[ENTITY] v. M/s [ENTITY] E-88/11 IN THE COURT OF SH. MANISH YADUVANSHI SCJCUMRC (SOUTH) SAKET COURTS COMPLEX NEW DELHI E No. 88/11 IN THE MATTER OF: SMT. RAJ RANI THROUGH [ACT] SH. SURENDER MALHOTRA PETITIONER VERSUS M/S SULTAN SINGH VINOD KUMAR RESPONDENT
ORDER ON APPLICATION U/[SECTION] OF [ACT]
1. Smt. [ENTITY], the petitioner has brought an eviction petition against M/s [ENTITY], the respondent through her [ACT] Sh. [ENTITY] under [SECTION] of the [ACT] (hereinafter, referred to '[ACT]'). It is in the said eviction petition that the respondent/tenant filed his own application under [SECTION] of the [ACT] along with his affidavit seeking leave to defend.
2. The petitioner submits to be the owner of one shop bearing No. [ENTITY] v. M/s [ENTITY] E-88/11 R4/2 in premises No. R4, Green Park, New Delhi which is a builtup property having ground floor, first floor and second floor more particularly shown in red colour in the site plan and hereinafter referred to 'demised premises', was let out by her to respondent for commercial purposes which is stated to have been sublet, assigned and parted with possession of the tenanted shop by the respondent. The premises is stated to have been let out 31 years ago on oral basis without any rent agreement at the rate of monthly rental of Rs.441.50/ per month excluding electricity charges. The respondent is stated to be running business of selling helmets. It is alleged in the petition that respondent has covered 3 feet of the back side side of the tenanted shop without consent of the petitioner.
2.1 As per the petition, the construction of the premises was completed in the year 1969 and a completion certificate was obtained. It is submitted that the demised premises is not assessed separately for house tax purposes as the whole of it is assessed for such purposes. It is submitted that the respondent has made alteration and additions in the demised premises without permission in violation of terms of the lease and existing municipal byelaws. The petitioner is claiming [ENTITY] v. M/s [ENTITY] E-88/11 ownership over the property bearing No. R4, Green Park, New Delhi on the basis of sale deed dated 29.04.1964 executed by its erstwhile owner Sh. [ENTITY] which was subsequently registered before the SubRegistrar concerned on 29.04.1967. The petitioner herself has been living in U.K. and has six sons namely Sh. [ENTITY], Sh. [ENTITY], Sh. [ENTITY], Sh. [ENTITY], Sh. [ENTITY] and Sh. [ENTITY]. All the sons of the petitioner are also living with her in Solihull (U.K.). All of them are NRIs. As per the petition, the petitioner's sons are having their businesses in India and have been also regularly visiting India. They do not have any place for carrying on their business in India. The petitioner also does not have any place for the settlement of her sons and for carrying business and work in India for her sons and therefore she requires the demised premises for her above named sons. It is further submitted that there are five other shops in the property bearing No. R4, Green Park, New Delhi but these shops are under the occupation of tenants. An eviction order is therefore prayed for. The petitioner's [ACT] has filed his affidavit in support of the petition.
3. The respondent through its Proprietor Sh. Vinod Kumar Jain [ENTITY] v. M/s [ENTITY] E-88/11 filed application under [SECTION] of [ACT] seeking leave to contest along with his affidavit. It is submitted that the present petition is not maintainable as the petitioner had earlier filed a petition under [SECTION] of [ACT] bearing E. No. 146/95 through her General Attorney Sh. [ENTITY] which was dismissed on 10.02.1999. Subsequently, she again filed a petition under [SECTION] of [ACT] bearing [CASE NUMBER] on 04.11.2006 which was also dismissed on 20.05.2011. It is therefore submitted that the conduct of the petitioner reveals that she has no intention of coming back to India and she wants to sell the property in question.
3.1 It is submitted that the petitioner is owner and in possession of the property bearing No. S17, Green Park, New Delhi16 consisting of 5 shops which are lying vacant. It is submitted that petitioner is also the owner and in possession of a big property in Gurgaon, Haryana having more than seven shops which is lying closed. It is submitted that the petitioner also owns property situated at Mohali, Punjab which is commercialcumresidential property. Its ground floor is entirely commercial and vacant while the first and second floor are residential. It is submitted that the suit property has more than 10 shops on the [ENTITY] v. M/s [ENTITY] E-88/11 ground floor which are lying vacant. Bona fide need as set out by the petitioner is denied. It is submitted that since the petitioner failed to obtain possession of demised premises from this respondent, she has filed the present petition by creating false grounds.
4. The petitioner filed reply to the leave to contest application along with affidavit of the [ACT]. It has been pointed out that earlier petitions filed by the petitioner clearly shows that petitioner has been in dire need of the premises since last 13 years but the respondent has deprived her from beneficial use of her own property on various pretexts. It is submitted that the petitioner and her sons have been regularly visiting India but due to unavailability of any place to stay or to undertake commercial activities, they have to return back. 4.1 The petitioner denies to be the owner of property No. S1, Green Park, New Delhi as alleged. The petitioner also denies to be owning any property in Gurgaon or Mohali, Punjab. It is reiterated that she owns the premises No. R4, Green Park, New Delhi only. It is submitted that the second floor of the premises No. R4 comprising of only one hall, kitchen, toiletbath cannot be used for commercial purposes and is otherwise insufficient for her sons.
[ENTITY] v. M/s [ENTITY] E-88/11
5. The respondent filed by the respondent is a reiteration of contents of his affidavit in support of leave to contest application as correct.
6. I have heard Sh. [ENTITY], counsel for the petitioner and Sh. [ENTITY], counsel for respondent and have gone through the record. Sh. [ENTITY], Advocate has also adopted the arguments as addressed by counsel Sh. [ENTITY] in connected petitions bearing E. No. 40/12 and E. No. 41/12.
7. According to Ld. Counsel for petitioner, there is no concealment in the petition of petitioner in as much as all the facts narrated by the respondent in the leave to contest application which are stated to be a concealment of material facts have been specifically admitted by the petitioner in the reply to the leave to contest application. It is submitted that subsequent to such admission, there is no aspect that requires trial in the instant case. Ld. Counsel has further argued that it is a settled law that even a temporary need of landlady for setting up temporary residence in the tenanted premises has been recognized as a genuine bona fide need. It is further argued that the fact that there has been previous litigation between the parties shows that the petitioner [ENTITY] v. M/s [ENTITY] E-88/11 indeed requires the demised premises bona fide.
8. Conversely, Ld. Counsel for the respondent has highlighted that the petitioner has concealed that she has accommodation available on the second floor at premises No. R4, Green Park, New Delhi. It is argued that the petitioner has concealed that she had filed petition on the ground of bona fide requirement in the year 1986 which was dismissed. It is further argued that the petitioner does not disclose that she had the possession of one shop on the ground floor. It is further submitted that [ACT] of the petitioner is not aware of the facts of this case. According to the petition, the construction was completed in the year 1969. It is further submitted that the petitioner has nowhere stated as to what business they want to start from the demised premises. It is argued that the [ACT] is defective. It is submitted that had the petitioner genuine need for the demised premises she would not have had permitted her previous petition to be dismissed for want of proper evidence and would have ensured that she came to India to adduce evidence.
9. In the present case, there is no dispute between the parties in regard to the relationship of landlord and tenant. Furthermore, it is an [ENTITY] v. M/s [ENTITY] E-88/11 admitted case by the respondent that the petitioner is the owner of the demised premises. The only contest is qua the concealment of material facts in order to show that the petitioner's need is bereft of any bona fide.
10. One of the objection taken in this context is that the petitioner has failed in pleading the requisite ingredients of [SECTION] of [ACT]. The better details in this regard have not been provided in pleadings and for that matter during the course of the arguments. What can be inferred is to the effect that the said avernment is in regard to the alleged concealment by the petitioner qua the portions already available to her in the premises bearing No. R4, Green Park, New Delhi which indeed, the petitioner has failed to mention in the petition itself. However, nonmentioning of the portion already available to the petitioner cannot always be fatal to the petitioner if he/she has pleaded the other necessary ingredients or in case the same have not been pleaded then if they can be inferred from the pleadings. It is categorically stated by the petitioner that she does not own any other property in Delhi. In reply to leave to contest application, she goes ahead to say that even her sons do not have residential property. She is [ENTITY] v. M/s [ENTITY] E-88/11 requiring the demised premises in totality (considering the subject matter of the tenanted premises in the connected eviction petitions) for the purposes of use and residence of her, her sons and their family members as well as for use of each shop by each of the sons for setting up their business. It is in the petition that the petitioner's sons have been doing their business in India. The nature of business cannot be inferred from anywhere from the petition. However, while perusing the copy of pleadings of an earlier eviction petition filed by the petitioner it can be observed that possession of first and second floor was being sought from the tenant on the ground that the petitioner's family in U.K. is in export and import of readymade garments which are imported and exported to and from India. It was stated at that time that for said business the petitioner's family requires to establish a branch of their office at Delhi and that the petitioner was searching factory, plots etc in Noida and in industrial areas in Delhi. It was in the said petition that the petitioner stated that she, her husband along with three to four sons will shift to Delhi. The said petition was filed way back in the year 1986 and came up to be dismissed for want of PE. The present petition as filed in the year 2011 reveals a similar bona fide [ENTITY] v. M/s [ENTITY] E-88/11 need but this time it is subjected to a change that the petitioner and her sons intend to settle in Delhi. The petition is silent as to what they will do with their business at U.K. What can be inferred from the pleadings is that the present state of inflation in the international economy has led the petitioner and her sons to migrate and then settle in India. There are two aspects of this issue. Admittedly, all of them are NRIs. The petitioner holds Indian passport while one of her sons also holds a PIO card. The petitioner's sons have been visiting India on tourist visa as evident from passport copies and had never visited India on a business visa. As to where they have been staying during their regular visits has not seen the sunlight of the day. As to why one or two of them could not have stayed on the second floor of the demised premises has not been explained. If it was insufficient as residential unit then the pleadings are silent and in any case pleadings are also silent about the relatives of petitioner and her sons in India, particularly in Delhi. No particulars of hotels have been provided. No documents have been brought on record to show that during their separate visits the sons of the petitioner had carried out any business in furtherance of import and export of the readymade garments from or to India.
[ENTITY] v. M/s [ENTITY] E-88/11
11. There is no ambiguity in the pleadings that the petitioner and her sons intend to shift to India. It is also in one of the eviction petition that the petitioner being an old lady would like to live her last days in India. With that objective, it was imperative upon the petitioner to have disclosed the number of family members who will be shifting to India and for that she was further required to disclose about the availability of the accommodation as, in such scenario, the present need will become a need for additional accommodation. It is a settled law that in a case where landlord seeks additional accommodation, the leave to contest should be generally granted. This Court cannot loose sight of the fact that admittedly one of the shop available to the petitioner has not been put to any kind of commercial user in regard to any kind of business activity. It is not in dispute that the petitioner is residing at U.K. for last more than 40 years. Thus, better particulars are required than what have been provided in petition.
12. It has been held in [PRECEDENT] that failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the court drawing an [ENTITY] v. M/s [ENTITY] E-88/11 inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretense or pretest for getting rid of tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord.
12.1 In this context, the respondent is right that in a petition of this nature, the petitioner has to disclose all facts in his special knowledge and there should not be any concealment. Merely because facts agitated subsequently in a leave to contest application have been admitted in reply thereto, the primary responsibility of the landlord to have disclosed all necessary particulars at the first instance cannot be overlooked. It is held in [PRECEDENT] that "when the landlord files a petition for eviction, he has to prove not only that his need for premises is bona fide but also that he has no other reasonably suitable accommodation for himself. Both these facts are within the special knowledge of the landlord and the burden of proving them is, therefore, on the landlord in view of [SECTION] of the [ACT]. Since no evidence can be adduced by the landlord except in accordance with his pleading, it is necessary, therefore, that the landlord should make a proper pleading of both of [ENTITY] v. M/s [ENTITY] E-88/11 them in the petition for eviction."
13. Having said so, the pleadings before me shows that the petitioner's intention is to stay in the premises and that her sons also intend to stay in premises and carry on their business from the shops. Carrying on business from the shops is not the personal bona fide need of the petitioner herself but that of her sons. The petitioner then must plead that her sons are dependent on her for the said purposes. It is an admitted case of the petitioner that all her sons are presently doing their independent business at U.K. and are residing at Solihull, U.K.
14. So far as the aspect of word 'dependent' is concerned, it has been held in [PRECEDENT] that it cannot be construed as meaning nothing but wholly dependent in the sense of not earning anything at all and being entirely dependent on the father for board, lodging and food. It was held that the term must be construed as meaning somebody not wholly independent or self supportive and in a position to set up a separate residence.
[ENTITY] v. M/s [ENTITY] E-88/11
15. Having regard to the analogy of the law in the case of Shri [PRECEDENT] (supra) and in view of the admitted position that the sons of the petitioner are independently working in their business at U.K., it cannot be said that her sons are not wholly independent or self supportive and not in a position to set up a separate residence.
16. In view of the law laid down in [PRECEDENT]'s case (supra), the petitioner is required not only to prove that her need for bona fide but has also to plead that she has no other reasonably suitable accommodation for herself. The term 'proper pleading' will definitely mean that the landlord incorporates all necessary details like previous litigation, extent of accommodation already available, if any, the business being carried out from Delhi, etc. in the pleadings which, in the present pleadings, is missing and the same are therefore lacunic.
17. There is an another issue which is worth consideration and in regard to the execution of the [ACT]. In favour of the present attorney, the [ACT] dated 16.03.2010 is on record. It has been counter signed by a Notary Public and sealed and stamped by Assistant Consular Officer, Consulate General of India, Birmingham, U.K. The stamp paper used [ENTITY] v. M/s [ENTITY] E-88/11 is apparently procured from India. It is definitely a document that has been executed outside India and therefore provisions of [SECTION] of the [ACT] will apply. Undoubtedly, the document requires optional registration as it does not fall within the parameters of a document requiring compulsory registration as it does not extinguish or create interest in any property worth more than Rs.100/. However, such a document is otherwise required to be presented at the proper registration office as mandated under [SECTION] of the [ACT]. In the instant case, this has not been done. The document at best can be read for collateral purposes but may not be receivable in evidence by virtue of the effect of [SECTION] of the [ACT]. The above issues are definitely requiring trial and cannot be decided merely on the basis of conflicting affidavits.
18. In the result, the application under consideration is allowed.
Announced in the open Court ([ENTITY]) on 26.10.2013. SCJCumRC (South) Saket Courts, New Delhi.