Delhi District Court
Sh. Sameer Wason vs M/S Roxy Dry Cleaners on 31 October, 2012
//1//
IN THE COURT OF SH. PRITAM SINGH, ARC (CENTRAL) TIS HAZARI
COURTS, DELHI.
E-620/09
31.10.2012
1. Sh. Sameer Wason,
s/o Sh. C.M.Wason
2. Sh. C.M.Wason
s/o Late Sh. C.R.Wason
Both residents of 27/56, Old Rajinder Nagar,
New Delhi ...Petitioner
VERSUS
M/s Roxy Dry Cleaners,
Shop on Ground floor,
Property No. 53 (New)
Old Rajinder Nagar Market,
New Delhi. ...Respondent
Petition u/s 14 (1) (e) r/w section 25-B of Delhi Rent Control Act.
1. Date of institution of the case : 04.01.2011
2. Date of Judgment reserved : 15.10.2012
3. Date of Judgment pronounced : 31.10.2012
JUDGMENT
By this order I shall dispose of the applications under section 25-B (4) of DRC Act filed by Sh. Jitender Pal Singh, claiming himself proprietor of the respondent. The present petition was filed by the petitioners u/s 14 (1) (e) r/w section 25-B of the DRC Act on the ground of bonafide requirements of petitioner no. 2 only. The brief facts as stated in the petition are that petitioners are the owners/landlords in respect of property bearing no. 53, Old Rajinder Nagar Market, New Delhi. It is further stated that initially Sh.
E-620/09 Sameer Wason Vs. M/s Roxy Drycleaner Page 1 of //2// C.R.Wason, grand father of the petitioner no. 1 and the father of the petitioner no. 2 was the owner of the aforesaid property by virtue of perpetual lease deed dated 15.11.1960 and after the demise of Sh. C.R.Wason all the legal heirs have executed a relinquishment deed in favour of their mother in respect of the aforesaid property and as such a perpetual lease deed dated 23.08.1974 was executed by the L&DO in favour of the grand mother of the petitioner no. 1 and mother of the petitioner no. 2 namely Smt. Shanti Devi and mutation was also done by the L&DO on 18.03.1967. During the life time, Smt. Shanti Devi executed a Will in favour of the petitioners and as such after the demise of Smt. Shanti Devi, the property in question was substituted in favour of the petitioners by the L&DO on 25.01.1988 and the MCD has also mutated the said property in the names of the petitioners and as such the petitioners became the absolute owners and landlords of the property in question. It is further stated that during the life time of late Sh. C.R.Wason, he let out the suit premises i.e Shop no. 53 (new), Old Rajinder Nagar Market, Delhi to the respondent vide an agreement dated 19.11.1964 through their respective partners namely Sh. K.K.Bhatia, Sh. Sunder Lal and Sh. Des Raj at the rate of Rs. 350/- per month. The suit premises has been shown in red color in the site plan. It is further stated that the respondent's firm through its partners have further illegally constructed the back open portion of the shop in question which is shown in yellow color in the site plan and both the portions are with the respondent partnership concern. It is further stated that petitioner no. 2 is not in possession of any portion of the entire property bearing no. 53 (New) Old Rajinder Nagar Market, New Delhi and also not having any commercial place to run his own business activities, therefore, the entire portion shown in red and yellow color bona fidely required by the petitioner no.
E-620/09 Sameer Wason Vs. M/s Roxy Drycleaner Page 2 of //3// 2 himself to run his own business in the suit property. The petitioner no. 1 is running his own business of stationery under the name and style of M/s Uttam Stationers being the sole proprietor of the firm, from where the petitioner no. 1 is having sufficient income to run his own livelihood. The petitioner no. 1 is married and having his wife and two children. It is further stated that neither the petitioner no. 1 nor petitioner no. 2 have any commercial property in their own name or in possession throughout Delhi except the shop which is in possession of petitioner no. 1. It is further stated that the petitioners already filed two eviction petitions against the respondent one on the ground of non payment of rent u/s 14 (1) (a) of DRC Act and another petition u/s 14 (1) (b) and (j) of DRC Act on the ground of sub letting and for raising unauthorized construction and both the petitions are pending in the court of Ms. Savita Rao, Ld. ARC, Delhi. It is further stated that the petitioners have also filed a suit for mandatory injunction against the respondent and the same is still pending in the court of Ms. Shalini Gupta, Civil Judge, Delhi. It is further stated that besides the demise premises, the petitioners are also the owner of the following shops situated at old Rajinder Nagar Market, New Delhi but the said shops are under the possession of tenants as follows :-
(i) One shop no. 53 (A) under the possession of tenant Sh. Rajinder Lamba
(ii) One shop no. 53 (B) under the possession of tenant Sh. Shambu Dayal.
(iii) One Shop no. 53 (C) under the possession of tenant Anoop Kumar
(iv) One shop no. 54 (D) under the possession of tenant Sh. Agya Ram Sood
2. It is further stated that the petitioners have already filed the eviction E-620/09 Sameer Wason Vs. M/s Roxy Drycleaner Page 3 of //4// petition against the tenants in respect of the shop bearing no. 53 (A), 53 (B), 53 (C) and 53 (D). It is prayed that an eviction order in respect of the suit premises may kindly be passed in favour of the petitioners and against the respondent.
3. Leave to defend application alongwith affidavit was filed by Sh. Jitender Pal Singh, claiming himself proprietor of the respondent wherein he stated that the suit premises were taken in the name of the partners of M/s Roxy Dry Cleaner namely K.L.Bhatia, Sunder Lal, Des Raj, Gurbachan Singh, Mastan Chand and Ram Singh. It was specifically agreed at the time of inception of the tenancy with the landlord that the legal heirs of the partners of the firm would inherite the tenancy rights. No legal and valid document regarding the creation of tenancy as alleged by the petitioners dated 19.11.1964 in the name of the partners of the firm was executed. The said alleged document is not on requisite stamp paper as per the provision of section 35 of Stamp Act nor the same is registered under the provision of section 17 (1) of Registration Act. It is further stated that there was dissolution amongst the partners of the firm and the shop in question had come to the share of Sh. Gurbachan Singh, deceased father of Jitender Pal Singh. Sh. Gurbachan Singh was the sole proprietor of the respondent firm and was doing the business from the said premises. It is further stated that Sh. Jitender Pal Singh had filed a Civil miscellaneous (M) petition before Hon'ble High Court of Delhi titled Roxy Dry Cleaner Vs. Sameer Wason bearing no. 196/2005 and in said petition, the status of Jitender Pal Singh had been shown as sole proprietor of respondent firm. The petitioner no. 1 had been accepting the rent from Sh. Gurbachan Singh and petitioner no. 2 used to issue rent receipt in the name of M/s Roxy Dry Cleaners. The rents paid to the landlord were shown in the Income Tax E-620/09 Sameer Wason Vs. M/s Roxy Drycleaner Page 4 of //5// Return and other authorities by Sh. Gurbachan Singh in his books of accounts. It is further stated that later on the petitioners have refused to accept the rent from the legal heirs of deceased Gurbachan Singh and application u/s 27 for deposit of rent was filed which was opposed by the petitioners on false and frivolous ground. The petitioners were aware that Jitender Pal Singh was in possession of the suit premises and also were aware that the partnership firm was dissolved and the business of the firm was continued by Gurbachan Singh from the suit premises. It is further stated that the tenancy was never terminated during the respective life times of the deceased partners and as such after their demise, their legal heirs have succeeded the tenancy right u/s 2 (l) of DRC Act and under the Law of Succession. It is further stated that the petitioners are doing the business from the shop no. 53 (New), Old Rajinder Nagar Market under the name and style of M/s Uttam Stationers and selling the stationery articles, mobile phones and their connections. The petitioner no. 2 is at retiring age of 64 years, and not keeping good health and does not have any bona fide need. The petitioner no. 2 is doing the business alongwith petitioner no. 1 and issuing rent receipt for the sale of articles and one of the said receipts dated 20.09.2008 bearing the signature of petitioner no. 2. It is further stated that petitioners have intentionally not disclosed the dimensions of the shop in their possession. The respondent has filed a site plan showing the accommodation in possession of the petitioner and other tenants including the respondent. The accommodation in occupation of the petitioners is shown in pink color, with other tenants are shown in blue color and of the respondent in red color. It is further stated that all the family members of the petitioners are residing at the premises no. 27/56, Old Rajinder Nagar, New Delhi and they are having E-620/09 Sameer Wason Vs. M/s Roxy Drycleaner Page 5 of //6// common mess at the aforesaid premises. It is further stated that the respondent had not made any structural changes in the shop in question. The shop stands in the same position as it was let out.
4. It is further stated that petitioners have deliberately not disclosed that earlier they have filed another eviction petition on the ground u/s 14 (1) (a) of DRC Act titled as Sameer Wason and Anr. Vs. M/s Roxy Dry Cleaners and Anr. The names of respondents were mentioned as M/s Roxy Dry Cleaners, respondent no. 1 and Sunder Lal and Des Raj as respondent no. 2 and 3 respectively. Another eviction petition u/s 14 (1) (b) and (j) of DRC Act was also filed bearing no. 176/1998 i.e Sameer Wason and Anr. Vs. M/s Roxy Dry Cleaner, Sunder Lal and Des Raj. The petitioners had moved applications for bringing the LRs of deceased respondent namely Des Raj and Sunder Lal in the eviction petitions filed u/s 14 (1) (a), (b) and (j) of DRC Act but no legal heir of the said deceased partners were impleaded in the present petition. It is further stated that the present petition has been filed in the name of respondent as M/s Roxy Dry Cleaner but no name of partner or proprietor has been given. It is not stated whether respondent is firm u/o 30 CPC or is a sole proprietorship concern. It is prayed that leave to defend the petition may kindly be allowed.
5. Reply to the leave to defend application alongwith counter affidavit was filed on behalf of the petitioners wherein it is stated by the petitioner that once the property was let out by an agreement dated 19.11.1964, no oral permission can be granted. It is further stated that there is no denial in regard to the execution of the said agreement. It is denied that at the time of letting out the suit premises there were other partners namely Gurbachan Singh, Mastan Chand or Ram Singh of M/s Roxy Dry Cleaners. It is further denied E-620/09 Sameer Wason Vs. M/s Roxy Drycleaner Page 6 of //7// that after the dissolution of the partnership firm, the shop in question came to the share of Sh. Gurbachan Singh who became sole proprietor of the respondent firm. It is further stated that mere filing of Civil Misc. (M) petition in the Hon'ble High Court does not give any benefit to Jitender Pal Singh. It is further stated that the rent was always received from the firm but no rent was received from Sh. Gurbachan Singh nor any such receipt was produced by the respondent. The petitioner no. 1 has been running the business under the name and style of M/s Uttam Stationers from the part of the property bearing no. 53, Old Rajinder Nagar, Market, New Delhi and also filing the income tax return. It is stated that petitioner no. 2 is a retired person but for doing the business, the age is not bar as the petitioner no. 2 is a healthy person. It is further denied that petitioner no. 2 is doing business alongwith petitioner no. 1 under the name and style of M/s Uttam Stationers. Only petitioner no. 1 is running the business under the name and style of M/s Uttam Stationers. It is not disputed that both the petitioners are residing in property no. 27/56, Old Rajinder Nagar, New Delhi. The petitioner no. 1 is residing on the first floor with his family and the petitioner no. 2 is residing on the ground floor, but it is denied that both the petitioner are having common mess. It is further denied that the receipt dated 20.09.2008 bearing the signature of petitioner no. 2. It is denied that the present petition is not maintainable u/o 30 of CPC. It is also denied that respondent is a proprietorship concern and Jitender Pal Singh is its sole proprietor. All other averments made in the leave to defend application were denied.
6. It is important to mention here that an application u/o 6 rule 17 CPC to bring subsequent events on record was filed on behalf of the respondent. The said application was dismissed vide order dated 07.10.2011 by this court but it E-620/09 Sameer Wason Vs. M/s Roxy Drycleaner Page 7 of //8// was observed in said order "present application u/o 6 rule 17 CPC is running into 15 pages just to bring small facts on record that the petitioners got the vacant possession of the shop bearing no. 53 A from another tenant during the pendency of this petition". The respondent was allowed to file additional affidavit to bring above discussed subsequent events on record.
7. The respondent has filed the additional affidavit stating that petitioners have received peaceful vacant possession of shop no. 53 A, Old Rajinder Nagar Market, New Delhi from Sh. Rajender Kumar Lamba, the tenant on 06.05.2010 in the execution proceedings. The petitioners have joined the shop no. 53 A in their shop bearing no. 53 and therefore there is no alleged bona fide requirement of the petitioner no. 2 as both the petitioners have received the vacant and peaceful possession of additional accommodation. It is further stated that the petitioners have also fixed their boards and shutters in the said shop in the name of M/s Uttam Stationers.
8. In reply to the additional affidavit, it is stated by the petitioners that it is a matter of record that the shop no. 53-A was got vacated by the petitioners, however, after taking the possession of the said shop from the tenant, the petitioner no. 1 had occupied the said shop as the accommodation available with him was not sufficient for himself and therefore, the petitioner no. 1 amalgated the said shop into his portion where he is storing books and other stationery material. It is further stated that the petitioner no. 1 prior to taking possession from the said tenant was storing goods outside his shop and has to keep it back in the shop at the time of closing of the shop and this exercise always killed valuable time of petitioner no. 1 in taking out the said goods at the time of opening the shop and again keeping it back at the time of closing of the shop.
E-620/09 Sameer Wason Vs. M/s Roxy Drycleaner Page 8 of //9//
9. Arguments heard at length from the Ld. Counsels for both the parties. Written arguments also filed on behalf of both the parties. Entire record perused and considered carefully.
10. Ld. Counsel for the petitioners relied upon the following rulings :-
(i) Udhey Bhan Ashok Kumar & Co. & Ors. Vs. Neelam Kumari, 168 (2010) DLT 162.
(ii) K.K.Sarin Vs. M/s Pigett Chapman & Co., 45 (1991) DLT 671.
(iii) Ramji Lal Ram Saroop Vs. M/s Bombay Goods Carriers (P) Ltd., 44 (1991) DLT 383.
(iv) M/s Ashok Transport Agency Vs. Awadhesh Kumar and another, AIR 1999 Supreme Court 1484.
(v) Krishan Kumar Alag Vs. Jambu Prasad Jain Decd. Thr. LR Anand Kumar Jain, 161 (2009) DLT 511.
(vi) Prativa Devi (Smt.) Vs. T.V.Krishnan, (1996) 5 Supreme Court Cases
353.
(vii) R.C.Tamrakar and another Vs. Niki Lekha, (2001) 8 Supreme Court Cases 341.
(viii) Suresh Kumar Vs. Yudhveer Prasad & Ors., 189 (2012) DLT 691.
(ix) S.Harbant Singh Saini & Anr. Vs. Smt. Vinod Sikari, 189 (2012) DLT
215.
(x) Bharat Bhushan Vij Vs. Arti Teckchandani, 153 (2008) DLT 247.
(xi) Om Parkash Vs. Dev Raj, 1997 RLR 539. (xii) Smt. Satya Malhotra & Ors. Vs. Mohinder Singh Arora, 81 (1999) DLT 627.
(xiii) Sh. Sukhbir Singh Vs. Dr. I.P.Singh, RC Rev. 261/2010 DOD 04.09.2012.
E-620/09 Sameer Wason Vs. M/s Roxy Drycleaner Page 9 of //10//
(xiv) M/s Hi Bred (India) (P) Ltd. Vs. Ravi K. Kumar and anr., 1989 (2) RCR
668.
(xv) Tarsem Lal Vs. Pritam Dass Khullar, 2005 (2) RCR 215.
11. Ld. Counsel for the respondent relied upon the following rulings :-
(i) Jagatjit Industrial Corporation and others Vs. Union of India and others, AIR 1981 Delhi 34.
(ii) Raja Sri Sri Jyoti Prasad Singh Deo Bahadur Vs. Samel Henry Seddon and others, AIR 1940 Patna 516.
(iii) Muhammad Ismail Khan Vs. Said Ud Din Khan, AIR 1927 Lahore 819.
(iv) Bal Krishan Khanna Vs. Smt. Ravi Kanta Madhok, 2010 VI AD (Delhi)
986.
(v) V.K.Arora Vs. K.B.Madan, 85 (2000) DLT 24. (vi) Ramesh Chand Sharma Vs. Harpal Singh Sharma, 18 (1980) DLT 412. (vii) Ramesh Kumar Aggarwal Vs. Rani Ravindran and Ors., V (2009) SLT 87.
(viii) Rachpal Singh & Ors. Vs. Gurmit Kaur & Ors., V (2009) SLT 142.
(ix) Santosh Devi Soni Vs. Chand Kiran, JT 2000 (3) SC 397.
(x) Inderjeet Kaur Vs. Nirpal Singh (2001) 1 Supreme Court Cases 706.
(xi) M/s Chhotelal Pyarelal, the partnership firm and others Vs. Shikharchand, AIR 1984 Supreme Court 1570.
(xii) Mohd. Jafar & Ors. Vs. Nasra Begum, 191 (2012) Delhi Law Times
401.
12. The present petition has been filed u/s 14 (1) (e) r/w section 25-B of DRC Act and in order to succeed in such a petition, petitioner has to prove (i) Ownership of the suit premises; (ii) Purpose of letting; (iii) Alternative accommodation; and (iv) bonafide requirement;. Let the same be discussed in E-620/09 Sameer Wason Vs. M/s Roxy Drycleaner Page 10 of //11// detail.
13. Ownership & Purpose of letting The respondent has contended that petitioners are not the recorded registered owners of the shop in question and the petitioners are the landlords of the property. The respondent further contended that petitioners have not filed any proof of relationship of landlord and tenant between the parties. However, the respondent has also stated that the petitioner no. 1 had been accepting the rent of the shop from Sh. Gurbachan Singh of M/s Roxy Dry Cleaners and the petitioner no. 2 used to issue rent receipt in the name of M/s Roxy Dry Cleaners. The respondent further stated that later on the petitioners had refused to accept the rent of the premises from the legal heirs of deceased Gurbachan Singh and the application u/s 27 for deposit of rent was filed which was opposed by the petitioners on false and frivolous grounds. Sh. Jitender Pal Singh who has filed the present leave to defend application is trying to sail in two boats. On the one hand, he is denying the ownership and landlordship of the petitioners qua the suit premises but in the same breath he had stated that rent was paid by Sh. Gurbachan Singh to the petitioner no. 1 and petitioner no. 2 issued rent receipts. Not only this, the rent was deposited in the court u/s 27 of DRC Act. The petitioners have filed the photocopy of lease deed which was executed in favour of Sh. C.R.Wason, father of petitioner no. 2 on behalf of the President of India on 15.10.1960. After death of father of petitioner no. 2, property was mutated in the name of Smt. Shanti Devi, mother of petitioner no. 2. After the death of Smt. Shanti Devi, the suit property was mutated in the name of both the petitioners vide mutation letter dated 25.01.1988. Considering all the documents filed by the petitioner, it is established that petitioners are owner/landlord of the suit premises. Even E-620/09 Sameer Wason Vs. M/s Roxy Drycleaner Page 11 of //12// otherwise, it is well settled law that landlord is not required to prove absolute ownership as required under the Transfer of Property Act. It was held in Rajender Kumar Sharma & Ors. Vs. Leela Wati & Ors., 155 (2008) Delhi Law Times 383 that "A landlord is not required to prove absolute ownership as required under the Transfer of Property Act. He is required that he is more than a tenant".
14. It has also been held in Ramesh Chand Vs. Uganti Devi, 157 (2009) DLT 450 by the Hon'ble High Court of Delhi that, "It is settled preposition 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 only thing to be seen by the Court is that the landlord had been receiving rent for his own benefit and not for and on behalf of someone else. If the landlord was receiving rent for himself and not on behalf of someone else, he is to be considered as the owner howsoever imperfect his title over the premises cannot stand in the way of an eviction petition under Section 14 (1) (e) of the 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 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. The respondent further contended that the suit premises were taken on rent in the name of the partners of M/s Roxy Dry Cleaners namely K.L.Bhatia, Sunder Lal, Des Raj, Gurbachan Singh, Mastan Chand and Ram Singh. It E-620/09 Sameer Wason Vs. M/s Roxy Drycleaner Page 12 of //13// was also agreed at the time of inception of the tenancy between the landlord and tenant that the legal heirs of the partners of the firm would inherit the tenancy rights. The respondent further contended that no rent agreement dated 19.11.1964 was executed in the name of the partners of the partnership firm. The said rent agreement is not on the requisite stamp paper nor even registered, therefore, the same cannot be considered. On the other hand, the petitioners stated that the suit premises was let out to M/s Roxy Dry Cleaners which was a partnership firm vide rent agreement dated 19.11.1964 and only Sh. K.L.Bhatia, Sunder Lal and Des Raj were partners of the firm at that time. It is further denied that no rent agreement was executed. The respondent took a plea that there were six partners of the respondent firm, one of them was his deceased father namely Gurbachan Singh at the time of inception of tenancy and it was also agreed that the legal heirs of the partners of the firm would inherit the tenancy rights. The respondent has not filed any document to show that the respondent firm was having six partners including his deceased father in the year 1964 when the suit premises was let out, nor there is any document to show that the then landlord had agreed that the legal heirs of the partners of the firm would be allowed to inherit the tenancy rights. On the other hand, the petitioners have filed the copy of rent agreement showing that the respondent firm was having only three partners in the year 1964 when suit premises was taken on rent. The said agreement is also bearing the signature of all the three partners. Contention of the respondent that rent agreement dated 19.11.1964 is neither on the requisite stamp paper nor was registered, has no substance, because it is not in dispute that the suit premises was let out by Sh. C.R.Wason to M/s Roxy Dry Cleaners, the respondent herein in the year 1964. It is also not in dispute that Sh. K.L.Bhatia, Sh. Sunder Lal and Sh.
E-620/09 Sameer Wason Vs. M/s Roxy Drycleaner Page 13 of //14// Des Raj were partners of M/s Roxy Dry Cleaners in the year 1964. It is not the stage of exhibit of the documents to see, whether a document has been duly stamped or registered.
16. The respondent further contended that the partnership firm was dissolved amongst the partners of the firm and the suit premises came to the share of Sh. Gurbachan Singh, who became the sole proprietor of the partnership firm and was doing the business in the suit premises. It is further contended that Sh. Jitender Pal Singh had filed a Civil Misc. (M) petition in the Hon'ble High Court of Delhi titled Roxy Dry Cleaners Vs. Sameer Wason bearing no. 196/2005 and in the said petition, the status of Jatinder Pal Singh had been shown as sole proprietor of the respondent firm. The petitioners were also aware that Jitender Pal Singh was in possession of the suit premises. It is further contended that after the demise of the partners of the firm, there legal heirs have succeeded the tenancy rights u/s 2 (l) of DRC Act and under the Law of Succession. The petitioners have repelled all these contentions. The petitioners stated that the shop in question never came to the share of Sh. Gurbachan Singh after the dissolution of partnership firm. The rent was always received from the firm but no rent was received from Sh. Gurbachan Singh nor any such receipt was produced by the respondent. It is further stated that mere filing of Civil Misc. (M) petition in the Hon'ble High Court of Delhi does not give any benefit to Sh. Jitender Pal Singh. Again, the respondent has not filed any document to show that after the dissolution of partnership firm, the shop in question came to the share of Sh. Gurbachan Singh, who became proprietor of the said firm. The respondent has also not filed any rent receipt showing Gurbachan Singh as proprietor of M/s Roxy Dry Cleaners. Just filing of the rent in the court u/s 27 of DRC Act, one does not E-620/09 Sameer Wason Vs. M/s Roxy Drycleaner Page 14 of //15// become tenant. So far the question of possession of Jitender Pal Singh in the suit premises is concerned, one does not become a tenant on the ground that he is in possession of the premises. U/s 2 (l) of DRC Act only residential tenanted premises are inherited by the legal heirs of a tenant. It is not in dispute that the suit premises were let out for commercial purposes. The respondent has miserably failed to raise the triable issue that Sh. Gurbachan Singh was a partner in the respondent firm when the suit premises was let out to the respondent firm. It was held in Uday Bhan Ashok Kumar & Co. and Ors. Vs. Neelam Kumari (supra) that "a partnership firm is not a legal entity. It is a conglomeration of partners. A tenancy in the name of partnership firm is a joint tenancy of the partners. If none of the partners in whose favour the tenancy was created is in possession of the tenanted shop and another person, who was later on inducted as a partner and then becomes sole proprietor of the firm is in possession of the tenanted premises, then it is a clearcut case of subletting and parting with the possession through the device of first inducting a stranger as a partner and then dissolving the partnership firm and handing over the premises to him. It makes no difference that he continues the business in the same name or that he was related to an erstwhile partner".
17. The filing of Civil Misc. (M) petition by Sh. Jitender Pal Singh in the Hon'ble High Court of Delhi does not make any difference as it was nowhere held that his father namely Gurbachan Singh was a tenant in the suit premises. Or he himself is a tenant in the suit premises.
18. The respondent further contended that the present petition has been filed in the name of respondent as M/s Roxy Dry Cleaners but no name of E-620/09 Sameer Wason Vs. M/s Roxy Drycleaner Page 15 of //16// partner or proprietor has been given. It is not stated whether the respondent is a firm u/o 30 CPC or is a sole proprietorship concern. It is further contended that the petitioners have filed two separate petitions, one u/s 14 (1) (a) of DRC Act and another u/s 14 (1) (b) and (j) of DRC Act both bearing title Sameer Wason and Anr. Vs. M/s Roxy Dry Cleaner and Ors. The petitioners have impleaded Sunder Lal and Des Raj as respondent no. 2 and 3 in said two petitions. The petitioners had also moved applications for bringing the legal heirs of Sh. Des Raj and Sunder Lal in the said eviction petitions on their death but no legal heirs of said deceased partners namely Des Raj and Sunder Lal, have been impleaded in the present petition by the petitioners. On the other hand the petitioners stated that the provisions of order 30 of CPC are not applicable in the present petition. It is further stated that the petitioners have already mentioned about the petitions u/s 14 (1) (a) of DRC Act and another petition u/s 14 (b) and (j) of DRC Act in the present petition.
19. Perusal of petition reveals that the present petition has been filed only against M/s Roxy Dry Cleaners as respondent, but it has been stated in the petition that M/s Roxy Dry Cleaners was a partnership firm having Sh. K.K.Bhatia, Sh. Sunder Lal and Sh. Des Raj as partners. It is not in dispute that the above said three partners already expired. In K.K.Sarin Vs. M/s Pigett Chapman & Co. (supra) the Hon'ble High Court relied upon the ruling Ramji Lal Ram Saroop Vs. Bombay Goods Carriers (P) Ltd., 44 (1991) DLT 383, where it was held that the eviction petition filed in the name of the firm only, is maintainable. It was held in Sambhu Dayal Vs. Chunni Lal Devki Nandan & Ors., AIR 1980, Rajasthan 60 that the provisions of order 30 are unabling procedure and they do not make it compulsory for the partners to sue in the name of the firm. It was held in E-620/09 Sameer Wason Vs. M/s Roxy Drycleaner Page 16 of //17// Ramji Lal Vs. Ram Swaroop Vs. M/s Bombay Goods Carrier Pvt. Ltd. (supra) that the court of Civil Procedure deal with the procedure and does not effect the substantial provision incorporated in a suit, it is available to the party, even in petition filed under the DRC Act. The rulings relied upon by the Ld. Counsel for the respondent Jagatjit Industrial Corp. & Ors. Vs. Union of India and Ors. (supra) and M/s Chottey Lal Pyare Lal, the partnership firm and Ors. Vs. Shikhar Chand (supra) are not applicable to the facts of the present case, because in the present petition the partners of the respondent firm already expired. In M/s Chottey Lal Pyare Lal, the partnership firm and Ors. Vs. Shikhar Chand, the Hon'ble Supreme Court has held that an eviction application filed against firm, in the name of the firm is not maintainable and the landlord but it was further held that it was merely a case of mis description and such misdescription could be corrected at any stage of the proceedings as there could be no doubt that the partners of the firm were before the court though in a wrong way. The landlord was allowed to amend the cause title by the Hon'ble Supreme Court and to add the name of the partners of the firm alongwith the firm, but in the case in hand the partners of the respondent firm already expired, therefore, the respondent firm cannot be sued in the name of deceased partners. The further contention of the respondent that the petitioner has impleaded the LRs of Sh. Des Raj and Sunder Lal in the previous eviction petitions filed u/s 14 (1) (a) of DRC Act and 14 (1) (b) and (j) of DRC Act but no legal heirs of said partners were impleaded in the present petition, has no substance because the legal heirs of partners can be brought on record, only when the partners have been impleaded as respondents. Therefore, the impleading of the LRs of deceased E-620/09 Sameer Wason Vs. M/s Roxy Drycleaner Page 17 of //18// Des Raj and Sunder Lal in eviction petition u/s 14 (1) (a) of DRC Act and 14 (1) (b) and (j) of DRC Act does not make any difference, if the said LRs were not impleaded in the present petitions as both the deceased partners namely Des Raj and Sunder Lal were already expired before filing of the present petitions. The contention of the respondent that petitioners have not disclosed about the petition u/s 14 (1) (a) and (b) and (j) in the present petition is without merit as the petitioners have already stated about both the petitions in para 19 of the present petition.
20. So far the purpose of letting is concerned, after the judgment of Hon'ble Apex Court in Satyawati Sharma Vs. Union Of India III (2008) SLT 553, an eviction petition is maintainable on the ground of bonafide requirement in respect of the property which were let out for commercial purposes. Hence both the ingredients are decided in favour of the petitioner and against the respondent.
21. Alternative accommodation and Bonafide requirement The respondent further contended that the petitioners are doing the business from the shop no. 53 (new), Old Rajinder Nagar Market, Delhi under the name and style of M/s Uttam Stationers. The petitioner no. 2 is also issuing receipt dated 20.09.2008 which is bearing his signature. The respondent further contended that the petitioner no. 2 is of retiring age of 64 years and not keeping good health, therefore, does not have any bona fide need. The respondent further contended that shop bearing no. 53-A was got vacated by the petitioners under an execution petition from tenant Sh. Rajinder Kumar Lamba on 06.05.2010. The petitioners have joined the said shop in their shop and therefore, the petitioner no. 2 does not have any alleged bona fide requirement. It is further stated that the petitioner have also E-620/09 Sameer Wason Vs. M/s Roxy Drycleaner Page 18 of //19// fixed their shutter and board in the said vacated shop in the name of M/s Uttam Stationers. On the other hand petitioners stated that only petitioner no. 1 is doing his business in shop no. 53 (new), old Rajinder Nagar Market under the name and style of M/s Uttam Stationers but petitioner no. 2 is not doing any business or work. It is denied that petitioner no. 2 has issued any receipt dated 20.09.2008. The petitioners further stated that petitioner no. 2 is a healthy person and there is no age bar to start any business or work. The petitioners further stated that petitioner no. 1, prior to taking the possession of shop no. 53 A from tenant, Rajender Kumar Lamba on 06.05.2010, was storing his goods outside his shops and was not having sufficient accommodation in his shop. Therefore, petitioner no. 1 has joined his shop with the shop got vacated from tenant, Rajender Kumar Lamba. It is not in dispute that petitioner no. 2 is aged about 64 years old. It is well settled law that anybody can start any business at any time and there is no age limit to start any business. Even the government gives income tax relaxation upto certain extent to the senior citizens. For the sake of argument, even if it is assumed that petitioner no. 2 is working alongwith petitioner no. 1 and running the business under the name and style of M/s Uttam Stationers but the question arises, whether the petitioner no. 2 has no right to start his own independent business. No tenant can force a landlord to continue his business with his son or daughter in one shop. The further contention of the respondent that the petitioners got vacated the shop no. 53-A from tenant Rajinder Kumar Lamba which was joined by the petitioners in their earlier shop and as such the petitioner no. 2 has no bona fide requirement to get vacate the shop in question has no merit. The petitioners have stated that the shop no. 53-A was got vacated from the tenant Rajinder Kumar Lamba but the E-620/09 Sameer Wason Vs. M/s Roxy Drycleaner Page 19 of //20// said shop was amalgamated by the petitioner no. 1 into his portion/shop. It is further stated that earlier the petitioner no. 1 was storing the goods outside his shop and has to keep it back in the shop at the time of closing of the shop and again take out at the time of opening of the shop. The petitioners, from the very beginning have stated that the shop in question is required only for petitioner no. 2 to start his business. If the petitioners have got vacated another shop from other tenant and the said shop was being used by one of the petitioners i.e petitioner no. 1, then the respondent/tenant cannot dictate to the landlords/petitioner to use the shop for the need of petitioner no. 2. It is well settled law that it is for the landlords to decide which portion of their property they want to use for which particular purpose. A tenant cannot order to the landlords to use one particular portion of shop for one particular work/business. As the shop bearing no. 53 A which was vacated by the other tenant is being used by the petitioner no. 1, then the respondent cannot object such use by the petitioners. The petitioner no. 2 is a senior citizen and he wants to start his business/work but he has no other alternate accommodation suitable accommodation with him to start his business, therefore, the need of the petitioners to get vacate the shop in question from the respondent is bona fide and not mala fide. The further contention of the respondent that both the petitioners are living together and have a common mess is again without any substance because petitioners need the shop in question for petitioner no.2 to start his business. It is not case of the respondent that the petitioners have any commercial accommodation in their residential property.
22. The petitioners have stated that the respondent firm through its partners illegally constructed the back open portion of the shop in question which is shown in yellow colour in the site plan and the said portion is also E-620/09 Sameer Wason Vs. M/s Roxy Drycleaner Page 20 of //21// with the respondent firm. The respondent has denied that any constructional changes were made by the respondent firm and the shop stands in the same position as it was let out. The respondent has also filed a site plan showing the accommodation in possession of the petitioner in pink color, the accommodation with other tenants in blue color and the accommodation in possession of the respondent in red color. There is not much difference in the site plans of the petitioners and respondent. It is not in dispute that the respondent firm came into possession of tenanted premises, through its partners, in 1964. The respondent has not disputed that the portion shown in yellow colour in the site plan filed by the petitioner is not in possession of the respondent, therefore, whether the portion, shown in yellow colour in the site plan of the petitioner has been constructed or not constructed by the respondent firm, is part of tenanted premises. Whatever accommodation the respondent firm has in its possession is part of tenanted premises therefore, the petitioner is entitled to recover the entire accommodation in possession of the respondent firm as shown in red colour and yellow colour in the site plan Ex C-1 (exhibited today while passing the order).
23. It is important to mention here that the present petition has been filed u/s 14 (1) (e) of DRC Act r/w Section 25-B of DRC Act on the ground of bona fide requirement. Section 25-B (4) of DRC Act only entitles a tenant to file a leave to defend application within 15 days from the date of service of the tenant. As discussed above it has been established that the suit premises was let out to M/s Roxy Fry Cleaners, a partnership firm, through its partners namely Sh. K.K Bhatia, Sh. Sunder Lal, and Sh. Des Raj. Sh. Jitender Pal Singh, who has filed the leave to defend application, was admittedly not a partner when the tenanted premises were let out to the respondent firm. I am E-620/09 Sameer Wason Vs. M/s Roxy Drycleaner Page 21 of //22// of the considered view that as Sh. Jitender Pal Singh was not a partner in the respondent firm at the time of letting out the tenanted premises therefore, he has no locus to file leave to defend application. The application U/s 25 -B (4) of DRC Act filed by Sh.Jitender Pal Singh is also not maintainable on this ground and liable to be dismissed. It was held by the Hon'ble Supreme Court in South Asia Industries Pvt Ld. Vs. S. Anup Singh & Ors., DLT 1966, 149 that "where tenant became extinct without leaving any successor on whom tenancy devolves an order can be made against a person who took an assignment of the lease from the tenant. Orders for ejectment against all persons in occupation must have been contemplated so that the landlord without further trouble recovers possession."
24. In view of the above discussions, the respondent has failed to raise any triable issue. On the other hand, the petitioners have successfully established that petitioners bona fidely need the suit premises for petitioner no. 2 to run the business in the suit premises as the petitioner no. 2 has no any other commercial property in his possession throughout Delhi. The rulings relied upon by the Ld. Counsel for the respondent are not applicable to the facts of the present case as the respondent failed to raise any triable issue and even Sh. Jitender Pal Singh who has filed his leave to defend application is not a tenant in the suit premises. Hence the petitioners are entitled for an eviction order u/s 14 (1) (e) r/w section 25-B of DRC Act.
25. Accordingly, the application of the respondent seeking leave to defend is dismissed and the petitioners are entitled for an eviction order and therefore an eviction order u/s 14 (1) (e) r/w section 25-B of D.R.C. Act is passed in favour of the petitioners and against the respondent in respect of the tenanted E-620/09 Sameer Wason Vs. M/s Roxy Drycleaner Page 22 of //23// premises i.e shop bearing no. 53 (new), Old Rajinder Nagar Market, New Delhi, more specifically shown in red and yellow color in site plan Ex. C-1 (exhibited today while passing the order). However, it is made clear that the petitioners shall not be entitled to get the eviction order executed before expiry of six months running from today. No order as to cost.
File be consigned to Record Room.
(Announced in the open court
on 31.10.2012) (Pritam Singh)
ARC/Central/Delhi
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