Delhi District Court
Sh.Sahil Sehgal vs Sh.Subhash Chand Mangla on 31 March, 2012
IN THE COURT OF SH. S.K.MALHOTRA, SENIOR CIVIL
JUDGE CUM RENT CONTROLLER (NORTH) DELHI.
E. No.34/11.
Sh.Sahil Sehgal
S/o.Bipin Sehgal,
House No.3614, 1st Floor,
DLF Phase - 4,
Gurgaon - 122001. ............Petitioner
Vs.
Sh.Subhash Chand Mangla
4447 A, Vishnu Bazar, Cloth Market,
Delhi - 110006.
Also at:
3C/37, New Rohtak Road,
New Delhi - 110005. ..........Respondent
ORDER
31.03.2012.
01. By way of present order, I shall dispose off an application dated 01.07.2011 as filed on behalf of respondent supported with an affidavit, for grant of leave to contest the present eviction petition filed u/s 14(1)(e) r/w section 25(B) of DRC Act 1958.
02. Brief facts, necessary for disposal of present application are that the petitioner filed the present eviction petition on the ground of bonafide requirement u/s 14 (1) (e) of DRC Act 1958, while stating that petitioner is owner in respect of shop no.4447-A, Vishnu Bazar Cloth Market, Delhi-110006 and respondent is a tenant on monthly rent of Rs. 194.90 exclusive of electricity and water charges, house tax etc. It is stated that tenanted shop was purchased by ancestors of the petitioner vide registered sale deed dated 08.03.67 and the respondent was E. No.34/11 "Sh.Sahil Sehgal Vs. Sh.Subhash Chand Mangla" page 1 of page 9 inducted as a tenant in the tenanted shop by the ancestors of the petitioner vide the oral agreement in the year 1977. The co-owners of the said property namely Smt.Kamla Khanna, Smt.Usha Khanna, Smt.Daya Kapoor and Smt.Rachita Sehgal have relinquished their respective undivided share in the said property in favour of petitioner vide relinquishment deed registered on 16.11.2006 and the remaining co- owners i.e.Sh.Chander Mohan Sehgal and Ms.Navita Sehgal, who are staying out of India have executed GPAs on 24.04.2008 and 24.04.2007 respectively with respect to their respective share in the said property in favour of petitioner herein.
03. It is case of the petitioner that petitioner is unable to maintain the entire family and accordingly his mother who is a widow to overcome the said economic distress of her family has a bonafide requirement to start up her business. The petitioner feels that the premises in occupation of the respondent is the only suitable premises available for the purpose of the business his mother intends to start. It is claimed that the mother of the petitioner has no other source of income as such and carrying out business in the said property is the only hope available to her to survive and earn her livelihood for the family.
04. In application for leave to contest supported with an affidavit, the respondent took the pleas that Sh.Man Mohan, the grandfather of the petitioner inducted Sh.Tekchand and Sh.Subhash Chand Mangla as tenant, the tenancy was joint in the name of Sh.Tekchand and Sh.Subhash Chand Mangla. The legal heirs of Sh.Tekchand being the joint tenant alongwith the respondent are necessary parties for proper adjudication of present petition; the other co-owners of property have not been impleaded as party, therefore, petition is bad for misjoinder of necessary party and is liable to be dismissed; the alleged financial crisis are not there, as the petitioner is well placed in his life and earning handsome amount. The petitioner mother is working as PGT teacher in a E. No.34/11 "Sh.Sahil Sehgal Vs. Sh.Subhash Chand Mangla" page 2 of page 9 school and respondent believes that the mother is still working as teacher in a reputed school; the only intention of the petitioner is to sell the premises in dispute as very recently, the petitioner has sold qua shop on the first floor of the building i.e.4447/A first floor. It is submitted that petitioner even negotiated with the respondent and even exchange the draft agreement to sell with the brother of the respondent. The respondent apart from suit premises is not in possession of any other business premises and the petitioner to gain sympathy of the court made bald allegation that respondent is not carrying out any activity from the premises; respondent has visited the premises bearing no.NW-148, Vishnu Garden, New Delhi and there is no firm by the name of Shugana Enterprises and the photographs which were taken by the respondent shows that there is only one worker found at premises bearing no.NW-148, Vishnu Garden, New Delhi, who was working on an old machine. It is submitted that the alleged letters dated 03.01.2011, 18.02.2011, 10.03.2011 and 16.05.2011 are forged and fabricated. It is submitted that the facts as mentioned in the application clearly shows that the triable issues have been raised which cannot be decided at this stage and requires evidence, hence, it is prayed that leave to defend be granted.
05. Petitioner filed reply to the present application while taking preliminary objections that respondent has not approached the court with clean hands; without prejudice to the rights of the petitioner, it is submitted that even presuming the allegations of the respondent to be correct, that there exist no firm in the name of M/s.Shugana Enterprises who has offered to provide its distributorship to the mother of the petitioner or that the income of the petitioner is sufficient, even then the stand of the respondent is sham as the purpose of the need of the shop is that the mother of the petitioner wants to carry out her independent work to maintain herself and also to help her family in the financial crunch;
E. No.34/11 "Sh.Sahil Sehgal Vs. Sh.Subhash Chand Mangla" page 3 of page 9 application has not been filed in the statutory period of 15 days as has been admitted by the respondent; even otherwise the respondent has not disclosed any triable issue. Petitioner in his counter affidavit deposed that on the demise of Sh.Tekchand, his legal heirs had given up their tenancy rights which is evident from the fact that since the year 2008, the rent receipts were issued only in the name of of Sh.Subhash Chand Mangla, to which no objection was raised either by the respondent or by the legal heirs of said Sh.Tekchand. It is submitted that the respondent is the son and one of the legal heirs of Sh.Tek Chand and was fully aware of the demise of his father and since 2008 no objections whatsoever was raised either by him or any other legal heirs. It is further deposed by petitioner that with regard to selling of the shop on the first floor of the building i.e. 4447-A, is concerned, it is submitted that there is home loan pending against the petitioner and as there is huge amount outstanding therefore to lessen the burden the said property was sold, thus, it fortifies the need of the petitioner that to meet his expenses he had to sell his shop. It is prayed by petitioner that application for leave to contest be dismissed.
06. Respondent filed rejoinder affidavit wherein he denied the facts as mentioned in the reply to the application and reiterated the averments as mentioned in the application for leave to contest.
07. I have heard ld.counsel for parties and perused the record.
08. Ld.counsel for petitioner drawn my attention in respect of authorities reported as 2005 (1) RCR 251, 2006(1) RCR 251, 2001 (1) RCR 422, 2000 (1) RCR 135 (SC), AIR 1999 SC 100, 2007 (1) RCR 83, 2007 (1) RCR 222, 2007 (2) RCR 6, 2007(2) RCR 116, 2007 (1) RCR 414, 2007 (1) RCR 417, 2006 (2) RCR 417, 2006 (2) RCR 120. 2006 (2) RCR 205, 2006 1) RCR 302, 2000 (2) RCR 53, 2001 (2) RCR 396. 1997 (2) RCR 111, 2002 (1) RCR 62, 2003 (2) RCR 45, 2003 (2) RCR 304, 2007 (1) RCR 533, Smt.Dayali V. Kumari Lata 2003 (1) RCR (Rent) 22 (Rajasthan), Fatima Bai Vs. Shakir Ali, 2005(1) RCR Rent 159 (M.P.) E. No.34/11 "Sh.Sahil Sehgal Vs. Sh.Subhash Chand Mangla" page 4 of page 9 Jabalpur Bench, Om Prakash Vs. Dhan Kumar Dudraj 2005(1) RCR (Rent) 90 Calcutta, Vivek Gupta Vs. Piush Chandra Srivastava 2004 (1) (Rent) 549 (Allahabad), Mohd. Kasam Vs.Ghasi Lal 2004(1) RCR (Rent) 429 (Rajasthan), Mohd.Ibrahim Vs. Managing Committee of Masjit Khursheed Jah 2004 (1) RCR (Rent) 233 (A.P.), J.R.Ansari Vs. Hari Ram 2002(2) RCR (Rent) 563 (Delhi), Mohanambai Vs. Veeramani 1991 RCR (Rent) 629(Kerala), Chiman Lal Vs,.Narender Kumar 1996(1) RCR (Rent) 24 (Rajasthan), Pushpa Rani Vs. Bhagwanti Devi & Ors. 1994(2) RCR (Rent) 298; 1994 AIR 774 SC, Kanti Bhattacharya Vs. K.S,.Parmeshwaran 1994 (1) RCR (Rent) 320 (Bombay). On the other hand, ld.counsel for respondent drawn my attention in respect of order as passed by Hon'ble High Court in RCR 120/11 titled as Vijay Nayyar V. Om Parkash Malik.
09. It is a settled law, that while deciding the application for leave to contest, the controller has to confine himself to the affidavit filed by the tenant under sub section (4) and the reply if any. On perusing the affidavit filed by the tenant and the reply if any filed by the landlord, the controller has to pose to himself the only question, "Does the affidavit disclose, not prove, facts as would disentitle the landlord from obtaining an order for the recovery of possession on the ground specified in clause of the proviso to Section 14 (1) ?". The controller is not to record a finding on disputed questions of facts or his preference of one set of affidavits against the other set of affidavits. Reliance is placed upon an authority reported as AIR 1982 Supreme Court 1518 titled as Precision Steel & Engineering Works and another V. Prem Deva Niranjan Deva Tayal.
10. At the outset, it is important to note here that petitioner took the preliminary objection in his reply to the application for leave to contest that, as admittedly application for leave to contest, has not been filed within the statutory period of 15 days, therefore application is liable to be E. No.34/11 "Sh.Sahil Sehgal Vs. Sh.Subhash Chand Mangla" page 5 of page 9 dismissed being barred by limitation, however, perusal of record shows that summons as per schedule IIIrd of DRC Act 1958 were served upon the respondent on 09.06.2011 and as per provision of section 25B of the DRC Act, the leave to contest application was required to be filed within 15 days from the receipt of the summons. The civil courts were closed on account of summer vacation from 13.06.2011 to 01.07.2011 and the application for leave to contest was filed on the first day of reopening of the court after summer vacations. During summer vacations, only matters of urgent nature were taken up and the ordinary filing was closed. As the application for leave to contest was filed on the first day when court reopened on 02.07.2011 after summer vacation, therefore application for leave to contest is within stipulated period.
11. The first ground taken by the respondent in his application for leave to contest is that the tenancy was joint in the name of Sh.Tekchand and Sh.Subhash Chand Mangla and after the death of Sh.Techchand the Legal heirs of late Sh.Tek Chand being joint tenant alongwith respondent are necessary parties for the adjudication of the present petitioner. It is submitted on behalf of petitioner that respondent is the son and one of the legal heirs of Sh.Tek Chand and after the death of Sh.Tek Chand other legal heirs had given up their tenancy right which is evidence from the fact that since the year 2008, the rent receipts were issued only in the name of Sh.Subhash Chand Mangla to which no objection was raised either by respondent or by the other legal heirs of Sh.Tek Chand. It is matter of record that petitioner filed photocopy of rent receipts on record i.e.dated 09.08.2008, 11.04.2009, 20.03.2010, 17.01.2011, which were issued by petitioner in the name of respondent only and these rent receipts have not been disputed by the respondent. In an authority reported as 1994 AIR 774 SC titled as Pushpa Rani Vs. Bhagwanti Devi & Ors., it was held by Hon'ble Supreme Court as under:-
"Death of tenant leaving behind a number of heirs - only one of the E. No.34/11 "Sh.Sahil Sehgal Vs. Sh.Subhash Chand Mangla" page 6 of page 9 heirs continuing in occupation of premises and carrying on business - can be inferred that other heirs surrendered their tenancy right. Decree of ejectment against said heirs who was in occupation of premises - decree cannot be challenged by other legal heirs at the time of execution."
12. In the present case also as the respondent himself has not disputed the rent receipts issued in his name being one of the legal heirs of Sh.Tak Chand who is in possession of the tenanted shop, the present petition is not bad for non-joinder of other legal heirs of Sh.Tek Chand, therefore, this plea of respondent is not tenable.
13. The next ground as taken by respondent in his application for leave to contest is that the other co-owners of the property have not been impleaded as a party, therefore, petition is liable to be dismissed. The fact that respondent paid the rent to the petitioner is not in dispute. It is settled law that a co-owner is also owner of the premises and deemed to be landlord for the purpose of 14(1)(e) of the Act and it is not for the tenant to challenge the interse arrangement of owners as to how they should manage the property. Reliance is placed upon an authority 2005 (1) RCR Delhi High Court titled as K.C.Aggarwal Vs. Hardeep Singh.
14. The next plea of the respondent is that the petitioner claims in his petition that his mother is a widow, who wants to start up his business and mother of the petitioner for the said purpose approached to one M/s.Shugna Enterprises for taking their distributorship and relied upon some correspondence between the mother of the petitioner and M/s.Shugna Enterprises. It is the plea of the applicant that they visited the premises bearing NW-148, Vishnu Garden, New Delhi and found that there is no firm by the name of M/s.shugna Enterprises and it is alleged that the petitioner has filed the forged letters of of M/s.Shugna Enterprises on record. Much was argued by ld.counsel for respondent in respect of telephone numbers and other details as appearing on the letters allegedly E. No.34/11 "Sh.Sahil Sehgal Vs. Sh.Subhash Chand Mangla" page 7 of page 9 written my M/s.Shugna Enterprises to the mother of the respondent. It was also argued by ld.counsel for respondent that photographs as filed by respondent shows that there was only one worker who was working at the premises and therefore, no question for giving the distributorship of M/s.Shugna Enterprises arises. In this regard without going to the controversy whether the letter as placed on record regarding correspondence between the mother of the petitioner and M/s.Shugna Enterprises are genuine or not, it is settled law by Hon'ble Supreme Court that a person can start a new business even if has no experience in the new business. Reliance is placed upon an authority reported as (2009) 2 RCR 454 (SC) titled as Sh.R.B.Aggarwal Vs. Jaikishan Das. If the mother of the petitioner wants to start a business in the premises in question it does not mean that her claim for supporting family by earning is not bonafide. As far as the claim of respondent that mother of the petitioner is PGT teacher, the petitioner deposed in his affidavit that mother of the petitioner has already retired way back from the teaching job and presently is not earning anything and is sitting at home.
15. The next plea of the respondent is that only intention of the petitioner is to sell the premises in dispute as very recently, the petitioner has sold qua shop on the first floor on the building i.e.4447-A, First floor. It is further plea of the respondent that petitioner even negotiated with the respondent and even exchanged the draft agreement to sell with the brother of the respondent. It is important to note that respondent filed on judicial record, the copies of E.Mails between the petitioner and brother of respondent regarding the sale of premises in question alongwith the draft of agreement to sell, compromise deed, which have not been denied by the petitioner in his counter affidavit. Ld.counsel for petitioner during arguments submitted that these E.Mails and draft sale deed cannot be looked into as same pertains to mediation proceedings between parties. The draft agreement to sell and draft compromise deed as on record E. No.34/11 "Sh.Sahil Sehgal Vs. Sh.Subhash Chand Mangla" page 8 of page 9 shows that it was disclosed in the draft compromise deed that a petitioner u/s 14(1)(e) of DRC Act is pending before this court and the draft agreement to sell and purchase shows that petitioner agreed to sell the property in favour of respondent as per terms and conditions mentioned therein. I find no force in the contention of ld.counsel for petitioner that these undisputed copies of emails and draft agreement to sell, compromise deed, cannot be looked into by this court, while deciding the plea of the respondent that need to the petitioner is not bonafide, as same pertains to mediation between the parties. The fact that petitioner exchanged E.Mails/draft agreement to sell, compromise deed with the respondent and negotiations took place for sale of the premises in question with respondent, itself raises a doubt for the bonafide requirement of the petitioner. Had, it been so that the premises in question is required by the mother of the petitioner for supporting her family then no question arose to sell the same. Thus, the plea of respondent that the petitioner negotiated with the respondent for sale of premises in question and his requirement is not bonafide in these facts of the case, raises a triable issue. Accordingly application for leave to defend the present petition stands allowed.
Announced in open court ( S.K.MALHOTRA ) on 31.03.2012. SCJ/RC/(North)/DELHI E. No.34/11 "Sh.Sahil Sehgal Vs. Sh.Subhash Chand Mangla" page 9 of page 9