Delhi District Court
Sh. Bishan Swarup - Son vs Sh. Tara Chand (Deceased) on 9 September, 2015
IN THE COURT OF SHRI NARESH KUMAR LAKA,
SENIOR CIVIL JUDGE-CUM-RENT CONTROLLER,
DISTRICT SHAHDARA
KARKARDOOMA COURTS, DELHI
E. No. : 132/08
Unique I.D. No. 02402C0366822008
In the matter of:
Smt. Suman Lata (Deceased)
represented by her LRs:
1. Sh. Bishan Swarup - son
2. Sh. Anand Swarup - son
3. Sh. Lalit Swarup - son
All residents of :-
54/VIII, Kesri Mohalla,
Gali Jain Mandir, Shahdara,
Delhi 110032
4. Smt. Shashi Bala
W/o Late Sh. Kewal Kishan
R/o G-7/287, Sector-16,
Rohini, Delhi 110089
........ Petitioners
Vs.
Sh. Tara Chand (Deceased)
through his LRs:
1. Smt. Sheela Devi - Wife
2. Sh. Hukam - Son
3. Sh. Ashok - Son
4. Sh. Vinod - Son
All at shop bearing Municipal No. 54/8,
Kesari Mohalla, Gali Jain Mandir,
Shahdara, Delhi 110032
5. Smt. Sunita - Daughter
W/o Sh. Manoj
E No. : 132/08 Page No. 1 of 16
Suman Lata vs. Tara Chand
R/o House No. 4/VIII,
Mohalla Kesari, Gali Jain Mandir,
Shahdara, Delhi 110032
...... Respondents
Date of filling of petition : 26.04.2008
Final arguments heard on : 01.09.2015
Judgment announced on : 09.09.2015
Final Order : Petition allowed
Application/petition under Section 14 (1) (e) of the
Delhi Rent Control Act, 1958
JUDGMENT
Brief Facts: The present petition has been filed under Section 14 (1) (e) of the Delhi Rent Control Act, 1958 [in short 'the Act'] seeking eviction of a shop forming part of property bearing municipal no. 54/VIII, Kesri Mohalla, Gali Jain Mandir, Shahdara, Delhi (as shown in red colour in the site plan attached with the petition). Initially the present petition was filed by the petitioner, namely, Suman Lata against respondent, namely, Tara Chand. During the pendency of the case, the petitioner and respondent expired. Thereafter their legal representatives (LRs) were brought on record. For the sake of convenience, the parties are referred to by original petitioner and respondent and as substituted party.
2. The petitioner claimed that she is the owner/landlady E No. : 132/08 Page No. 2 of 16 Suman Lata vs. Tara Chand of the tenanted shop and is in bona fide need of the same for her two sons, namely, Sh. Anand Swarup and Sh. Lalit Swarup. It is also claimed that both her sons are dependent upon her and she has no other shop except one another shop which is adjacent to the tenanted shop and which is in possession of her eldest son who is running his business therein.
Written statement
3. In the written statement filed by the original respondent, it is alleged that the petition is defective without any verification clause, there is no bona fide requirement of the petitioner, the present petition is not maintainable as there is no cause of action to file the present case, the petitioner has various other alternative property, etc.
4. The petitioner filed replication to the wrriten statement wherein the allegations of the respondent were controverted and the stands already taken in the petition were reiterated.
5. In order to prove their case, the substituted petitioners examined Sh. Bishan Swaroop as PW1, Sh. Anand Swaroop as PW2 and Sh. Lalit Swaroop as PW3. Likewise the respondent Tara Chand also examined himself as RW1, Sh. Kale Ram Saini as RW2, Sh. Ram Avtar Saini as RW3, Sh. Ravinder E No. : 132/08 Page No. 3 of 16 Suman Lata vs. Tara Chand Singh Bedi as RW4, Sh. Aman Aggarwal as RW5, Sh. Pradeep Sharma as RW6, Smt. Khurshida Khatoon as RW7.
6. During the course of examination of the parties, various documents were also relied and exhibited. The relevant documents will be referred to by their description and exhibit mark wherever requires in the subsequent paragraphs.
7. I have heard Shri R.K. Shukla learned counsel for the substituted petitioners and Shri S.P. Aggarwal, learned counsel for the substituted respondents. File perused.
REASONS FOR DECISION
8. From the pleadings of the parties, following points emerged which require determination of this court:
1) Question of ownership of the petitioner and relationship between the parties as landlord and tenant
2) Existence of bona fide requirement of sons of petitioner
3) Availability of the suitable alternative accommodation
4) Other arguments E No. : 132/08 Page No. 4 of 16 Suman Lata vs. Tara Chand (1) Question of ownership of the petitioner and relationship between the parties as landlord and tenant
9. In the written statement, the respondent denied the ownership of the petitioner and it is stated that the petitioner has not placed on record any title document or the source of origination of ownership in favour of the petitioner.
10. The learned counsel for respondents also vehemently argued that the petitioner did not prove will filed on record and the source of ownership of the petitioner and in this regard he relied on the cases of P.G. D'Ombrain and Others etc. in AIR 1980 Gauhati 55, Sudhir Engg. vs. Nitco Roadways in 1995 RLR 286, Ishwar Dass vs. Chaman Prakash in RCR (1992) (2) 208 and Talat Parveen Naqvi vs. DDA in 163 (2009) DLT 622.
11. Before deciding the said question, it is important to understand the concept of ownership in a landlord-tenant litigation governed by rent control law. Ownership is a relative term, the import whereof depends on the context in which it is used. The word "owner" is not used in the Act in the context of an absolute owner. In this regard reference can be had to the decision of the Apex Court in "Shanti Sharma & Ors. Vs. Ved Prabha & Ors., AIR 1987 SC 2028", wherein it was held that:
E No. : 132/08 Page No. 5 of 16Suman Lata vs. Tara Chand "Ordinarily, the concept of ownership may be what is contended by the counsel for the appellant but in the modern context where it is more or less admitted that all lands belong to the State, the persons who hold properties will only be lessees or the persons holding the land on some terms from the Govt. or the authorities constituted by the State and in this view of the matter it could not be thought of that the Legislature when used the term 'owner' in the provision of Sec. 14 (1) (e) thought of ownership as absolute ownership. It must be presumed that the concept of ownership only will be as it is understood at present. It could not be doubted that the term 'owner' has to be understood in the context of the background of the law and what is contemplated in the scheme of the Act. This Act has been enacted for protection of the tenants. But at the same time it has provided that the landlord under certain circumstances will be entitled to eviction and bona fide requirement is one of such grounds on the basis of which landlords have been permitted to have eviction of a tenant. In this context, the phrase 'owner' thereof has to be understood, and it is clear that what is contemplated is that where the person builds up his property and lets out to the tenant and subsequently needs it for his own use, he should be entitled to an order or decree for eviction, the only thing necessary for him to prove is bonafide requirement and that he is the owner thereof. In this context, what appears to be the meaning of the term 'owner' is vis-a-vis the tenant i.e. the owner should be something more than the tenant."
12. In the case of "Ramesh Chand Vs. Uganti Devi, 157 (2009) DLT 450" Hon'ble High Court of Delhi further illustrated the concept of "owner" in following terms:
E No. : 132/08 Page No. 6 of 16Suman Lata vs. Tara Chand "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 may be. The imperfectness of the title of 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......"
13. Although the respondent disputed the ownership of the petitioner in the written statement but in his cross examination, the respondent Tara Chand admitted that Smt. Suman Lata was the owner of premises in question but he took a stand that after death of Suman Lata no other person became the owner of the property. In my considered opinion when the ownership of original petitioner, namely, Suman Lata has been admitted by the respondent, after her expiry her legal heirs inherit E No. : 132/08 Page No. 7 of 16 Suman Lata vs. Tara Chand the said property as per Law of Succession. The legal heirs of Suman Lata have already been brought on record and no dispute amongst the legal heirs has been pleaded or proved on record.
Moreover in deciding the present eviction petition, only better title of the petitioner is required to be seen than the tenant and the tenant has no right to dispute the title of the owner without evicting the premises in question. The respondents have also not disclosed as to who is the owner of the property in question if the petitioner or her legal heirs are not the owners.
14. In the light of aforesaid facts and the cited case laws, I hold that the petitioner/substituted petitioners succeeded in proving their ownership as well as relationship between the parties as landlords and tenants.
(2) Question of bona fide requirement of the sons of petitioner
15. The present petition has been filed by Smt. Suman Lata by claiming bona fide requirement of her two sons, namely, Anand Swaroop and Lalit Swaroop for starting their own business. Admittedly both the said sons are married and they are of the age of 40 and 35 respectively at the time of filing of the present case (which will now be 7 plus). The respondent pleaded that the above said two sons are running their business in the other adjacent shop with third son namely Sh. Bishan Swaroop and as such there is no requirement for the said two sons and E No. : 132/08 Page No. 8 of 16 Suman Lata vs. Tara Chand they are not financially dependent upon the petitioner.
16. Even if it is presumed (although there is no proof on record) that the two sons, namely, Anand Swaroop and Lait Swaroop are doing business with their elder brother Sh. Bishan Swaroop in one of the adjacent shops, in that case also I am of the considered opinion that each individual has inherent right to start his/her own business separately from his brothers and in this regard neither this court nor the tenants can dictate the landlord or his/her dependants to adjust or to struggle with the means available with them.
17. In my considered opinion, the question of "dependency" or "independency" of a particular person is not related to his financial status and the nature of business but as per Section 14(1)(e) of the Act the word "dependent" means - one is dependent for fulfilling his requirement of a premises and not for his livelihood. It is a settled law that the financial status of a person will not deprive him to engage himself in a venture of his own choice for the sake of his livelihood or for the sake of his interest in a particular field or profession and for that purpose even no experience is required. In this regard, reliance can be placed on the case of Aero Traders Pvt. Ltd. Vs. Mohan Singh [RC Rev. No. 391/2011 decided on 02.01.2014] wherein it has been held by Hon. High Court of Delhi as under:
E No. : 132/08 Page No. 9 of 16Suman Lata vs. Tara Chand "With regard to bona fide requirement of the respondents, it is not permissible for the tenant to raise such issues pertaining to the age of the landlord, his experience and financial status. These issues are not much relevant in the eviction petition if it is established prima facie that the requirement of the landlord is genuine and bona fide."
18. Further reliance can be placed on the case of Mohd. Ayub & Anr. vs. Mukesh Chand, Civil Appeal No. 4495 of 2006 decided on 5 January, 2012 by Hon. Supreme Court of India wherein it was held that:
"We also find that the courts below were swayed by the fact that the financial position of the appellants was better than the respondent. The District Court has erroneously gone on to observe that the appellants can buy another building and start business. It has also observed that the appellants had purchased the building to make profit. In this connection we may usefully refer to the judgment of this Court in Bhimanagouda Basanagouda Patil where the District Judge decided the issue of comparative hardship in favour of the tenant solely on the basis of affluence of the parties. This Court observed that if this is the correct approach then an affluent landlord can never get possession of his premises even if he proves all his bona fide requirement."
19. In the light of aforesaid evidence and the settled precedent, I hold that the petitioner proved on record the bona fide requirement of her sons for the purpose of starting their own E No. : 132/08 Page No. 10 of 16 Suman Lata vs. Tara Chand independent businesses especially when the said two sons, namely, Anand Swaroop and Lalit Swaroop are married, of very grown-up age (i.e. near about 45 years) and having growing family members a better standard of life.
(3) Existence of alternative suitable accommodation
20. The present petition has been filed by claiming that the petitioner has three sons, namely, S/Shri Bishan Swaroop, Lalit Swaroop and Anand Swaroop and it is claimed that the petitioner has only two shops, out of which one shop is being run by eldest son Shri Bishan Swaroop and second shop is in possession of the respondent. On the other hand, respondent took a plea that the petitioner has total four shops. The said defence has been raised during the course of arguments and there is no such reference in the WS but still this court proceed to examine the said argument for deciding the above issue of existence of alternative suitable accommodation.
21. In the site plan (Ex. PW1/5) filed by the petitioner on record, the petitioner has shown two shops and one room and one store on the ground floor. During the course of recording evidence, the shop in question was marked as Mark B, the shop in possession of eldest son was marked as C and the room which was allegedly in possession of another tenant, namely, Shri Sant Ram was shown at mark A. E No. : 132/08 Page No. 11 of 16 Suman Lata vs. Tara Chand
22. It is the admitted case that the portion in possession of Sh. Sant Ram (Mark A) was got evicted in a petition bearing E. no. 421/89 vide order of Ld. ARC dated 20.07.99 but it is disputed whether the said portion was a room or a shop. The petitioner vehemently claimed said portion as a room whereas the respondent claimed it as a shop. Whatever may be the nature of the said accommodation, it hardly makes any difference when the same can be considered to be a property belonging to the petitioners. But the petitioner specifically disclosed that the said portion is being used for parking of scooter in a store room. Although the respondent denied said assertion/claim of the petitioner but RW3 Ram Avtar admitted in his cross examination that the said accommodation which was got vacated from Sat Ram is being used by the petitioner as store or parking of scooter. Thus it is clear that the said portion is being used as a parking/store and is not an empty/vacant shop.
23. Be that as it may, even if it is presumed for the sake of argument that the said room/shop is of commercial utility and is lying vacant, in that case also I find that the said space is not sufficient to fulfill the requirement of both the sons, namely, Lalit and Anand. When the eldest son already occupying one shop as shown at point C, I am of the considered view that on the principles of parity, the two other sons of the petitioner Suman E No. : 132/08 Page No. 12 of 16 Suman Lata vs. Tara Chand Lata (who are not only married but have their own family and growing children), also have their own individual right to run their own independent shops. If one of the said two sons can run said shop, the other son will still require a shop.
24. In the site plan, one store is also shown but the same is of very small size and no evidence has been led by the respondent that the said store is of any commercial value. Moreover there is no such stand taken in the WS with regard to said store and the same cannot be considered.
25. In the light of above said evidence and circumstances, I hold that the respondent failed to prove existence of any suitable accommodation in possession of the petitioner.
(4) Other arguments
26. At the outset, in the title of preliminary objections of WS, it is alleged that the affidavit filed on record is not proper as per Order 19 Rule 3 CPC as the same was not based on knowledge and facts separately. In my considered opinion, the said plea is not significant when witnesses of petitioner have already deposed on oath and they have been cross examined by the opposite counsel. Moreover there is no provision under Code E No. : 132/08 Page No. 13 of 16 Suman Lata vs. Tara Chand of Civil Procedure that a petition should be dismissed on account of defect in an affidavit, as shown above. Thus said argument is without any force and thus rejected.
27. The learned counsel for respondents argued that the respondent and his family members are very poor and if they are evicted from the premises in question, they will come to road. While considering a petition for bona fide requirement under Section 14 (1) (e) of the Act, this court cannot examine the financial implication upon the tenant after his eviction but only bona fide requirement of the landlord or his dependant is required to be judged. Accordingly this arguments is not acceptable in law and thus rejected.
28. It is further contended that the petitioners are indenting to re-let the premises in question on higher rate of rent. The said argument is also not acceptable in law since the respondents have a remedy to seek re-entry/re-possession of the premises in question as per Section 19 of the Act if the petitioners re-let the premises in question to some other person within next three years from the date of receiving of possession.
29. In the WS, it is specifically alleged that the site plan filed by the petitioner is not correct and the shop in question has been shown as 9'.0" x 6.'9" whereas the same is 9'.8" x 7'.0".
E No. : 132/08 Page No. 14 of 16Suman Lata vs. Tara Chand From the measurement of the shop in question as pleaded by the petitioner and as claimed by respondent, it is clear that there is only a slightest difference in 'inches" of the shop in question and on this ground, it cannot be said that the site plan is not correct. When the premises in question has been correctly shown by its location, the minute difference in its size by certain inches are not significant. Thus the said argument is without any force.
30. It is further argued on behalf of respondents that in the previous petition, the petitioner has claimed the premises in question as residential whereas in the present petition it has been claimed as commercial and thus it is claimed that there is no bona fide requirement and the claims are contradictory. The said argument is not at all relevant as the petitioner has been given a specific right by Hon. Supreme Court of India in the case of Saraswati vs. Union of India in 2008 to seek eviction of a commercial premises on bona fide requirement. Thus this argument is without any substance.
31. Counsel for respondent also relied on the case of Keshav Metal Works & Anrs. vs. Jitender Kumar Verma in 53 (1994) DLT 685, Dr. (Mrs.) N.D. Khanna vs. M/s Hindustan Industrial Corporation in AIR 1981 Delhi 305 and Sanjay Chug vs. Opender Nath Ahuja in 207 (2014) DLT 271. I have carefully gone through the said cited case laws and the facts of E No. : 132/08 Page No. 15 of 16 Suman Lata vs. Tara Chand the said cases are distinguishable from the facts of the present case especially when the petitioners established the status of ownership, bona fide requirement of her two sons and existence of no alternative accommodation.
Conclusion
32. In the light of aforesaid findings, I hold that the petitioner succeeded in establishing the essential ingredients of Section 14 (1) (e) of the Act. Resultantly the petition is allowed. The respondents are directed to hand over the physical vacant possession of the shop in question as shown in red colour in the site plan Ex.PW1/5 at point B to the petitioner within six months. File be consigned to record room.
Announced in the open court on 09.09.2015 (Naresh Kumar Laka) Senior Civil Judge-cum Rent Controller, District Shahdara, Karkardooma Courts, Delhi.
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