Delhi District Court
Tis Hazari Court vs Sh. Purshottam Singh on 25 February, 2013
IN THE COURT OF SH. PRITAM SINGH, ARC (CENTRAL)
TIS HAZARI COURT, DELHI.
E-103/10
Smt Meera Devi,
W/o Late Sh. Raj Kumar
R/o 35/3091, Beadonpura,
Karol Bagh, New Delhi-05 ...Petitioner
Vs.
Sh. Purshottam Singh,
S/o Sh. Amar Singh,
M/s Golden Paints & Hardwares,
35/3103, Beadonpura,
Saraswati Marg, Karol Bagh,
New Delhi-110005. ...Respondent.
Petition u/s 14 (1) (a) and (e) of Delhi Rent Control Act
1. Date of institution of the case : 01.05.2010
2. Date of Judgment Reserved : 19.02.2013
3. Date of Judgment pronounced : 25.02.2013
JUDGMENT
The brief facts of the case as stated in the petition are that the petitioner is owner/landlady of the property bearing no. 3091, Gali No. 35, Bedeon Pura Karol Bagh, New Delhi. The respondent is a tenant in one godown measuring 7.5 X 20 ft on the ground floor in the above said property more specifically shown in red colour in the site plan, hereinafter called the suit premises, at a monthly rent of Rs. 699/- besides a sum Rs. 30/- per month for electricity charges. It is further stated that rent agreement dated 11.09.1985 was executed at the time of letting out of the suit premises. It is further stated that the respondent failed to pay the arrears of rent w.e.f 01.12.2009 inspite of repeated requests and demands. A legal demand notice dated 07.02.2010 was sent to the respondent demanding the arrears of rent however, despite the service of legal demand notice dated 07.02.2010 upon the respondent he failed to make the payment of the arrears of rent within two months from the service of said legal notice. It is further stated that respondent is also liable to pay interest @ 15 % per annum of the arrears of rent.
2. It is further stated that the petitioner has two sons namely Khushal Chand aged about 35 years and Sh. Rajeev aged about 31 years. Sh. Khushal Chand, son of the petitioner, is selling toys on the footpath at the Ajmal Khan Road, Karol Bagh, Delhi as he has no permanent place of business. Sh. Rajeev, the second son of the petitioner is selling sunglasses and the alied items on the footpath at Ajmal Khan Road. Both the sons of the petitioner are of marriageable age but their marriage could not be performed as they have no permanent place of business. It is further stated that the petitioner needs the suit premises to provide the same to his sons. It is further stated that neither the petitioner nor her sons have any other suitable accommodation for running the business. It is prayed that an eviction order may kindly be passed U/s 14 (1) (a) and 14 (1) (e) of DRC Act.
3. Written statement was filed by the respondent. The respondent has neither disputed the relationship of landlord and tenant between the parties nor the rate of rent nor the service of legal demand notice dated 07.02.2010. It is further stated that after 01.12.2009 the respondent approached the petitioner many times with the amount of arrears of rent but the petitioner avoided to receive the rent on one pretext or the other. It is further stated that the respondent was not conversant with the legal position therefore, could not deposit rent but after filing the present petition, the counsel for the respondent advised him to deposit the arrears of rent in account of the petitioner and the respondent immediately deposited the arrears of rent with interest in the account of the petitioner. It is further stated that petitioner is not the owner of the suit premises. It is denied that the sons of the petitioner are doing their work at the footpath at Ajmal Khan Road, Delhi. It is further denied that both the sons of the petitioner are of marriageable age but their marriage could not be performed as they have got no permanent place of business.
4. It is further stated that petitioner is also owner of property no. 191/3, Gali no.9 Than Singh Nagar, Anand Parbat, New Delhi and one Sh. Shiv Prasad Panday is tenant under the petitioner and petitioner has filed similar petition against the said tenant which was pending in the court of Sh. Sameer Bajpayee, Ld. ARC, Delhi. It is further stated that petitioner has not disclosed that how much accommodation is available with her and how much accommodation she wants now. It is further stated that the sons of the petitioner do not depend upon the petitioner. The sons of the petitioner are doing their independent business and have been residing independently in the upper floors of the suit property. It is further stated that petitioner wants to re- let out the suit property on higher rent after getting it vacated from the respondent. The petitioner has asked the respondent to enhance the rent to Rs. 1000/- per month which was declined by the respondent therefore, the petitioner wants to evict the respondent from the suit premises. All other averment made in the petition were denied.
5. Replication was filed by the petitioner wherein it is stated that the petitioner has four sons and she had filed eviction petition bearing no E-3/2010 on the ground of bona fide requirement in respect of the shop for his two sons namely Praveen Kumar and Rishi Kumar. It is further stated that the petitioner is not in possession of any portion in property no. 191/3 Gali no. 9, Than Singh Nagar, Anand Parbat Delhi. The petitioner required the premises for her four sons therefore, that purpose she has filed eviction petition. All other averments made in the written statement were denied and controverted.
6. The petitioner in order to prove her case examined her attorney Sh. Naval Kishore as PW-1. The affidavit for evidence of Sh. Naval Kishore Ex PW-1. The Special Power of Attorney dated 27.07.2010 is Ex PW-1/1. The site plan Ex PW-1/2. Copy of family settlement dated 18.07.1984 which is Ex PW-1/3 and the partition plan with the said family settlement is Ex-PW-1/4. The house tax receipt dated 03.05.2010 is Ex PW-1/5. The rent deed is Ex PW-1/6. The counter foil of the rent receipts no. 1 to 11 are Ex PW-1/7 to Ex PW-1/17 repectively. The legal demand notice dated 07.02.2010 which is Ex PW1/18 and its postal receipt is Ex RW1/19 and its UPC receipts is Ex RW1/20. A letter to the Post Master, Head Post Office, Karol Bagh, New Delhi sent by Sh. C.P Wig, Advocate dated 21.04.2010 for non receiving the AD. Card is Ex PW-1/21. The post master sent a postal certificate dated 30.04.2010 to the letter dated 21.04.2010 that the said notice was served to the respondent on 09.02.2010, the said certificate is Ex PW-1/22. The copy of legal notice dated 19.05.1993 to the respondent for enhancement of the rent from Rs. 375/- to Rs. 412/- per month Ex PW1/23 and its original postal receipt is Ex PW-1/24, its UPC receipt is Ex RW1/25 and its AD Card is Ex PW1/26. The photocopy of ration card is Ex RW1/27. The certified copy of the eviction petition is Ex PW-1/28. The photocopy of the pass book is Ex PW1/29.
7. The respondent examined himself as RW-1 in his defence evidence and his affidavit for evidence is Ex RW1/A. The original UPC receipt Ex RW1/1.
8. Argument heard. Record perused and considered.
Counsel for the petitioner relied upon the following rulings:-
i. Rajender Kumar Sharma & Ors Vs. Leela Wati & Ors 155 (2008) DLT
383.
ii. Mukesh Kumar Vs. Rishi Prakash, 2009 (2) RCR 485 iii. Adarsh Electricals & Ors 173 (2010) DLT 518 Counsel for the respondent relied upon the following rulings:-
i. Janki Vashdeo Bhojwani & Anr Vs. Indusind Bank Ltd & Ors (2005) 2 SCC 217.
Grounds u/s 14 (1) (a) of DRC Act.
9. The ingredients required to be proved for the ground u/s 14 (1) (a) of DRC Act are :-
(i) Existence of relationship of landlord and tenant between the parties ;
(ii) Existence of arrears of rent, legally recoverable rent on the date of notice of demand ;
(iii) Service of notice of demand in the manner as provided in section 106 of the Transfer of Property Act ;
(iv) Failure of tenant to pay or tender the whole of the arrears of rent legally recoverable from him within two months of date of service of notice.
10. As discussed above the respondent neither disputed the relationship of landlord and tenant between the parties nor the rate of rent and arrears of rent, nor the service of legal demand notice dated 07.02.2010 Ex PW1/18. The respondent has merely stated that he had deposited the arrears of rent only after filing of present petition when his counsel advised him to deposit the rent. Thus, it is a admitted by the respondent that when the legal demand notice dated 07.02.2010 Ex PW1/18 was issued he was in arrears of rent and he failed to deposit arrears of rent within two months from the date of service of legal demand notice. The contention of the respondent that after 01.12.2009 he approached the petitioner and asked him to receive the rent but the petitioner used to refuse to receive the rent on one pretext or the other, has no substance, because if the petitioner was not receiving the rent then the respondent should deposit the rent in the court U/s 27 of DRC Act. Admittedly, the arrears of rent from 01.12.2009 was deposited by the respondent only after filing of present eviction petition. Such deposit of the arrears of rent is of no help to the respondent as it is mandatory to pay/deposit the arrears of rent within two months from the service of notice of demand.
11. In view of the above discussions, I am of the considered view that all the ingredients of Section 14 (1) (a) of DRC Act are fulfilled and accordingly the present petition U/s 14 (1) (a) of DRC Act is allowed.
Ground U/s 14 (1) (e) of DRC Act.
12. The present petition has been filed U/s 14 (1) (e) r/w Section 25-B of DRC Act and in order to succeed in such petition, petitioner has to prove (i) Ownership of the suit premises; (ii) Purpose of letting; (iii) Alternative accommodation; (iv) bonafide requirement;. Let the same be discussed in detail.
Ownership and Purpose of Letting.
13. The respondent has not disputed the relationship of landlord and tenant between the parties. The respondent has merely disputed the ownership of petitioner qua the suit premises. The question arises if petitioner is not the owner then who else is the owner. The respondent has not disclosed the name of any other person as owner of the suit premises. It is also not in dispute that respondent had been paying rent of the suit premises to the petitioner. It is well settled law that a landlord is not required to prove absolute ownership and if a tenant is paying rent to the landlord then the tenant cannot challenge the ownership of the landlord.
14. It was held in Ramesh Chander Vs. Uganti Devi that "Imperfectness of title of premises cannot stand in way of eviction petition. Neither tenant can be allowed to raise plea of imperfect title or title not vesting in landlord and that too when tenant paying rent to the landlord".
15. It is held in Rajender Kumar Sharma & Ors Vs. Leela Wati & Ors 155 (2008) DLT 383, " that landlord is not supposed to prove absolute ownership as required under Transfer of Property Act. He is required to show only that he is more than tenant."
16. It is held in Shanti Sharma Vs. Ved Prabha, AIR 1987 SC 2028, "that for the purpose of Section 14 (1) (e) of the Act, ownership is not to be understood as absolute ownership but only as a title better than the tenant. So what has to be seen is whether on the basis of aforesaid facts it can be said that the petitioner has any title to the property, a title better than the respondents.
17. So far as the purpose of letting is concerned after, the judgment of Hon'ble Supreme Court in Satyawati Vs. Union of India III (2008) SLT 553, an eviction petition is maintainable on the ground of bona fide requirement in respect of the property which was let out for commercial purposes. Hence, both the ingredients are decided in favour of the petitioner and against the respondent.
ALTERNATIVE ACCOMMODATION AND BONA FIDE REQUIREMENTS.
18. PW-1 deposed that the petitioner had four sons namely Praveen Kumar, Rishi Kumar, Khushal Chand and Rajeev and they all were living with the petitioner in the property in dispute. PW-1 further deposed that property no. 191/3, Gali no-9 Than Singh, Anand Parbat, New Delhi was a single storey and the said entire property was in possession of tenant Sh. Shiv Prasad Panday and an eviction petition on the ground of bona fide requirement for two sons of petitioner namely Praveen Kumar and Rishi Kumar, was filed against the said tenant and was pending in the court of Sh. Lalit Kumar, Ld. ARC, Delhi for the purpose of business of her two said sons. PW-1 further deposed that she required the suit premises for her two sons namely Khushal Chand and Rajeev Kumar as they had no place of business and they were selling their articles such as toys and sunglasses on the footpath at Ajmal Khan Road, Karol Bagh, New Delhi. PW-1 further deposed that neither the petitioner nor her sons had any alternative suitable accommodation with them.
19. PW-1 deposed in his cross examination that the petitioner was his real sister, who was illiterate and not feeling well. PW-1 further deposed that the petitioner was suffering from Gathia. PW-1 further deposed that the petitioner was feeded by her sons. PW-1 admitted that petitioner had filed an eviction petition against tenant Sh. Shiv Prasad Panday in respect of premises in property no. 191/3, Gali no.9, Than Singh Nagar, Anand Parbat Delhi. PW-1 admitted these facts were not disclosed in the present petition. PW-1 further admitted that the petitioner was dependent upon her sons. PW-1 voluntarily deposed that the sons were also dependent upon the petitioner. PW-1 further admitted that he was not residing in the property no. 3091, Gali no.35, Beadon Pura, Karol Bagh, New Delhi.
20. RW-1 deposed in his examination that the petitioner had not disclosed the correct accommodation available with her and further failed to disclosed that she was also owner of property no. 191/3, Gali no.9 Than Singh, Nagar, Anand Parbat, New Delhi which was commercial property. RW-1 further deposed that the sons of the petitioner were not dependent upon the petitioner as they were working independently. RW-1 further deposed that none of the sons of the petitioner was doing business rather they were doing service. RW-1 further denied that the sons of the petitioner were of marriageable age.
21. RW-1 deposed in his cross examination that the rent agreement Ex PW-1/6 was executed between the petitioner and him and the amount of Rs. 1,50,000/- was not mentioned in the rent agreement. RW-1 further deposed that he did not know whether the amount of Rs. 1,50,000/- had been shown in his account book. RW-1 admitted that petitioner had four sons and all lived in property in dispute alongwith the petitioner. RW-1 further deposed that one son of the petitioner was doing business of cable and two sons were working as property dealer. RW-1 admitted that property no. 191/3, Gali no.9 Than Singh Nagar, Anand Parbat, New Delhi was a single storey where a factory was being run. RW-1 further admitted that petitioner had no accommodation in property no. 191/3, Gali no. 9 Than Singh Nagar,Anand Parbat, New Delhi. RW-1 further admitted that the petitioner had filed the eviction petition against the tenant for the requirement of her two elder sons.
22. After considering the deposition of PW-1 and RW-1 I am of the considered view that there is hardly any contradiction in the deposition of PW-1 and he proved that petitioner had no alternative accommodation with her. On the other hand, RW-1 had admitted that the property no.191/3, Gali 9 Than Singh Nagar,Anand Parbat, New Delhi is a single storey property and the petitioner has no accommodation in said property. RW-1 further admitted that petitioner had filed an eviction petition on the ground of bona fide requirement in respect of property bearing no. 191/3, Gali no. 9 Than Singh Nagar,Anand Parbat, New Delhi for the requirement of her elder sons. Thus, it is established that the petitioner was not in possession of any alternative accommodation when the present eviction petition was filed. It is well settled law that a landlord is not required to disclose the property which is not in his possession and occupation. The respondent has also failed to bring anything on record to show that petitioner or her sons namely Khushal Chand and Rajeev have any other alternative accommodation in the suit property or anywhere else. Thus, it is proved that the petitioner has no alternative accommodation available with her.
23. RW-1 deposed that the sons of the petitioner did not depend upon the petitioner and it was the petitioner who depended upon her sons. I do not find any substance in this contention/deposition of the respondent as it is not in dispute that petitioner is an old lady and all her four sons are residing with her in the suit property and if the sons of the petitioner are providing food to the petitioner then it does not mean that they do not depend upon the petitioner to have commercial accommodation. The sons of the petitioner namely Khushal Chand and Rajeev do not have any place of business and the petitioner wants to provide accommodation to her sons so that they have permanent place to work. Such need of the petitioner is always bona fide and cannot be termed as mala fide.
24. Ld. Counsel for the respondent while addressing the argument had stressed that the petitioner herself has not come in the witness box to prove her bona fide need and the evidence of her attorney cannot be considered as the evidence of petitioner therefore, the petitioner failed to prove her case. I do not find any substance in this submission of the Ld. Counsel for the respondent because the respondent has not disputed the relationship of landlord and tenant between the parties. It is also not in dispute that the suit premises was let out for godown i.e none residential purpose. The respondent has also not disputed that the petitioner has four sons. All the sons of the petitioner are residing in the suit property with the petitioner. Thus, all the ingredients except the ingredient of alternative accommodation U/s 14 (1) (e) of DRC Act are not seriously disputed and almost admitted by the respondent in the written statement and in his cross examination. So far as the question of alternative accommodation is concerned the respondent is claiming that petitioner has alternative accommodation, therefore, the burden is upon the respondent to establish that petitioner has alternative accommodation as it is well settled law that burden lies on a person who asserts a fact. The respondent has tried to establish that the petitioner has alternative accommodation i.e property no. 191/3, Gali no.09, Than Singh Nagar, Anand Parbat, New Delhi but in his cross examination the respondent admitted that petitioner is not in possession of said property. Hence, it is established that the non examination of the petitioner has not caused any prejudiced to the respondent. The ruling relied upon by the ld. Counsel for the respondent is not applicable to the facts of the present case.
25. In view of the above discussions, all the ingredients of Section 14 (1)
(e) of DRC Act are proved. The petitioner has successfully established that the she requires the suit premises bona fide for her sons namely Khushal Chand and Sh. Rajeev so that they can do their business in the suit premises. Hence, the petitioner is entitled for an eviction order U/s 14 (1) (e) of DRC Act. Accordingly, the petition U/s 14 (1) (e) of DRC Act is allowed and an eviction order is passed in respect of the suit premises of the property bearing no. 3091, Gali No. 35, Bedeon Pura Karol Bagh, New Delhi as shown in red colour in the site plan Ex PW1/2. It is made clear that the petitioner shall not be entitled to get the eviction order executed before expiry of 6 months running from today. No order as to costs.
File be consigned to Record Room.
(Announced in the open court on 25.02.2013) (Pritam Singh) ARC/Central/Delhi Tis Hazari Court