Delhi District Court
Sh. Om Prakash vs Sh. Sube Singh @ Subhash on 29 January, 2015
IN THE COURT OF NAVEEN K. KASHYAP, COMMERCIAL CIVIL JUDGE-
CUM-ADDITIONAL RENT CONTROLLER (WEST), TIS HAZARI COURTS,
DELHI.
E. No-87/2013
SH. OM PRAKASH
S/o Late Sh. Murli Ram @ Mool Chand,
R/o 46/8, Gali No. 13, Nai Basti,
Gadodia Road,
Anand Parbat, New Delhi-110005. ....Petitioner
VERSUS
SH. SUBE SINGH @ SUBHASH
S/o Late Sh. Ratti Ram
Shop No. 3, in property No. 46/8,
Gali No. 13, Gadodia Road,
Nai Basti, Anand Parbat,
New Delhi-110005. ..... Respondent.
Date of institution : 01/07/2013
Date of order : 29/01/2015
ORDER
THE FACTS:
1. The present petition U/Sec. 14 (1) (e) of Delhi Rent Control Act, 1958 is filed by the petitioner against the respondent for his eviction from one shop no. 3 in property no.
46/8, Gali No. 13, Gadodia Road, Nai Basti, Anand Parbat, New Delhi-110005 measuring 8'X8' Sqr. ft. as shown in red in the site plan filed with the petition (hereinafter referred as suit premises), on the ground of commercial requirement of petitioner's sons, Sh. Surender Kumar and Sh. Vijay Kumar.
E No. 87/2013 Page 1/142. The brief facts as stated in the petition are that petitioner is the owner and landlord of the suit premises. That suit premises was let out by the father of petitioner to the father of respondent in the year 1978. It is further stated that the rate of rent is Rs. 150/- per month excluding electricity and water charges etc. It is further stated that after the death of petitioner's father in the year 2001, the petitioner became the owner by virtue of the registered Will dated 08/02/1997.
3. It is further stated that suit premises is required bonafidely for the petitioner and his other dependent family members, more particularly for the purpose of settling petitioner's sons i.e. Sh. Surender Kumar aged about 29 years and Sh. Vijay Kumar aged about 20 years. It is further stated that petitioner's family comprise of his three sons and one daughter. It is further stated that such two sons of petitioner are of marriageable age but as they are not settled in life, therefore, they could not be married. It is further stated that such two sons i.e. Surender Kumar & Vijay Kumar want to start computer shop.
4. It is further disclosed that the adjoining shops no. 2, 4, & 5 were sold by the petitioner way back in the year 2004 due to financial crisis. It is further stated that possession of another shop no. 1 was obtained by petitioner in October 2012 after evicting the tenant of that shop. That such shop no. 1 is presently used by petitioner along with his wife for their business of photo framing.
It is further stated that petitioner does not have any other accommodation apart from what is stated in present petition.
5. Notice of this petition was issued to the respondent in prescribed proforma. The respondent filed leave to defend application date 29/07/2013 along with accompanied affidavit, on 30/07/2013.
E No. 87/2013 Page 2/146. Respondent in his leave to defend application accompanied with supporting affidavit has raised many issues which are discussed in detail later at appropriate stage.
7. The petitioner has filed his reply dated 06/08/2013 to leave to defend application of respondent along with supporting affidavit. In nutshell, the petitioner has specifically denied the assertions made by the respondent in his leave to defend application. In his reply, the petitioner has reasserted his bonafide requirement of the suit premises. It is further stated that respondent failed to raise any triable issues.
8. The respondent even filed a rejoinder on 07/09/2013 to his leave to defend application.
9. Arguments in detail already heard from both sides. I have heard Ld. Counsels for the parties at length and gone through the records as well as the written submissions filed by the petitioner.
THE LAW:
10. Before proceeding further it would be worthwhile to state that Chapter IIIA Of Delhi Rent Control Act deals with summary trial of certain applications expressly stating that every application by a landlord for recovery of possession on the ground specified in clause (e) of the proviso to sub- section (1) of Section 14 of the Act, or under Section 14A or 14B or 14C or 14D shall be dealt with in accordance with the special provisions prescribed in Section 25B of the Act. The provisions in Chap. IIIA confer a real, effective and immediate right to obtain possession by confining the trial only to such cases where the tenant has such a defence as would disentitle the landlord from obtaining an order for eviction under s.l4(1)(e) or under s. 14A. Chap. IIIA seeks to strike a balance between the competing needs of a landlord and a tenant and has therefore provided that the tenant shall have a right to apply for leave to contest. As per the broad scheme of E No. 87/2013 Page 3/14 this Chapter a tenant is precluded from contesting an application filed for eviction on the grounds mentioned in the aforementioned provisions unless he obtains leave from the Controller to contest the eviction petition. In default of obtaining leave to defend or leave is refused to him an order of eviction follows. It appears recourse to summary trial is adopted having due regard to nature of the grounds on which the eviction is sought with a view to avoid delay so that the landlord should not be deprived or denied of his right to immediate possession of premises for his bona fide use. The defence must also be bonafide and if true, must result in the dismissal of landlord's application. Defences of negative character which are intended to put the landlord to proof or are vague, or are raised mala fide only to gain time and protract the proceedings, are not of the kind which will entitle the tenant to the grant of leave. The Controller cannot set down the application for hearing without making an order in terms of sub-s. (5) of s. 25B. The trial must be confined only to such grounds as would disentitle the landlord to any relief.
11. A landlord, who bona fidely requires a premises for his residence and occupation should not suffer for long waiting for eviction of a 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 bona fide 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 25B(5) of DRC Act.
12. Further, it is pertinent to note that the scope of the Section 14(1)(e) D.R.C. Act has been enlarged in view of the judgment of the Hon'ble Supreme Court titled as "Satyawati Sharma v. Union of India" [AIR 2008 SC 3148] so as to include premises let out for commercial purposes also within the scope and ambit of a petition under section 14(1)(e) of DRC Act.
E No. 87/2013 Page 4/14THE FINDINGS:
13. With this background, this Court turns to the facts of the case in hand. The respondent has raised many issues in the leave to defend application which have been stated to be triable issues. Same are dealt one by one.
14. Before proceeding further, it is pertinent to note that the respondent has not disputed the petitioner's landlordship and ownership about the suit premises.
No Bonafide Requirement :
15. It is stated by the respondent that, as also mentioned by petition in para no. 18
(a) (ii) of his main petition, the petitioner earlier filed an eviction petition U/Sec. 14 (1)
(e) of DRC Act against other tenants in respect of shop no. 1 situated in the same building in which suit premises is situated. It is further stated that in such earlier petition also the ground taken by the present petitioner was that shop no. 1 was required for his unemployed son Sh. Roshan and Sh. Surender. A certified copy of such earlier petition along with copy of order passed by the court is placed on record by the respondent. It is further submitted by the respondent that after obtaining the possession of said shop, the petitioner instead of settling his sons in that shop, shifted his own business from shop no. 5 to such shop no. 1. As such it is alleged that the need of the petitioner to settle his son in present petition is not bonafide, as after getting vacant possession of that shop no. 1, the petitioner shifted his own business in such shop no. 1 instead of settling his sons.
16. On the other hand, the petitioner in his counter affidavit to leave to defend has categorically and specifically denied all such allegations of the respondent. It is replied by the petitioner that fact of filing an eviction petition with respect to shop no. 1 has already been mentioned by the petitioner in para 18 (a) of his main petition. It is further E No. 87/2013 Page 5/14 submitted that the petitioner has already sold the shop no. 5 in the year 2004 to one Nathu Ram and taken back the same on rent from such Nathu Ram in June 2006 vide a written Rent Agreement dated 12/06/2006. And the petitioner had to vacate such shop no. 5 and shift to shop no. 1, as he was left with no other option but to run his existing business.
17. It is factually correct and even admitted by the petitioner himself that he earlier filed an eviction petition regarding shop no. 1 for the requirement of his two sons, out of which one son Sh. Surender Kumar is the same for which present petition is also filed. But it is also an undisputed matter of record that such earlier petition by present petitioner was filed in the year 2006 and the eviction order in the same was made in the year August 2010. Further in his reply it is specifically mentioned by the petitioner that vacant possession of shop no. 5 was given back to Sh. Nathu Ram and such Sh. Nathu Ram is the owner of shop no. 5. And it is further stated that such fact was also recorded by the court of ARC, (Central) in order dated 13/08/2010 passed in another eviction petition no. 638/2009. Further, the petitioner has placed on record the "customary documents" regarding the sale of shop no. 5 on 30/06/2004 to such Sh. Nathu Ram as well as subsequent rent agreement dated 12/06/2006. Under these circumstances, the petitioner submitted that the tenancy of shop no. 5 was surrendered by the petitioner to its owner Sh. Nathu Ram in October 2012. As such it is explained by petitioner that he had to shift his own business to shop no. 1. Therefore, in view of this court hold that the petitioner has explained why he occupied the shop no. 1 instead of settling his sons in the same. Because of future development after filing of earlier petition in the year 2006, the petitioner himself had to use such shop no. 1. As a result this court does not find any malafide in such action and decision of petitioner.
18. It is further stated by the respondent that Sh. Surender Kumar is already employed as home guard. And the youngest son is still studying in Ramjas School no. 2 at Anand Parbat.
E No. 87/2013 Page 6/1419. In the judgment of Pawan Kumar Vs. Sant Lal [R.C.Rev 303/2012 decided on 6.8.2012 ] it has been observed by our own High Court that it is the moral duty of a father to help establish his son. It was observed :
"16. Further, submissions of learned counsel for the petitioner that Dr. Ankit was not financially dependent upon his father and so the tenanted premises could not be got vacated for his requirement, is also only noted for rejection. It is trite that the landlord is entitled to help his son, establish his business. In Labhu Lal Vs. Sandhya Gupta 2011(1) RCR,(Rent) 231 (Delhi), it has been held by this Court that the children are very much dependant on the landlord for the purpose of setting up their business and such a requirement is a bonafide one. The right of the landlord for possession of his property for setting up a business for his son has been also recognized by the Apex Court in Ram Babu Aggarwal Vs. Jay Kishan Das 2009(2) RCR 455. The moral duty of a father to help establish his son was also recognized by the Apex Court in Joginder Pal Singh Vs. Naval Kishore Behal AIR 2002 SC 2256 in the following words:
"24........Keeping in view the social or socio-religious milieu and practices prevalent in a particular section of society or a particular region, to which the landlord belongs, it may be obligation of the landlord to settle a person closely connected with him to make him economically independent so as to support himself and/or the landlord. To discharge such obligation the landlord may require the tenancy premises and such requirement would be the requirement of the landlord. If the requirement is of actual user of the premises by a person other than the landlord himself the Court shall with circumspection inquire : (i) whether the requirement of such person can be considered to be the requirement of the landlord, and (ii) whether there is a close inter-relation or identify nexus between such person and the landlord so as to satisfy the requirement of the first query. Applying the overlaid tests to the facts of the present case it is clear that the tenancy premises are required for the office of the landlord's son who is a chartered accountant. It is the moral obligation of the landlord to settle his son well in his life and to contribute his best to see him economically independent."
20. It may be noted that in Joginder Pal Singh Vs. Naval Kishore Behal [AIR 2002 SC 2256] (as referred to in aforesaid judgment) the situation was similar to the present case, as in the said case before the Apex court the landlord had filed eviction petition for the office of his son who was a chartered accountant who was residing with him. Honorable Mr. Justice R.C. Lahoti observed in the said judgment that such a requirement of the landlord is a genuine requirement . In the said case the Apex Court E No. 87/2013 Page 7/14 evicted the tenant from the premises for the said requirement of the landlord.
21. The present case is similar to the case of Joginder Singh (supra) as in the present case the tenanted premises is also required by the petitioner for the computer business of his sons as no suitable space is available to carry out business by them.
22. It may be noted that the Respondent has not denied that the son of petitioner cannot start such a business, the respondent has merely contended that one of the son is already engaged and well settled and the other son is just studying. It is further pertinent to mention that the respondent had not placed on record any material to show that age of petitioner's sons is not as stated in the petition.
23. Further, in the judgment titled as Ragavendra Kumar v. Firm Prem Machinary [AIR 2000 S.C.534] the Hon'ble Supreme Court held that it is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter.
24. Further In the judgment tiled as "Sarla Ahuja v. United India Insurance Co. Ltd."[AIR 1999 S.C. 100] it was held:
"...The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself...."E No. 87/2013 Page 8/14
25. Further in the judgment tiled as Ram Babu Aggarwal v. Jay Kishan Das 2009(4) R.C.R.(Civil) 748 (SC), the Hon'ble Supreme Court observed;
".......6. However, as regards the question of bonafide need, we find that the main ground for rejecting the landlord's petition for eviction was that in the petition the landlord had alleged that he required the premises for his son Giriraj who wanted to do footwear business in the premises in question. The High Court has held that since Giriraj has no experience in the footwear business and was only helping his father in the cloth business, hence there was no bonafide need. We are of the opinion that a person can start a new business even if he has no experience in the new business. That does not mean that his claim for starting the new business must be rejected on the ground that it is a false claim. Many people start new businesses even if they do not have experience in the new business, and sometimes they are successful in the new business also...."
26. In the said judgment the Apex Court has observed to the extent that requirement of landlord for setting up his son who has no experience in business is a bona fide requirement.
27. In the opinion of this court it is the right of every person to excel in life. If the petitioner and his sons is of the opinion that it would be better in life to start a computer business from the tenanted premises for petitioner's sons, then it would not be just for this court to direct the petitioner otherwise and thereby stop the financial growth of the family of the petitioner's sons. Though the success of the business to be established by the sons of the petitioner is not guaranteed, but, at the same time the court cannot predict the failure of the same and thereby decline the petitioner an opportunity to augment his sons income from a premises owned by them.
28. Further, the dependency of a family member is not to be seen on the basis of financial dependency, but it is to be seen on the basis of dependency for the purpose of accommodation. As such even if it is presumed for the sake of argument that such sons of petitioner are already employed, still they are dependent on the petitioner for the E No. 87/2013 Page 9/14 purpose of accommodation and no material to contrary is placed on record by respondent.
29. As such, in the opinion of the court the requirement of the petitioner for his sons is a bonafide requirement and there is no reason for the court to find any malafide intention behind the same.
30. Therefore, in view of above mentioned position of law, the present contention of the respondent does not raise any triable issue of such a nature that would disentitle the landlord from obtaining an order for the recovery of possession of the premises.
Alternative accommodation
31. It is stated by the respondent that petitioner is wrongly claiming that shop no. 5 in the same building is a tenanted shop or that petitioner is a tenant in the same. It is further denied that petitioner sold such shop either in the year 2004 or subsequently to any one. It is stated that with malafide intention after shifting from shop no. 5 to shop no. 1, petitioner is keeping such shop no. 5 locked.
32. It is further claimed that petitioner never sold shop no. 2 and 4. And as such it is claimed that petitioner is the owner of such shops at present.
33. On the other hand, the petitioner replied that he has already sold the shop no. 5 in the year 2004 to one Nathu Ram and had taken back the same on rent from such Nathu Ram in June 2006 vide a written rent agreement dated 12/06/2006. The respondent even placed on record copy of such document of sale and rent agreement.
34. But, the respondent also placed on record a copy of reply dated 22/11/2013 in RTI application. In such reply by the house tax department of MCD, it is stated that E No. 87/2013 Page 10/14 house tax for the building no. 46/8, Gali no. 13, Anand Parbat in question is paid by petitioner and not by Sh. Nathu Ram for the year from 2004-05 to 2012-2013. It is further stated in such reply that there are five shops also in such building. It is further stated that record regarding sale of such shops is not available nor any mutation is made in record of MCD in this regarding.
35. As such it is claimed by the respondents that documents dated 30/06/2004 regarding sale of shop no. 5 by petitioner to Sh. Nathu Ram and subsequent rent agreement dated 12/06/2006 are shame documents, as petitioner is still paying house tax for the same. It is further argued by learned counsel for respondent that no IT return of shop no. 5 is filed by petitioner.
36. But such RTI does not mention that petitioner is paying house tax for "shop no. 5". It only mention that house tax for the building in which shop no. 5 is also situated, is being paid by the petitioner. Further, mutation in MCD record is not a proof of ownership as per the MCD Act itself. Further, the petitioner has mentioned that ownership of Sh. Nathu Ram is recognized in order dated 13/08/2010 passed in eviction petition no. 638/2009 by learned ARC (Central), Delhi. Still no contrary material placed on record by the respondent in this regard. Further, apart from such RTI reply the respondent has just made a bald statement denying all the facts stated by the petitioner in this regard, without any supporting material. And on the basis of material on record it is safely concluded that petitioner is not the owner of shop no. 5.
37. As far as shop no. 2 and 4 are concerned, it is stated by petitioner that in petition U/Sec. 45 of DRC Act filed by present respondent, the present respondent himself admitted that the present petitioner has already sold two such shops to some other person. It is further stated that in fact such shops were sold in June 2004 to Sh. Mahinder Kumar Gupta.
E No. 87/2013 Page 11/1438. Therefore, in view of above mentioned position of law, the present contention of the respondent also does not raise any triable issue of such a nature that would disentitle the landlord from obtaining an order for the recovery of possession of the premises.
Incorrect site Plan:
39. In leave to defend application, respondent has taken objection that petitioner has filed incorrect site plan regarding shop no. 5, but still respondent has not filed any contrary site plan showing the proper details of property in dispute, although the respondent has given some description of such shop no. 5 in his leave to defend application.
40. In V. S. Sachdeva Vs. M. L. Grover, [67 (1997) DLT 737], Hon'ble Delhi High Court stated that if, the tenant failed to file any site plan, then the site plan filed by the landlord should be accepted.
41. In the absence of any contrary site plan of the respondent, plea of the respondent is rejected being bald averment without any substance. Moreover, it is already held above that petitioner is not the owner of such shop no. 5.
The Conclusion :
42. It is well settled that leave to defend is granted to the tenant in case any triable issue is raised by him, which can be adjudicated by consideration of additional evidence. The mere existence of any triable issue is not sufficient. The nature of the triable issue raised by the tenant must be such that it will disentitle the landlord from obtaining the eviction order.
In the judgment titled as Sarwan Dass Bange Vs. Ram Prakash [167 (2010) DLT 80] the Hon'ble High Court of Delhi referring to the judgment of Baldev Singh Bajwa v. Monish Saini [(2005) 12 SCC 778] observed in para No. 17 as under:
E No. 87/2013 Page 12/14"....It was held that the legislative intent is of expeditious disposal of the application for ejectment of tenant filed on the ground of requirement by the landlord of the premises for his own occupation; a special category of landlords requiring the premises for their own use has been created; if there is any breach by the landlord, the tenant is given a right of restoration of possession; the landlord who evicts a tenant on the ground of own requirement is not only prohibited from letting out the premises or disposing of the same but also required to use the same for his own residence only. It was held that these restrictions and conditions inculcate in built strong presumption that the need of the landlord is genuine; the conditions and restrictions imposed on the landlord make it virtually improbable for the landlord to approach the Court for ejectment of tenant unless his need is bona fide - no unscrupulous landlord in all probability, under this Section, would approach the Court for ejectment of the tenant considering the onerous conditions imposed on him. It was further held that this inbuilt protection in the Act for the tenants implies that whenever the landlord would approach the court his requirement shall be presumed to be genuine and bona fide. It was further held that a heavy burden lies on the tenant to prove that the requirement is not genuine.."
43. The whole purpose and import of summary procedure under Section 25B of the Act would otherwise be defeated. The prayer for leave to contest should be granted to the tenant only where a prima facie case has been disclosed by him. In the absence of the tenant having disclosed a prima facie case i.e. such facts which disentitles the landlord from obtaining an order of eviction, the Court cannot mechanically and in routine manner grant leave to defend. In the light of the aforesaid legal proposition, all the pleas taken by the respondent have failed to raise any triable issues. The contents of the application for leave to defend have failed to rebut the presumption of bonafide qua the requirement of the petitioner. The application for leave to defend filed by the respondent is thus rejected.
44. As a consequence thereof, an eviction order is passed u/s. 14 (1) (e), DRC Act against the respondent regarding the suit property i.e. one shop no. 3 in property no. 46/8, Gali No. 13, Gadodia Road, Nai Basti, Anand Parbat, New Delhi-110005 measuring 8'X8' Sqr. ft. as shown in red in the site plan filed with the petition Ex. P-1 (as put by the court today itself) filed by the petitioner.
E No. 87/2013 Page 13/1445. However in light of Section 14 (7) DRCA, the aforesaid eviction order shall not be executable for a period of six months from the date of this order. The parties are left to bear their own costs. File be consigned to Record Room after due compliance.
Announced in the open Court on 29/01/2015 (This order contains 14 pages) (NAVEEN K. KASHYAP) C.C.J.- CUM- A.R.C. WEST DISTRICT, THC, DELHI.
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