Delhi District Court
S/O Late Sh. Gopi Ram vs Dal Chand on 30 March, 2015
IN THE COURT OF SH. SIDHARTH MATHUR,
SCJ Cum RC (NORTH-EAST), KARKARDOOMA COURTS, DELHI.
CHARAN SINGH
S/o Late Sh. Gopi Ram
R/o 145/2, Gali no.5,
C- Block, Bhajan Pura,
Delhi-110053.
........... Petitioner
Through
Sh. Pramod Tripathi,
Advocate.
VERSUS
DAL CHAND
S/o Sh. Prabhu Dayal
R/o Shop No.2,
C-145, Gali no. 5,
Bhajan Pura,
Delhi-110053.
........... Respondents
Through
Sh. Vijay Goswami
Advocate
JUDGMENT
1. UID No. : 02402C0304302014.
2. Under Section : Petition u/s 14(1)(e) DRCA.
3. Date of institution : 30/09/2014.
4. Date of Final Order : 30/03/2015.
5. Final Order : Eviction Order Passed.
(EP No. 25/14) (Page No. 1/12)
BRIEF FACTS
A) Petition
1. The petitioner is the owner of property no. C 145/2, Gali no. 5C, Bhajan Pura, Delhi-110053 (hereinafter "suit property"). He is aged 74 years and has a wife, four married daughter and one married son. Married daughters are respec- tively settled in their matrimonial homes. Married son is living with him with his wife and three kids. This son is working as a helper at a private shop in Bhajan Pura on a monthly salary of Rs. 7000/-.
2. The suit property has two shops at its ground floor. Shop no.1 as shown in red in the site plan is under the tenancy of the respondent since 25.01.2004 (hereinafter "tenanted shop"). He is using it for running the business of "Om Jewellers". But the petitioner now needs it so as to enable his son to earn his livelihood by starting a garment shop from there.
Shop no.2 is likewise rented out to another tenant. An eviction petition u/s 14(1) (e) DRCA has also been filed in respect thereof by the petitioner for his bona fide requirement so as earn his livelihood by starting a General store from there.
The remaining portion of the suit property is being used for residential pur- poses by the family of the petitioner.
(EP No. 25/14) (Page No. 2/12)
3. Since the petitioner has no alternate suitable reasonable commercial ac- commodation to answer the bona fide need of his son except the tenanted shop, the present petition u/s 14(1) (e) DRCA came into being on 30.09.2014. B) Leave to Defend
4. The notice of the petition was served on the respondent on 18.10.2014 who thereafter filed his leave to defend within time on 31.10.2014.
In his leave to defend, the respondent raised the following pleas in order to establish the existence of triable issues :-
A. That the suit property is an ancestral property whereby the petition is bad for the non joinder of the re- maining co-owners ;
B. That the petitioner has not filed any document of his ownership ;
C. That the need of the petitioner is for additional ac- commodation ;
D. That the petitioner has purchased another property ; E. That the petitioner also has another property in his name in the same locality ;
F. That the petitioner has not disclosed about his other properties within Delhi and NCR ;
G. That the petitioner is a rich person ;
(EP No. 25/14) (Page No. 3/12)
H. That the son of the petitioner is earning handsomely
and is well settled ;
I. That the petitioner has not disclosed the record of
the businesses done by him & his family.
J. That the petition does not disclose the basic ingredi-
ents of section 14 (1) (e) DRCA ;
K. That the judgment of the "Satyawati Sharma (dead)
by LRs Vs. UOI & Anr." 2008 (5) SCC 287 is not applicable ; L. That the petitioner cannot evict him after having re- ceived a huge pagri amount ; and M. That the petition is motivated by the desire of the pe- titioner to force him to either increase the rent or re-let the tenanted shop on a higher rent.
C) REPLY TO LEAVE TO DEFEND
5. In his reply, the petitioner merely reiterated the contents of his petition by denying the contrary assertions of the respondent.
FINDINGS
6. The respondent is disputing the ownership of the petitioner. He has al- leged that the petitioner has not filed any document of his ownership ; that the suit property is an ancestral property ; that the petition is bad for non joinder of the remaining co-owners and that the suit property is jointly owned by the peti- tioner in the name of his relatives.
(EP No. 25/14) (Page No. 4/12) Well all these statements made by the respondent falls in the teeth of his own admissions made regarding the landlordship of the petitioner. These admis- sions were made by him in his own CS No. 99/12 filed against the petitioner for seeking permanent injunction. The factum of this suit has also been admitted by him in his leave to defend. The certified copies of this Civil suit filed on record makes it clear that in his plaint as well as his statement recorded before the court of Sh. Satish Kumar Arora, the then CCJ cum ARC, KKD, Delhi on dated 07.08.2012, the respondent had specifically admitted the petitioner to be his solo landlord. Now by virtue of these admissions, he is now barred from posing any challenge to the ownership or landlordship of the petitioner U/s 116, Indian Evidence Act. Moreover the petitioner has even filed the GPA, agreement to sell, affidavit and receipt all dated 07.10.1987 showing that he had purchased the suit property from its previous owner Beer Singh.
Thus in these circumstances, the petitioner is to be assumed as the solo owner cum landlord of the respondent whereby all the aforesaid objections of the respondent loses their shine.
7. The respondent has claimed that the need of the petitioner is for additional accommodation and thus cannot be termed as bona fide. He has stated that the petitioner has purchased one another property, whose details are not known to him ; that the petitioner owns one another property in the same locality and that the petitioner has not disclosed about the other properties owned by him within Delhi and NCR. He has also claimed that the petitioner has sufficient accommo- dation at the suit property to cater the need in question.
No details have been furnished by the respondent what were those other properties, which are owned by the petitioner in the vicinity of the suit property (EP No. 25/14) (Page No. 5/12) or has been purchased by him or owned by him else where. The burden was on the respondent whereby he ought to have disclosed the relevant details instead of taking vague plea's in respect thereof. These plea's seems to be a shot in the dark taken by him to create an illusionary triable issue.
He has also failed to explain as to how the petitioner has sufficient accom- modation at the suit property to cater the need of his son. It also is likewise a ut- terly vague plea. The petitioner has specifically stated that except the two shops on the ground floor, the remaining suit property is being used by his family for residential purposes. Nothing has been placed on record by the respondent to prima facie rebut this submission. The petitioner has every right to use his prop- erty in any manner he likes. The tenant can not dictate terms to him in that re- gard and thus can not ask him to convert a portion of his residence into a shop for his son.
Hence the aforesaid pleas of the respondent are also rejected.
8. The respondent has stated that the son of the petitioner is well settled and is earning handsomely around Rs. 20,000- Rs. 25,000/- pm whereby he does not need to start any business. He has further claimed that the petitioner is also a rich man, who has received service benefits from DCM in huge figures. Hence he is claiming that the need in question raised by the petitioner is not bona fide.
Except for making vague assertions that the son of the petitioner is earn- ing Rs. 20,000/- to Rs. 25,000/- PM or that the petitioner is a rich person after having received huge service benefits, the respondent has placed nothing sub- stantial on record to prima facie establish these facts. These bald and sweeping assertions cannot be considered by the court and hence deserves to be rejected outrightly.
(EP No. 25/14) (Page No. 6/12) Even if I were to believe for the sake of arguments that the aforesaid claims made by the respondent are correct, then also I do not think any differ- ence would have been made on the aspect that they are meritless. The assumed richness of the petitioner or his son cannot be allowed to operate as a bar against their business endeavours. Their is no law which says that a rich man cannot seek return of his own property to start a new business. Any citizen, be that rich or poor, is entitled to earn his livelihood by starting an occupation or business of his own choice. Neither the court, nor the tenant can put a bar against the exercise of this constitutional right by the landlord or his dependant(s). No fault can be found with the desire of the petitioner's son who now does not want to continue with his private job and instead intends to start his own business. Their is no law which prevents him from doing so. Rather he is fully entitled to do an occupation of his own choice. The respondent being a tenant cannot dictate terms either to his landlord or his son as to how and in what manner they should be earning their livelihood.
Accordingly the aforesaid contentions of the respondent likewise fails to impress this court.
9. The respondent has claimed that the petitioner has not disclosed the true and complete record of the business activities done by the petitioner and his family members.
I do not think that if this contention has any merits. The petition is based on the bona fide need of the son of the petitioner, who intends to leave his pri- vate job so as to start a Garment shop from the tenanted shop. The petitioner has sufficiently disclosed the nature of the current job of his son i.e private job. He has also disclosed that he has also filed another eviction petition u/s 14(1)(e) (EP No. 25/14) (Page No. 7/12) DRCA regarding shop no. 2 so as to enable him to start a General store from there because he presently has no source of income. Nothing was placed on record by the respondent to displace the aforesaid contentions raised by the pe- titioner pertaining to the paucity of income sources of his family. Admittedly pe- titioner is an retired employee of DCM while his son is currently doing a private job. Now when it has not been the case of the either of the parties that the peti- tioner or any of his family members had ever been involved in any prior business activities, their arises no question of filing any record in respect thereof.
Further it hardly matters if the petitioner or any of his family members were never involved in any business activities or that none of them have any business experience. The kind of business sought to be started by the petition- er's son i.e. Garment store does not require any business experience. It can even be run by a layman. No educational qualification or prior business experience is required to run this kind of most common business activity.
Hence the aforesaid submissions are also dismissed being devoid of any force.
10. The respondent has stated that the petitioner under the garb of his own bona fide requirement has filed another eviction petition against the tenant of shop no. 2 as well. Thus he is claiming that the it is highly improbable that the petitioner being an old man of 74 years without any business experience would start a business from there. Hence he claims that these facts shows the lack of bona fides on part of petitioner and his family.
All the aforesaid contentions pertains to shop no.2. This shop is not a sub- ject matter herein. Rather the subject matter herein is shop no. 1. Thus the aforesaid contentions are rejected being irrelevant.
(EP No. 25/14) (Page No. 8/12)
11. The respondent has claimed that the petition does not disclose the basic ingredient required for the maintainability of the petition u/s 14(1) (e) DRCA.
It is fairly well settled that the pleadings of the parties ought to be read in totality and meaningful manner so as to understand its implications. The peti- tioner has specifically stated in his petition he intents to settle his son who in- tends to start a garment shop from the tenanted shop so as to earn his liveli- hood. He also has given the details of the relevant immovable property of him- self and his dependents. Likewise he has also specifically pleaded in his petition that he has no other suitable commercial accommodation other than the tenant- ed shop to cater the need of his dependant son. Thus the meaningful reading of his pleadings reveals that he has pleaded all the necessary facts and ingredients required to maintain this petition.
Thus the present plea of the respondent is also devoid of any merit.
12. The respondent has stated that the judgment of Satyawati's case (supra) is not applicable in the present circumstances. He has claimed that in the said case, the Apex court was dealing with a residential property which was illegally let out for commercial purposes, while in this case the tenancy has always been commercial and hence it cannot help the cause of the petitioner. He has also claimed that the judgment of Satyawati's case (supra) cannot be equated with the statute since judges can only interpret law, not make or create law ; that it is against the basic structure of the constitution since it was a law declared by the Supreme court without interacting with the executive and that it was per incuriam to the decisions delivered in the cases of "A.R. Antulay v. R.S. Nayak"
(EP No. 25/14) (Page No. 9/12) AIR 1984 SC 718 and "State of U.P. & ors v. Jeet Bisht & another", WP (Civil) 164/2002.
In the judgment of Satyawati's case (supra), the Supreme Court has cate- gorically held that the provisions of Section 14(1)(e) DRCA are equally applicable to all sort of tenancies and premises, irrespective of their nature. This citation is now the law of the land. Hence any questions relating to its correctness or legali- ty can not be challenged because this court has no jurisdiction in this regard be- ing bound by the said pronouncement as it stands today.
Hence the submissions challenging the applicability of the Satyawati's case (supra) are rejected being meritless.
13. The respondent has claimed that the petitioner had received a huge pagri amount from him in lieu of his tenancy whereby he now can not seek his evic- tion.
This submission is totally fallacious. These proceedings are not for the re- covery of the pagri amount whereby this issue can not be made as a subject matter herein. Even if any pagri was paid by the respondent in lieu of his tenan- cy, it can not forfeit the right of the petitioner to get his shop back if he estab- lishes the bona fide need of his son.
The only legal right which the respondent has qua his alleged pagri amount is to seek its recovery in accordance with law (and if at all the oral ten- ancy of the parties permit so), which he may do by filing appropriate civil pro- ceedings. But he can not raise this issue herein in order to stall the right of the petitioner to seek the return of his shop.
Hence this plea is also likewise rejected.
(EP No. 25/14) (Page No. 10/12)
14. The respondent has asserted that the petition is motivated by the mala fide desire of the petitioner to coerce him to either increase the rent or re-let the tenanted shop on a higher rent.
These plea's of the respondent are totally irrelevant since none of them has any bearing either on the maintainability or outcome of the present petition.
The plea of the respondent that the present petition has been filed by the petitioner just to evict him so as to fetch a new tenant is nothing more than an unfounded apprehension. The court litigations are to be adjudicated on the basis of facts, not unfounded apprehensions. Further this claim of the respondent is being properly taken care of by section 19 DRCA whereby he can always apply for restitution even after his eviction, if his alleged apprehension comes true. It is highly unreasonable for the respondent to assume that the tenanted shop would be re-let on his eviction. (Refer :- "Satish Bansal Vs. Neelam Gupta", R.C. Revision no. 470/2012 decided by Delhi High Court on 04/10/2012).
Hence the aforesaid plea's of the respondent fails to raise any triable issue.
CONCLUSION
15. It is well settled that leave to defend is granted to the tenant in case of any triable issue has been raised by him, which can be adjudicated by considera- tion of additional evidence. The mere existence of any triable issue is not suffi- cient. The nature of the triable issue raised by the tenant must be such that it will 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 (EP No. 25/14) (Page No. 11/12) 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.
In the light of the aforesaid legal ratio, all the pleas taken by the respon- dent seems to be sham and moonshine, which have failed to raise any requisite triable issues. The contents of his application for leave to defend have failed to rebut the presumption of bona fide as regards the need of the petitioner for his son. The application for leave to defend filed by the respondent is thus rejected.
Consequently an eviction order is passed U/s. 14(1)(e), DRCA against the respondent regarding the tenanted shop no. 1 at the ground floor of the property no. C 145/2, Gali no. 5C, Bhajan Pura, Delhi-110053 as shown in red in the site plan of 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.
Announced in the Open Court (Sidharth Mathur) on 30.03.2015 SCJ Cum RC(NE)/KKD Courts/Delhi. (EP No. 25/14) (Page No. 12/12)