Delhi District Court
Krishna Verma vs Suman Aggarwal on 5 February, 2024
New no.446/19 Krishna Verma & Ors Vs. Suman Aggarwal & Ors.
In the Court of Ms. Neetu Nagar, JSCC cum Additional SCJ cum
Guardian Judge, South East District, Saket District Court, Delhi
(the then Additional Rent Controller-02, Central District, Tis
Hazari Courts, Delhi)
E-47/19
New no.446/19
In the matter of:-
1. Krishna Verma
W/o late Shri S.K.Verma
2. Sachin Verma
S/o late Shri S.K. Verma,
Both Residents of
4594-A/2, First Floor, Gali No. 9,
Darya Ganj, New Delhi-110002.
3. Gaurav Verma
S/o late Shri S.K. Verma,
R/o 2/30, First Floor,
Roop Nagar,Delhi-110007 .... Petitioners
Versus
1. Ms. Suman Aggarwal
W/o late Shri Subhash Aggarwal,
2. Ankur Aggarwal,
S/o late Shri Subhash Aggarwal,
Both residents of :
4594-A/2, Ground Floor,
Gali No. 9,Darya Ganj,
New Delhi-110002.
3. Deepak Aggarwal
4. Chirag Aggarwal
Both sons of
(NEETU NAGAR) Page No.1/35
JSCC-ASCJ-GJ, South East District, Saket Courts
(the then ARC-02, Central District, THC)
05.02.2024 Digitally signed
by NEETU
NEETU NAGAR
Date:
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+0530
New no.446/19 Krishna Verma & Ors Vs. Suman Aggarwal & Ors.
late Sh. Ram Avtar Aggarwal,
last known address:-
4594-A/2, Ground Floor,
Gali No. 9, Darya Ganj,
New Delhi-110002 .... Respondents
5. Neeraj Verma
S/o Late Sh.H.C.Verma
R/o. 4594-A/2, Gali No. 9,
Darya Ganj, New Delhi-110002. ....Proforma Respondent
******
Date of Institution : 06.06.2019
Date of Order : 05.02.2024
Decision of Order : Leave to defend application
dismissed and eviction petition
allowed.
******
ORDER
1. This order of mine shall decide the question whether the respondents No.1 to 4 be granted leave to contest the present eviction petition filed by the petitioners against the respondents No.1 to 4 under section 14 (1) (e) read with Section 25-B of Delhi Rent Control Act, 1958 (hereinafter referred to as 'DRC Act') in respect of ground floor with mezzanine bearing no. 4594-A/2, Gali No. 9, Darya Ganj, New Delhi-110002 as shown in red colour in site plan attached with the petition (hereinafter referred as tenanted premises).
2. The brief facts necessary for disposal of leave to defend application can be enunciated as follows:-
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2.1 It is the case of the petitioners that the petitioners are the co-owners/landlords of the subject property bearing No. 4594-A/2, Gali No.9, Darya Ganj, New Delhi-110002, of which the tenanted premises forms a part. The subject property was originally owned by Shri Kundan Lal Verma vide sale deed dated 10.12.1952 duly registered on 15.12.1952. Subsequently, by virtue of judgment and decree dated 25.02.2011 and subsequent transfer/s, the petitioners became the owners of 7/8th undivided share in the subject property while the remaining 1/8th share vest with the legal heirs of Shri H.C.Verma including the respondent No. 5. It is stated that the predecessors of the respondents No. 1 to 4 namely Shri Daulat Ram Aggarwal (original tenant) last paid the rent of the tenanted premises for the period ending on 30.06.1978 to the predecessor of the petitioners namely Sh. Santosh Kumar Verma against the rent receipt and thereafter, the said tenant defaulted in the payment of rent in spite of repeated demands and requests made by the petitioners. 2.2 It is submitted that the family of the petitioners consist of Petitioner No. 1 Smt. Krishna Verma, aged about 67 years, who is a housewife; Petitioner No. 2 Sh. Sachin Verma, aged about 37 years and his wife namely Mrs. Garima Verma and a daughter namely Ridhima Verma aged about 4 years and Petitioner No. 3 Sh. Gaurav Verma, aged about 33 years and his wife namely Mrs. Khushboo Verma. Further, the petitioner No. 1 also has two married daughters who off and on visit and stay with the petitioners with their respective family/ies.
2.3 It is stated that the subject property consists of ground, first, second and third floor and the Garage marked 'X' in the site plan (NEETU NAGAR) Page No.3/35 JSCC-ASCJ-GJ, South East District, Saket Courts Digitally signed (the then ARC-02, Central District, THC) by NEETU 05.02.2024 NEETU NAGAR Date:
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which is under the tenancy of decades old tenant Shri Kishan Lal. On the First Floor of the subject property, the room marked 'A' is being used by the petitioner No. 1 as her living-cum-bed room and the other room marked 'B' is being used as drawing-cum-dining room by the petitioner No. 1 and her family while the room marked 'C' is being used by the petitioner No. 2 and his wife and the daughter Ridhima as their living-cum-bedroom. Adjoining the same, there is a room marked 'D' where the wardrobes are installed for keeping the clothes etc. besides dressing table etc. and further the said room is also being used by the petitioner No. 2 as his library-cum-studyroom as the petitioner No. 2 is a Post Graduate (Business &Marketing) and currently employed with the newspaper concern "The Times of India"
as Deputy Manager (Operations) and has to work till the wee hours in the night. The said room marked 'D' is also used during the night hours by Ms. Garima to feed her child and calm her down. Apart from the same, there is a kitchen, store/s, bathroom and W.C., as shown in the annexed site plan. However, the entire second and third floor of the subject property is in exclusive use and possession of the respondent No. 5 (the proforma respondent), having inherited the undivided share from his father. The petitioners are not in possession of any portion on the entire ground floor, second floor and third floor of the subject property.
2.4 It is submitted further that the petitioner No. 3 along with his wife Ms. Khushboo Verma were earlier residing in second floor portion of property bearing No. 5645- 5646, Katra Anoop Singh, Nai Sarak, Delhi. Later, the petitioner No. 3 took on rent a portion of the third floor of property bearing No. 3/54, Roop Nagar, Delhi-7 and (NEETU NAGAR) Page No.4/35 JSCC-ASCJ-GJ, South East District, Saket Courts Digitally signed by (the then ARC-02, Central District, THC) NEETU 05.02.2024 NEETU NAGAR NAGAR Date:
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shifted there alongwith his wife while retaining the address of Nai Sarak as their permanent address in the Government record. Ultimately, the petitioner No. 3 had to vacate the said premises in the month of February, 2019 and has taken on rent a portion of the first floor of property No. 2/30, Roop Nagar, Delhi-110007 on a monthly rent of Rs.20,000/- besides other charges and are residing therein. 2.5 It is averred that the petitioner No. 3 and his wife are unemployed although educated, the entire rental burden of the said rented premises at 2/30, Roop Nagar, Delhi- 110007 is upon the petitioners No. 1 and 2. The petitioner No. 1 is only having the rental income from the first floor tenant in property bearing No. 5645-5646, Katra Anoop Singh, Nai Sarak, Delhi-110006 and the petitioner No. 2 has limited income from his employment with the newspaper concerned "The Times of India", from where he is getting a petty salary.
2.6 It is submitted further that the petitioner No. 1 is an old lady and suffering from age related problems due to which she finds difficult to climb the stairs and accordingly, one room is required by the petitioner No. 1 on the ground floor of the subject property for her residence.
2.7 It is averred that the petitioner No. 3 and his wife, want to shift to the ground floor of the subject property for their residence. Petitioner No. 1 also wants to settle both her sons and wants the petitioner No. 3 and his wife to have permanent source of income. Accordingly, the rear side ground floor portion of the subject property is bonafidely required for the residence of the petitioner No. 1, petitioner No. 3 and his wife besides the fact that even the family of (NEETU NAGAR) Page No.5/35 JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally signed by NEETU 05.02.2024 NEETU NAGAR Date:
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the petitioner No. 2 is growing. The petitioner No. 3 is unemployed and has no source of income and wants to start his own business and even his wife Ms. Khushboo Verma, who has a good skill in tailoring and embroidery work, wants to start her own boutique and financially help her husband and to secure their future. It is stated that the front side portion/s marked 'Y' and Z' on the ground floor of the subject property are required by petitioner No. 3 and his wife to start their own respective business i.e. business of sale of Computer stationery and Allied products including Gift Novelties etc. by the petitioner No.
3 and running a boutique of ladies clothes including tailoring and embroidery etc. by the wife of the petitioner No. 3 respectively and the tenanted premises is the most suitable place for the said purposes. 2.8 It is asserted that the petitioners and their family members have no other reasonable, suitable and vacant accommodation in Delhi or elsewhere.
3. Summons were served upon the respondents no.1 to 4 who filed joint detailed affidavit, by taking following grounds in their leave to defend application which can be outlined as follows:
3.1 It is averred that the petitioners are neither owners nor landlords of the respondents.
3.2 It is admitted that Sh. Kundan Lal Verma was the lessor and the landlord of the premises who collected the rent during his life time. The respondents even do not know the petitioners and under what capacity they have filed the present eviction petition. The petitioners have never demanded any arrears of rent and never disclosed any ownership documents in their favour for the past many decades through any notice. It is stated that no rent was ever paid to (NEETU NAGAR) Page No.6/35 JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally signed by NEETU 05.02.2024 NEETU NAGAR Date:
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petitioners No.l to 3 and to Sh. S.K.Verma by respondents or by their predecessors.
3.3 It is stated that the property bearing No.5645-5646 Municipal No. of first and second floor at Katra Anoop Singh, Nai Sarak, Delhi-6 was purchased by the petitioner No.1 vide sale deed dated 07.07.2009 from her landlord for Rs.11,00,000/-which clearly shows that the petitioners have no financial stringency as claimed by them and enjoying handsome rental income. It is a fit case of alternate accommodation claimed by the petitioners. 3.4 It is asserted that the subject property is completely residential in nature and petitioners are not clear in their mind for what purpose the subject premises are required. The petitioner no.3 is residing in the subject property on second floor together with the petitioner no.1 and the petitioner no.2 is residing with his family including one minor child and wife on the first floor. Further, the petitioner no.1 has got possession of one big room on ground floor which the petitioners have shown as a garage in their alleged site plan.
The story of petitioners that the said portion of garage was tenanted out to Sh. Krishan Lal was/is completely fake. The alleged rent receipt placed on record was dated back to the year 1979. 3.5 It is averred that the petitioner No.1 is quite hale and hearty and not suffering from any ailment as stated in the petition. 3.6 It is stated that the petitioners are claiming 7/8 percent ownership rights in the subject property and further the proforma respondent no.5 Neeraj Verma is having 1/8th share only in the subject property. Strangely, the proforma respondent is having possession of two floors being owner of 1/8th share. It is averred that the petitioners (NEETU NAGAR) Page No.7/35 JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally signed 05.02.2024 NEETU by NEETU NAGAR NAGAR 2024.02.05 Date:
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have got surplus accommodation and are in possession of 350 square yards and the present petition is malafide. 3.7 Upon these grounds, the respondents No.1 to 4 prayed that there exists triable issue(s) that would disentitle the petitioners from obtaining an eviction order in respect of tenanted premises.
4. Reply to leave to defend application has been filed by the petitioners alongwith supporting affidavit wherein they have denied that the present petition is based on false and frivolous grounds and does not contain the ingredients of Section 14(1)(e) of DRC Act. The petitioners denied all the allegations and assertions made in leave to defend application and affidavit.
4.1. It is stated that the predecessor of the respondents No. 1 to 4 namely Shri Daulat Ram was inducted as tenant in the subject premises by the then landlord/owner Shri Kundan Lal Verma vide rent/lease deed dated 28.12.1965 and that the said tenant was paying the rent of the subject premises to the said owner/landlord against written receipt/s.
4.2 It is further stated that the rent receipt was issued bearing the name of Shri Kundan Lal Verma (deceased father of Shri Santosh Kumar Verma) on the top of the said rent receipt and the name of Shri Kundan Lal Verma appeared thereon as a mark of the respect, although after the death of Shri Kundan Lal Verma, the subject property as a whole devolved upon his legal heirs including Shri Santosh Kumar Verma.
4.3 It is submitted that suit for partition qua the subject property, titled as Kela Devi (deceased through L.Rs.) versus Harish Chandra Verma and Ors. was filed wherein order dated 01.10.1991 (NEETU NAGAR) Page No.8/35 JSCC-ASCJ-GJ, South East District, Saket Courts Digitally signed by NEETU (the then ARC-02, Central District, THC) NEETU NAGAR 05.02.2024 Date:
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was passed, thereby directing the tenants on the ground floor of the subject property including the predecessors of the respondents No. 1 to 4 (herein) and the tenant in the garage namely Shri Kishan Lal to deposit the entire rent in the court, which order was further confirmed by the Hon'ble High Court of Delhi in the month of February, 1992.
Subsequently, the said matter/case was transferred to the District Court at Tis Hazari Courts, Delhi and the predecessor of the respondents No. 1 to 4 namely Sh. Subhash Aggarwal and Sh. Ram Avtar Aggarwal moved an application for review of the said order regarding the directions for deposit of rent in the court vide application dated 21.07.2003. The said application for review was disposed off vide order dated 29.01.2005. Even the present petitioner No. 2 submitted the statement of arrears of rent/details of the dues against the tenants on the ground floor of the subject property. In the said subject for partition, a local commissioner was appointed to ascertain the status of the subject property and the mode of partition and he submitted his report dated 28.02.2012. It is stated further that the name of the said tenant Shri Kishan Lal also find mentioned repeatedly in the court proceedings in the subject for partition in Kela Devi & Ors. Versus Harish Chand & Ors. It is stated that it is an open offer of the petitioners to the respondents No. 1 to 4 to vacate the subject premises and occupy the said garage portion under the tenancy of Shri Kishan Lal at their on cost and risk and the petitioners shall have no grievance for the same.
5. Reply/no objection was filed on behalf of Performa Respondent no. 5. It was submitted that the petitioners are the co- owners in the undivided portion of the subject property and the (NEETU NAGAR) Page No.9/35 JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally signed by NEETU 05.02.2024 NEETU NAGAR Date:
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answering respondent is one of the co-owners in the said property and share holder of 1/8 th undivided share of Shri Harish Chandra Verma (now deceased).
5.1 It is stated that the answering respondent is residing along with his family on the second floor with barsati rooms on the roof of the said property and the petitioners only visit on the roof thereof to check their water tanks etc. 5.2 It is stated that one garage marked as X on the ground floor of the subject property is under the tenancy of an old tenant namely Shri KishanLal.It is further stated that the petitioner No. 1 Smt. Krishna Verma and her son Sh. Sachin Verma along with his wife and small daughter Ridhima are in possession of the entire first floor, one bathroom and separate toilet in the staircase of the subject property and they are not in possession of any portion on the ground floor thereof.
5.3 It is further submitted that the petitioners are the legal heirs of late Shri S.K. Verma. The answering respondent never objected to filing of the present petition.
6. Rejoinder was filed by the respondents No.1 to 4 to the reply of leave to defend application of the petitioners reaffirming and recovering the facts which they stated in the leave to defend application along with their detailed affidavit.
7. I have heard learned counsel for both the parties and have gone through the material on record carefully. I have given my thoughtful consideration to the submissions made on behalf of both the parties as well as written submissions of the petitioners along with case laws.(NEETU NAGAR) Page No.10/35
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8. The present petition for eviction is under clause (e) of proviso to sub-section (1) of section 14 of Act 59 of 1958 which after the judgment of Hon'ble Supreme Court in "Satyawati Sharma Versus Union of India", on 16.04.2008 reads as under :-
14.(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by and court or Controller in favour of the landlord against a tenant:Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:-
* * *
(e) that the premises are required bona fide by the landlord for occupation for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation :
9. In order to succeed in a petition for eviction filed under section 14 (1) (e) of the DRC Act, the petitioner must establish the following ingredients:-
(i) That he is the owner of the tenanted premises and there exists relationship of landlord and tenant between him and the respondent.(NEETU NAGAR) Page No.11/35
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(ii) That tenanted premises is required bonafide by the petitioner for himself or for any member of his family dependent upon him.
(iii) Petitioner does not have any other alternate, reasonable and suitable accommodation.
10. It is now well settled that while deciding the question of the grant of leave to contest under the provisions of section 25B of Act 59 of 1958, the Rent Controller should see the affidavit filed by the tenant and the counter affidavit filed by the landlord. The Controller is not required to conduct a full fledged trial and should only see that if the affidavit of the tenant raise any triable point the decision on which may disentitle the landlord from recovering possession of the premises. At the time of the decision on the question of leave, the Controller is not required to seek the proof of the defence of the tenant. The tenant should only disclose such facts in his affidavit that would disentitle the landlord from recovering possession of the disputed premises. At the stage of granting the leave to defend, the Rent Controller should confine himself to the affidavit and reply, if any. The controller does not have the task of testing the veracity of the issues raised by the tenant, since that stage of the case will arise only after a leave to defend application has been allowed . The level of proof at this stage is that of a prima facie case. Reference at this point can be made to the landmark judgment of the Apex Court in "Precision Steel Engineering Works and Anr. Versus v. Prem Deva Niranjan Deva Tayal, 1982 (2) RCR 544: AIR 1982 Supreme Court 1518", wherein it was held that:-
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"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."
11. Further, the above cited case also poses a statutory duty on the Controller to grant leave to defend, if the tenant is able to disclose certain facts which would have to be tested at a later stage.
Relevant paragraphs of the judgment are as under:
"Statutory duty is cast on the Controller to give leave as the legislature uses the expression 'the Controller shall give' to the tenant leave to contest if the affidavit filed by the tenant discloses such fact as would disentitle the landlord for an order for recovery of possession. The Controller has to look at the affidavit of the tenant seeking leave to contest. Browsing through the affidavit if there emerges averment - of facts which on a trial, if believed, (NEETU NAGAR) Page No.13/35 JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally signed by NEETU 05.02.2024 NEETU NAGAR Date:
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would non-suit the landlord, leave ought to be granted. Let it be made clear that the statute is not cast in a negative form by enacting that the Controller shall refuse to give to the tenant leave to contest the application unless the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order etc.... The language of sub-section 5 of section 25B casts a statutory duty on the Controller to give to the tenant leave to contest the application, the only precondition for exercise of jurisdiction being that the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of 13; possession of the premises on the ground mentioned in section 14(1)
(e)."
12. Let us now discuss the facts and circumstances of the present case keeping the principles of law as discussed above.
I. Ownership of the petitioners over the tenanted premises as well as existence of landlord-tenant relationship between the petitioners and the respondents.
13. The Hon'ble Supreme Court has explained the scope of the term 'ownership' in matters under rent control in the decision of Smt. Shanti Sharma & Ors. Vs Smt Ved Prabha & ors 1987 AIR 2028, wherein it was observed that the meaning of term 'owner' is vis a vis the tenant i.e. the owner should be something more than the tenant.
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Similarly, in the case of Jiwan Lal Vs. Gurdial Kaur & Ors. 1995 RLR 162, a Bench of Hon'ble High Court of Delhi while dealing with the concept of ownership in a pending eviction petition under Section 14(1)(e) of the DRC Act had noted as follows:
"There is a tendency on the part of tenants to deny ownership in cases under Section 14(1)(e). To test the substance of such a plea on the part of the tenants the Courts have insisted that they should state who else is the owner of the premises if not the petitioner. In the present case it is not said as to who else is the owner. Further these cases under Section 14(1)(e) are not title cases involving disputes of title to the property. Ownership is not to be proved in absolute terms."
14. In Ramesh Chand Vs. Uganti Devi 157 (2009) DLT 450, the Hon'ble High Court of Delhi held as under :
"...It is settled proposition of law that in order to consider the concept of ownership under Delhi Rent Control Act, the Court has to see the title and right of the landlord qua the tenant. The imperfectness of the title of the premises cannot stand in the way of an eviction petition under Section 14(1)(e) of DRC Act, neither the tenant can be allowed to raise the plea of imperfect title or title not vesting in the landlord and that too when the tenant has been paying rent to the landlord. Section 116 of the Evidence Act creates estoppels against such a tenant. A tenant can challenge (NEETU NAGAR) Page No.15/35 JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally signed by NEETU 05.02.2024 NEETU NAGAR Date:
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the title of landlord only after vacating the premises and not when he is occupying the premises. In fact, such a tenant who denies the title of the landlord, qua the premises, to whom he is paying rent, acts dishonestly..."
15. Thus, the legal position is well established that in a proceeding under Rent Control Act, while the petitioner may not be able to establish a perfect title over the tenanted premises, what is required is that his title must reflect as better than that of the tenant. In simple terms, the title of the landlord must appear to be over and above the title of the tenant.
16. Harking back, the petitioners filed the present eviction petition for bonafide requirement against the tenants i.e. the respondents No. 1 to 4. It is pertinent to mention that the respondents No. 1 and 2 only filed their leave to defend application and same was not filed by the respondents No. 3 and 4 despite service by way of affixation as clear from ordersheet dated 23.01.2020. However, respondent no.2 submitted that he is appearing on behalf of respondents no.1 to 4.
17. Further ,from a perusal of the Rent/Lease Deed dated 28.12.1965, it is crystal clear that the predecessors of the respondents No. 1 to 4 namely Shri Daulat Ram Aggarwal was originally inducted as tenant in the tenanted premises by the then owner/landlord Shri Kundan Lal (predecessor of the petitioners). It is not disputed that after the death of original tenant Shri Daulat Ram Aggarwal, his two sons namely Shri Subhash Aggarwal (husband of the respondent No. 1 (NEETU NAGAR) Page No.16/35 JSCC-ASCJ-GJ, South East District, Saket Courts Digitally (the then ARC-02, Central District, THC) signed by NEETU 05.02.2024 NEETU NAGAR NAGAR Date:
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and the father of the respondent No. 2) and Shri Ram Avtar Aggarwal, (father of the respondents No. 3 and 4) became the joint tenants in the said premises and subsequent to the death of Shri Subhash Chand Aggarwal and Shri Ram Avtar Aggarwal, the respondents No. 1 to 4 became the joint tenants in the tenanted premises.Though the respondents No. 1 and 2 have alleged that the petitioners are neither the owners nor the landlords of the respondents. However, the respondents No.1 and 2 in para No. 2 of the leave to defend affidavit admitted that Shri Kundan Lal Verma was the lessor and the landlord of the premises who collected the rent. The sale deed dated 10.12.1952 in favour of the petitioners' predecessor Shri Kundan Lal Verma is not disputed from which it is amply clear that he is the owner of the subject property. Further, the lease deed dated 28.12.1965 executed by the respondent predecessor Shri Daulat Ram Aggarwal in favour of the petitioners predecessor Shri Kundan Lal Verma is not disputed. The counter foils of the rent receipts bearing No.1122 and 1161 shows that same have been issued by Shri Kundan Lal Verma (owner/landlord) to the respondents predecessor Shri Daulat Ram (tenant).
18. Further, the litigation record including the report of the local commissioner dated 28.02.2012 and the judgement and decree sheet dated 17.03.2012 are not disputed by the respondents/tenants wherein the shares of co-owner have been detailed. Otherwise also, it is settled law that even a co-owner can maintain an eviction petition. In the rent control matters, the proceedings are summary in nature and only landlord-tenant relationship is to be seen. Thus, the law as applicable in a case of co-owner in rent control and eviction proceedings will (NEETU NAGAR) Page No.17/35 JSCC-ASCJ-GJ, South East District, Saket Courts Digitally signed (the then ARC-02, Central District, THC) by NEETU 05.02.2024 NEETU NAGAR Date:
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prevail. Reference can be made to the decision of the Hon'ble Apex Court in case titled as Mohinder Prasad Jain vs. Manohar Lal Jain, 2006 (2)SCC 724, para 10 and 11, relevant extract of which are quoted as under:-
"10. This question now stands concluded by a decision of this Court in Indian Umbrella Mfg. Co. v.
Bhagabandei Agarwalla, 2004 (3) SCC 178 wherein this Court opined (SCC p.183 para 6):
"Having heard the learned counsel for the parties we are satisfied that the appeals are liable to be dismissed. It is well settled that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners. This principle is based on the doctrine of agency. One co-owner filing a suit for eviction against the tenant does so on his own behalf in his own right and as an agent of the other co- owners. The consent of other co- owners is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement. In the present case, the suit was filed by both the co-owners. One of the co- owners cannot withdraw his consent midway the suit so as to prejudice the other co-owner. The suit once filed, the rights of the parties stand crystallised on the date of the suit and the entitlement of the co- owners to seek ejectment must be adjudged by reference to the date of institution of the suit; the only exception being (NEETU NAGAR) Page No.18/35 JSCC-ASCJ-GJ, South East District, Saket Courts Digitally (the then ARC-02, Central District, THC) signed by NEETU 05.02.2024 NEETU NAGAR NAGAR Date:
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when by virtue of a subsequent event the entitlement of the body of co-owners to eject the tenant comes to an end by act of parties or by operation of law."
A suit filed by a co-owner, thus, is maintainable in law. It is not necessary for the co- owner to show before initiating the eviction proceeding before the Rent Controller that he had taken option or consent of the other co-owners. However, in the event, a co-owner objects thereto, the same may be a relevant fact."
19. In the instant case, nothing has been brought on record by the respondents to show that the co-owners qua the subject property had objected to eviction proceedings initiated by the petitioners. In fact, the other co-owner Shri Neeraj Verma (proforma respondent No.
5) has filed his no objection to the filing of the present petition.
20. It would also be pertinent to refer to Section 116 of the Indian Evidence Act which deals with estoppel against tenants or licencees or lessees in possession and falls in the category of estoppel by contract. This principle prevents a tenant in occupation of the demised premises, from denying the title of the landlord, who let him into possession.
21. The tenant thus cannot challenge the title of the owner /landlord however defective it is. Reliance can be placed on case law titled as Atyam Veerraju v.Pechetti Venkanna (1996) 1 SCR 831, wherein the Hon'ble Supreme Court quoted with approval the judgment of the Privy Counsel in Bilas Kunwar v. Desraj Ranjit Singh, wherein it was observed as follows:
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"A tenant who has been let into possession cannot deny his landlords title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord."
22. Further, in case titled "Mrs. Meenakshi Vs. Ramesh Khanna etc." 1995 Rajdhani Law Reporter 322, Hon'ble High Court of Delhi has observed:-
"Mere denial of ownership of the landlord does not mean that every case must be sent for trial involving years. The Controller has to assess the strength of the case of tenant regarding denial of ownership of the petitioner. For this, guidelines have already been laid down in various decisions. Mere denial of ownership is no denial at all. Merely by saying that the petitioner is not the owner, the tenant is trying to ensure that the case drags on for years for trial. If leave is granted on basis of such vague pleas, it will encourage the tenants to deny ownership of petitioners in every case. The tenants are well aware that once leave to contest is granted, the cases go on for trial for years. Their purpose is achieved. Keeping this in mind, the Controllers should rather have a positive approach in such matters so as to discourage such vague and frivolous pleas which are most of the time false to the knowledge of persons raising them."(NEETU NAGAR) Page No.20/35
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23. It is well settled principle of law that once a tenant always a tenant, naturally the legal heir of the tenant or any person claiming under the tenant would also continue to be tenant only.
24. Hence, the respondents being the legal heirs of the original tenant late Sh. Daulat Ram are stopped from challenging the title of the petitioners who are the legal heirs of Sh. S.K. Verma, son of original landlord/owner of the subject property namely Sh. Kundal Lal Verma.
25. Further, the respondents have not uttered a single word that if the petitioners and the respondent No. 5 are not the owners of the subject property, then who else is the owner of the suit property.
Reliance in this regard can be placed on case law titled as Indermal Gupta & Anr. Vs. Sunder Singh & Ors. cited as 2013 (1) RCR 459 as well as Jiwan Lal Vs. Gurdial Kaur (supra).
26. Hence, there arises no triable issues regarding the ownership of the petitioners and relationship of landlord and tenant between the petitioners and respondents no.1 to 4.
27. The petitioners have filed the detailed site plan of the subject property thereby disclosing the accommodations existing on different floors of the subject property.
28. Per contra, the respondents did not file any counter site plan. It is well settled law that if a tenant failed to file any site plan, then the site plan filed by the landlord should be accepted.
29. Reliance can be placed in this regard on decision of the Hon'ble High Court of Delhi in "Satish Kumar Vs. Subhash Chand Aggarwal, 2012 SCC Online Del 4447 (SLP © No. 27341/2012)", wherein it has been held as follows:-
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"if a tenant does not file his site plan showing the site plan filed by the owner is incorrect, then, the site plan filed by the owner would be assumed to be true. In the present matter also, no such site plan has been filed by the respondent. Therefore, he has no right to question the site plan filed by the landlord to be incorrect. Hence, in view of the judgments and observations made above, this contention of the respondent is vague and untenable."
30. Hence, no triable issue arises regarding the identity of the tenanted premise as well.
II. BONAFIDE REQUIREMENT AND ALTERNATE ACCOMODATION:-
31. Let us first discuss the legal position with the requirement of "bonafide need". The Hon'ble Supreme Court of India in case titled as Ragavendra Kumar Vs Firm Prem Machinery & Company cited as AIR 2000 SC 534 held that it is well settled position of law that landlord is the best judge of his requirement for residential or business purposes and he has got complete freedom in the matter.
32. Herein, it is important to quote the observations of Hon'ble Apex Court in case titled as Joginder Pal versus Naval Kishore Behal ,AIR 2002C SC 2256, which is as follows:
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himself require the accommodation and to fulfill the requirement he must himself physically occupy the premises. The requirement of a member of the family or of a person on whom the landlord is dependent or who is dependent on the landlord can be considered to be the requirement of the landlord for his own use. In the several decided cases referred to hereinabove we have found the pari materia provisions being interpreted so as to include the requirement of the wife, husband, sister, children including son, daughter, a widowed daughter and her son, nephew, coparceners, members of family and dependents and kith and kin in the requirement of landlord as "his" or "his own"
requirement and user. 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 (NEETU NAGAR) Page No.23/35 JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally signed by NEETU 05.02.2024 NEETU NAGAR Date:
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landlord, and (ii) whether there is a close inter-relation or identity nexus between such person and the landlord so as to satisfy the requirement of the first query. Applying the abovesaid 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. The landlord is not going to let out the premises to his son and though the son would run his office in the premises the possession would continue with the landlord and in a sense the actual occupation by the son would be the occupation by the landlord himself. It is the landlord who requires the premises for his son and in substance the user would be by landlord for his son's office."
33. Bona fide requirement under the DRC Act does not imply a situation of 'dire' or 'distressed.' What the law contemplates is a requirement and not some dire or absolute or compelling or distressed need. Reference in this regard may made to the decision of the Supreme Court in Raghunath G. Panhale (Dead) by LRs. vs. Chaganlal Sundarji & Co. MANU/SC/0657/1999. The law further contemplates that such requirement be an honest requirement and not a mere ruse or stratagem or falsehood to seek eviction. That is all, nothing more and nothing less.
34. It is also apt to reproduce the observations of Hon'ble Delhi High Court in case titled as Vidyawati versus Shri Gautam (NEETU NAGAR) Page No.24/35 JSCC-ASCJ-GJ, South East District, Saket Courts Digitally signed (the then ARC-02, Central District, THC) by NEETU 05.02.2024 NEETU NAGAR Date:
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Mahajan and others decided on 21.08.2020, which is being extracted as below:-
"Consider a scenario where a landlord's dependant is not in dire straits and may even be in a position to purchase or rent premises, whether for residential or commercial purposes, from her own resources. However, a landlord may have suitable premises available for residential or commercial purposes; and may wish to give that premises to the dependant, so as to obviate the need for the dependant to spend her resources to purchase or rent other premises. The landlord may not want the dependant to needlessly deploy her own resources to buy or rent premises from a third-party, while leaving the landlord's premises in the use of an incumbent tenant. Even this kind of requirement would fall within the concept of bona fide requirement of the landlord or a family member dependant on the landlord and a tenant cannot contend that while the tenant should continue to enjoy the landlord's premises, the landlord's dependant should acquire her own premises through other resources. Any other view would mean that while deciding bona fide requirement of a landlord for a dependent, the independent resources of the dependent would also have to be considered in (NEETU NAGAR) Page No.25/35 JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally signed by NEETU 05.02.2024 NEETU NAGAR Date:
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detail before accepting the plea of bona fide requirement."
35. The bonafide need must be seen by the whole set of circumstances. It has been held by the Supreme Court in Siddharth Viyas v. Ravi Nath Misra, decided on 25.11. 2014 that the context of bonafide need, that Rent Control Acts must be interpreted in balanced manner keeping in mind the interest of the landlord also. It has also been held that tenants as a class cannot be treated to be weaker section (Prabhakaran Nair v. State of Tamil Nadu, AIR 1987 SC 2117) hence sympathetic or equitable view in the favour of the respondent need not be taken.
36. Once the landlord has stated that he requires the tenanted property for a particular use, the courts are required to believe the statement to be true and genuine, unless and until it is shown by the tenant through cogent material that the requirement in fanciful or whimsical as held in case titled as 'Tarun Kumar Vs. Parmanand Garg' decided on 09.11.2023 by Hon'ble High Court of Delhi.
37. In Sarla Ahuja vs. United India Insurance Company Ltd. (1998) 8 SCC 1919 it has been held a follows:
"14. 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 the 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 (NEETU NAGAR) Page No.26/35 JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally signed by 05.02.2024 NEETU NEETU NAGAR NAGAR Date:
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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 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."
38. Having discussed the legal position with regard to bonafide need, let us delve into the facts of the present case. It is averred on behalf of the petitioners that the tenanted premises are bonafidely required by the petitioners for petitioner No. 1, petitioner No. 3 and his wife for their residence and respective businesses as detailed in the petition. The petitioners have stated that the entire ground floor is under the tenancy of the respondents No.1 to 4 apart from one garage under the tenancy of decades old tenant Sh. Kishan Lal. Further, the entire first floor is under the use and possession for residence for the petitioner No. 1 and the wife and children of the petitioner No. 2 and the second and third floor are in exclusive possession of the respondent no.5. It is averred that the petitioner No. 3 is now residing in a rented premises on the third floor of property No. 2/30. Roop Nagar, Delhi-110007 on a monthly rent of Rs.20,000/-. It is further urged that the petitioner No. 1 has only rental income from the first floor tenant in property No. 5645-5646, Katra Anoop Singh, Nai Sarak. Delhi- 110006. It is further argued further (NEETU NAGAR) Page No.27/35 JSCC-ASCJ-GJ, South East District, Saket Courts Digitally (the then ARC-02, Central District, THC) signed by NEETU 05.02.2024 NEETU NAGAR NAGAR Date:
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that the petitioners bonafidely require the tenanted premises for the residence of petitioner No. 1 also who is aged 70 years and suffering from various ailments and wants to live with her family i.e. her two sons and their family besides the fact that the petitioner No. 3 has a rental burden of Rs.20,000/-.
39. Per contra, the respondents have disputed the same. It is averred on behalf of the respondents that the petitioners No. 1 to 3 are in complete possession of the first and second floor of the subject property alongwith garage on the ground floor.
40. From a perusal of the report of the local commissioner dated 28.02.2012 , it is crystal clear that the ground floor is fully occupied by tenants, first floor is occupied by Smt. Krishna (petitioner No. 1 herein) and second and third floor is in possession of Neeraj Verma (respondent No. 5 herein) and the same also finds mentioned in the judgement and decree dated 17.03.2012. As far as the ground floor garage is concerned which the respondent No.1 to 4 have alleged to be in possession of the petitioner No. 1, the same is under the tenancy of tenant Sh. Krishan Lal as clear from the litigation record placed on record by the petitioners vide order dated 01.10.1991 and 29.01.2005.
41. Even otherwise, the petitioners in their counter affidavit have made an open offer to the respondents No.1 to 4 to vacate the tenanted premises and occupy the alleged garage, which has not been accepted by the tenants. In this regard, referance can be made to the the judgement of the Hon'ble High Court of Delhi in Bal Kishan Vs. Lalit Mohan Singh & Ors. vide RC (Rev.) No.326/2014, decided on 30.09.2014 which was even upheld by the Hon'ble Supreme Court of India in SLP No. 206-207/2015 wherein it was observed that if the (NEETU NAGAR) Page No.28/35 JSCC-ASCJ-GJ, South East District, Saket Courts Digitally signed (the then ARC-02, Central District, THC) by NEETU 05.02.2024 NEETU NAGAR Date:
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tenants' alleged accommodation is offered by the landlord to the tenant and if the same is not accepted by the tenant, the alleged accommodation will not be considered as alternative accommodation.
The same observation was made by the Hon'ble Supreme Court of India in case titled as Pushkar Singh Vs. Ansuiva cited as 2006 (2) RCR 359 wherein also the Landlord offered that accommodation to tenant, but tenant did not accept the offer and it was observed that the petition filed by the landlord for eviction of tenant cannot he rejected. Meaning thereby that the tenant himself believed that the said garage alleged as alternative accommodation was not suitable for residence.
42. It was next contended by the respondents that property No. 5645-5646. Katra Anoop Singh, Nai Sarak, Delhi-110006 has been purchased by the petitioners and hence, there is no financial stringency as claimed by the petitioners and the said premises also can be used by the petitioners. Admittedly, the said premise are owned by the petitioner No.1 and she is also receiving rental income therefrom. However, the tenants cannot deprive the landlord of his earnings from a premises in view of the ratio of the judgment in case titled as Adarsh Electricals Vs. Dinesh Dayal 2010 (2) Rcr 593 wherein also the landlord owned two properties under the occupation of tenants, one fetching monthly rent of Rs 70,000/- and the other Rs.980/-.The landlord was held entitled to seek eviction of tenant from property fetching monthly rent of Rs.980/- which also was otherwise suitable. It was observed that landlord cannot forego the substantial income being received from the said property. Further, even if for the sake of arguments, it is assumed that the petitioners are well off, same is immaterial. In case titled as "Rishal Singh Vs. Bohat Ram & Ors.
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(2014) 144 DRJ 633" wherein Hon'ble High Court of Delhi held that income of a person, be it landlord or dependent of the landlord, is inconsequential to the outcome of the eviction petition. It was held that comfortable earnings or financial well-being of the petitioner or his dependent cannot be a ground for denying the eviction order sought in a petition founded on bona fide need.
43. The petitioners have also placed on record medical records of petitioner No. 1. Further, the requirement of the petitioner no.1 of the ground floor keeping in view her old age cannot be doubted. In Dev Raj Bajaj vs. R.K.Khanna, 1996 RLR 125, it was observed that:-
"Where a landlord or his wife were unable to climb the stairs due to old age ailments and wanted to shift to the ground floor, such a need of the landlord was bonafide. A landlord can ask for ground floor for his convenience and comfort of his health."
44. Similarly, in Kuldip Mahajan vs. Krishna Uppal and Ors., 97 (2002) DLT 619, it has been observed as follows:-
"Where landlady filed a petition on the ground of bona fide requirement as she and her husband are of old age and landlady's intention was to shift residence for better medical treatment of her husband, no malafide was attributed and it was held that a person afflicted by Arthritis would not find it convenient to reside on first floor when ground floor is also owned by her."(NEETU NAGAR) Page No.30/35
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45. Further, the family members of the petitioners are not disputed. The petitioners have also placed on record copy of lease deed between the owner and the petitioner No. 3 qua third floor tenanted premises bearing No. 3/54 and subsequent rent deed dated 05.03.2019. Meaning thereby that the petitioner No.3 and his wife are not residing in the subject property.
46. It is well settled law that it is the petitioner himself/ herself, who is the best person to explain as to what is his/ her bona-fide necessity. In Prativa Devi (Smt.) v. T.V. Krishnan, [1996] 5 SCC 353 it was held that the landlord is the best Judge of his requirement and Courts have no concern to dictate to the landlord as to how and in what manner he should live. The bonafide personal need is a question of fact and should not be normally interfered with.
47. In Balwant P. Doshi Vs Shantaben Dhirailal Shah &Ar 2003(2) BomCR 190, it was held that the Courts cannot ordinarily doubt the bonafide need of the landlord nor the Courts can dictate to the landlord as to how the premise owned by him should be used. It is sufficient for the landlord to express his desire to occupy the premises owned by him. It is not necessary for the landlord to establish the dire necessity but it is enough to show that some need exists.
48. In Tarsem Singh vs. Gurvinder Singh, RCR 137/2010, it was observed that if the landlord wants to start his own business in the premises owned by him then by no stretch of imagination, it can be said that the requirement of the landlord for the premises is neither bonafide nor genuine.(NEETU NAGAR) Page No.31/35
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49. Reliance in this regard can also be placed on case law titled as Balwant Singh alias Bant Singh and Anr. V. Sudarshan Kumar and Anr., 2021 SCC Online SC 114, it has been held as under:-
"11. On the above aspect, it is not for the tenant to dictate how much space is adequate for the proposed business venture or to suggest that the available space with the landlord will be adequate. ..."
50. Similarly, in Sait Nagjee Purushotham & Co. Ltd. v. Vimalabai Prabhulal, (2005) 8SCC 252, the Supreme Court has held as under:-
"4. It is not the tenant who can dictate the terms to the landlord and advise him what he should do and what he should not. It is always the privilege of the landlord to choose the nature of the business and the place of business."
51. In Sudesh Kumari Soni v. Prabha Khanna, 2008 SCC OnLine Del 1128, inter alia, it held as under:-
"25. 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 bonafides of the requirement of the landlord it is (NEETU NAGAR) Page No.32/35 JSCC-ASCJ-GJ, South East District, Saket Courts Digitally (the then ARC-02, Central District, THC) signed by NEETU 05.02.2024 NEETU NAGAR NAGAR Date:
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quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself.
26. Suitability has to be seen from the convenience of the landlord and his family members and on the basis of the circumstances including their profession, vocation, style of living, habits and background. Landlord is the best judge of his residential requirement. In view of well settled law, I hold that accommodation available with the petitioner is insufficient as against total family members. Hence the petitioner has made out a case under Section 14(1)(e) of Delhi Rent Control Act and is entitled for relief claimed."
52. Hence, in view of the above discussion the need of the petitioners for herself and her son and daughter-in-law for residence and business purpose falls under the category of bonafide need. Nothing to the contrary has been brought on record by the respondents. It is simply averred that the respondent no. 3 and his wife are residing in the subject property but there is nothing on record to substantiate the same. Hence, there is no triable issue regarding the bonafide need of the petitioners.
53. As per the petitioners, the tenanted premises is required bonafidely as the petitioners are not having any other suitable and reasonable accommodation available with them throughout Delhi for the commercial need of petitioners. As far as other alternative (NEETU NAGAR) Page No.33/35 JSCC-ASCJ-GJ, South East District, Saket Courts Digitally (the then ARC-02, Central District, THC) signed by NEETU 05.02.2024 NEETU NAGAR NAGAR Date:
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properties are considered there is nothing on record to substantiate the same except for self serving statements. Merely stating in the affidavit that the application for eviction has been made with mala fide intention is not sufficient to sustain the contention of the respondent. Hence, in these circumstances, the need of the petitioners not only seems to be genuine but greater than the respondents.
54. It was next contended on behalf of the respondents that the petitioners want to sell/let out the tenanted premises. Here it would be relevant to state that the said apprehension is already taken care of in the DRC Act itself by our legislative forefathers while enacting the laws who have already considered possibility of misuse in the hands of unscruplous landlords and thereby inserted Section 19 of DRC Act whch reads as follows:-
"Where a landlord recovers possession of any premises and the premises are not occupied by the landlord or by the person for whose benefit the premises are held, within two months of obtaining such possession, or the premises having been so occupied are, at any time within three years from the date of obtaining possession, relet to any person than the evicted tenant without obtaining the permission of the Controller such tenant can be put back to the premises or can be paid such compensation as the Controller thinks fit."
55. Hence, if the requirement of landlord is not bonafide and if a landlord abuses the process of the court, obtains an order of (NEETU NAGAR) Page No.34/35 Digitally signed JSCC-ASCJ-GJ, South East District, Saket Courts by NEETU (the then ARC-02, Central District, THC) NEETU NAGAR Date:
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eviction, subsequently lets out the property or sells the same, the tenant can always apply for restitution under section 19 of the DRC Act.
56. In view of above discussion and the documents filed by the parties, this court is of the considered view that there is no triable issue between the parties which entitles the respondents for leave to contest the present application for eviction. The application for leave to contest is without merit and the same is dismissed.
57. Hence, the present petition for eviction is allowed. Petitioners are held entitled for recovery of the tenanted premises consisting of ground floor with mezzanine bearing no. 4594-A/2, Gali No. 9, Darya Ganj, New Delhi-110002 as shown in red colour in site plan(s) annexed with the petition. However, the petitioners would not be entitled to initiate execution proceedings for recovery of the possession of the tenanted premises before expiration of six months from today in view of provisions given in Section 14 (7) of the Act.
58. In the facts and circumstances of the case there shall be no order as to costs.
59. File be consigned to record room.
Announced in the open Court Digitally signed
on 05.02.2024 NEETU by NEETU
NAGAR
NAGAR 2024.02.05
Date:
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(Neetu Nagar)
JSCC-ASCJ-GJ/South East
Saket Courts: New Delhi
(the then ARC-02, Central District,
Tis Hazari Courts, Delhi)
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