Delhi District Court
Sh. Rahul Goel vs M/S Mega Overseas Pvt. Ltd on 23 September, 2019
1
IN THE COURT OF MR. SHIRISH AGGARWAL, ARC-1, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
Eviction Petition No. E-15/15 (New No.78636/16)
Unique Case ID/CNR No.DLCT03-001504-2015
Sh. Rahul Goel
S/o Late Sh. Ramesh Goel
R/o H.No.4980/40, Top Floor
Darya Ganj, New Delhi-110002. ...Petitioner
Versus
M/s Mega Overseas Pvt. Ltd.
Through its Director/Authorized Representative
At Property No. 4980/40, Ground Floor
Front Portion, Netaji Subhash Marg
Daya Ganj, New Delhi-110002. ...Respondent
Date of Institution of Petition : 13.02.2015
Date on which order was reserved : 18.09.2019
Date of decision : 23.09.2019
Decision : Application seeking leave to defend
filed on behalf of the respondent
is dismissed. Eviction order is
passed.
ORDER
1. This is a petition for eviction of tenant under Section 14(1)(e) r/w Section 25-B of the Delhi Rent Control Act, 1958. This order shall dispose off Eviction petition No.15/15 (New No.78636/16) Page 1 of 34 2 the application seeking leave to defend filed by respondent.
2. The petitioner claims to be the owner and landlord of a portion on the ground floor of property bearing no. 4980/40, Netaji Subhash Marg, New Delhi-110002, as shown in red color in the site plan filed alongwith eviction petition on page number 15 (hereinafter referred to as the 'tenanted premises'). It is stated that the respondent is tenant in this premises at a monthly rate of rent of Rs.1,800/- excluding electricity and water charges.
3. It is pleaded that the petitioner and his brother Mr. Neeraj Goel have been assisting their mother in her business till now. However, the petitioner and Mr. Neeraj Goel now have some disputes and therefore, it is not possible for them to work in the firm of their mother. Therefore, the petitioner wishes to start his business. However, he does not have any reasonable accommodation. It is averred that the tenanted premises is bonafide required by the petitioner for doing his business. The petitioner has prayed that eviction order may be passed in respect of the tenanted premises in terms of section 14 (1) (e) of the Delhi Rent Control Act.
4. Summons under Schedule-III of the Delhi Rent Control Act was issued by the Ld. Predecessor of this Court which were served upon the respondent. Respondent filed an application for seeking leave to defend. Eviction petition No.15/15 (New No.78636/16) Page 2 of 34 3
5. It is stated in the application for leave to defend that the petitioner already has sufficient and reasonable accommodation available with himself and his family members in the property in which the tenanted premises is situated. It is pleaded that more than half of the ground floor of his property comprising of one big hall, two shops facing the running main road, half mezanine portion, entire first floor comprising of about 3000 sq. ft., entire second floor also comprising of about 3000 sq. ft. and the entire third floor also measuring about 3000 sq. ft. is with the petitioner and his family members.
6. It is further stated that the petitioner and his family have commercial properties in Daryaganj and surrounding areas of Chandni Chowk and this has been concealed.
7. It is averred that the Memorandum of the Family Settlement dated 16.07.2012, Memorandum of Understanding dated 05.12.2014 and letter of attornment dated 08.12.2014 are bogus, sham and unregistered. Therefore, the petitioner is not owner of the tenanted premises and there exists no relationship of landlord and tenant between the petitioner and the respondent. It is stated that the petitioner has not placed on record legal documents with Eviction petition No.15/15 (New No.78636/16) Page 3 of 34 4 respect to ownership and landlordship. It is stated that the respondent has never attorned the tenancy in favour of the petitioner. It is further stated that the notice dated 01.04.2003 sent by Smt. Manju Goel and Sh. Harish Goel and letter dated 10.02.2000 sent by Mr. Rajeshwar Dayal Goel & Ors. are not maintainable in the eyes of law. It is stated that the respondent is a tenant of Mr. Harish Goel and Smt. Manju Goel and rent has been paid by the respondent to Mr. Harish Goel.
8. It is pleaded that the petitioner is claiming to be owner of three separate tenanted shops and the present case filed for seeking eviction from the three shops is not maintainable. It is stated that the single eviction petition cannot be filed for eviction from three different tenanted premises.
9. It is stated that as per the own case of the petitioner, he became owner of the tenanted premises by virtue of memorandum of family settlement dated 05.12.2014. It is stated that in view of Section 14(6) of the Delhi Rent Control Act, the present petition is not maintainable since it has been filed within five years of the petitioner becoming owner of the property.
10. It is stated that the petitioner is engaged in trading of electrical equipments as commission agent for which no additional accommodation is Eviction petition No.15/15 (New No.78636/16) Page 4 of 34 5 required by the petitioner and his family. It is pleaded that the petitioner is already running two business firms in the name of M/s N.R. Electronics and M/s Young Electrical from property bearing no. 51, Old Lajpat Rai Market, which is an ample and sufficient accommodation available with the petitioner.
11. It is stated that the site plan filed by the petitioner in respect of which the eviction is sought is incorrect. It is stated that the site plan is without any description and measurement of the entire area with the petitioner and his family members. It is pleaded that an incomplete site plan has been filed to conceal the accommodation already available with the petitioner in the same property.
12. It is stated that the eviction petition is not maintainable since the petitioner is seeking only partial eviction of tenanted property.
13. It is stated that the present case has been filed only to harass the respondent so that the rate of rent can be increased or with the view to sell the property after having the respondent evicted. It is averred that the tenanted premises was offered for sale to the respondent and even negotiations took place. However, the deal was deferred due to certain reasons. It is stated that the petition has been filed in collusion with the other Eviction petition No.15/15 (New No.78636/16) Page 5 of 34 6 co-owners of the property on the basis of bogus and sham documents.
14. It is stated that the suit for declaration was filed by the petitioner and his family members against the respondent for enhancement of rent which was dismissed by the Ld. ADJ and the Hon'ble High Court.
15. It is stated that the relationship between the petitioner and his brother is cordial.
16. It is stated that the petitioner has not disclosed the details of the new business which he allegedly wishes to start. It is pleaded that the assertions of the petitioner are vague and baseless.
17. It is stated that the petitioner and his family are financially sound and cannot think of starting a new business from the tenanted premises. It is pleaded that the petitioner's requirement for additional accommodation for a new business is false and frivolous.
18. The respondent has denied all assertions made by the petitioner. The respondent has pleaded that the alleged bonafide need of the petitioner is fake and malafide and has prayed that leave to defend the petition may be granted to the respondent as the application/affidavit of the respondent/tenant Eviction petition No.15/15 (New No.78636/16) Page 6 of 34 7 discloses such facts as would disentitle the petitioner from obtaining an order for the recovery of possession of the premises under section 14 (1) (e) of Delhi Rent Control Act.
19. The petitioner filed reply to the application seeking leave to defend. The petitioner reiterated and reaffirmed the contents of his eviction petition. It is denied that the petitioner has sufficient and reasonable accommodation available with him and his family members. It is denied that the petitioner and his family have the premises in the building in which tenanted premises is situated as has been alleged. It is stated that the entire property was owned by Mr. Mangal Sen Goel, who had three sons, namely, Mr. Rajeshwar Dayal Goel, Mr. Ramesh Goel and Mr. Harish Goel. Mr. Mangal Sen Goel executed a Will on 14.05.1999 by which he bequeathed separate portions of the property to all his sons. The portion which fell in the share of Mr. Ramesh Goel, father of the petitioner, comprised of ground floor portion with duplex premises to the extent of 75% situated on the front side of the property bearing no. 4980/40, Daryaganj, Delhi and the remaining 25% on the same floor fell in the share of Mr. Harish Goel. It is pleaded that the entire back portion on the ground floor excluding two shops which were situated on the left and right corners of the extreme back side/back street of the property, had Eviction petition No.15/15 (New No.78636/16) Page 7 of 34 8 also fallen in the share of Late Mr. Ramesh Goel. It is stated that the front portion of the ground floor which fell in the share of Mr. Ramesh Goel comprises of the shop which is under the tenancy of respondent/tenant.
20. It is pleaded that the Will of Mr. Mangal Sen Goel is registered and was acted upon between and by all successors of Late Mr. Mangal Sen Goel. The Will was also attested by a Civil Court in a suit filed before it. The Will was accepted by the Court and a decree was passed.
21. It is stated that a further partition between the sons and wife of Late Mr. Ramesh Goel had taken place, the terms of which were reduced in writing by executing a Memorandum of Family Settlement by the petitioner, his brother Mr. Neeraj Goel and their mother Smt. Manju Goel. It is pleaded that a Memorandum of Understanding was also executed by the petitioner and Mr. Harish Goel. Accordingly, the tenanted premises herein fell in the share of the petitioner. A letter of attornment was also issued to the respondent requiring to pay rent to the petitioner. However, no rent was paid either to the petitioner or to any other family member of the petitioner.
22. It is denied that the present case has been filed pre maturely. It is stated that petitioner was co-owner of the property in question and only his Eviction petition No.15/15 (New No.78636/16) Page 8 of 34 9 portion has been specified by a settlement between the family members. Therefore, it cannot be said that the petitioner has acquired the premises now.
23. It is stated that the area available with the petitioner in the property is nominal and there is no space in which he can run his commercial activity.
24. It is pleaded that the third floor of the property is being used for residential purposes by the petitioner, his brother, their mother and their respective families. It is stated that even otherwise, third floor of the property cannot be considered as an alternative accommodation for commercial purposes. It is pleaded that commercial activities are usually carried out from the ground floor.
25. It is denied that the petitioner has alternative premises in Darya Ganj or in the area of Chandni Chowk.
26. It is denied that eviction from three different and separate shops has been filed in a single eviction petition. It is stated that there is one composite tenancy comprising of the complete front portion. It is submitted that the area in occupation of the respondent is without any partitions, although the shop being big in size, has three shutters. It is pleaded that since there is only one Eviction petition No.15/15 (New No.78636/16) Page 9 of 34 10 tenancy, a single eviction petition is maintainable.
27. It is denied that the petitioner is engaged in only trading equipment as a commission agent. It is pleaded that till now the petitioner has been helping his mother in two businesses being run under the name & style of M/s N.R. Electronics and M/s Young Electrical from property bearing no. 51, Old Lajpat Rai Market, Delhi. It is submitted that these two firms are sole proprietorships of Smt. Manju Goel, mother of the petitioner.
28. It is stated that family settlement need not be registered and the respondent being a tenant, has no right to challenge it.
29. It is stated that the respondent has failed to disclose as to who is the landlord under whom he is a tenant.
30. It is stated that the petitioner and his brother have strained relation and the petitioner wishes to establish his own independent business. It is prayed that the application for leave to defend be dismissed.
31. The respondent filed rejoinder to the reply of the petitioner and denied the averments made in the reply of the petitioner and simultaneously reiterated and reaffirmed the contents of the application. Eviction petition No.15/15 (New No.78636/16) Page 10 of 34 11
32. I have heard the arguments and have carefully gone through the record. The respondent has not placed on record any document which establishes that the premises of which the petitioner is seeking possession comprises of three different tenancies. In the case of Rajender Kumar Sharma v. Smt. Leela Wati 155 (2008) DLT 383, the Hon'ble High Court of Delhi held that the respondents tenants have to place on record some material in support of the assertions made in the application for leave to defend. In this context, the following was held by the Hon'ble Delhi High Court in the case of Sarwan Dass Bange Vs. Ram Prakash, 161 (2010) DLT 80:
"However, merely because the tenant so disputes and controverts the pleas of the landlord does not imply that the provision of summary procedure introduced in the Act with respect to ground of eviction on the ground of requirement is to be set at naught....The tenant is required to give all the necessary facts and particulars supported by documentary evidence if available to prove his plea in the affidavit itself so that the Controller will be in a position to adjudicate and decide the question of genuine or bonafide requirement of the landlord; a mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine."
33. In the case of K.K. Sarin Vs. M/s Pigott Chapman & Co. 46 (1992) DLT 352, the Hon'ble Delhi High Court held the following: Eviction petition No.15/15 (New No.78636/16) Page 11 of 34 12
"Due to paucity of accommodation in Delhi the tenants are likely to plead facts and if they are held to be raising triable issue in every case, hardly any application seeking leave to defend would fail. This certainly is not the idea behind this provision. While deciding the application seeking leave, what is required of the Rent Controller is to observe the rules of natural justice and to give opportunity to both the parties to produce the affidavits and material on which they rely. When leave to defend is sought, the tenant must make out a prima facie case raising such pleas that a triable issue would emerge."
34. In this regard, reliance is also placed upon the decision of the Hon'ble High Court passed in the case of Mohd. Naseer Vs. Mohd. Zaheer and Anr. RC Rev. No. 267/2016 dated 03.11.2016 in which the following was held :-
"19. ...Mere raising of baseless contentions against the landlord cannot be a ground for being granted leave to defend to the petitioners. It cannot be said that the petitioners have given facts or particulars which require to be established by way of evidence. The petitioners have merely made allegations for the sake of making allegation. There is no merit in the said plea of the petitioner.
20. The trial court has rightly concluded that the petitioners have failed to place on record any material to raise a suspicion that the respondents are having a vacant space on the ground floor of the suit property which can be used by them to open his workshop for industrial tools."
35. In view of the aforementioned decisions, it was for the respondent to place on record material which establishes that the property from which it is sought to be evicted is subject matter of three different tenancies. Eviction petition No.15/15 (New No.78636/16) Page 12 of 34 13
36. Ld. Counsel for the petitioner has explained during arguments that the three shops referred to in the documents accompanying the eviction petition are the two shops on the rear side of the property which fell in the share of Mr. Rajeshwar Dayal Goel and the one shop on the front side which is in possession of the respondent herein. In the absence of any material brought on record by the respondent in support of its contention that the petitioner is seeking termination of three different tenancies by filing only one eviction petition i.e. the present case under consideration, there is no reason to disbelieve that the area in possession of the respondent is a shop without partitions and that there is one composite tenancy comprising of the entire front portion.
37. In order to succeed in a petition for eviction filed under section 14 (1)
(e) of the Delhi Rent Control Act, the petitioner must establish that:
i. He is owner and landlord in respect of the tenanted premises. ii. He requires the premises bonafide for himself or for any member of his family dependent upon him.
iii. He has no other reasonable suitable accommodation.
Ownership of tenanted premises and relationship of landlord-tenant between petitioner and respondent:
38. Even though the respondent has denied that the petitioner is owner of Eviction petition No.15/15 (New No.78636/16) Page 13 of 34 14 the tenanted premises, it has not disclosed as to who is the true owner of the property, if not the petitioner herein. The respondent has admitted that Mr. Harish Goel is the joint owner of the property. However, it has not disclosed as to who besides Mr. Harish Goel is also owner of the property. Moreover, it is not even the case of the respondent that he continues to pay rent to Mr. Harish Goel or anyone else.
39. The respondent has admitted that it was a tenant under Late Mr. Mangal Sen Goel and after his demise, by operation of law, it is tenant under Mr. Harish Goel and Smt. Manju Goel. The respondent has not explained how after demise of Mr. Mangal Sen Goel, Mr. Harish Goel and Smt. Manju Goel became the landlords. However, in view of this admission made by the respondent, it is evident that it has accepted that the erstwhile owners of the property i.e. Mr. Mangal Sen Goel and thereafter Mr. Ramesh Goel have died. The property would devolve upon Smt. Manju Goel by operation of law only if after demise of Mr. Mangal Sen Goel, Mr. Ramesh Goel died intestate. Since Mr. Ramesh Goel died intestate, his share in the property of Mr. Mangal Sen would not only devolve upon his wife, but also on his sons, including the petitioner herein. Therefore, the petitioner is atleast a co-owner of the property. A co-owner can also institute a petition seeking Eviction petition No.15/15 (New No.78636/16) Page 14 of 34 15 eviction of the tenant under the Delhi Rent Control Act. Reference may also be made to decisions passed in the cases of Kanta Goel v. B.P. Pathak AIR 1977 SC 1599 and Pal Singh vs. Sunder Singh AIR 1989 SC 758. Thus even being a co-owner the petitioner is complete owner in respect of the entire property and he is competent to file the present eviction petition against the tenant without joining the other alleged co-owners and he is to be considered as an owner for the purposes of section 14 (1) (e) of the Delhi Rent Control Act. There is nothing on record to show that other alleged co-owners including Mr. Harish Goel have objected to the filing of the present petition.
40. The respondent has not denied the execution of Will dated 14.05.1990 by Late Mr. Mangal Sen. Even otherwise, this Will has been accepted by the Civil Court in a suit filed before it for declaration. As per this Will, the tenanted premises herein fell in the share of Mr. Ramesh Goel, father of the petitioner. Father of the petitioner has admittedly died and is survived by his wife and two sons including the petitioner. After the demise of Mr. Ramesh Goel, the tenanted premises devolve upon his wife and his two sons including the petitioner. Therefore, even if the Memorandum of Family Settlement dated 16.07.2012 is ignored, the petitioner still becomes co-owner of the tenanted premises and is therefore, competent to have instituted the present eviction Eviction petition No.15/15 (New No.78636/16) Page 15 of 34 16 petition. Thus, the allegation that the Memorandum of Family Settlement is bogus and a sham and that it has to be ignored since it is not registered, does not give rise to any triable issue.
41. In judgment titled as Rajender Kumar Sharma vs. Smt. Leela Wati reported as 155 (2008) DLT 383 the Hon'ble High Court of Delhi held the following:-
".....It is settled law that for the purpose of section 14 (1) (e) of Delhi Rent Control Act, a landlord is not supposed to prove absolute ownership as required under Transfer of Property Act. He is required to show only that he is more than a tenant......"
42. In the judgment titled as Ramesh Chand vs. Uganti Devi reported as 157 (2009) DLT 450 the Hon'ble High Court of Delhi held the following:
".......... The imperfectness of the title of the premises cannot stand in the way 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........."
43. Section 116 of the Evidence Act is a compete answer to the plea taken Eviction petition No.15/15 (New No.78636/16) Page 16 of 34 17 by the respondent. The Hon'ble Supreme Court in the case of Bansraj Laltaprasad Mishra v. Stanley parker Jones (2006) 3 SCC 91 held following:
".....13. The underlying policy of section 116 is that where a person has been brought into possession as a tenant by the landlord and if that tenant is permitted to question the title of the landlord at the time of the settlement, then that will give rise to extreme confusion in the matter of relationship of the landlord and tenant and so the equitable principle of estoppel has been incorporated by the legislature in the said section.
14. The principle of estoppel arising from the contract of tenancy is based upon a healthy and salutary principle of law and justice that a tenant who could not have got possession but for his contract of tenancy admitting the right of the landlord situation taking undue advantage of the possession that he got and any probable defect in the title of his landlord. It is on account of such a contract of tenancy and as a result of the tenant's entry into possession on the admission of the landlord's title that the principle of estoppel is attracted.
15. Section 116 enumerates the principle of estoppel which is merely an extension of the principle that no person is allowed to approbate and reprobate at the same time......."
44. The respondent was inducted as a tenant in the premises by the grandfather of the petitioner who died after executing a Will by which the tenanted premises fell in the share of the father of the petitioner. Therefore, father of the petitioner became the owner of the tenanted premises. The Eviction petition No.15/15 (New No.78636/16) Page 17 of 34 18 principle is very clear that once a tenant always a tenant. The tenant cannot dispute the title of his landlord or the landlord's successor-in-interest. The respondent is now estopped from questioning the title of the petitioner who is successor-in-interest of Mr. Ramesh Goel, the earlier owner and therefore, landlord of the property.
45. If the transfer of the landlord's title is valid, and even if the tenancy is not attorned in favour of the transferee, the lease continues. Thus, a transferee of the landlord's rights, steps into the shoes of the landlord with all the rights and liabilities of the transferor landlord in respect of the subsisting tenancy. Attornment by the tenant is unnecessary to confer validity to the transfer of the landlord's rights and there is no such statutory requirement. Reference may be made to the case of Hajee K. Assainar vs. Chacku Joseph AIR 1984 Ker 113. In the case of Mahendra Raghunathdas Gupta vs. Vishvanath Bhikaji Mogul AIR 1997 SC 2437, it was held that attornment by tenant is not necessary though it is desirable. Mere non-payment of rent by tenant even for a considerably long period does not extinguish the landlord- tenant relationship. The possession of a tenant cannot be adverse to his landlord. The petitioner is therefore, the landlord and owner of the tenanted premises.
Eviction petition No.15/15 (New No.78636/16) Page 18 of 34 19
46. Since there is nothing on record to doubt the title of the petitioner over the tenanted premises, no triable issue has been raised with respect to the relationship of the landlord and tenant between the parties and the ownership of the petitioner.
47. Accordingly, I am of the opinion that the petitioner is competent to have filed the present eviction petition as he is owner as well as landlord in respect of the tenanted premises for the purpose of section 14 (1) (e) of Delhi Rent Control Act.
Requirement of premises bonafide by the petitioner for himself or for member of his family dependent upon him and non-availability of any other reasonably suitable accommodation:
48. The respondent has alleged that the petitioner has alternative suitable accommodation which can be used by him for his stated requirements. As per the respondent, the petitioner has more than half of the ground floor portion comprising of one big hall and two shops facing the running main road, half mezanine portion, entire first, second and third floors of the property bearing no. 4980/14, Netaji Subhash Marg, Daryaganj, Delhi and other commercial properties in Daryaganj and surrounding areas of Chandni Chowk. This has been denied by the petitioner.
Eviction petition No.15/15 (New No.78636/16) Page 19 of 34 20
49. As has already been held hereinabove, it is the respondent who has to place on record material for establishing that the petitioner has these properties. The assertion that the petitioner has other alternative suitable property is not supported with any material.
50. Since no material has been placed on record by the respondent to substantiate that the petitioner indeed has alternative suitable accommodation, the contention of the petitioner that there is no other premises available for his stated requirements will be accepted to be correct. Even otherwise, the Will of Mr. Mangal Sen placed on record by the petitioner has not been disputed by the respondent. As per this Will, other than the portion in possession of the respondent herein, the only portion of the ground floor which fell in the share of Mr. Ramesh Goel, father of the petitioner is the portion shown in blue color in the site plan on page no. 29 of the documents accompanying the eviction petition. As per the petitioner, this portion has fallen in the share of his brother Mr. Neeraj Goel after the execution of the Memorandum of Family Settlement. Even if the Memorandum of Family Settlement is ignored since it is not registered, at best, the petitioner will also have the portion in blue color in the site plan on page no. 29. This portion in blue color does not have access from the road since it is in middle of the plot. Eviction petition No.15/15 (New No.78636/16) Page 20 of 34 21 Therefore, this portion in blue color cannot be considered as a property as suitable as is the tenanted premises for the new business of the petitioner.
51. As per the Will of Mr. Mangal Sen which has not been disputed, besides the portion on the ground floor, only the top floor of the property no.4980/40, Netaji Subhash Marg, Daryaganj, fell in the share of Mr. Ramesh Goel. As per the petitioner, this floor is being used for residence of his family, his brother's family and of their mother. The assertion of the petitioner that his floor is being used for the residence of the petitioner's family has not been denied by the respondent. Since this floor is already being used, it is not vacant and therefore, cannot be held to be an altarnative suitable accommodation for the business of the petitioner.
52. In the cases of Dhannalal Vs. Kalawatibai (2002) 6 SCC 16 and Uday Shanker Upadhyay Vs. Naveen Maheshwari (2010) 1 SCC 503, it was held that judicial notice can be taken of the fact that the upper floors are generally not commercially viable and consumers and patrons of the market are reluctant to walk into the same and are more prone to walk into a shop on the ground floor. Relying on these decisions, the Hon'ble High Court of Delhi in the case of M/s A.K.Woolen Industries & Ors. Vs. Shri Narayan Gupta RC. Eviction petition No.15/15 (New No.78636/16) Page 21 of 34 22 Rev. No. 495/2017 dated 31.10.2017 held that availability of upper floors above the tenanted premises on the ground floor cannot be said to be alternate suitable accommodation. In view of this decision, the mezanine floor, first floor, second floor and the third floor of the building cannot be considered to be as suitable as is the tenanted premises which is on the ground floor for the business of the petitioner.
53. Besides making ipse dixit self-serving statements about availability of alternative suitable accommodation, no material has been placed on record by the respondent in support of its contention that the petitioner has other commercial property in Daryaganj or surrounding area of Chandni Chowk.
54. The shop at Old Lajpat Rai Market is stated to be an exclusive property of Smt. Manju Goel, mother of the petitioner. The petitioner is atleast the co-owner of the tenanted premises herein, if not the sole owner. Merely because the respondent does not wish to vacate the property of the petitioner, the petitioner cannot be called upon to take the property of his mother for his new business. The petitioner owns a property and wishes to do business from it. In view of the refusal of the respondent to vacate the property, the petitioner cannot be expected to go and ask his relatives to give their properties to him Eviction petition No.15/15 (New No.78636/16) Page 22 of 34 23 for doing his exclusive business. Moreover, it is not in dispute that the property at Old Lajpat Rai Market is already being used for doing business by the mother of the petitioner. Therefore, this property is not vacant and therefore, cannot be held to be an alternative suitable accommodation available for the petitioner's business.
55. Even if it is presumed that the petitioner has other premises available for his stated requirement, even then the choice is left to the landlord/petitioner to decide as to which of these premises he should occupy and the tenant does not have any say in this matter. In the case of Ravichandran and Ors. Vs Natrajan Nadar and Ors. (2004) 1 MLJ 458, the following was held:
"Even assuming that other premises are available, then the choice is left to the landlord to decide as to which non-residential premises he should occupy, and the tenant cannot have any say in the matter. If the landlord is able to show the bonafide, then the tenant cannot dictate terms to the landlord that he should occupy some other building and not the one mentioned in the petition."
56. In the case of Ragavendra Kumar vs. Firm Prem Machinery AIR 2000 SC 534, the Hon'ble Supreme court held that it is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter. Reference may also Eviction petition No.15/15 (New No.78636/16) Page 23 of 34 24 be made to the case of Prativa Devi (Smt) v. T.V. Krishnan (1996) 5 SCC 353.
57. In view of the settled legal position it is not for the respondent to dictate to the petitioner that he should use some other accommodation for his business, even if it is indeed available with the petitioner. The tenanted premises belongs to the petitioner and it is for the petitioner to see whether it is suitable for his requirement or not. It is the right of the petitioner to choose a property which is going to be more profitable and convenient for him. If the tenanted premises is suitable as per his needs, the petitioner has every right to possess the said premises and the respondent cannot contend that the petitioner should manage his affairs otherwise. While deciding the question of bonafide requirement of the landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted. The respondent cannot decide whether the petitioner requires additional accommodation for his business or not, even if the petitioner is engaged in only trading of electrical equipment as a commission agent.
58. In view of the above discussion, the allegation of the respondent that the petitioner has alternative suitable accommodations does not give rise to any triable issue.
Eviction petition No.15/15 (New No.78636/16) Page 24 of 34 25
59. The respondent has alleged that the petitioner is already running two business firms from the property in Old Lajpat Rai Market and that he is financially sound. It is stated that the relationship of the petitioner with his brother is cordial and therefore, he does not need to do her separate business. Even if it is presumed that the petitioner is already doing businesses on cordial terms with his brother or that he has sufficient income for his livelihood, that does not bar him from obtaining possession of the tenanted premises for starting a new business or expanding the current one.
60. In the case of Anil Kumar Verma Vs. Shiv Rani & Ors. RC Revision No. 522/2011 dated 07.03.2012, the landlord sought possession of the tenanted premises on the ground that his married son Sidharth is unemployed, has experience in business and needs the premises to carry on his business. The tenant objected to the same and alleged that the son is employed. The Hon'ble High Court of Delhi held the following:
"Even assuming that petitioner no. 4 is working with M/s Home Appliances and petitioner no. 6 is working with Ozone Pvt. Ltd. Health Club; these employments of petitioners No. 4 & 6 are private jobs and it does not take away their bonafide need to start their own business from the shop which is owned by them..."Eviction petition No.15/15 (New No.78636/16) Page 25 of 34 26
61. In the case of Smt. Phool Kumari & Ors. Vs. Sh. Shyambir Tyagi RCR No. 318/2013 dated 01.10.2014, the landlord sought possession of the tenanted premises on the ground that he was unemployed and needed the premises to open a shop. The tenant denied that the landlord was unemployed. The Hon'ble High Court of Delhi upheld the order of the Ld. Trial Court and observed that no triable issues were raised which warrant that the application for leave to defend be allowed. The Hon'ble Delhi High Court relied upon the decision of the Hon'ble Supreme Court in the case of Raghunath G. Panhale Vs. M/s Chaganlal Sunderji & Co. in which the following was held:
"A landlord need not lose his existing job nor resign it nor reach a level of starvation to contemplate that he must get possession of his premises for establishing a business."
62. Reference is also made to the decision of the Hon'ble High Court of Delhi in the case of M/s A.K. Woolen Industries and Ors. Vs. Shri Narayan Gupta RC Rev. 495/2017 dated 31.10.2017 in which the following was held :-
"19.The law to be applied in this regard has been laid down by the Supreme Court in Ragavendra Kumar Vs. Firm Prem Machinery & Co. (2000) 1 SCC 679, Sait Nagjee Purushottam & Co. Ltd. Vs. Vimlabai Prabhulal (2005) 8 SCC 252 and Anil Bajaj Vs. Vinod Ahuja (2014) 15 SCC Eviction petition No.15/15 (New No.78636/16) Page 26 of 34 27
610. It has been held that even if the landlord has other commercial premises available to him and even if the landlord is carrying on other businesses, if it is found that the landlord intends to use the premises in occupation of the tenant for carrying on his business therefrom, the landlord is entitled to an order of eviction and the Courts cannot intervene in the same.
63. In the case of Anil Bajaj Vs. Vinod Ahuja (2014) 15 SCC 610, it was held that it is not impermissible for the landlord to carry on business from several premises and it is not for the tenant to dictate to the landlord how the property belonging to the landlord should be utilized by him for his business and cannot be a reason for grant of leave to defend.
64. In the case of Rishal Singh Vs. Bohat Ram & Ors. 2014 (144) DRJ 633, the Hon'ble High Court of Delhi held that income of the person, be it landlord or a 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.
65. In the case of Royal Nepal Airlines Corporation Vs. Shrishti Properties Pvt. Ltd. RC Rev. No. 132/2011 dated 02.11.2011, the Hon'ble High Court of Delhi found the need for expansion of business as bonafide. The following Eviction petition No.15/15 (New No.78636/16) Page 27 of 34 28 was held in this case:
"19. The Apex Court has time and again noted that it is prerogative of the landlord to decide whether the premises are required for expansion of his business or not; in this context the observations of the Apex Court in the case of Sait Nagjee Purushotam & Co. Ltd. Vs. Vimalbai Prabhulal and Others (2005) 8 SCC 252 is relevant; it reads as under:-
"It is always the prerogative of the landlord that if he requires the premises in question for his bonafide use for expansion of business this is no ground to say that the landlords are already having their business at Chennai and Hyderabad therefore, it is not genuine need. 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".
66. Therefore, even if the petitioner is on cordial terms with his brother and is already running businesses, it does not disentitle the petitioner from starting a new business or expanding the current one, and for this purpose requiring the tenanted premises.
67. The petitioner cannot be said to have acquired the tenanted premises when Memorandum of Family Settlement or the Letter of Attornment were executed. The petitioner was a co-owner of the tenanted premises even prior Eviction petition No.15/15 (New No.78636/16) Page 28 of 34 29 to the execution of the family settlement. Therefore, the present case is not barred by Section 14(6) of the Delhi Rent Control Act. Reference is made to the decision of the Hon'ble High Court of Delhi in the case of Subhash Jain Vs. Ravi Sehgal RC (Rev.) No. 292/2013 dated 04.02.2014.
68. The respondent has alleged that the site plan of the petitioner is not correct and that it is incomplete. However, the respondent has not filed a site plan which according to it is correct and complete. In the case of V.S. Sachdeva Vs. M.L. Grover 1997 (2) RCR 302, it was held that if no site plan is filed by tenant, the site plan filed by the landlord is deemed to be correct. Also, in the case of Rishal Singh Vs. Bohat Ram & Ors. 2014 (144) DRJ 633, the Hon'ble High Court of Delhi held that it is settled law that when the tenant contests the accuracy of the site plan filed by the landlord, he is required to file a copy of the site plan he believes to be correct so as to guide the Court in finding the discrepancies in the site plan filed by the landlord. It was observed that without such site plan being filed, the mere contentions raised to this effect will be considered meritless. In view of these decisions, the allegation of the respondent with respect to the site plan filed by the petitioner does not give rise to any triable issue.
Eviction petition No.15/15 (New No.78636/16) Page 29 of 34 30
69. It has been contended by the respondent that the petitioner is seeking partial eviction from the tenanted premises which is not permissible. It is argued that splitting of tenancy cannot be permitted. In this context, the respondent has relied upon the decision of the Hon'ble Supreme Court in the case of S.K. Sattar S.K. Mohd. Chowdhary Vs. Gundappa Amabadas Bukate AIR 1997 SC 998.
70. The Hon'ble Supreme Court in the aforementioned case of S.K. Sattar held that tenancy cannot be split up either in estate of in rent or any other obligation by unilateral Act of one of the co-owners. It was held that if, however, all the co-owners or co-lessors agree and split by partition, the property by metes and bounds and come to have definite, positive and identifiable shares in that property, they become separate individual owners of each severed portion and can deal with that portion as also the tenant thereof as individual owner/lessor.
71. The portion in possession of the respondent is what has been shown in the site plan on page no. 15 of the documents accompanying the eviction petition. The respondent has the portion shown in red color and also the portion described as 25% of Mr. Harish Goyal. The portion in possession of Eviction petition No.15/15 (New No.78636/16) Page 30 of 34 31 the respondent has been split by partition between the petitioner and Mr. Harish Goyal by virtue of the Will of Mr. Mangal Sen and the Memorandum of Understanding dated 05.12.2014. The respondent is not entitled to challenge the Memorandum of Understanding. In this regard, reliance is placed upon the decision of the Hon'ble High Court in the case of A.K. Nayar Vs. Mahesh Prasad 153 (2008) DLT 423.
72. In the rejoinder filed by the respondent, it has denied for want of knowledge that properties of Late Mr. Mangal Sen Goel were divided amongst his legal heirs, that there was a partition between the sons and wife of Late Mr. Ramesh Goel, terms of which were reduced in writing by executing a Memorandum of Family Settlement and that a second Memorandum of Partition was acted upon by and between the parties. In the case of Muddasani Vankatta Narsaiah Vs. Muddasani Sarojana Civil Appeal No. 4816 of 2016 decided by the Hon'ble Supreme Court on 05.05.2016, it was held that denial for want of knowledge is no denial at all. In view of this decision of the Hon'ble Supreme Court, the denial by the respondent that the property in its possession has been divided between the petitioner and Mr. Harish Goel by metes and bounds is no denial at all.
Eviction petition No.15/15 (New No.78636/16) Page 31 of 34 32
73. Moreover, there are no rigorous of Rent Control laws which can be said to have overcome by the execution of the Memorandum of Understanding. Therefore, it cannot be held that this document is a sham transaction executed only to overcome the rigorous of the Rent Control laws. There is no reason to believe that this document was executed for this purpose. Since the premises with the respondent has been split by partition and definite and identifiable share has come to the petitioner, the present case is maintainable even though possession of only part of the property with the respondent is being sought.
74. It is contended by the respondent that the petitioner is not interested in using the tenanted premises for business but wants to earn more out of the property after having the respondent evicted. In this context, the Court is of the opinion that in case the petitioner fails to occupy the premises as has been claimed by him, the Delhi Rent Control Act provides for recovery of possession by the respondent/tenant of the tenanted premises for its re-entry and occupation. It has also been the observation of the Hon'ble High Court in the case of M/s A.K.Woolen Industries & Ors. Vs. Shri Narayan Gupta RC. Rev. No. 495/2017 dated 31.10.2017 that section 19(2) of the Rent Act of Eviction petition No.15/15 (New No.78636/16) Page 32 of 34 33 Delhi provides a remedy to the tenant of repossession, if the landlord is not in use of the premises after obtaining an order of eviction against the tenant on the ground of the requirement of the premises for own use.
75. It is not mandatory under law for the petitioner to disclose the nature of business he wishes to carryout in the tenanted premises. Even otherwise, in the present case, the petitioner has disclosed that he wishes to do business of electrical items of which he has gained sufficient experience.
76. The net result is that the petitioner has been able to establish that the tenanted premises is required by him for his business and that he does not have any other reasonably suitable alternative accommodation for this purpose. The respondent has failed to raise any reasonable triable issue. The application for leave to defend is dismissed.
77. Since the application seeking leave to defend has been dismissed, the petitioner is entitled to an eviction order. Accordingly, eviction order is passed in favour of the petitioner and against the respondent directing the respondent to vacate the tenanted premises i.e a portion on the ground floor of property bearing no. 4980/40, Netaji Subhash Marg, New Delhi-110002, as shown in red color in the site plan filed alongwith eviction petition on page number 15, Eviction petition No.15/15 (New No.78636/16) Page 33 of 34 34 in terms of Section 14 (1) (e) r/w Section 25-B of the Delhi Rent Control Act. The landlord however shall not be entitled to obtain possession thereof before the expiration of a period of six months from the date of this order.
78. No order as to costs. File be consigned to Record Room.
Shirish Digitally signed by
Shirish Aggarwal
Aggarwal Date: 2019.09.25
16:30:09 +0530
SHIRISH AGGARWAL
ARC-I, Central District,
Tis Hazari Courts, Delhi
(Announced in open court
on 23.09.2019)
Eviction petition No.15/15 (New No.78636/16) Page 34 of 34