Delhi District Court
Shri Shyambir Tyagi vs Smt. Phool Kumari Wife Of Late Shri Ramji on 9 April, 2013
IN THE COURT OF SH. SAURABH PARTAP SINGH LALER
ACJ-cum-ARC(WEST) THC, DELHI
E No. 45/2010
Date of institution:15.12.10
Date of Order: 09.04.2013
Shri Shyambir Tyagi
Son of Late Shri Chet Ram
Tyagi, resident of House No.WZ-60
Basai Darapur, New Delhi-15
....... Petitioner
Versus
1. Smt. Phool Kumari Wife of late Shri Ramji
Dass Malik,
2. Shri Sanjiv Kumar Malik and
3. Shri Manoj Kumar Malik
Both sons of Late shri Ramji Dass Malik
(a) M/s Malik Hardware Store
WZ-524/1, Basai Darapur, New Delhi-15.
(b) resident of house no. A-301, Vikas Puri,
New Delhi-110018.
......Respondents
Order deciding Leave to Defend in Eviction petition U/sec. 14(1)(e) r/w Section 25-B of DRC Act, 1958 1 Vide this order I shall dispose of the application U/s 25-B of DRC Act of the respondents for seeking leave to defend filed on 27.01.2011. 2 The eviction petition U/sec. 14(1)(e) r.w. Section 25-B of the Delhi Rent Control Act, 1958 (hereinafter referred to as DRC Act) was filed by the petitioner against the respondents on 15.12.10. 3 The submissions made in the petition are as under:-
3.1 That one shop (measuring 11' X 43'-6'') located on the ground floor of the property bearing no. WZ-524/1, Basai Darapur, New Delhi as shown red in the site plan was let out to Sh. Ramji Das Malik, the husband of respondent no.1 and father of respondent no.2 & 3 for non-residential purposes by the father of the petitioner and after death of Sh. Ramji Das Malik, the respondents inherited the E No. 45/10 Page no.1 of 16 tenancy and respondents are running hardware business in the tenanted premises.
3.2 That the rate of rent is Rs. 990/- per month excluding other charges and the petitioner issued rent receipts in respect of tenanted premises as and when they paid the rent and signatures of respondent is also obtained on the counter-foil. 3.3 That the petitioner is the owner and landlord of the tenanted premises on account of family partition dated 11.01.1990 in which the tenanted premises came to the share of petitioner. 3.4 That the petitioner is graduate from Delhi University and presently unemployed and that previously he was running the business of job work of Motor parts which was closed in the year 2004. 3.5 That there are large number of manufacturers of electrical appliances and equipments in Basai Darapur Area and the petitioner wants to carry on the business of Trading in spare parts of electrical appliances and equipments and he requires the tenanted shop for carrying out the said business as he has no other reasonably suitable accommodation for doing the said business, as the other portions of the property in which the tenanted premises is situated are in occupation of other tenants including respondent no. 2 & 3.
3.6 That the petitioner is a young man of 45 years of age and only earning member in the family having two children, ailing house-wife and old mother.
3.7 That the needs & requirements for the maintenance of the family of the petitioner are increasing day by day and he wants to start his own business of Trading in spare parts of electrical appliances and equipments in the tenanted premises.
3.8 Thus, it is lastly prayed in the petition that eviction order be passed against the respondents as regards the tenanted premises as the same is bonafidely required by the petitioner.
E No. 45/10 Page no.2 of 16 4 The respondents filed Leave to Defend along with affidavit and in the affidavit the respondents have admitted the following facts:
4.1 That the respondents are paying rent to the petitioner as it is stated in para (e) of the application for leave to defend and also in para (e) of the affidavit that the respondents have been paying rent to the petitioner by virtue of his being son of Sh. Chet Ram Tyagi. 4.2 That the shop adjoining to the tenanted premises was taken on rent by the respondents from the petitioner and that it is being used by them for storing of goods.
5 The respondents in their leave to defend and in rejoinder to the reply to the leave to defend have raised certain defences and the same are as under:
5.1 That neither the petition attracts nor it is covered by the provision of Section 14(1)(e) of DRC Act 5.2 That the petitioner has with malafide intention concealed vital information from the Court that he owns other commercial properties besides one residential.
5.2.1 That the petitioner owns property no. WZ 499/1 Basai Darapur which was directly purchased by the petitioner and his brother and later the brother of petitioner has relinquished his share in the property in favour of petitioner on 11.08.08. 5.2.2 That petitioner and his brother have jointly purchased property bearing no. WZ-39/B situated at Ram Garh Colony measuring 65 sq. yds and brother of petitioner relinquished his share in favour of petitioner on 11.08.08.
5.2.3 That the petitioner is also owner of property bearing no.
WZ-60, Basai Darapur, Delhi and he has let out the shop on the ground floor of the said property to Ravi Vij on 22.08.08 vide registered lease deed.
5.2.4 That even in the property in which tenanted premises is located i.e. property bearing no. WZ-524/1, Basai Darapur, E No. 45/10 Page no.3 of 16 Delhi, the petitioner has recently let out a portion on the ground floor, just behind the tenanted shop in question, for commercial use to Sh. Dubey and he has also let out the entire first and second floor of the property to M/s. Electronic Control Instrument Co. for commercial activities.
5.3 That the petitioner is earning monthly rental income of Rs. 1,10,000/- per month and he never had business of Job work of Motorparts and neither he has any experience nor he is capable of running the business.
5.4 That the petitioner is a graduate and has been taking private tuitions and doing property dealing business as well as money lending in addition to earnings from rented properties. 5.5 That the respondents have only source of income through the shop namely Malik Hardwares being run in the tenanted premises and out of the income of the tenanted shop, three families are being maintained.
5.6 That since rental value of the property has increased in the locality therefore the petitioner wants to get the premises vacated malafidely in order to let it out on higher rent and to obtain higher amount of pagri, as this is his business.
5.7 That the petitioner is having a property bearing no. WZ-60 on the main Road which is more viable and suitable than any other property and yet the petitioner had let out the front shop portion of the said property much after 2004. That the petitioner is residing in the remaining portion of the said property and he could have easily used it for his own business as it was near to his residence. 5.8 That respondent no.1 is a widow and respondent no.2 & 3 are her sons who are totally dependent on the small income from the tenanted shop.
5.9 The respondents admitted in their rejoinder that they are owners of property bearing no. WZ-490 which is constructed in area of 19 sq. E No. 45/10 Page no.4 of 16 yds and is being used as godown and that they are also in occupation of property bearing no. WZ-7, Ram Garh Colony of which they are in possession of small portion on the ground floor measuring 50 sq. yds which is being used for storage of goods. The respondents however denied having any industrial plot at Bawana or Narela Industrial Area, though they admitted having a residential property in Vikas Puri measuring 120 sq. yds. 6 The petitioner has filed a reply to the application for Leave to Defend along with counter affidavit and in the counter affidavit he has stated as under (in the sequence in which the defences have been stated above):-
6.1 The petitioner denied that neither the petition attracts nor it is covered by provision of Sec. 14(1)(e) DRC Act. 6.2 Petitioner denied having concealed material information from the Court, though the petitioner admitted that he is having property bearing no. WZ-60 which is residential and that there are seven other tenants in property WZ-524/1, besides the respondents. 6.3 The petitioner denied having rental income of about Rs. 1,10,000/-
per month and stated that the tenants are paying meager rents to the petitioner. He also denied that he does not have any experience or that he cannot run any business.
6.4 It has been denied by the petitioner in his reply to leave to defend that he has been taking private tuitions or that he has been lending money from his residence or that he has been doing property dealing business.
6.5 The petitioner denied that the respondents' only source of income is from the tenanted shop and pointed out that the respondents are in occupation of adjoining shop in the same premises on rent and that they are also having shop property bearing no. WZ-490 Basai Darapur, Delhi and WZ-7 Ram Garh Colony. (The fact as regards the existence of shop in property no. 490, Basai Darapur and WZ-7 E No. 45/10 Page no.5 of 16 Ram Garh Colony was also admitted by the respondents in their rejoinder).
6.6 The petitioner denied that he wants to get the premises vacated malafidely in order to let it out on higher rent and to obtain higher amount of pagri.
6.7 The petitioner denied that the property no. WZ-60 in which he is residing is suitable to run business as he stated that in the said property there is a small shop measuring 8' X 15' which is on ten feet wide gali which is not suitable for his business. He also pointed out in reply in his defence that the tenanted shop, as compare to the shop in WZ-60, is quite big, as it measures 11' X 43'-6" and it is also located on 40 feet wide main road.
6.8 The petitioner denied that respondents are having small income from the tenanted shop and submitted that they are earning more than Rs. 5 lacs from the business.
6.9 It has been alleged by the petitioner that the respondents are owners of property bearing no. WZ-490 and property bearing no. WZ-7, Ram Garh Colony, which they are using for commercial purposes. It was also alleged by the petitioner that respondents are having industrial plot at Bawana and Narela Industrial Area. (The respondents admitted in their rejoinder that they are owners of property bearing no. WZ-490 which is constructed in area of 19 sq. yds and is being used as godown and that they are also in occupation of property bearing no. WZ-7, Ram Garh Colony of which they are in possession of small portion on the ground floor measuring 50 sq. yds which is being used for storage of goods. The respondents however denied having any industrial plot at Bawana or Narela Industrial Area, though they admitted having a residential property in Vikas Puri measuring 120 sq. yds.). 7 Written arguments were filed on behalf of parties as well as oral arguments were heard on 18.03.2013.
E No. 45/10 Page no.6 of 16 8 During the course of the arguments, petitioner has relied upon following judgments:
(a)Subhash Chand Gupta Vs. Yoginder Kumar Raj Kumar 188 (2012) DLT 263
(b)Carona Ltd. Vs. Parvathy Swaminathan & Sons VIII (2007) SLT 629
(c)Rameshwar Dayal Vs. Nirula Handicraft Bazar Pvt. Ltd. 186 (2012) DLT 185
(d) Rita Lal Vs. Raj Kumar Singh, AIR 2002 SC 3341
(e) Ramesh Chand Vs. Uganti Devi 157 (2009) DLT 450
(f)Shanti Sharma Vs. Ved Prabha, AIR 1987 SC 2028
(g)Zahid Hussain Vs. Aenul Haw Qureshi 2005(1) RCR 323
(h) Munni Devi (Smt.) Vs. Manmohan Verma & Ors, 2006 VII AD (Delhi) 809
(i)Krishan Lal Vs. R. N. Bakshi 169 (2010) DLT 769
9 Respondents have also relied upon following judgments:
(a)Precision Steel and Engineering Works and ans Vs. Prem Deva Niranjan Deva Tayal, 1982 (2) RCR 544
(b) Om Prakash Saluja Vs. Smt. Saraswati Dev, 1983(1) RCR 160.
(c)Inderjeet Kaur Vs. Nirpal Singh, (2001) 1 SCC 706
(d) Freddy Fernandes Vs. P. L. Mehra, 1973 RCR 53
(e) Satto Devi Vs. Om Prakash Saini, 1997 IV AD (Delhi) 534
(f) V. K. Arora Vs. K. B. Madan, 85 (2000) DLT 24
(g)Lt. Col. S. S. Puri Vs. S. P. Malhotra, 95 (2002) DLT 399
(h)Kanwal Narain Vs. L. F. Tellis, 1984(2) DLT 351
(i) Anand Kumar Jain Vs. Subhash Chand Aggarwal RC. Rev No.127/11
10 In order to succeed in a petition for eviction filed under section 14(1)(e) of the Delhi rent Control Act the petitioner must establish that:
10.1 He/She is the owner and landlord in respect of the tenanted premises.
10.2 That he/she requires the premises bonafide for himself/herself or for any member of his/her family dependent upon him/her. 10.3 That he/she has no other reasonably suitable accommodation.
E No. 45/10 Page no.7 of 16
11 There is no dispute between the parties as regards the tenanted
premises and as regards relationship as well as rate of rent is con-
cerned, though the ownership of the petitioner has been disputed. Hence the defences of the respondents which have been raised before this Court in the leave to defend are discussed below and the same are as under:-
11.1 That Sec.14(1)(e) DRCA, is not applicable.
11.1.1 In the leave to defend it has been submitted by the respon- dents that Sec. 14(1)(e) DRCA, is not application to the tenanted premises.
11.1.2 However, in view of the judgment of Hon'ble Supreme Court of India in case titled Satyawati Sharma Vs. Union of India, AIR 2008 SC 3148, it is clear that Sec. 14(1)(e) of DRC Act is applicable to residential as well as non-residential premises.
11.1.3 Hence, the defence of the respondents that Sec. 14(1)(e) DRCA is not applicable to tenanted premises, is without merits and does not raise triable issue.
11.2 That the tenanted premises is not required bonafidely by petitioner.
11.2.1 It has been the defence of the respondents throughout that the petitioner is not requiring the tenanted premises for his bonafide requirement as he is having several other commercial properties, as he is earning monthly rental income of Rs. 1,10,000/- per month, as he has no experience nor he is capable of running business, as he is taking private tuitions and doing the business of property dealing and money lending, as he wants to let out premises in question at a higher rent to earn money, and as the petitioner is in occupation of property bearing no. WZ-60, which is on the main road and more viable and suit- able for the business proposed by the petitioner.
E No. 45/10 Page no.8 of 16 11.2.2 From the affidavit filed by the respondents alongwith leave to defend and rejoinder as well as documents which have been filed, it can be inferred prima facie that the petitioner is owner of property bearing no. 490/1 Basai Darapur, WZ-39/B Ram Garh Colony and WZ-60, Basai Darapur, Delhi, besides the tenanted premises.
11.2.3 From the registered lease deeds which have been filed on record by the respondents, it is clear that shop in WZ-60 Basai Darapur was let out by the petitioner to Ravi Vij in 2008 and that shop in property bearing no. 499/1 was let out by petitioner to Ramesh Kumar in the year 2008.
11.2.4 Thus, the question before the Court is whether letting of these commercial properties in the year 2008, despite the fact that petitioner is unemployed since 2004, casts a doubt on the bonafide requirement of the petitioner?
11.2.5 A perusal of the petition reveals that the petitioner has not stated in his petition that he wanted to start new business since 2004 after the closure of earlier business. The present petition has been filed in December, 2010 and if the petitioner wants to starts the business in December 2010 in view of the increasing needs & requirements of the family which is dependent upon him, then his will to start a business cannot be questioned by the Court, moreso, when it is admitted that prior to 2004 the petition- er was doing business of Job work of Motorparts.
11.2.6 The properties which have been let out by the petitioner, were let out in the year 2008 and the present petition has been filed two years thereafter and if the requirement of the petitioner has changed in those two years, and if the petitioner feels that such requirements can be met by opening a business, then it E No. 45/10 Page no.9 of 16 would not be appropriate for Court to doubt his intention in this regard.
11.2.7 The next question before the Court is whether petitioner at the time of filing of present petition or thereafter came in possession of any vacant commercial space in which he could have started his business?
11.2.8 It is not the case of the respondents that the petitioner is in occupation of any vacant commercial space at the time of filing of present petition or that subsequently he came into such va- cant possession. Thus, it is clear that there is nothing on record to show that despite having vacant commercial space, the peti- tioner has with malafide intention, filed the present petition, not to start a business, but in order to get the tenant respondents evicted on the ground of false requirement.
11.2.9 It has been alleged by the respondents that the petitioner is in possession of property bearing no. WZ-60 Basai Darapur, Delhi which is on main road and commercially more viable and suitable than any other property.
11.2.10 Thus, the question before the Court is whether the peti- tioner seeks eviction of the tenanted premises despite being in possession of property no. WZ-60 which is on the main road and more viable and suitable for opening the business as proposed by the petitioner?
11.2.11 Though the Court is not required to go into the question as to which property shall suit the requirement of the landlord as it is trite that landlord is the best judge of his requirements, but even if the site plan filed by the respondents in this regard is pe- rused, it is found that of all the properties which are alleged to be owned by the petitioner, there is only one property which falls on the main road, which has been mentioned as Basai Darapur E No. 45/10 Page no.10 of 16 Road, in the site plan filed by the respondents. As per the site plan of the respondents, all the other properties of petitioner are located on Galis or smaller roads. The property bearing no. WZ-524/1 as shown in site plan filed by the petitioner is having its front on Basai Darapur Raod which is a very wide road and fit for commercial activity while property bearing no. WZ-499/1 and WZ-60 are located on small roads which are not as broad as the Basai Darapur Road shown in the site plan filed by the respon- dents. Thus, as per the site plan filed by the respondents itself, of all the properties, the property in question bearing no. WZ-524/1 is primely located for commercial purposes on Main Basai Darapur Road and for this reason the contention of the petitioner, that he wishes to start his business from this property as compared to any other property seems to be more bonafide as compared to the averments of the respondents that the prop- erty bearing no. WZ-60 is better suited for the requirements of the petitioner.
11.2.12 Besides this, it has to be pointed out here that there are only two shops in the property in question and both these shops faced the Main Basai Darapur Roads and both of them are un- der the tenancy of the respondents. The eviction has been sought not as regards both these shops, rather, the eviction has been sought only as regards one shop that is the shop in ques- tion while the other shop is and will remain in the possession of the respondents for carrying out their business/commercial activity.
11.2.13 Further, while the respondents say that the petitioner should open his business in other properties instead of the prop- erty in question, the respondents themselves are admittedly in possession of two commercial properties at WZ-490 measuring 19 sq. yds and at WZ-7 measuring 56 sq. yds (which is larger E No. 45/10 Page no.11 of 16 than the tenanted premises in question) and both these proper- ties are being used by them as storage space. Thus, the re- spondents are admittedly in possession of four commercial premises i.e. two shops in property no. WZ-524/1, one shop in WZ-90 and one shop in property no. WZ-7, but as regards the petitioner, they submit that the petitioner despite being the owner of the premises in question which falls on main Basai Darapur Road, should start his business from some commercial property on narrow roads and galis.
11.2.14 The petitioner has submitted that he wants to start the busi- ness of Trading in spare parts of electrical appliances and equip- ments and it is not expected of the Court to ask the petitioner to start the said business in some commercial property in a gali/narrow road where there is no or limited flux of consumers/clients and thereby suffer loss in the business which he is yet to open.
11.2.15 Another issue was raised by the respondents that petitioner is not having experience and capability to start the business. However, the Court is of the opinion that it is not necessary that the petitioner should acquire experience of Trading in spare parts of electronics items before filing the present case as even if he has the experience of business of job work of motorparts, he can start a new business of Trading in spare parts of electri- cals and can expand his business by gaining more and more ex- perience.
11.2.16 In this regard, reliance can be placed on judgment case ti- tled as Ram Babu Aggarwal Vs. Jay Kishan Das, VII 922(09)SLT 49 2009 (2) RCR 455 Supreme Court observed which is as under:
"We are of the opinion that a person can start a new busi- ness even if he has no experience in the new business. That does E No. 45/10 Page no.12 of 16 not mean that his claim for starting the new business must be reject- ed on the ground that it is a false claim. Many people start new busi- ness even if they do not have experience in the new business, and sometimes they are successful in the new business."
11.2.17 Thus, respondents have failed to raise any triable issue as regards bonafide requirement of the petitioner.
11.3 Landlordship/Ownership 11.3.1 As far as landlorship is concerned, it has been admitted by the respondents in ground (e) of their leave to defend that "re- spondents have been paying rent to the petitioner by virtue of son of Shri Chet Ram Tyagi". From the said admission of the re- spondents and from the further submission of the respondents that they had even agreed to pay advance rent to the petitioner in case he issued rent receipts for the rent received, it is clear that the landlordship of the petitioner is admitted and from the registered partition deed which has been filed on record, it is clear that premises in which the tenanted shop is situated had come to the share of petitioner.
11.3.2 Thus, the respondents have failed to raise any triable issue as regards the landlordship and ownership of the petitioner qua the tenanted premises.
12 Conclusion It is well settled that leave to defend is granted to the tenant in case any triable issue is raised by him, which can be adjudicated by consid- eration of additional evidence. The mere existence of any triable issue is not sufficient. The nature of the triable issue raised by the tenant must be such that it will disentitle the landlord from obtaining the evic- tion order.
In the judgment titled as Sarwan Dass Bange Vs. Ram Prakash 167 (2010) DLT 80 the Hon'ble High Court of Delhi referring to the E No. 45/10 Page no.13 of 16 judgment of Baldev Singh Bajwa v. Monish Saini (2005) 12 SCC 778 observed in para 17 as under:
"..It was held that the legislative intent is of expeditious disposal of the application for ejectment of tenant filed on the ground of requirement by the landlord of the premises for his own occupation; a special cate- gory of landlords requiring the premises for their own use has been created; if there is any breach by the landlord, the tenant is given a right of restoration of possession; the landlord who evicts a tenant on the ground of own requirement is not only prohibited from letting out the premises or disposing of the same but also required to use the same for his own residence only. It was held that these restrictions and conditions inculcate in built strong presumption that the need of the landlord is genuine; the conditions and restrictions imposed on the landlord make it virtually improbable for the landlord to approach the Court for ejectment of tenant unless his need is bona fide - no un- scrupulous landlord in all probability, under this Section, would ap- proach the Court for ejectment of the tenant considering the onerous conditions imposed on him. It was further held that this inbuilt pro- tection in the Act for the tenants implies that whenever the land- lord would approach the court his requirement shall be pre- sumed to be genuine and bona fide. It was further held that a heavy burden lies on the tenant to prove that the requirement is not genuine.." (emphasis supplied) 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 dis- closed a prima facie case i.e. such facts which disentitles the landlord from obtaining an order of eviction, the Court cannot mechanically and in routine manner grant leave to defend.
13 In the light of the aforesaid legal proposition, whatever the defence taken by the respondents failed to raise any triable issues. The con- tents of the application for leave to defend have failed to rebut the pre- sumption of bonafide qua the requirement of the petitioner. The appli- cation for leave to defend filed by the respondents is thus rejected.
14 As a consequence thereof, an eviction order is passed U/s. 14 (1)
(e), DRC Act against the respondents regarding the tenanted premises i.e. a shop located on the ground floor of property no.
E No. 45/10 Page no.14 of 16 WZ-524/1, Basai Darapur, New Delhi-15 as shown in red in the site plan filed by the petitioner.
15 However in light of Section 14 (7) DRCA, the aforesaid eviction order shall not be executable for a period of six months from today.
16 The parties are left to bear their own costs.
17 File be consigned to Record Room after due compliance.
Announced in the open Court on 09th day of April, 2013 (Saurabh Partap Singh Laler) ACJ/ARC(West)/09.04.2013 E No. 45/10 Page no.15 of 16 E No. 45/10 09.04.2013 Pr. Petitioner in person.
None for respondents.
Vide separate order, application for leave to defend filed by the respondents is rejected and an eviction order is passed U/s. 14 (1) (e), DRC Act against the respondents regarding the tenanted premises i.e. a shop located on the ground floor of property no. WZ-524/1, Basai Darapur, New Delhi-15 as shown in red in the site plan filed by the petitioner.
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.
(S. P. S. LALER)
ACJ/ARC(W)09.04.2013
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