Delhi District Court
Sh. Om Prakash Bansal vs Sh. Mohinder Singh on 18 July, 2013
IN THE COURT OF SH. NEERAJ GAUR,
ACJ/CCJ/ARC, SHAHDARA, KARKARDOOMA COURTS, DELHI
E 05 /13
Unique Identification No. 02402C0015192013
Sh. Om Prakash Bansal
S/o late Sh. Ratan Lal
R/o H.No. 325327,
Maharam Mohalla,
Shahdara,
Delhi 32 ...........Petitioner
Versus
Sh. Mohinder Singh
S/o Sh. Phulel Singh
R/o E 70, Jhilmil Colony,
Delhi 95
II Address
Shop No. 326/2
Maharam Mohalla,
Shahdara,
Delhi 32 ...........Respondent
EVICTION PETITION UNDER SECTION 14 (1) (e) R/W SECTION 25B OF OF DRC ACT.
1. Date of institution of petition : 16.01.2013
2. Order reserved on : 18.07.2013 E 05/13 Page no. 1 of 9
3. Date of order : 18.07.2013
4. Final order : Leave to defend application dismissed and eviction order passed.
JUDGMENT/ORDER
1. This is a petition for eviction of tenant under Section 14 (1) (e) of DRC Act, 1958 (herein after referred to as 'DRC Act')
2. To contest the eviction petition, respondent has moved an application seeking leave to defend the petition, which shall be decided by way of this order.
3. Petitioner's case is that the respondent was inducted as a tenant in the property owned by the petitioner comprising of a shop admeasuring 10.6 ft. x 15.3 ft. at ground floor. The tenancy was created about 30 years ago. The last paid rent is Rs.1,825/ per month. The tenanted premises are required bonafide by the petitioner, in particular, for the use of his 31 year old son namely Sh. Hemant Bansal. The son of petitioner is dependent on the petitioner for all his requirements. Sh. Hemant Bansal is presently into printing and advertisement business in the name and style of M/s. Om Printers and Advertisers. Sh. Hemant Bansal is having no space to open an office or to install the printing machine and other E 05/13 Page no. 2 of 9 equipments, as such, he is outsourcing the work of his own customers and profits are very law. Petitioner has stated that the suit premises could be used by his son to install printing machine and other equipments and to take an office.
4. The ground taken by the respondent for obtaining to leave to defend are jotted down as under for the sake of convenience:
1. The son of the petitioner is gainfully employed and having a flourishing printing business.
2. The son of petitioner is using common office with the petitioner on the ground floor where he has also installed his machines.
3. One room at the first floor, adjacent to the staircase is being used by Sh. Hemant as his separate office where computers and other equipments have been installed.
4. The petition is without any document of ownership and the partition deed filed by the petitioner alone cannot prove the ownership of the petitioner.
5. Sh. Hemant is maintaining an office space at Laxmi Nagar.
6. The petitioner has concealed about other residential and commercial properties situated in Delhi.
5. Counsel for the respondent argued that Sh. Hemant is financially independent of his father/petitioner. He highlighted that as per E 05/13 Page no. 3 of 9 petitioner's own profit and loss account, the turn over was more than Rs.50,00,000/ for the year ending 31 March, 2011. He argued that the son of the petitioner is also having good earnings in his printing business.
6. In this regard, counsel for the petitioner admitted that the profit and loss statement reflect a turn over of Rs.50,00,000/ but he highlighted that the same profit and loss account statement reflect that the net profit are only Rs.6 lacs and odd. He drew my attention to the income tax return of the same year wherein the gross total income, after deduction of permissible expenses is Rs.4,05,926/. He argued that the D VAT 16 form of printing business of Sh. Hemant demonstrate that hardly any profit is being earned by Sh. Hemant through the printing business. He argued that Sh. Hemant is forced to outsource the printing orders to the outsiders and by installing his own printing set up in the suit premises he would be able to earn some profits.
7. Counsel for respondent argued that Sh. Hemant is sharing a common office space with his father at the ground floor of the same premises where the petitioner is running his Mehandi business. Counsel for the petitioner argued that the space, as shown in the green colour in the site plan, is itself insufficient for accommodating the goods manufactured by the petitioner and there is hardly any space for accommodating the printing machine of Sh. Hemant. My attention was E 05/13 Page no. 4 of 9 drawn to the photographs filed the petitioner which clearly indicates the paucity of space to accommodate any further machinery.
8. Respondent has alleged that Sh. Hemant is using one room at the first floor for maintaining an office and for keeping computer etc. In this regard, counsel for petitioner submitted that there are two bed rooms, two toilets, one bathroom, one drawingcumdining room and one kitchen at the first floor. This floor is used for the residence of petitioner, his wife, his son, his daughterinlaw and his grand daughter. He argued that the accommodation itself insufficient for the residence of two family units and there is no possibility of using any portion of the ground floor for office purpose.
9. Respondent has alleged that Sh. Hemant is having huge office space at Laxmi Nagar but he could not give details of any such space. Respondent has also alleged that the petitioner is having further residential and commercial properties. Again, the respondent has failed to give the detail of any such property.
10. Counsel for plaintiff, in support his arguments relied upon the following judicial pronouncement:
1. C.R. 12 of 2001 and C.M. 29 of 2001, Decided on 07.09.01 Nem Chand Daga Vs. Inder Mohan Singh Rana
2. 60 (1995) DLT 524 E 05/13 Page no. 5 of 9 Meenakshi Vs. Ramesh Khanna and Anr.
3. 116 (2005) DLT 41 K.C. Agrawal Vs. Hardip Singh
4. Rc. Rev. No. 124/2010 and C.M. No. 10165/2010 Smt. Viran Wali Vs. Kuldeep Rai Kochhar Decided on 12.11.2010
5. 172 (2010) DLT 112 Vinod Arora Vs. Deepak Aggarwal
6. 173 (2010) DLT 518 Adarsh Electricals & Ors Vs. Dinesh Dayal
7. RCR No. 95/2000 & CM No. 7848/2010 Sunder Singh Vs. Jasbir Singh Decided on 23.09.2010
11. Counsel for respondent, in support his arguments relied upon the following judicial pronouncement
1. 89 (2001) DLT 27 (SC) Inderjeet Kaur Vs.Nirpal Singh
2. 1982 Rajdhani Law Reporter S.C. 781 Precision Steel Engg. Vs. Premdev Niranjadev
3. RCR No. 120/2011 Decided on 11.07.2011 Vijay Nayyar Vs. Om Prakash Malik E 05/13 Page no. 6 of 9
4. AIR 2009 SC 2448 Rachpal Singh & Ors. Gurmit Kaur & Ors.
5. JT 2003 (3) SC 397 Santosh Devi Soni Vs. Anand Kiran
6. 21 (1882) DLT 8 D.N. Gupta Vs. Jaswant Singh
12. I have carefully considered the submissions made on behalf of the parties. Respondent has alleged that the son of petitioner is maintaining office space at Laxmi Nagar but he could not substantiate this allegation by furnishing any detail of such office space. Respondent then alleged that son of petitioner is sharing an office space with his own father in the portion bounded with green colour in the site plan of the petitioner. The photographs filed by the petitioner indicate that this space itself is insufficient to accommodate the printing machinery intended to be installed by the son of the petitioner. Respondent also alleged that Sh. Hemant is having a flourishing business and he is not financially dependent on the petitioner. The documents filed by the petitioner indicate that there is a very meager amount of income of Sh. Hemant. Respondent also took a ground that Sh. Hemant is maintaining an office at the first floor. The first floor has only two bed rooms and one drawing room. If at all Sh. Hemant is devoting some space of the first floor for E 05/13 Page no. 7 of 9 office purpose, it would be only on account of nonavailability of the space. This fact embolden the case of the petitioner that his need for the suit premises is bonafide and genuine. Lastly, respondent challenged the ownership of the petitioner. In view of the admission of the respondent regarding tenancy, he is estopped from challenging the ownership of the petitioner u/s 116 of the Indian Evidence Act.
13. It is well settled law that leave to defend can be granted to the tenant in case of any triable issue has been raised by him, which can be adjudicated by consideration of additional evidence. The mere existence or averment of any triable issue is not sufficient. The nature of the triable issue raised by the tenant must be such that it would disentitle the landlord from obtaining the eviction order. The whole purpose and import of summary procedure under Section 25B of the Act would otherwise be defeated. The prayer for leave to contest should be granted to the tenant only where a prima facie case has been disclosed by him. In the absence of the tenant having disclosed a prima facie case i.e. such facts which disentitles the landlord from obtaining an order of eviction, the Court should not mechanically & in routine manner grant leave to defend.
14. In the case in hand, the respondent could not prima facie establish that the petitioner is having any other alternative accommodation which would be suitable for the need of the petitioner.
E 05/13 Page no. 8 of 9 All the pleas taken by the respondent seems to be sham and moonshine, which have failed to raise any requisite triable issues. The contents of the application for leave to defend have failed to rebut the presumption of bonafide qua the need of the petitioner. The application for leave to defend filed by the respondent is thus rejected.
15. Consequently an eviction order is passed U/s. 14 (1) (e), DRCA against the respondent regarding the tenanted premises i.e. Shop No. 326/2, Ground Floor, Maharam Mohalla, Shahdara, Delhi 32 as shown in red colour in the site plan filed by the petitioner in this case.
16. However in light of Section 14 (7) DRCA, the aforesaid eviction order shall not be executable for a period of six months from today.
The parties are left to bear their own costs.
File be consigned to Record Room after due compliance.
(Announced in the (Neeraj Gaur)
Open Court on ACJ/CCJ/ARC, Shahdara, KKD, Delhi
18.07.2013) 18.07.2013
(This judgment contains 9 pages)
E 05/13 Page no. 9 of 9