Delhi High Court
Vinay Kumar Jain vs Sudeep Kumar Jain & Ors on 7 April, 2016
Author: V.K. Shali
Bench: V.K. Shali
* HIGH COURT OF DELHI AT NEW DELHI
+ RC.REV. 306/2011
Decided on: 7th April, 2016
VINAY KUMAR JAIN ..... Petitioner
Through: Petitioner in person.
versus
SUDEEP KUMAR JAIN & ORS ..... Respondents
Through: Mr. S.N. Choudhri, Advocate with
Mr. Sukreet Khandelwal, for R-1
& R-4.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (Oral)
1. This is a revision petition filed under Section 25-B(8) of the Delhi Rent Control Act, 1958 against the order dated 10.05.2011 passed by the Additional Rent Controller (South), New Delhi by virtue of which the leave to defend application of the present petitioner/tenant has been dismissed and an eviction order has been passed against him.
RCR 306/2011 Page 1 of 17
2. I have heard the learned counsel for the respondents as well as petitioner who is appearing in person. I have also gone through the impugned order. Before dealing with the question of grant of leave to defend or refusal thereof, it will be pertinent here to give a brief background of the case.
3. The respondents/landlords who are four in number had filed an eviction petition against the present petitioner/tenant under Section 14 (1) (e) of the Act for bona fide requirement. The case which was set up in the petition was that respondent No.1 Shri Sudeep Kumar Jain and respondent No.4 Ms. Rosy Jain are the real brother and sister while as respondent No.2 Smt. Bindu Jain is the step- mother of respondents No.1 and 4 and respondent No.3 Sankesh Jain is the step-brother. The respondents/landlords claims themselves to be the co-owners and the landlords in respect of property No.C-1/B, Green Park Extension, New Delhi. It was alleged that the mother of respondents No.1 and 4 had let out a shop on the garage portion of the ground floor of the building in question to the present petitioner/tenant in the year 1974, which is more particularly shown as red in the site plan annexed to the RCR 306/2011 Page 2 of 17 petition. It was alleged that respondents No.1 and 3 want to start their independent business as they have sufficiently grown enough and they do not have any other alternative suitable accommodation available to them for the said purpose. It has been further elaborated that the respondents are residing on the first and the second floor of the building in question. It is stated that respondent No.1, before the death of his father Sugan Chand Jain on 21.06.2000 was helping his father in the sale and purchase of cars and motor vehicles which was being carried out by the deceased father from the residential portion. It was stated that ever since the father of the respondent No.1 died, a heavy responsibility fell upon respondent No.1. There were various litigations to be attended to with the tenants by respondent No.1 because of which he stopped his business of sale and purchase of vehicles. It has been stated that respondent No.1 has since grown up and also sorted out all his legal issues and, therefore, he intends to start his business afresh and for that purpose he required minimum of two shops on the ground floor of the suit property for the purpose of starting his business of sale-purchase of artificial jewellery articles apart from RCR 306/2011 Page 3 of 17 the eatables. It has been stated that the building in question is very strategically located near the Green Park Metro Station and therefore, he is hopeful that it will be able to generate sufficient business because of the placement of the property near metro station.
4. As regards respondent No.3 also it has been stated that he is working in a call centre in Gurgaon and coming at odd hours which is affecting his health and therefore he has also decided to start his own independent business and his requirement would be also met in case the possession of two shops is given to him on the ground floor.
5. So far as the availability of accommodation to the respondents/landlords is concerned it has been denied that they have any suitable alternative accommodation available to them either on the upper floors or at any other place wherefrom the business could be started by any one of them. It has been stated that in addition to the aforesaid property the respondents are also co-owners of residential property bearing No.1961, Chandni Chowk, Delhi comprising of two rooms and a kitchen which is RCR 306/2011 Page 4 of 17 situated in a slum area which is a residential property. It is stated that it is not suited for the purpose of commercial activities. Because of these reasons the eviction of the present petitioner/tenant was sought from the shop in question.
6. The present petitioner filed his leave to defend application and took the plea that the property was let out to M/s. Veera Traders in the year 1974 and therefore the said M/s. Veera Traders was the tenant and not the present petitioner. It was stated that the entire property No.C-1/B, Green Park Extension is essentially a commercial building, a portion of which has been converted by the respondents to residential and is thus being misused by them. It has been stated that if the respondents' need was for alleged business then they ought not to have occupied this portion of the building on the mezzanine floor, first floor and third floor. The present petitioner/tenant has also given the approximate square fts. Area which was available to the respondents on the different floors which has been occupied by them for the residential purposes.
7. The petitioner has also alleged that on 12.02.2008 a portion of the first floor was let out to M/s. Computerware (I) Pvt. Ltd. on a RCR 306/2011 Page 5 of 17 monthly rent of Rs.10,000/-. It has been stated that in case the respondents were in genuine need of the premises for the purpose of running their business then the same would not have been let out to the said tenant.
8. As regards carrying out of the business, it has been stated that the respondents/landlords are dependent only on the rental income which is their main source of livelihood and the present eviction petition has been filed only with a view to harass the petitioner/tenant. The petitioner has also taken the plea that the respondents/landlords has not filed a complete site plan of the suit property only with a view to withhold the information about the total accommodation available to them on the upper floors. It has also been alleged that the respondents/landlords are essentially residents of 1961, Katra Khushal Rai, Kinari Bazar, Chandni Chowk, Delhi. They are residing in the suit property purposely with a view to convert a portion in the commercial building for the residential purposes. On the basis of these averments it has been contended by the petitioner/tenant that the respondents do not RCR 306/2011 Page 6 of 17 require the premises in question bona fide and to that extent a triable issue is raised.
9. The respondents/landlords have filed their reply to the leave to defend application and contested all the averments made in the leave to defend application.
10. As regards user of the portion of the building for residential purposes is concerned, it has been stated that the respondents have resided at the suit property for the last more than 30 years and have in fact grown up in and around Green Park and therefore, this cannot be attributed to them that they have sought to convert a portion of the building from commercial to residential only with a view to seek eviction of the petitioner/tenant. It has also been denied that the respondents are totally dependent on the rentals. On the contrary, it has been stated that the respondents have sufficiently proceeded with their lives and as they are grown up they intend to start their independent business so as to make their livelihood. With regard to the availability of alternative accommodation in Chandni Chowk area, the factum of the said property being commercial in nature has been denied and it has RCR 306/2011 Page 7 of 17 been stated that the same is residential in nature consisting of two rooms and a kitchen and the property is situated in slum area.
11. I have heard the learned counsel for the parties and considered the respective contentions.
12. The question to be considered at the stage of grant of leave to defend or refusal thereof is whether the facts as disclosed in the leave to defend application are such which raises a triable issue so as to warrant the grant of the leave to the petitioner/tenant, which if permitted to be proved would disentitle the respondents/landlords from retrieving the possession from the tenant. It has also held by the Supreme Court that at the stage of grant of leave the tenant does not have to prove an iron cast case which if permitted to be proved would invariably result in the dismissal of the eviction petition filed by the respondents/landlords. All that is required to be shown is that there are facts and circumstances available to the tenant which if are permitted to be adduced by way of evidence may result in dismissal of the petition.
13. Before dealing with the facts of the present case on the touchstone of above parameter, it may be pertinent here to mention that during RCR 306/2011 Page 8 of 17 the pendency of the present petition certain developments had taken place which are not disputed and contested, which will have vital bearing on the question of grant of leave to defend or refusal thereof to the petitioner. These facts are that there are admittedly four co-sharers in respect of the suit property. The respondents No.2 and 3 after the filing of the petition on 18.10.2010 have sold their interest which at best was to the extent of 25% which is reportedly sold by them to the third party who had also filed an application under Order 22 Rule 10 CPC for being impleaded as a party to the eviction petition. This fact of having sold the interest in the suit property by respondents No.2 and 3 was not disclosed voluntarily by the respondents but was brought to the notice of the court by the tenant.
14. Mr. Choudhri, the learned counsel for the respondents has contended that since respondents No.1 and 3 themselves were aware about factum of sale documents having been executed by respondents No.2 and 3 in favour of third party, therefore they could not have brought it to the notice of the Court. RCR 306/2011 Page 9 of 17
15. This is not convincing explanation given by the respondents No.1 and 4. The fact of the matter is that this was a common petition filed by the respondents and all the four respondents were represented by a common counsel therefore whatever had transpired between any one of the respondents with a third party is deemed to be within the knowledge of the other respondents and they ought to have brought to the notice of the Court.
16. One of the main contention which has been urged by the learned counsel for the respondents is that even this sale transaction has taken place on 13.01.2012 while as the eviction order has been passed on 10.05.2011 and, therefore, this will have no bearing to the merits of the case so far as the case of respondent No.1 is concerned. It has been contended that it will at best erase the requirement of respondent No.3 who had also claimed retrieval of at least two shops on the ground floor for his own bona fide requirement. Mr. Choudhri, has further contended that before this transaction had taken place between respondents No.2 and 3 on the one hand and the third party on the other, the respondents No.1 and 4 had filed a suit for injunction in which a status quo order was RCR 306/2011 Page 10 of 17 passed. In addition to this, he has contended that even the sale transaction was challenged by him on the touchstone of Section 22 of the Hindu Succession Act as respondents No.1 and 4 had a preferential right of pre-emption so far as the property in question is concerned. Therefore, on the basis of these facts, it has been contended that the factum of sale will not affect the bona fide requirement of respondent No.1 and to that extent no triable issue can be said to be arising from the leave to defend. He tried to justify the order of the eviction passed by the learned ARC.
17. I do not agree with this submission of the learned counsel for the respondents that the filing of the injunction suit or challenging the Sale Deed on the touchstone of Section 22 or the fact that respondents No.1 to 4 were aware about the transaction of sale is relevant at this stage, so as to allow the eviction petition of respondent No.1. The respondents must realise that they have filed a composite petition along with respondents No.2 and 3 for the purpose of eviction in which respondents No.1 and 3 have given their independent requirement although a general statement has been made in the beginning that the premises in question are RCR 306/2011 Page 11 of 17 required bona fide by the respondents for the purpose of running of business. Even if this is the case which has been set up by the respondents then such a case cannot be segregated into two parts so as to say that the requirement of respondent No.3 has ceased to exist, while as the requirement of respondent No.1 still subsists and to that extent the order of eviction is sustainable. In a situation like this, it has a vital bearing on the bona fides of the respondents in seeking of ejectment of the tenant from the suit property and it raises triable issue, if the petitioner/tenant is permitted to prove it may as well result in dismissal of the entire petition.
18. As regards bona fide requirement of the respondents is concerned, it has been contended that no motive could be attributed to the respondents by converting the first floor and the second floor to residential premises of the building in question and the reason of this is that the respondents having living in the suit property right from the beginning for past more than three decades and it is not as if for the purpose of ejectment of the present petitioner a part of the suit property has been converted into residential from commercial. It is contended that this submission of the petitioner/tenant that if RCR 306/2011 Page 12 of 17 the respondents intends to start business then they ought to have utilized the portion on the first and the second floor which was available to them and which was being used for residential purpose, does not raise any triable issue.
19. No doubts, the respondents are living on the first and the second floor of the suit property for a considerable length of time but the fact of the matter remains that the property in question is occupied by 15-20 tenants in such a contingency if the respondents were really serious, they could have explored the possibility of starting the business yet continued with the present proceedings. This would have certainly shown their bona fides. This fact coupled with this fact that before filing of the petition some portion of the suit property had fallen vacant but instead of using the same for their own benefit they had let out the same at a higher rent. In addition to this, the respondents have also admitted during the course of arguments in writing that apart from the aforesaid property in Green Park Extension, they have some other commercial properties available to them in Pitam Pura, Maya Puri and Darya Ganj which according to them is not suitable to meet the RCR 306/2011 Page 13 of 17 requirement of their business which they intend to start with at the place in question. Therefore, it is contended that the said accommodation available is not suitable for the purpose of starting of business of the type which was intended by the respondents No.1 and 3, the details of such property were not given. The factum of withholding of the details of the property which was alternative accommodation would tantamount to concealment.
20. I have considered the submission and carefully gone through the judgment, no doubt the accommodation which is available to the respondents in different places which is sought to be disclosed now during the course of argument may not be considered to be sufficient or good enough by the respondents to meet their requirement for the purpose of business which they intends to start. But the fact of the matter remains that this fact cannot be seen in isolation if this fact is one of the parts of series of facts then this certainly becomes an important fact. The respondents ought to have disclosed this accommodation. The other important fact which form part of the series of facts are that respondents No.2 and 3 have sold the property and yet not disclosed the same to the Court RCR 306/2011 Page 14 of 17 notwithstanding the fact that it was a composite petition; the fact that there were 15-20 tenants who are using the premises for commercial purpose in the entire building. All these facts if taken together create an impression prima facie that the argument of the petitioner with regard to the bona fide requirement of the respondents need to be put to trial and it cannot be decided at the stage of permission to grant leave or to refuse the same.
21. For the aforesaid reasons, I feel that the learned ARC has fell into error by rejecting the leave to defend application of the petitioner/tenant and passing an eviction order against him. I accordingly, set aside the order of eviction passed against the present petitioner and grant him leave to defend.
22. Parties to appear before the trial Court on 04.05.2016.
23. The petitioner shall file his written statement within a period of four weeks from today before the trial Court with advance copy to the respondents who may file reply thereto within two weeks thereafter.
24. Since the order of eviction was passed in 2011 and the petition has been pending for a considerable length of time not only in the trial RCR 306/2011 Page 15 of 17 Court but also in the High Court, therefore, the trial needs to be expedited. I am cognizant of the fact that the Rent Controller are overburdened with number of cases, however, despite the said disability being suffered by the Rent Controller, I deem it just and proper to request the learned Rent Controller to have expeditious disposal of the matter and preferably within a period of one year from the date of recording of evidence.
25. So far as the payment of user and occupation charges by the present petitioner after the passing of the eviction order is concerned, the same shall be at the rate at which he was paying rentals to the respondents/landlords and if any amount in excess has been paid by the petitioner/tenant by virtue of a court order, the same shall be refunded back to the petitioner and if any amount is deposited with the Registrar General of this Court, the same shall also be refunded to him along with interest which has accrued thereon.
RCR 306/2011 Page 16 of 17 CM APPL.9900/2015 (O.22 Rule 10 CPC)
26. This application under Order 22 Rule 10 CPC is dismissed which has been filed by a third party as the basic doctrine which is applicable in litigation is that the petitioner is the dominus litis. Since the third party was not a party to the litigation in the trial below, therefore, there was no necessity to implead him as a party.
27. As regard the application filed by respondents No.2 and 3 is concerned that they may be deleted from the array of parties is concerned, that application is also dismissed with liberty to take such recourse in law as may be available to them before the trial Court.
28. Other pending applications also stand disposed of.
V.K. SHALI, J.
APRIL 07, 2016 vk RCR 306/2011 Page 17 of 17