Delhi District Court
Sh. Ankit Rastogi vs Sh. Kishori Lal Krishna Kumar on 4 July, 2011
IN THE COURT OF SH. VINOD KUMAR GAUTAM:
ADMINISTRATIVE CIVIL JUDGEcum ADDITIONAL RENT
CONTROLER : (NORTH) DELHI.
In Re : E187/09
Unique ID No. 02401C0338682009.
Sh. Ankit Rastogi,
S/o Sh. Gobind Prasad Rastogi,
969, Bhojpura Maliwara,
Nai Sarak,
Delhi110006 ...............Petitioner.
Versus.
Sh. Kishori Lal Krishna Kumar,
447980, Ground Floor,
Dau Bazar, Cloth Market,
Delhi110006 ...............Respondent.
Date of Institution of Petition : 30/07/2009
Date on which Order was reserved : 30/05/2011
Date of Pronouncement of Order : 04/07/2011
O R D E R.
1. By this order, I shall dispose of an application for Leave to Defend under Section 25B(4) and (5) of the Delhi Rent Control Act, 1958, which have been moved on behalf of the respondent.
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2. The brief facts relevant for the disposal of the present application are that the petitioner has filed the present eviction petition under section 14 (1) (e) read with section 25 B of DRC Act on the ground that the petitioner is the owner and landlord of the premises forming part of property bearing no. 447980, Dau Bazar, Cloth Market, Delhi110006, consisting of ground floor, first floor and second floor. The ground floor portion is in occupation of the tenantrespondent. It is stated that the petitioner at present is 34 years old and he and his family members are residing with his father at the House No. 969, Bhojpura, Maliwara, Nai Sarak, Delhi 110006. It is further stated that petitioner has sufficient experience in the business for the sale and purchase of sarees and other textile handicraft goods, carpets etc. as since 1997 till the year 2000, he was a partner in M/s Ankit Sarees and thereafter, he was doing his individual Commission Agency business in textile goods, carpet etc. since the year 1997 till 2005. It is submitted that the petitioner or his other family members has no immovable property in Delhi and the petitioner for the last some time has been intending to start his own business and the premises is required bonafide by the petitioner for himself, he has no other business E. No. 187/2009 2 of 17 premises to run his own business and is a man of sound financial status and has got sufficient funds to start the new business and the suit premises is situated in the market which is mostly dealing in sale and purchase of textile goods etc and as such the said shop is most suitable for the petitioner to carry the aforesaid business. The petitioner further submitted that the tenanted premises falls in Slum Area, although no permission is required from the Competent Authority Slum to file the present petition, the petitioner has obtained the permission of the Competent Authority th Slum vide order dated 27 August, 2008. The petitioner has prayed for eviction of the respondent from the shop, situated on the ground floor in the property no. 447980, Dau Bazar, Cloth Market, Delhi110006 as shown in red colour in the site plan (hereinafter referred as suit property) in favour of the petitioner and the respondent.
3. Upon service of summons respondent filed his leave to defend application along with supporting affidavit alleging and deposing that he has been served on or about 25/08/2009 and in the accompanying affidavit such facts have been disclosed which, E. No. 187/2009 3 of 17 if allowed to be proved, would disentitle the petitioner from obtaining an eviction order. The respondent has deposed that the respondent is a partnership firm carrying on the business of cloth commission agency for the last 80 years and the tenancy of the respondent is about 80 years old and that Smt. Bhagwati Devi W/o Late Shri Ghamandi Lal was the landlord and owner of the suit property and the father of the petitioner, Shri Gobind Prashad, was only an employee of Smt. Bhagwati Devi and is not her relative and the petitioner is not the owner of the suit property and no document has been filed by the petitioner to show that he is the owner of the suit property. The respondent has further deposed that the petitioner has not disclosed the premises and accommodation available with him and that the petitioner is owner of one shop in Maliwara under the name and style of M/s. P. S. Creation and is carrying on the business at 969, Bhojpura, Maliwara, Delhi110006 and the petitioner has given on rent building bearing no.1186, Kucha Mahajani, Chandni Chowk, Delhi 110006 comprising of around 30 shops in the name of Smt. Bhagwati Devi and the petitioner by concealment of the aforesaid premises and accommodation and by letting and reletting various E. No. 187/2009 4 of 17 premises has created artificial scarcity. Respondent has further deposed that the petitioner has not stated as to how all of the sudden the petitioner allegedly requires the premises of suit property and the petitioner has not stated any change in facts or circumstances as a result of which he requires the suit property and that the petitioner has not filed any dissolution deed of the partnership firm nor placed on record any document of his leaving the said alleged firm and the petitioner has not disclosed the name and constitution of the firm where he was carrying on the business of commission agency for the period of 2000 to 2005 and that the address of M/s. A. G. Impex is same as that of the residential address of the petitioner and the petitioner has not disclosed the name of any tenant and the income tax accruing to the petitioner. The respondent has further deposed that the petitioner has not made all the partners of the respondent as a party in the present petition and the present petition is, therefore, bad for nonjoinder of necessary parties and is not maintainable and that the petitioner has no requirement, much less a bonafide requirement of the suit property and petitioner is having sufficient accommodation with him and there are triable issues pertaining to ownership and E. No. 187/2009 5 of 17 availability of alternative accommodation, hence, the leave to defend application may kindly be allowed to contest the present case on merits.
4. Reply to leave to defend application along with counter affidavit was filed raising preliminary issue that respondent has failed to raise any triable issue, therefore, leave to defend application is not maintainable and on merits denied all the allegations further deposing that Smt. Bhagwati Devi was the mother of Sh. Gobind Prashad, father of the petitioner and the grand mother of the petitioner. The property was owned by Smt. Bhagwati Devi who by virtue of her Will dated 14.07.1982 bequeathed the property no. 447981, Cloth Market, Chandni Chowk, Delhi in the name of petitioner and after the death of Smt. Bhagwati Devi, the petitioner has become the owner of the suit property and the suit property was also got mutated in the name of the petitioner in the record of the Municipal Corporation of Delhi. It is further deposed that the respondent has already admitted itself to be the tenant of the petitioner and has been making payment of the rent against receipts. The petitioner has denied that he is the E. No. 187/2009 6 of 17 owner of property bearing no. 969, Bhojpura, Maliwara, Nai Sarak, Delhi as well as building bearing no. 1186, Kucha Mahajani, Chandni Chowk, Delhi. It is deposed by the petitioner that the property bearing no. 969, Bhojpura, Maliwara, Chandni Chowk, Delhi is owned by his father and property bearing no. 1186, Kucha Mahajani, Chandni Chowk, Delhi was bequeathed by late Smt. Bhagwati Devi in the name of Sh. Ankur Rastogi and all floors from ground floor to third floor are in occupation of the tenants of Sh. Ankur Rastogi and the petitioner has no connection of any nature whatsoever with the said property. The petitioner in his counter affidavit has further deposed that he was the partner in the business known as ''Ankur Sarees'' for the period from 1997 to 2000 and that no document regarding mutual dissolution of the said firm was executed. The petitioner has deposed that he has filed copies of Income Tax Return for the period from 1997 to 2000 showing the petitioner's share of profit in the said business and the Income Tax Returns for the year 20052006 in respect of his commission business. Petitioner has further deposed that he has filed his Income Tax Returns regarding the salary received by him from M/s. A. G. Impex and the counter foils of the rent receipts in E. No. 187/2009 7 of 17 respect of the tenant Shri Rattan Kumar and Smt. Hansa C. Sampat. Petitioner has further deposed that the petitioner has obtained a necessary permission against the tenant Smt. Hansa C. Sampat. Petitioner has further deposed in his counter affidavit that it is denied for want of knowledge that the respondent is a partnership concern.
5. Rejoinder to the reply of leave to defend application alongwith rejoinder affidavit filed on behalf of the respondent denying the preliminary objection as well as facts upon the merits and reiterating moreover the same facts as alleged in the leave to defend application.
6. I have given my thoughtful consideration to the submissions advanced on behalf of the parties and have perused the record carefully.
7. Petitioner has placed reliance upon the judgment reported in 60 (1995) DLT 524, 44(1991) DLT 639 and 173 (2010) DLT 379.
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8. On the other hand, respondent has placed reliance upon the judgment reported in AIR 1998 SC 3012, AIR 1987 SC 741, 1987 (1) RCR 512, 1982 (2) RCR 544 and CM(M) 1164/2009.
9. The first ground taken by the respondent is that the petitioner is not the owner of the suit property and that Smt. Bhagwati Devi was the owner of the suit property and the petitioner's father is not the relative of the Smt. Bhagwati Devi. However, the relationship of landlord and tenant between the parties have not been denied though it is submitted that after the death of Smt. Bhagwati Devi receipts were issued by the petitioner to the respondent who on his protest again issued the receipts under the name of Smt. Bhagwati Devi. On the other hand, the petitioner in his counter affidavit has deposed that Smt. Bhagwati Devi was his grandmother and the mother of Sh. Gobind Prashad, father of the petitioner and Smt. Bhagwati Devi by virtue of her Will dated 14.07.1982 bequeathed the property no. 447981, Cloth Market, Chandni Chowk, Delhi in the name of petitioner and after the death of Smt. Bhagwati Devi, the petitioner has become the E. No. 187/2009 9 of 17 owner of the suit property and the suit property was also got mutated in the name of the petitioner in the record of the Municipal Corporation of Delhi. The petitioner has also filed on record the copy of the Will dated 14.07.1982. In a case titled as Ishwar Dass Rajput Vs. Chaman Prakash Puri & Ors. 44 (1991) DLT 639 it was held by the Hon'ble High Court of Delhi that it is not open to the tenant to challenge the legality and validity of a Will produced by landlord before Rent Controller. It is also a well settled law that mere denial of ownership is no denial at all as also been held in a case titled Meenakshi vs. Ramesh Khanna and another 60 (1995) DLT 524 by the Hon'ble High Court of Delhi relied on behalf of the petitioner. Even the payment of rent by the respondent to the petitioner no.1 has been admitted. It is a well settled law that the tenant can not challenge the title of the landlord during the occupation of the tenanted premises and if he wants to challenge the title, he has to vacate the tenanted premises. Moreover, the petitioner has shown that he is more than the tenant in the suit property. On the other hand, the assertion of the respondent is merely a bald assertion without any document to substantiate the same. Hence, it appears that this ground has been taken by E. No. 187/2009 10 of 17 respondent no.1 just for the sake of defence without having any substance in it and the same is rejected accordingly.
10. The other ground taken by the respondent is that there is no scarcity or paucity of accommodation with the petitioner and his family who are having more than reasonable and sufficient accommodation with them. The respondent has alleged that the petitioner is having a shop under the name and style of M/s P.S. Creation at Maliwara where he is carrying the business and the petitioner has also given on rent building No. 1186, Kucha Mahajani, Chandni Chowk, Delhi110006 comprising of 30 shops. The petitioner in his counter affidavit has denied that he is the owner of property bearing no. 969, Bhojpura, Maliwara, Nai Sarak, Delhi as well as building bearing no. 1186, Kucha Mahajani, Chandni Chowk, Delhi. It is deposed by the petitioner that the property bearing no. 969, Bhojpura, Maliwara, Chandni Chowk, Delhi is owned by his father and property bearing no. 1186, Kucha Mahajani, Chandni Chowk, Delhi was bequeathed by late Smt. Bhagwati Devi in the name of Sh. Ankur Rastogi and all floors from ground floor to third floor are in occupation of the tenants of Sh.
E. No. 187/2009 11 of 17 Ankur Rastogi and the petitioner has no connection of any nature whatsoever with the said property. Petitioner has filed the copy of the payment of House Tax in respect of the property bearing no.969, Bhojpura, Maliwara, Chandni Chowk, Delhi and has also filed the copy of the registered Lease Deed dated 31.01.2007 of the aforesaid property. The petitioner has also filed some of the photocopies of the Counter Foil of Rent Receipts issued by the tenants of property bearing no.1186, Kucha Mahajani, Chandni Chowk, Delhi. On the other hand, the assertion of the respondent is a vague and bald assertion without any document to substantiate the same. Therefore this ground taken by the respondent has no substance in it, hence, it is rejected accordingly.
11. The other ground taken by the respondent that the petitioner has not disclosed the change of circumstances for his requirement of the suit property. The petitioner in his petition has mentioned the grounds that he has sufficient work experience in the business of sale and purchase of sarees and other textile handicraft goods, carpets etc. as he has worked in this trade since E. No. 187/2009 12 of 17 the year 1997 and now he is intending to start his own business but due to non availability of commercial accommodation, he could not do so. He has further alleged that he required the suit property for himself for running the business and he has no other commercial premises available and that the suit property is situated in the market which is most suitable place for sale and purchase of sarees and other textile handicraft goods, carpets etc and the same is most suitable for him to carry on his business. Learned Counsel for the petitioner has relied on a case titled as Tarsem Singh vs. Gurvinder Singh 173 (2010) DLT 379 wherein it was held by the hon'ble High Court of Delhi that where the property was let out for non residential purpose and the landlord wants to start his own business in premises owned by him, by no stretch of imagination it can be said that requirement of landlord for premises is neither genuine nor bonafide. On the other hand the assertion of the respondent that the petitioner also have other properties is merely a bald assertion without any document to substantiate the same. Therefore this ground taken by the respondent is devoid of any merits and the same is rejected accordingly.
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12. The next ground taken by the respondent is that the petitioner has not filed any dissolution deed of the firm M/s Ankit Sarees where he remained as partner of the said partnership firm till the year 2000 when the firm was alleged to be mutually dissolved. However, In the entire affidavit, the respondent has not denied that the petitioner is earning his livelihood from the business of sale and purchase of sarees and other textile goods. The petitioner in his counter affidavit has deposed that he was the partner in the above said firm and that no document of mutual dissolution was executed. The petitioner has also filed copies of Income Tax Return for the period from 1997 to 2000 showing his share of profit in the said business. Therefore this ground taken by the respondent is devoid of any merits and the same is rejected accordingly.
13. The next ground taken by the respondent that the petitioner has not disclose the name of the firm where he carried his business of Commission Agency during the period of year 2000 to the year 2005 and that the address of M/s. A. G. Impex is same as E. No. 187/2009 14 of 17 that of the residential address of the petitioner. These ground taken by the respondent has no force as the fact that the petitioner is having the work experience in the above said trade has not been disputed. Moreover the petitioner has filed his income tax returns for the year 2005 to 2006 in respect of his commission business. The petitioner has also filed on record his Income Tax Return regarding the salary received by him from M/s. A. G. Impex. Therefore, this ground taken by the respondent is taken merely for the sake of defence without having any substance in it.
14. The other ground taken by the respondent is that the present petition is bad for nonjoinder of necessary parties as petitioner has not made the other partners as parties. The ground taken by the respondent is a vague ground. The respondent has not filed any document to show the existence of partnership concern or the name of the other partners. The assertion of the respondent is merely a bald assertion without any document to substantiate the same. On the other hand, the petitioner in his counter affidavit has denied due to want of knowledge that the respondent is a partnership concern. Moreover, it is a well settled E. No. 187/2009 15 of 17 law that Eviction Petition filed against the one of the partner is maintainable against the other partners without their impleadment in the petition. Therefore, this ground taken by the respondent is also devoid of any force and the same is rejected accordingly.
15. The next ground taken by the respondent that there are first floor and second floor above the suit property and the first floor is under the tenancy of one Shri Rattan Kumar who is carrying on the business of yarn under the name and style of M/s. Arihant Enterprises against which the petitioner has also filed petition under section 91A of Slum Areas (Improvement & Clearance) Act, 1956 for seeking permission for initiation of eviction petition against them and on the second floor Smt. Hansa C. Sampat and Shri Kean C. Sampat are carrying on the business of English Cotton and are tenants of the petitioner does not raise any triable issues as admittedly the premises at the first floor and the second floor of the suit property is not in the possession of the petitioner but in the possession of the aforesaid tenants of the petitioner. The above said assertion of the respondent further corroborate the contention of the petitioner that the suit property is E. No. 187/2009 16 of 17 situated in the market which is most suitable place for sale and purchase of sarees and other textile handicraft goods, carpets etc.
16. In view of the aforesaid discussions, the respondent has failed to raise any triable issue. On the other hand, the petitioner has successfully established that he has no other reasonably suitable alternative accommodation and he requires the tenanted property to start his own business of textile goods etc. Hence, the petitioner is entitled for an eviction order under section 14 (1) (e) read with section 25B of DRC Act in favour of the petitioner and against the respondent in respect of premises in question consisting of one shop situated on the ground floor in property no.447980, Dau Bazar, Cloth Market, Delhi more specifically shown in red colour in the site plan Ex.C1 (exhibited today while passing the order). However, it is made clear that the petitioners shall not be entitled to get execute this eviction order before the expiry of 6 months running from today.
Announced in the open court on this 04 Day of July, 2011 th (VINOD KUMAR GAUTAM) (1+2 separate copies are attached) ACJcumARC (NORTH) DELHI.
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