Delhi District Court
Sushma Aggarwal vs M/S. Vijay Kumar Sudarshan Kumar on 5 January, 2013
IN THE COURT OF SH. SANJAY BANSAL: SENIOR CIVIL
JUDGECUMRENT CONTROLLER (NORTH) DELHI.
E. No. 91/12
Sushma Aggarwal
W/o Sh. Ashok Aggarwal
R/o D130B, Sector - 26, Noida, UP
..... Petitioner
Vs.
1. M/s. Vijay Kumar Sudarshan Kumar
Through proprietor/partner/representative Sh. Niraj Jain
Shop No.2700, 10E, Mundewalan Street,
Sadar Thana Road, Delhi - 110006
2. Adarsh Medical Store
Shop No. 2700, 10E, Mundewalan Street,
Sadar Thana Road, Delhi - 110006
Through partner Sh. Niraj Jain/Smt. Trilok Sundri Jain/
Sh. Rakesh Kumar Jain
3. Sh. Niraj Jain
S/o Late Sh. Vijay Kumar Jain
Partner Adarsh Medical Store
Shop No.2700, 10E, Mundewalan Street,
Sadar Thana Road, Delhi - 110006
E.No. 91/12 Page 1 of 13
4. Smt. Trilok Sundri Jain
Partner Adarsh Medical Store
Shop No.2700, 10E, Mundewalan Street,
Sadar Thana Road, Delhi - 110006
5. Sh. Rakesh Kumar Jain
Partner Adarsh Medical Store
Shop No.2700, 10E, Mundewalan Street,
Sadar Thana Road, Delhi - 110006
.....Respondents
ORDER
05.01.2013
1. By this order, I shall decide application of respondents/tenants u/s 25 B (4) of Delhi Rent Control Act, 1958 (DRC Act) for grant of leave to contest the eviction petition.
2. The petitioner has filed this petition for eviction of the respondents from tenanted premises i.e. One Shop bearing no. 2700 comprised in property bearing no. 10E, Munde Walan Street, Sadar Thana Road, Delhi - 110006 as shown in red colour in the site plan.
3. The petition is filed on the ground of bona fide requirement. It is stated that the tenanted premises is required by the petitioner as petitioner and her husband do not want to be dependent on their son who is doing E.No. 91/12 Page 2 of 13 private job and they want to start their own business. Petitioner informs that besides tenanted premises she is owner of three more commercial shops/premises i.e. shop no. 2699 and 2700 and one mesnine/miyani floor in the same property. There is no other suitable commercial premises. Petitioner submits she requires the tenanted premises alongwith premises already available to do business of metal hardware fittings. Petitioner avers that her husband all the necessary experience in this field.
4. Summons as per prescribed form under Schedule III of DRC Act were served upon the respondents. Respondents have jointly filed the application for leave to contest alongwith affidavit of respondent no.3 Neeraj Jain. Various grounds have been taken by the respondents. The petitioner has filed reply alongwith counter affidavit. The respondents have filed rejoinder.
5. I have heard Sh. Anuj Jain, Ld. Counsel for the petitioner and Sh. V.V. Singh, Ld. Counsel for the respondents. I have perused the record.
6. The principles of law relating to grant of leave to contest to tenant have been well settled. In the judgment reported as AIR 1982 Supreme Court 1518 titled as "Precision Steel & Engineering Works and another V. Prem Deva Niranjan Deva Tayal.", it was held that, "while deciding the application for leave to contest, the controller has to confine himself to the E.No. 91/12 Page 3 of 13 affidavit filed by the tenant under sub section (4) and the reply if any. On perusing the affidavit filed by the tenant and the reply if any filed by the 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 clause of the proviso to Section 14 (1) ?". The controller is not to record a finding on disputed questions of facts or his preference of one set of affidavits against the other set of affidavits." The law was further elaborated in judgments such as JT 2001 (1) SC 308 titled "Inderjeet Kaur Vs. Nirpal Singh"; and 1982 Rajdhani Law Reporter SC 243 titled "Charan Das Vs. Brahma Nand". The gist of the decisions is that if any triable issue is raised in the application which cannot be decided unless the parties lead evidence, leave to contest should be granted. In all other cases, the leave has to be refused. In the case reported as (2002) 7 SCC 614 titled "Rital Lal Vs. Raj Kumar Singh", Hon'ble Supreme Court has observed as under :
"If the Court is satisfied that though in the pleadings an issue is raised but that is not a triable issue then the Court is justified in refusing the leave to defend. A defence, which is practically moonshine, sham or illusory cannot be held to be raising a triable issue. Else the whole purpose behind enacting a provision for granting leave to defend, and not permitting a contest unless leave was granted, would stand defeated."E.No. 91/12 Page 4 of 13
7. In the light of abovenoted decisions, the present application has to be decided.
8. The respondents contend that petitioner has no requirement at all. It is alleged that petitioner has concealed various facts. According to respondents, husband of petitioner is carrying on his business activities and earning handsome amount. Respondents alleged that petitioner has created artificial necessity. Respondents submit that petitioner has concealed about property at 2, Sadar Thana Road, Delhi which is owned by her and lying vacant. Respondent alleged that petitioner concealed about the fact that her mother Smt. Kailashwati had taken over possession of property no. 2698 and 2700, first floor, Mundewalan Street, Sadar Thana Road, Delhi, by order of Rent Controller dt. 8.10.2002. The tenant of the said property had filed petition in Hon'ble High Court which however has been dismissed on 25.9.2008. Respondent further alleges that petitioner has concealed about selling first floor of properties no. 2621, 2623, 2696 and 2700 situated in the same property to her nephew Sh. Deepak Goel vide registered Sale Deed dt. 28.8.2009. Petitioner also allegedly concealed about gifting ground floor of the aforesaid properties to said nephew vide gift deed dt. 28.8.2009. Respondent thus submits that petitioner has created artificial shortage of accommodation. Reference is made by respondents to an earlier eviction petition being E No. 67/10 which was withdrawn on 26.3.2012. Respondents E.No. 91/12 Page 5 of 13 submit that during pendency of the said petition, the petitioner had transferred the aforesaid properties. Respondents thus question the bona fide requirement of petitioner. It is also contended by respondents that petitioner has filed eviction petitions against other tenants also and that the site plan is also incorrect. Respondents contend further that brothers of petitioner are also necessary parties.
9. Petitioner has replied to the contentions of respondents. Petitioner clarifies that property which was sold to Sh. Deepak Goel was residential property situated on first floor. It is being used as residence by said Sh. Deepak. Petitioner says that the godown situated adjacent to the tenanted premises was gifted to her nephew out of natural love and affection as the said nephew was carrying on his business from the said godown for the last 17 years. Petitioner submits nothing was concealed.
10. Ld. Counsel for the respondents argued that the need of petitioner is not bona fide. He stressed that petitioner has created artificial shortage of accommodation. Ld. Counsel while referring to earlier eviction petition submitted that petitioner has taken contradictory stand in this case which casts shadow of doubt on her claim of bona fide requirement.
11. Ld. Counsel for respondents vehemently contended that in the earlier eviction petition, M/s. Adarsh Medical Store through its proprietor Neeraj Jain was mentioned as tenant/respondent. Whereas in the present petition E.No. 91/12 Page 6 of 13 M/s. Vijay Kumar Sudarshan Kumar as well as Adarsh Medical Store, in addition to Neeraj Jain, Trilok Sundari Jain and Rakesh Kumar Jain, have been made respondents. He submits in the present case M/s. Adarsh Medical Store is now shown as partnership firm and respondent no.3 to 5 are mentioned as partners. Ld. Counsel contends that petitioner is not even aware of constitution of the firm M/s. Vijay Kumar Sudarshan Kumar i.e. respondent no.1. Ld. Counsel emphasised that in the earlier petition only M/s. Adarsh Medical Store was shown as tenant but in the present case, the said firm is described as unauthorised occupant. He thus submits that triable issues have been disclosed by the respondents.
12. On the other hand, Ld. Counsel for petitioner argued that no triable issue has been raised and seeks dismissal of the application under reference. He has relied upon the following judgments:
(i) 2011 V AD (Delhi) 444 titled "Amit Gupta & Ors. Vs. Sh.
Dwarka Nath @ Mast Ram Through LRs & Ors.";
(ii) 184 (2011) DLT 130 titled "Kishori Lal Krishan Kumar Vs. Ankit Rastogi";
(iii) RC Rev. No.6 of 2011 titled "Girdhari Lal Goomer Vs. P.P. Gambhir";
(iv) RC Rev. No. 344 of 2011 titled "Prem Prakash Malik Vs. Ram Gopal Rajvanshi";
(v) 191 (2012) DLT 765 titled "Surinder Gera Vs. Rajesh Ratan Seth";E.No. 91/12 Page 7 of 13
(vi) 191 (2012) DLT 539 titled "Parmanand Vs. Suman Sharma & Ors." ;
(vii) 2012 (7) AD (Delhi) 71 titled "Pradeep Kumar Tyagi Vs. Bimla Tyagi";
(viii) 174 (2010) DLT 328 titled "Viran Wali Vs. Kuldeep Rai Kochhar".
(ix) 2010 IV AD (Delhi) 252 titled "Sarwan Dass Bange Vs. Ram Prakash";
(x) 2010 (2) RCJ 52 titled "Anand Prakash Vs. Ram Murti Devi";
(xi) 173 (2010) DLT 318 titled "Labhu Lal Vs. Sandhya Gupta";
(xii) 172 (2010) DLT 112 titled "Vinod Arora Vs. Deepak Aggarwal";
(xiii) 172 (2010) DLT 551 titled "Kharati Ram Khanna & Sons Vs. Krishna Luthra";
(xiv) 172 (2010) DLT 611 titled "Surinder Singh Vs. Jasbir Singh";
(xv) 169 (2010) DLT 769 titled "Krishna Lal Vs. R.N. Bakshi"; (xvi) 18 (1980) DLT 40 titled "Laxmi Kant Mukt Vs. Jitender Kumar Aggarwal";
(xvii) 63 (1996) DLT 621 titled "Amrit Lal Vs. Jagpal Singh Verma";
(xviii) AIR 1990 Delhi 118 titled "S.P. Sehgal Vs. Vidya Kant"
13. Respondents lays great stress on the fact of transfer of some property by the petitioner to her nephew and contended that petitioner created artificial shortage. Petitioner has countenanced these contentions by E.No. 91/12 Page 8 of 13 submitting that same are residential premises and are not suitable accommodation for running business. The premises sold by the petitioner vide sale deed is situated on the first floor of the property and is being used as residence by Sh. Deepak Goel as stated by the petitioner. Nothing has been shown by the respondents that the said premises on the first floor is being used as commercial premises. As the said premises were residential, petitioner was not supposed to disclose about the fact of sale of the same. When an accommodation is not reasonably suitable accommodation for the petitioner, there is no requirement to disclose the same. As far as godown on the ground floor is concerned, the same was gifted vide gift deed to said Sh. Deepak Goel. Thus as on the date of filing of the petition, the said premises was also not available to the petitioner. Therefore, nondisclosure about gift deed is also of no consequence.
14. Ld. Counsel for respondents argued that artificial shortage was created. However, in my view there is no substance in this submission. The first floor premises were of no use for running business. Therefore, whether the same were sold or not makes no difference. The godown is stated to be in use by Sh. Deepak Goel for the last about 17 years which now belongs to him. The said godown was already in possession of Sh. Deepak. So where is the question of creating artificial shortage? Further respondent cannot challenge gift deed in favour of Sh. Deepak. Respondents have got no E.No. 91/12 Page 9 of 13 business to challenge the gift deed or the sale deed.
15. Ld. Counsel for respondents referred again and again to the earlier eviction petition and contended that contradictory stand has been taken. Respondents have filed certified copy of the earlier petition. Perusal of the same does show that M/s. Adarsh Medical Store is mentioned as tenant. Ld. Counsel for the petitioner has countered these submissions and argued that the petition has been filed now against correct persons. He submitted that the earlier petition was withdrawn with liberty to file fresh petition.
16. In my view, when liberty was granted by Ld. ARC to file fresh petition to petitioner, no such plea of the respondents can be entertained at this stage. Petitioner did not conceal anything about previous eviction petition. She had clearly mentioned about withdrawal of earlier petition. As per petitioner, tenancy was/is in the name of M/s. Vijay Kumar Sudarshan Kumar Jain now represented by respondent no.3 Neeraj Jain. Petitioner further submits that respondent no.3 to 5, however, are running a medical store in the name of M/s. Adarsh Medical Store unauthorisedly. Petitioner says that he has included their names just to avoid any technicality. In view of this explanation, as per my opinion, there is no fault in the petition of petitioner. It is respondent no.3 who is tenant being representative of M/s. Vijay Kumar Sudarshan Kumar Jain. May be that he is running medical store there. He can run any business there but that does not come in the way of petitioner E.No. 91/12 Page 10 of 13 seeking eviction on ground of bona fide requirement. It is undisputed that Neeraj Jain is in possession of the tenanted premises. Respondent no.3 in his affidavit has nowhere denied this fact. Respondents do allege that Smt. Neeta Jain, sister of respondent no.3, has not been impleaded. I see no reason for her impleadment.
17. Ld. Counsel for respondents also questioned bona fide requirement of petitioner. In my view petitioner has clearly spelt out her need. Petitioner intends to start her own business with her husband. I find nothing wrong in it. It is settled law that a tenant cannot dictate landlord as to how and in what manner the landlord should use his/her property. It is also settled law that landlord is the best judge of his requirements and cannot be deprived of this right. The tenanted premises is situated on the ground floor and there is a well flourished market in the Sadar Bazar area. The petitioner does not want to burden her son for her and her husband's needs. I have no doubt about bona fide requirement of petitioner.
18. Ld. Counsel for respondents submitted that petitioner has alternative space available at property no. 2, Sadar Thana Road. Petitioner has replied that the same is owned by her brothers and is in their possession as well. The respondent has failed to show any document showing that petitioner is owner of the said premises. Merely bald submissions will not suffice.
19. Ld. Counsel for respondents also highlighted that premises no. 2698 E.No. 91/12 Page 11 of 13 and 2700, first floor were got vacated by mother of petitioner through the court and this fact has been concealed. Ld. Counsel for petitioner argued that nothing was to be disclosed about some earlier proceedings against some earlier tenant. In my view also this fact has no bearing on the present case. May be that premises were got vacated upon orders of the court, but that was done by mother of the petitioner and the premises came to share of petitioner by virtue of the Will. The said fact does not come in any manner in the way of petitioner.
20. Ld. Counsel for respondents also expressed his grievance about incorrect site plan. The respondent himself has not filed any counter site plan. This grievance needs no consideration.
21. Lastly Ld. Counsel submitted that the brothers of petitioner have not been made parties. This contention is also without any basis. Petitioner is owner of the tenanted premises. Even if she is coowner, still she can maintain this petition. This submission also merits rejection.
22. As held above need of the petitioner is genuine and bona fide. No triable issue arises from the application of the respondents. Therefore, application of the respondents u/s. 25B (4) of DRC Act for leave to contest is hereby dismissed. Petition of the petitioner u/s. 14(1)(e) r/w. Sec.25B of DRC Act is allowed and eviction order is passed in favour of petitioner and against the respondents. It is directed that respondents be evicted from the E.No. 91/12 Page 12 of 13 tenanted premises i.e. One Shop bearing no. 2700 comprising in property bearing no. 10E, Munde Walan Street, Sadar Thana Road, Delhi - 110006 as shown in red colour in the site plan and now marked as Ex.P1 by me. Petition is accordingly allowed.
23. However, in view of Sec. 14(7) of DRC Act it is directed that this order shall not be executed until expiry of six months from today.
24. File be consigned to Record Room.
Announced in the open Court on 05.01.2013 (SANJAY BANSAL) SCJ/RC/North/Delhi E.No. 91/12 Page 13 of 13