Delhi District Court
Rent Controller vs . on 30 May, 2014
E No. 10/13 30.05.2014
IN THE COURT OF MS. KIRAN GUPTA, SENIOR CIVIL JUDGECUM
RENT CONTROLLER, NEW DELHI DISTRICT, PATIALA HOUSE
COURTS, NEW DELHI
E No. 10/13
Satish Chandra Sharma
Vs.
M/s. SAS Leasing Pvt. Ltd.
ORDER
1 Vide this order, I shall decide the application u/s 25(B) (4) of the Delhi Rent Control Act (hereinafter referred as "the Act"), filed by the respondent / tenant praying therein that he be allowed to contest the eviction petition U/s 14(1)(e) r/w sec. 25B of the Act in respect of the tenanted premises bearing no. E 2, Connaught place, New Delhi measuring approximately 3500 sq ft comprising of shop / showroom inclusive of varanda / covered corridor running in front of the showroom along with mezzanine floor of approximately 1000 sq ft. as shown red in the site plan (hereinafter referred as tenanted premises).
2 The undisputed facts are that the tenanted premises has been let out to respondent and he is paying Rs. 450/ per month rent to the petitioner. The tenanted premises at present is in occupation of S. C. Sharma v. SAS Leasing Pvt. Ltd. Page 1 of 27 E No. 10/13 30.05.2014 M/s. Wills Life Style Ltd. which is the sub tenant of respondent. Petitioner is also the cosharers/ joint owner of the flat bearing no. E29, Connaught place, New Delhi which is located on the top of the tenanted premises and is commercially let out to M/s. Amarpali Investments. He is also the cosharer/ joint owner of commercial establishment known as Mercantile building which is in close proximity to the tenanted premises. Before the present petition. Petitioner along with his sons has filed one suit for recovery of possession against the respondent before the Hon'ble High Court of Delhi bearing no. CS (OS) No. 672/09, wherein his application U/o. 12 Rule 6 CPC was dismissed vide order dt. 10.07.2012. Appeal against the said order was dismissed by the Hon'ble Division Bench vide order dt. 18.09.2012. The said suit was unconditionally withdrawn by the petitioner on 16.01.2013.
3 The facts as stated in the petition are that the petitioner is the owner and landlord of the tenanted premises. The tenanted premises initially belonged to Pt. Mulchand Sharma who as per his Will dt. 10.12.1937 created a trust for the benefit of his three sons, one of them being the petitioner. After the demise of Pt. Mulchand Sharma on 25.12.1939 , probate of the Will was obtained and his estate was divided amongst his three sons which includes petitioner. As per the partition, the tenanted premises, along with flat and joint interest in the land behind the tenanted premises came to the share of petitioner by virtue of transfer deed dt. 02.07.1954. On the land behind the tenanted premises, one building by the name of Mercantile Building S. C. Sharma v. SAS Leasing Pvt. Ltd. Page 2 of 27 E No. 10/13 30.05.2014 was constructed in the year 1958, thereafter certain disputes arose between the family members which were pending in the Hon'ble High Court of Delhi. Finally Memorandum of Understanding dt. 25.11.2008 was entered between the family members wherein it was settled that the said building is not to be used or occupied amongst the coowners but is to be sold jointly with division of proceeds in ratio settled in terms of the settlement. It is stated that petitioner has no legal right to use and occupy any portion of the said building as he is bound by the terms of MoU.
3.1 It is stated that petitioner requires the tenanted premises for himself and his dependents to run their own commercial venture as he has retired from Singapore Airlines. The tenanted premises is the only shop/ showroom which has come to the share of petitioner, which can be used commercially for his bonafide need and the need of his dependents. It is alleged that the tenanted premises has been sub let to M/s. Wills Life Style Ltd by respondent without his specific written consent. It is further averred that the flat on the first floor which has been let out to M/s. Amarpali Investments is unsuitable for running a shop / showroom/ restaurant as it is on the first floor and is being used for office purposes. The tenanted premises is the most suitable premises which he and his dependents can bonafidely use for their requirement of running a shop/showroom/ restaurant etc. 3.2 It is stated that his three sons are dependent upon him for the tenanted premises/ showroom as they have no other commercial S. C. Sharma v. SAS Leasing Pvt. Ltd. Page 3 of 27 E No. 10/13 30.05.2014 establishment from where shop / showroom / restaurant can be run. It is stated that his son Rajiv Sharma has done diploma in hotel Management and Catering and Master in Business Administration. He is dependent upon him for the tenanted premises as he intents to do business in retail trading or run a life style product showroom or a restaurant. His other son Sanjiv Sharma is presently employed as a Principal and Portfolio Manager in Florida, USA and he requires the tenanted premises for doing business along with petitioner and his brothers for which he shall be returning to India upon eviction of the respondent to run the business. His son Ashish Sharma is presently working for a bank in Abu Dhabi, UAE and he requires the tenanted premises for doing business along with petitioner and his brothers and shall also be returning India upon eviction of the respondent. It is stated that petitioner and his sons have vast experience, organizing and marketing skill to run and establish their own business . The location of the tenanted premises is such that it has very good business prospects and the same is required by the petitioner and his sons bonafidely for opening the shop / showroom / restaurant. It is prayed that an order for ejectment be passed in favour of petitioners in respect of the tenanted premises along with the cost of the suit.
4 The summons were served on respondent on 27.06.2013 and the application for leave to defend was filed on 12.07.2013 by Ms. Shivani Verma, being the Director of the respondent who has also been authorized by a Resolution of Board of Directors in the meeting held on 03.07.2013. The application is duly supported with her detailed S. C. Sharma v. SAS Leasing Pvt. Ltd. Page 4 of 27 E No. 10/13 30.05.2014 affidavit. It is stated that the tenanted premises was earlier let out to M/s. MG Abbey and others and the petitioner has filed an eviction petition bearing EP No. 460/1982 and the possession of the premises had been recovered with the intervention of Late Sh. Ashok Verma, who was the Director of respondent company and happened to be the nephew of Mrs. Asha Sharma , wife of petitioner. It is stated that the petitioner gave free hand to respondent company to use and exploit the property at its sole discretion and the tenanted premises had been virtually sold to the respondent. Petitioner had executed a document dt. 02.11.1987 giving the respondent the right to sub let the property on several occasions in whole or in part as he desired and also to carry out any alteration or divide the portion in parts at its own expense and costs. The contents of the said letter has been reproduced in the application.
4.1 It is stated that the present petition is without any basis as the petitioner is not the owner and landlord of the tenanted premises and he has no bonafide requirement. As per the documents ie the preliminary decree for partition dt. 06.12.1976 passed in suit no. 2014/1974 filed by the petitioner, he is the owner of only 1/5 th share of the tenanted premises. It is further averred that petitioner is estopped from filing the present petition in view of the letter dt. 02.11.1987 whereby the premises has been virtually sold to the respondent. It is averred that the need of the petitioner is not boanfide but fanciful and whimsical as he is over 80 years old and has not been working for the last 20 years. Though he has alleged that his sons are dependent upon S. C. Sharma v. SAS Leasing Pvt. Ltd. Page 5 of 27 E No. 10/13 30.05.2014 him, however they are very well settled in their respective professions in India and abroad since their college days and do not require the tenanted premises. He has not disclosed the details regarding the social, financial and other standing or the qualification and professional details of his sons.
4.2 It is further stated that in the suit before Hon'ble High Court of Delhi bearing CS (OS) No. 672/09, petitioner specifically pleaded that since the rent received from the sub tenant is above Rs. 3,500/, the jurisdiction of the Rent Controller is ousted. Petitioner nowhere averred that the tenanted premises is required by him bonafidely for personal use and when his application U/o. 12 Rule 6 CPC was dismissed and so was the consequent appeal, he withdrew the suit bearing CS (OS) No. 672/09 unconditionally on 16.01.2013 and filed this present petition in May 2013. It is stated that petitioner cannot be allowed to retract from his earlier stand and take a contrary 360 degree turn to what was pleaded in the said suit. It is further alleged that in the petition bearing CS (OS) No. 672/09, it was mentioned by the petitioner that the tenanted premises is jointly owned by him along with his sons and they are the joint landlords, however in the instant petition, he has stated himself as the sole owner and landlord in respect of the tenanted premises. It is stated that the present petition is not maintainable as the same has been filed without the consent of the other coowners and no affidavit or Power of Attorney in this regard has been filed on record.
S. C. Sharma v. SAS Leasing Pvt. Ltd. Page 6 of 27E No. 10/13 30.05.2014 4.3 It is further stated that petition is barred by the Law of
Estoppel and further petitioner has ample alternate accommodation where he can fulfill his requirement / alleged bonafide requirement, if any. It is stated that petitioner along with his sons has 29.2 % share in the Mercantile Building measuring an area of 21,619.24 sq ft situated in close proximity to the suit property. It is alleged that the Memorandum of Understanding dt. 25.11.2008 in no manner restricts the use of the building by the petitioner and he can carry out the commercial activity from the same. Petitioner is also the coowner of land measuring 3298.64 sq ft. adjoining the Mercantile Building , E Block, Connaught Place. In terms of settlement dt. 25.11.2008, he has the right to develop the said land and / or to carryout commercial activity therefrom. Since, petitioner has other alternatives as stated above along with the top floor of the tenanted premises, a triable issue is raised as to whether the requirement of the petitioner in respect of the tenanted premises is bonafide and necessary or not. It is prayed that since the respondent has raised the triable issue qua the ownership, alternate accommodation available to the petitioner and his bonafide requirement and the alleged bonafide requirement of his dependents, the application for leave to defend be allowed and he be given the opportunity to contest the present petition.
5 In the reply to the said application, petitioner has denied all the allegations and the contents and has reiterated the facts as stated in the petition. It is stated that the petitioner is the owner of the tenanted premises as per the family arrangement resulting in S. C. Sharma v. SAS Leasing Pvt. Ltd. Page 7 of 27 E No. 10/13 30.05.2014 Arbitration proceedings and other collateral proceedings wherein his right in the tenanted premises has been recognized. It is stated that the tenanted premises has not been partitioned by metes and bounds while the petitioner recognizes the rights and interest of his dependents. It is stated that the consent is implied as he has filed the petition for his bonafide requirement and of his legal dependents. The respondent has no right to challenge the inter se arrangement between the petitioner and his three sons. The respondent has recognized him as landlord and in context of the word owner viz a viz the tenant i.e the owner should be something more than the tenant and the same has to be understood in the background of the scheme of the Act. It is stated that the respondent admitted itself to be the tenant and as such estopped from contending contrarily. It is alleged that the issues raised by the respondent are contrary and in conflict of legal requirements. There is no registered lease deed nor any document of sale between the parties.
5.1 It is stated that the contention in reference to the eviction of M/s. M G Abbey and others with giving free hand to use and exploit the tenanted premises to respondent at the behest of its Director Mr. Ashok Verma is false and contrary to law. It is stated that the letter dt. 02.11.1987 does not give any legal right to the respondent. It is further stated that he is the owner / landlord of the tenanted premises while his legal dependents are also having right and interest in the tenanted premises as substantiated by the copies of judgment on record. The question of fragmentation and holding of petitioner to be only owner S. C. Sharma v. SAS Leasing Pvt. Ltd. Page 8 of 27 E No. 10/13 30.05.2014 of 1/5th share of the tenanted premises is in complete conflict with the Principles of Law.
5.2 It is stated that flat no. E29 is a commercial flat on the first floor and not suitable for the use of shop/ showroom or for purpose as set out. As regards the Mercantile Building and the other space stated by the respondent, petitioner and his legal dependents do not have any legal right in the said properties as on date. It is stated that the suit bearing CS (OS) No. 672/2009 was withdrawn on the basis of the defence taken by the respondent that it was a statutory tenant of petitioner and exclusive jurisdiction lied with the Rent Controller under the Act. It is stated that respondent is estopped to contend contrarily as the petitioner has instituted the present eviction petition which is not barred under any statutory provision. It is stated that the cause of action for instituting the present petition is separate and independent from the proceedings initiated in CS (OS) No. 672/2009. It is further stated that the rent is being paid to the petitioner and only for malafide reasons the respondent is making false and frivolous issues having no bearing with the substantial issues between the parties. It is alleged that the respondent in the garb of bogus and false pleas is trying to seek grounds for leave to contest which are not made out while the petitioner has placed on record all the necessary particulars which are required to prove his bonafide and that he has no other suitable alternate accommodation.
6. The respondent has filed the detailed rejoinder to the reply S. C. Sharma v. SAS Leasing Pvt. Ltd. Page 9 of 27 E No. 10/13 30.05.2014 and counter affidavit of petitioner denying the contents of the reply while reiterating the stand taken in the application for leave to contest and the supporting affidavit. It is reiterated that the sons of petitioner have independent and distinct rights in the tenanted premises. Even his wife has 1/5th share in the tenanted premises as per the documents filed by the petitioner himself. It is alleged that the other coowners have not joined the present proceedings since they are fully aware that the submissions made in the petition are false. It is further alleged that the petitioner himself is not clear as to why and for what purpose, he requires the tenanted premises. The alleged need of petitioner and his dependents is neither bonafide nor in present form but is fanciful and whimsical.
7 It is argued by Counsel for petitioner that petitioner is the owner of the tenanted premises by virtue of Will which is dt. 10.12.1937. There has been no partition by metes and bounds which is evident from the award dt. 31.10.1974. It is submitted that since there is no partition by metes and bounds, petitioner is the owner of the tenanted premises and he also recognizes the interest and right of his legal dependents. He has further relied upon the conveyance deed dt. 14.02.2011 and has submitted that it is a step further towards the legal right in favour of the petitioner. It is argued that the period of limitation of 5 years provided U/s. 14(6) of the Act is to be reckoned not from the date of conveyance deed but from the date of Will or the award. It is further argued that it is undisputed that the petitioner is retired from Singapore Airlines and is unemployed at present. It is S. C. Sharma v. SAS Leasing Pvt. Ltd. Page 10 of 27 E No. 10/13 30.05.2014 submitted that he at this juncture of age wants to set up a business along with his sons who are dependent upon him for the tenanted premises and for this purpose, he requires the tenanted premises. It is further argued that the accommodation i.e flat no. E 29 which is above the tenanted premises is a office space and is not a suitable accommodation to open any showroom/ life style store or restaurant which the petitioner intends to open. It is further submitted that the said flat has already been let out to Amarpali Investments which is being used as a office space. It is further argued that as regards the Mercantile building, as per the MoU dt. 25.11.2008 entered between the family members, the said building cannot be used by any of them and can only be sold and the proceeds can be shared between them. It is submitted that since there is no other alternate suitable accommodation available with the petitioner, the tenanted premises is bonafide required by him and his sons for their own personal use for starting the business of lifestyle store/ showroom/ restaurant. It is further argued that since the proceedings before the Hon'ble High Court of Delhi in CS (OS) No. 672/09 were different from the present proceedings having different cause of action and subject matter, there is no bar to file the present petition which is under a special legislation. He in support of his contentions has relied upon the following judgments:
1. Sri Ram Pasricha v. Jagannath & Ors. (1976) 4 SCC 184
2. Kanta Goel v. B P Pathak & Ors. (1977) 2 SCC 814
3. Smt. Shanti Sharma & Ors v. Smt. Ved Prabha & Ors. (1987) 4 SCC 193
4. Pal Singh v. Sunder Singh (dead) by LRs & Ors. (1989) 1 SCC 444 S. C. Sharma v. SAS Leasing Pvt. Ltd. Page 11 of 27 E No. 10/13 30.05.2014
5.Indian Umbrella Manufacturing Co. v. Bhagabandei Agarwalla(dead) by Lrs Savitri Agarwalla & Ors. (2004) 3 SCC 178
6. S. S Sidhu v. Ramkishan Khanduja 56 (1994) DLT 620
7. Prativa Devi v. T V Krishnan (1996) 5 SCC 353
8. Akhileshwar Kumar & Ors. v. Mustaqim & Ors. (2003) 1 SCC 462
9. Shamshad Ahmad & Ors. v. Tilak Raj Bajaj (deceased) through LRs and ors. (2008) 9 SCC 1
10. Ram Babu Agarwal v. Jay Kishan Das VII (2009) SLT 492
11. Gita Gupta v. Kailash Chand Dhingra (199) 2013 DLT 321
12. Tahira Begum v. Sumitra Kaur & Anr. 166 (2010) DLT 443
13. Sarwan Dass Bange v. Ram Prakash 167 (2010) DLT 80
14. Viran Wali v. Kuldeep Rai Kochhar 174 (2010) DLT 328
15. Satyawati Sharma (dead) by LRs v. Union of Inaid & Anr. 148 (2008) DLT 705 8 Per contra it is argued by Ld. counsel for respondent that as per the award dt. 06.12.1976 , petitioner has only the 1/5th share in the tenanted premises and he cannot claim eviction in respect of the entire premises for his alleged bonafide requirement. It is further argued that in the pleadings before the Hon'ble High Court of Delhi , petitioner has arrayed himself as one of the joint owners and now at this stage he has taken a U turn and stated himself as the owner and his sons as dependent on him for the purpose of accommodation. It is further argued that the petitioner cannot be allowed to contest by taking contrary stand and the same raises a triable issue in favour of the respondent. It is further argued that the documents filed by the petitioner in the present petition qua his ownership were not filed by him before the Hon'ble High Court of Delhi. It is further argued that the petitioner has deliberately not arrayed the other joint owners as petitioners. It is further argued that his application U/o. 12 Rule 6 CPC has already been dismissed by the Hon'ble High Court of Delhi.S. C. Sharma v. SAS Leasing Pvt. Ltd. Page 12 of 27
E No. 10/13 30.05.2014 Petitioner has filed the present petition being the coowner when in actual he and his sons are owners in their individual capacity which is evident from the documents filed by the petitioner himself. It is further argued that petitioner has ample alternate accommodation on the top of the tenanted premises and also on the backside of the tenanted premises ie the mercantile building . It is submitted that the MoU dt. 25.11.2008 is only an agreement and has not been actually effected upon till date and no reliance can be placed on the said document at this stage. It is further argued that the sons of the petitioner are well settled in their respective fields and two of them are serving in the foreign country. There is no need in present but it is merely a desire of the petitioner to get the premises vacated so that he can let out the same on a higher rent. It is further argued that the petitioner retired wayback in the year 1980 and has not done any work till the filing of the present petition and now at this juncture of age, he suddenly wants to start a business which itself raises a triable issue as his need is not bonafide but fanciful and whimsical. It is further argued that the petitioner along with the other petitioners have withdrawn the suit before the Hon'ble High Court of Delhi without seeking any leave to file afresh case on the same subject matter, hence the present suit is also barred u/o. 23 Rule 4 CPC . Ld. counsel for respondent in support of his contentions has relied upon the following judgments:
1. Deena Nath v. Pooran Lal, 2001 (5) SCC 705
2. M/s. Rahabhar Productions (P) Ltd. v. Rajindra K Tondon, AIR 1998 SC 1639
3. Sitaram v. Malwinder Kaur, JT 2009 (4) SC 639
4. Ramesh Kumar Aggarwal v. Rani Ravindran & Ors., JT S. C. Sharma v. SAS Leasing Pvt. Ltd. Page 13 of 27 E No. 10/13 30.05.2014 2009 (8) SC 421
5. Kempaiah v. Lingaiah & Ors. , 2001 (8) SCC 718
6. Kizhakkayil Suhara & Ors. v. Manhantavida Aboobacker (dead) by LRs & Anr. , 2001(8) SCC 19
7. Inderjit Kaur v. Nirpal Singh, JT 2001 (1) SC 308
8. Raj Kumar v. Hari Prasad (Dead) by LRs & Anr., 2003 (106) DLT 496
9. Charan Dass Duggal v. Brahama Nand, 1983 (1) SCC 301
10. Vijay Nayyar v. Om Prakash Malik, R .C Rev. No. 120/2011
11. Pradeep Kumar Sethi v. Rajender Kumar Sethi, R.C Rev No. 127/2010.
12. Jagdish Lal Khorana v. Hemant Arora, Gopal Dass, Ram Avtar & Devi, 196 (2013) DLT 49 (CN)
13. M/s. Gopal Dass & Sonsv. Dineshwar Nath Kedar, R C Rev. No. 240/2011
14. Prahalad Rai Mittal v. Smt. Rita Devi, R C Rev. No. 102/2012
15. Kishore v. Prabodh Kumar & Ors. R C Rev. No. 183/2012 9 Heard Ld. counsels for the parties and perused the complete record file. Under section 14 (1) (e) of the Delhi Rent Control Act, a landlord/land lady will be entitled to an order of eviction, if, he/she is able to show that
(a) the premises in question were let out for residential purpose or commercial purposes [as per the law laid down by the Hon'ble Supreme Court in Satyawati Sharma v. Union of India and another, 148 (2008) DLT 705 (SC),]
(b) he/she is the landlord/land lady and owner of the suit premises,
(c) the premises is required bona fide by him/her for occupation as residence for himself/herself or any member of his family dependent upon him/her for residence and for any person for whom the premises are held, and S. C. Sharma v. SAS Leasing Pvt. Ltd. Page 14 of 27 E No. 10/13 30.05.2014
(d) the landlord/land lady or such person has no other suitable residential accommodation.
10 Thus the foremost condition which the landlord has to prove is his bonafide requirement. Further he has to prove that there is no other alternate accommodation available. Thus there are twin requirements which are to be satisfied conjunctively in order to attract the provisions of the Section 14(1)(e) of the Act i.e the bonafide requirement coupled with the reasonably suitable accommodation, which means that both are to be satisfied together and collectively.
While deciding the question of grant of leave, the court has to consider whether the tenant has raised any triable point / issue, the decision of which may disentitle the landlord from recovering possession of the premises.
10.1 In Precision Steel and Engineering Works v. Prem Deva Niranjan Deva Tayal, AIR 1982 SC 1518 the Hon'ble Supreme Court having discussed the relevant provisions of Act 59 of 1958 held as follows: "The Controller has to confine himself to the affidavit filed by the tenant under subsec. (4) and the reply if any. On perusing the affidavit filed by the tenant and the reply if any filed by landlord the Controller has to pose to himself the only question, `Does the affidavit disclose, not prove, facts as would disentitle the landlord from obtaining an order for the recovery of possession on the ground specified in cl. (e) of the proviso to Section 14 (1)?' The Controller is not to record a finding on disputed questions of facts or his S. C. Sharma v. SAS Leasing Pvt. Ltd. Page 15 of 27 E No. 10/13 30.05.2014 preference of one set of affidavits against the other set of affidavits. That is not the jurisdiction conferred on the Controller by subsec. (5) because the Controller while examining the question whether there is a proper case for granting leave to contest the application has to confine himself to the affidavit filed by the tenant disclosing such facts as would prima facie and not on contest disentitle the landlord from obtaining an order for recovery of possession. At the stage when affidavit is filed under subsec.(4) by the tenant and the same is being examined for the purpose of subsec.(5) the Controller has to confine himself only to the averments in the affidavit and the reply if any and that become manifestly clear from the language of subsec. (5) that the Controller shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from recovering possession etc. The jurisdiction to grant leave to contest or refuse the same is to be exercised on the basis of the affidavit filed by the tenant. That alone at that stage is the relevant document and one must confine to the averments in the affidavit. If the averments in the affidavit disclose such facts which, if ultimately proved to the satisfaction of the Court, would disentitle the landlord from recovering possession, that by itself makes it obligatory upon the Controller to grant leave. It is immaterial that facts alleged and disclosed are controverted by the landlord because the stage of proof is yet to come. It is distinctly possible that a tenant may fail to make good the defence raised by him. Plausibility of the defence raised and proof of the same are materially different from each other and one cannot bring in the concept of proof at the stage when plausibility has to be shown."
10.2 In Sarwan Dass Bange v. Ram Prakash, 2010 IV AD (Delhi) 252, S. C. Sharma v. SAS Leasing Pvt. Ltd. Page 16 of 27 E No. 10/13 30.05.2014 it has been observed by the Hon'ble Delhi High Court as follows:
"............However, merely because the tenant so disputes and controverts the pleas of the landlord does not imply that the provisions of summary procedure introduced in the Act with respect to ground of eviction on the ground of requirement is to be set at naught. The Controller is required to sift/comb through the application for leave to defend and the affidavit filed therewith and to see whether the tenant has given any facts/particulars which require to be established by evidence and which if established would disentitle the landlord from an order of eviction. The test is not of the tenant having controverted/denied the claim of the landlord and thus disputed questions of fact arising; the test is to examine the pleas of facts and then to determine the impact thereof."
11 Thus while deciding the question of leave, the controller is not required to conduct a full fledged trial but only to see from the affidavit of the tenant, as to whether any triable point / issue the decision of which may disentitle the landlord from recovering the possession of the premises is disclosed. The Controller is not required to seek the proof of the defence of the tenant but only to see whether any triable issue is raised by the tenant or not.
12 As regards the question of petitioner being the owner / landlord and the relationship of landlord and tenant between the parties is concerned. It is stated by the respondent that petitioner is only the owner of 1/5th share in the tenanted premises. The share of his S. C. Sharma v. SAS Leasing Pvt. Ltd. Page 17 of 27 E No. 10/13 30.05.2014 sons is independent and distinct. He is only one of the joint owner / cosharer in respect of the tenanted premises. On the contrary the stand of the petitioner is that since there is no partition by metes and bounds, hence he is the owner / coowner of the tenanted premises and he recognizes the right and interest of his dependents and has filed the present petition for the bonafide requirement of himself as well as his dependents. The documents placed on record by petitioner in support of his ownership/ title are the Transfer deed dt. 12.07.1954, MoU dt. 25.11.2008, conveyance deed dt. 14.02.2011, order of Hon'ble High Court of Delhi dt. 06.12.1976 in suit no. 214/1974, award dt. 31.08.1974 , final decree of partition dt 06.12.1976.
12.1 The Ld. counsel for petitioner during his arguments has relied upon the award dt. 09.08.1974 wherein it is stated that due to the peculiar nature of construction on plot which are jointly held with other persons on perpetual lease , it is not practicable to delineate and partition the property by metes and bounds and the same is feasible only by declaration of shares of each party.
12.2 As per the judgment dt. 06.12.1976 and the final decree of partition of even date, 1/5th equal share of shop no. E 2 and flat no. E 29, CP, New Delhi and 1/15th Share in Mercantile Building each in favour of plaintiff ie S C Sharma, his wife Asha Sharma and his three sons namely Sanjiv, Rajiv and Ashish was passed which was to take effect and operate from 01.04.1974 and the parties were held to be deemed to be full and absolute owners of their shares with all the rights S. C. Sharma v. SAS Leasing Pvt. Ltd. Page 18 of 27 E No. 10/13 30.05.2014 of Transfer and were further held entitled to recover rent and to pay taxes. Thus the petitioner and his sons and wife are absolute owners qua their respective shares as per the decree dt. 06.12.1976.
12.3 Further in suit bearing CS (OS) No. 672/09 the petitioner stated himself to be one of the joint owner along with his sons who were also the party in the said suit. Petitioner along with his sons pleaded themselves as owners / landlords in respect of the tenanted premises in the said suit. However, in the present case, petitioner has stated himself to be the owner and landlord in respect of the tenanted premises. In the affidavit which is filed along with the petition, petitioner has stated "I am one of the petitioner". Though it is argued by the counsel for petitioner that respondent should not have any concern with the internal arrangement interse between petitioner and his sons / dependents, however, no other document to show the internal arrangement between the petitioner and his dependents except the MoU dt. 25.11.2008 has been filed by the petitioner. The said MoU is not interse between the petitioner and his legal dependents but between the other family members of petitioner. He along with his sons has only been addressed as "second part" and the settlement qua the properties has been made in respect thereto. The said document prima facie cannot be termed as internal arrangement between the petitioner and his legal dependents to show that his legal dependents ie his wife and his sons who are the absolute owners of their shares by virtue of the decree dt. 06.12.1976 have authorized him on their behalf , in the absence of any other such document.
S. C. Sharma v. SAS Leasing Pvt. Ltd. Page 19 of 27E No. 10/13 30.05.2014 12.4 Admittedly, the above documents were not filed by the
petitioner before the Hon'ble High Court of Delhi in CS(OS) No. 672/09 and have been filed for the first time before the present court. The veracity of these documents cannot be looked into at this stage, to reach to the conclusion that it is the petitioner who is the owner in respect of the tenanted premises when immediately before filing the present petition, he has filed the similar petitioner for recovery of possession along with his sons whom he has stated as his dependents in the present petition. This aspect certainly requires evidence to be lead and an opportunity to respondent for cross examination on these aspects. There is a triable point regarding ownership of petitioner.
13 Now coming to the other aspect as to whether the premises is bonafide required by the petitioner and as to whether he has any other suitable alternate accommodation. These are twin requirements which are to be satisfied conjunctively in order to attract the provisions of Section 14(1)(e) of the Act i.e the bonafide requirement coupled with the reasonably suitable accommodation, are to be satisfied together and collectively.
14 Now coming to the plea of boanfide requirement, it is stated by petitioner that he requires the tenanted premises for opening the showroom/ life style store / restaurant along with his sons who are dependent on him for tenanted premises. The bonafide requirement of petitioner is challenged by respondent on two grounds. Firstly, that the petitioner is 80 years old and has not worked since last 20 years S. C. Sharma v. SAS Leasing Pvt. Ltd. Page 20 of 27 E No. 10/13 30.05.2014 since the date of his retirement from Singapore Airlines. Secondly, his sons are well placed in their professions / businesses and out of his three sons, two are settled abroad 14.1 In Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta , 1999 (6) SCC 222 it has been observed that:
" ............ The judge of facts should place himself in the arm chair of the landlord and then ask the question to himself - whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural , real , sincere, honest . If the answer be in the positive, the need is bonafide. The failure on the part of the landlord to substantiate the pleaded need, or , in a given case, positive material brought on record by the tenant enabling the court drawing an inference that the reality was to the contrary and the landlord is merely attempting at finding out a pretence or pretext for getting rid of the tenant , would be enough to persuade the court certainly to deny its judicial assistance to the landlord."
14.2 In Smt. Kamla Soni V Rup Lal Mehra, 1969, RLR 1017 it has been held that:
" a mere assertion that the landlord requires the premises occupied by the tenant for his personal occupation is not decisive. It is for the court to determine the truth of the claim, and also to determine whether the claim is bonafide. In determining whether the claim is bonafide, the Court is entitled and indeed bound to consider whether it is reasonable. A claim founded on abnormal predilections of the landlord may not be regarded as bonafide."S. C. Sharma v. SAS Leasing Pvt. Ltd. Page 21 of 27
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14.3 In Deena Nath V. Pooran Lal, V (2001) SLT 195 =(2001) 5
SCC 705, it has been held that:
"the statutory mandate is that there must be first a requirement by the landlord which means that it is not a mere whim or fanciful desire by him; further such requirement must be bonafide which is intended to avoid a mere whim or desire. The bonafide requirement must be in praesenti and must be manifested in actual need which would evidence the court that it is not a mere fanciful or whimsical desire."
14.4 In T Shvasubramaniam V Kasinath Pujari, VII (1999) DLT 205= (1999) 7 SCC 275, also it was held that:
"when a landlord desires a premises, the requirement of law is that the landlord must set out his need for the premises in the petition and establish that such need is bonafide. The need must be bonafide, genuine, honest and conceived in good faith. In this case, the court found no material on record to show that the landlord required the premises and that his need was bonafide. The material on record for the eviction of tenants before the Rent Control Authority was the mere desire of the landlord to live separate from his father."
14.5 In Freddy Fernandes Vs P C Mehra, 1973 RCR 53, it has been held that :
"the expression bonafide is not to be understood as indefinitely enlarging the choice of the landlord and leaving to its own subjective discretions. Further, S. C. Sharma v. SAS Leasing Pvt. Ltd. Page 22 of 27 E No. 10/13 30.05.2014 whenever the subjective discretion of a person is to be scrutinized by a Court or a Tribunal, it necessarily follows that such subjective discretion has to be reasonably exercised. The need of the landlord, even if subjective to the extent of being based on his requirement cannot be limitless and has to be reasonable visa vis the protection afforded to the tenant by the Act against eviction."
15 Thus it is well settled law that the requirement or need not be fanciful or unreasonable. It cannot be a mere desire and must be something more than a mere desire but need not certainly be a compelling or absolute or dire necessity. It may be a need in presenti or within a reasonable proximity in the future. Petitioner in the present case has pleaded all the requirements of showroom/ shop /life style store / restaurant as bonafide requirement in respect of the tenanted premises. He himself is not clear as to for which specific purpose he requires the tenanted premises. Though the landlord is the best judge of his property, however abnormal predilections of the landlord cannot be regarded as bonafide requirement. Requirement must be manifested in actual need and cannot be understood as indefinitely enlarging the choice of landlord and leaving it to his subjective discretion. There is no dispute to the contention of respondent that petitioner has not worked for the last 20 years since his retirement. Admittedly, petitioner is around 80 years old at present. Though the age and inexperience are not to be considered while adjudging the bonafide, however , the facts in entirety are to be considered. Petitioner has stated that he requires the premises for himself and for S. C. Sharma v. SAS Leasing Pvt. Ltd. Page 23 of 27 E No. 10/13 30.05.2014 his three sons. Admittedly, the two sons of petitioner namely Sanjiv and Ashish are well settled abroad. As per the petitioner himself, the tenanted premises is required for their bonafide requirement for opening the showroom and they shall return to India once the premises is vacated by respondent. This averment itself shows that the need of these two sons of petitioner is not the need in present but is based upon certain eventuality. Even as regards the son who is in India, namely Rajiv, petitioner has only specified his qualifications but has failed to prima facie show the actual need and how he is dependent upon him for the purpose of tenanted premises. On this aspect of bonafide requirement of petitioner and his dependents, triable issue is raised by the respondent.
16 As regards the alternate accommodation is concerned. The petitioner himself has stated that he is the joint owner / cosharer along with his dependents in the Mercantile Building and also is the joint owner / cosharer in respect of the flat no. E29, which is on the top of the tenanted premises. Petitioner in his petition has merely stated that it is not the suitable accommodation for him to run the showroom/ life style store/ restaurant without assigning any reason as to how it is not suitable for him for the purpose set out. It is germane that many of the leading brand showrooms and restaurants are working / functioning on the first floor of Connaught place which is a hub for such activities. This point also raises a triable issue and cannot be adjudicated without appreciating evidence.
S. C. Sharma v. SAS Leasing Pvt. Ltd. Page 24 of 27E No. 10/13 30.05.2014 17 From the above discussion, it is evident that the
respondent has raised certain points / issues which can be properly adjudicated only after ascertainment of truth through cross examination of witnesses who have filed their affidavits and other material documents.
17.1 In Inderjeet Kaur v. Nirpal Singh, JT 2001 (1) SC 308 it has been held that:
" 11. As is evident from Section 25 B(4) & (5) of the Act, burden placed on a tenant is light and limited in that if the affidavit filed by him discloses such facts as would disentitle the landlord from obtaining an order for the recovery of the possession of the premises on the ground specified in Clause (e) of the proviso to Section 14 (1) of the Act with which we are concerned in this case are good enough to grant leave to defend.
12. A landlord, who bona fidely requires a premises for his residence and occupation should not suffer for long waiting for eviction of the tenant. At the same time, a tenant cannot be thrown out from a premises summarily even though prima facie he is able to say that the claim of the landlord is not bonafide or untenable and as such not entitled to obtain an order of eviction. Hence the approach has to be cautious and judicious in granting or refusing leave to defend to a tenant to contest an eviction petition within the broad scheme of Chapter IIIA and in particular having regard to the clear terms and language of Section 25 B(5)."
17.2 In Liaq Ahmed v. HabeebUrRehman, AIR 2000 SC 2470 S. C. Sharma v. SAS Leasing Pvt. Ltd. Page 25 of 27 E No. 10/13 30.05.2014 it has been held that:
" Rent Control legislations have been acknowledged to be pieces of social legislation which seek to strike a just balance between the rights of the landlord and the requirements of the tenants. Such legislations prevent the landlords from taking the extreme step of evicting the tenants merely upon technicalities or carved grounds. This court in Mangat Rai v. Kidar Nath (1980) 4 SCC 276: (AIR 1980 SC 1709) held that where the Rent Acts afford a real and sanctified protection of the tenant the same should not be nullified by giving a hypertechnical or liberal construction to the language of the statue which instead of advancing the object of the Act may result in its frustration. The Rent Acts have primarily been enacted to give protection to the tenants."
17.3 In Rachpal Singh and Ors. v. Gurmit Kaur and Ors., (2009) 15 SCC 88 it has been held that :
"If some triable issues are raised then the controversy can be properly adjudicated after ascertainment of truth through cross examination of witnesses who have filed their affidavits and other material documents. Burden is on the landlord to prove his requirements and his assertion is required to be tested more so when the status of the respondent has been specifically challenged and also when the landlord tenant relationship is in question. Therefore, we do not see any infirmity in the common order passed by the High Court in civil revision petitions 4096 of 2007 and connected matters dt. 28.04.2008."
18 From the entire conspectus of the facts and law as discussed above, triable issue regarding the ownership , bonafide requirement as well as suitable alternate accommodation has been S. C. Sharma v. SAS Leasing Pvt. Ltd. Page 26 of 27 E No. 10/13 30.05.2014 raised by respondent which needs adjudication. Hence, the application of respondent for leave to contest is allowed. Ordered accordingly.
ANNOUNCED IN OPEN ( KIRAN GUPTA )
COURT ON 30.05.2014 SCJCUMRENT CONTROLLER
PATIALA HOUSE COURTS:NEW DELHI
S. C. Sharma v. SAS Leasing Pvt. Ltd. Page 27 of 27