the Delhi.
(viii). That the petitioner no. 4 is having two residential houses in Baljit Nagar besides a big commercial godown in Baljit Nagar/ Khanna Market, Patel Nagar from where he is carrying out the wholesale business of fruits.
On the other hand, petitioner has categorically denied the pleas taken by the respondent and has submitted that there is no accommodation/ shop is available to the petitioner other than the tenanted premises to settle his unemployed son.
(i) House bearing No. T-690, Prem Nagar Road, Near Community Centre, Baljit Nagar, New Delhi-110008 was/ is not related or connected with the petitioner.
(ii). House No. T-754/B, Gali No. 7, Prem Nagar Road, New Delhi-110008 is also not related or connected with the petitioner.
(iii). That House No. T-81, Gali No. 21, Baljit Nagar, New Delhi-110008 is the ancestral property of petitioner no. 1 which is built up ground floor and firs floor only wherein the family of younger and later elder brother of the petitioner with their respective families are residing and petitioner no. 1 is not residing at this property. That elder brother of the petitioner no. 1 late Sh. Hem Raj has already expired and he has two married sons who are residing with their respective families at the Ground floor of the said property. That Smt. Bimla Devi, widow of Sh. Hem Raj is also residing with her sons at the ground floor of the said property and on the first floor, the family of younger brother of petitioner no. 1 consisting of two married sons and their children are residing at the first floor of the said property.
(iv). That House No. T-609/J-1, Gali No. 8, Baljit Nagar, New Delhi-110008 was purchased by the petitioner in the name of his ARC No. 148/2017 Sunil Pawar & Ors. Vs. Murari Chaudhary 18 wife and rest of the property is not related to the petitioner.
(v). That property No. T-673, Gali No. 21, Near Hanuman Mandir, Baljit Nagar, New Delhi-110008 is the suit property as the same were purchased by the petitioners from Sh. Yogender Sharma, Sh. Chetan Sharma, Sh. Nand Kishore, Sh. Sanjay Sharma and Smt. Usha Sharma against the lawful sale consideration to the tune of Rs. 07 Lakh on 19.05.2012 and various title documents were also executed by previous owners regarding change of title of said property in favour of petitioners.
(vi). That H. No. T-563/CA/7/1, Prem Nagar Road, Near Community Centre, Baljit Nagar, New Delhi-110008 is not related/connected with petitioners.
Sub-para nos. (vii) & (viii) are denied and that husband of petitioner no. 2 is having a small bakery of biscuit etc. at Baljit Nagar, Delhi and petitioner no. 2 was/is not carrying out any business/ occupation of construction of building. That residential and commercial godown of petitioner no. 3 as alleged by the respondent is totally false and are not related to the petitioners no. 2 & 3.
Perusal of the record as well as settled proposition of law manifestly shows that these are not triable issues as the respondent has not been able to prove the surplus accommodation available with the petitioner or members of his family. Moreover, it is not sufficient that surplus accommodation should be available with the petitioner to rule out the benefit U/Sec. 14(1)(e) of D.R.C. Act. It is necessary to prove or show that the accommodation available is alternative reasonably suitable residential accommodation with the petitioner/ landlord.
Perusal of the record clearly shows that one of the pleas of the respondent is that petitioner no. 1 is a builder by profession and ARC No. 148/2017 Sunil Pawar & Ors. Vs. Murari Chaudhary 19 wants to construct the multi-storey flats and sell it out on higher prices.
In my considered view, even if the landlord and owner of the property is a builder, he can file the petition U/Sec. 14(1)(e) of D.R.C. Act. Law does not restrict him from filing such petition. Record also shows that the respondent has claimed that the petitioners are having a number of properties with them.
I have gone through the details of the properties shown by the respondent. Record shows that the present eviction petition has been filed for commercial requirement for setting up of the business for son of petitioner no. 1. In his leave to defendant, the respondent has claimed that house bearing No. T-690, Ranjit Nagar, New Delhi is having ground, first, second and third floor and each floor have three residential room set. On the other hand, the petitioners have replied that the house as alleged by the respondent is not related or connected with the petitioner.
Perusal of record shows that the respondent has himself used the word 'house' in respect of aforementioned property i.e. T-690 and he himself has stated that there are three residential room set at each floor.
As such, record clearly shows that the present property is a residential one and not commercial. Whereas the petitioners are seeking the tenanted premises for commercial use.
As far as shop at the ground floor is concerned, the respondent has not placed on record any document in support of this plea and has merely made the vague plea.
As such, record clearly shows that the property No. T-754/B is a residential one and not commercial. Whereas the petitioners are seeking the tenanted premises for commercial use.
ARC No. 148/2017 Sunil Pawar & Ors. Vs. Murari Chaudhary 20 As far as two shops at the ground floor in property No. T-754/B is concerned, the respondent has not placed on record any document in support of this plea and has merely made the vague plea.
As far as property No. T-81 is concerned, the respondent has claimed that this house is constructed upto third floor and each floor has three rooms set and these are in possession of petitioner no. 1.
On the other hand, petitioners have denied it and claimed that this is the ancestral property and occupied by the members of other family for residential use.
As such, record clearly shows that respondent has not claimed that property No. T-81 is having commercial space also which can be used for satisfaction of commercial bonafide requirement of son of the petitioner no. 1. Moreover, the petitioners have themselves clarified that this property is being used for residential use. Moreover, no document has been placed on record by the respondent which shows that this property is having a suitable commercial space for the purposes as sought by the petitioners.
Record clearly shows that the present property No. T-609/J-1 is a residential one and not commercial. Whereas the petitioners are seeking the tenanted premises for commercial use.
Moreover, the respondent has not claimed that this property is having shops also. As such, this property is not a suitable property for the purposes of commercial requirement of son of petitioner no.
1. Moreover, respondent has not placed on record any document in support of this plea and has merely made the vague plea.
Record clearly shows that the present property No. 673 is a residential one and the respondent has not claimed it to be a commercial one. On the other hand, the petitioners have replied that ARC No. 148/2017 Sunil Pawar & Ors. Vs. Murari Chaudhary 21 this property bearing No. T-673 is a suit property wherein the tenanted premises is situated and was purchased by the petitioners.
As such the record shows that the respondent has not claimed that the present property i.e. 673 is having vacant shop in addition to the tenanted premises, which can be used by the son of the petitioner no. 1 for satisfying the commercial bonafide requirement. Moreover, respondent has not placed on record any document in support of this plea and has merely made the vague plea.
As far as plea of the respondent in respect of carrying out the occupation of construction of building and other business of manufacturing by the petitioner no. 2 is concerned, the respondent cannot restrict the growth of the petitioner on such a frivolous ground. Although, in this plea the respondent has claimed that petitioner no. 2 is also having outlets at many places throughout Delhi but he has not given the details thereof and has not placed on record any document to support the plea and he has merely made the bald averments.
As far as possession of two residential houses in Baljeet Nagar and big commercial godown in Baljit Nagar/ Khanna Market by the petitioner no. 4 is concerned, he has not given the details of such premises. Moreover, record shows that number of petitioners are three in the petition and there is no petitioner no. 4 in the present case.
12. One of the pleas taken by the respondent is that the present petition for eviction of the respondent has been filed to evict the respondent on any cost so that he could raise multi-storey building and sell out the same on high price.
On the other hand, petitioner has categorically denied the plea ARC No. 148/2017 Sunil Pawar & Ors. Vs. Murari Chaudhary 22 taken by the respondent and has stated that the alleged pleas of the respondent are absolutely false and manipulated as the respondent has not raised any plausible defence regarding availability of any shop with the petitioner to settle his son. That there is no accommodation/ shop is available to the petitioner other than the tenanted premises to settle his unemployed son.
Perusal of the record clearly shows that this plea does not have any merit as a landlord or owner of the property who is Builder by profession can file a petition U/Sec. 14(1)(e) D.R.C. Act as discussed earlier provided the petitioner is able to prove his bonafide requirement.
13. One of the pleas taken by the respondent is that the petitioners have failed to satisfy the ingredients of Sec. 14(1)(e) of D.R.C. Act.
On the other hand, petitioner has categorically denied the plea taken by the respondent.
As far as this plea is concerned, this plea is a vague plea as the respondent has not disclosed how the petitioners have not been able to satisfy the ingredients of Sec. 14(1)(e) of D.R.C. Act.
14. One of the pleas taken by the respondent is that the petitioners are not the owners of the tenanted premises and they have no title in their favour from the landlords of the respondent. That the tenanted premises was let out to the respondent in the year 2004 @ Rs. 600/- per month for commercial purpose by Sh. Nand Kishore and his brothers, all sons of Late Sh. Om Prakash, who has not executed registered sale deed as per Section 54 of Transfer of Property Act, 1882, therefore, the petitioners have no ownership title ARC No. 148/2017 Sunil Pawar & Ors. Vs. Murari Chaudhary 23 in their favour to maintain the present petition.
On the other hand, petitioner has categorically denied the plea taken by the respondent and has submitted that the tenant has no right to challenge the ownership of the petitioners/landlords. That the previous owner inducted the respondent in the tenanted premises @ Rs. 4,000/- per month. That the previous owner also informed the petitioner that the respondent did not tender the arrears of rent since January, 2012. That after purchasing the tenanted premises, the petitioners became the sole and absolute owners of the tenanted premises. That without prejudice to the rights of the petitioners that in case the petitioners are not landlord and there is no relationship of landlord-tenant between the petitioners and respondent, the respondent has not come out with any clarification as to why the respondent had paid the outstanding arrears till August 2016 in the concerned civil court in the month of November 2017 after direction/order of the court of Ms. Richa Sharma, Civil Judge, West, Tis Hazari Courts, Delhi in this regard.
Perusal of the record shows that this plea in respect of landlordship and ownership has already been discussed by this court earlier in the present order on leave to defend and the respondent has not been able to raise any triable issue in respect of landlordship and ownership of the petitioner. As far as plea in respect of ownership of the petitioner is concerned, as discussed earlier, the petitioners need not to prove the absolute ownership of themselves to obtain the relief U/Sec. 14(1)(e) of D.R.C. Act. Hence, this plea is not a triable issue which could dis-entitle the petitioners to obtain the order of eviction against the respondent.
15. One of the pleas taken by the respondent is that in case of ARC No. 148/2017 Sunil Pawar & Ors. Vs. Murari Chaudhary 24 additional requirements, the petitioners are required to prove their needs and leave to defend must be granted to the respondent. That the respondent is entitled the leave to defend to contest the eviction petition filed by the petitioners.
On the other hand, petitioner has categorically denied the plea taken by the respondent and submitted that no triable issue has been raised by the respondent and otherwise the alleged defense raised by the respondent is not plausible and same is sham and moonshine and same cannot be believed and deserves to be dismissal with heavy costs.
Perusal of the record clearly shows that this plea is not a triable issue.
In the case titled as "Mittar Sain Vs Rajesh Kumar" passed in RC Revision 196/2013 and CM 8431/2013 passed by the Hon'ble High Court of Delhi, the relevant portion is as under:-
"14. On the issue of alternate accommodation, this court is of the view that the reliance by the tenant on the cases of S.M. Mehra, Santosh Devi Soni and Liaq Ahmad (Supra) are misplaced. This court is of the view that decision in the said cases were given in the peculiar set of facts and such decisions would not be applicable to the present case as the facts are entirely different. Moreover, as has been relied upon by the Ld. Counsel for the landlord, in the case of Madan Lal Gupta (Supra) the Hon'ble Supreme Court has held that neither Santosh Devi Soni (Supra) nor Liaq Ahmad (Supra) laid down any principle of law, it was further observed in these cases, certain orders were passed on the facts arising in them."
As such, in my view, this plea of the respondent also does not raise any triable issue which could dis-entitle the petitioners to obtain the eviction order in their favour.
ARC No. 148/2017 Sunil Pawar & Ors. Vs. Murari Chaudhary 25 CONCLUSION:-
16. In view of the above discussion, I find no triable issue in the leave to defend application of the respondent which could dis-entitle the petitioners to obtain an eviction order in their favour. The application for leave to defend filed by the respondent is thus, dismissed.
17. Hence, as a consequence thereof, an eviction order is passed U/s. 14 (1) (e) of DRC Act in favour of petitioner and against the respondent in respect of the tenanted premises i.e. one shop forming part of property No. 673, Gali No. 21, Ground floor, Near Hanuman Mandir, Baljeet Nagar, New Delhi-110008, as shown in red lines in the site plan which is marked as Mark- P1 (Put by the court for the purpose of identification).
18. However, this order shall not be operative before the expiry of six months from today keeping in view Sec. 14(7) of D.R.C. Act.
19. File be consigned to the Record Room after due compliance.
Announced in the open Court Digitally signed
on 6th June, 2019. AJAY by AJAY NAGAR
Date:
(This order contains 25 pages) NAGAR 2019.06.06
17:09:36 +0530
(AJAY NAGAR)
Additional Rent Controller,
West District, THC, Delhi.
ARC No. 148/2017 Sunil Pawar & Ors. Vs. Murari Chaudhary