IN THE COURT OF SH. PULASTYA PRAMACHALA, ARC01, EAST, KARKARDOOMA COURTS, DELHI. [CASE NUMBER] E172/2011 Sh. [ENTITY] S/o Sh. Deep Chand Jain R/o A149, Suraj Mal Vihar, Delhi110092. Petitioner Versus Sh. [ENTITY] S/o Sh. Jaswant Rai Shop in property bearing no. 9/10, Gali no. 8, Main Road, Kailash Nagar, Delhi110031. Respondent Application for leave to defend moved on behalf of respondent in eviction petition no. E172/2011 Date of institution of petition : 15/01/2011 Date on which Order was reserved : 15/02/2012 Date of Order : 02/03/2012 Final Order : Application for leave to defend dismissed and eviction order passed. E172/2011 Page no. 1 of 15 ORDER
1. Vide this order, I shall decide the application filed by the respondent seeking leave to defend and contest the eviction petition in hand.
2. Briefly stated, the case of the petitioner is as follows: Respondent is tenant in respect of a shop in property no. 9/10, Gali no. 8, Main Road, Kailash Nagar, Delhi31 as shown in red colour in the site plan. This shop was let out for commercial purposes by the erstwhile owner of the property, while the property in question was purchased by the petitioner on 06/10/2005 and the present rate of rent is Rs.335/ per month. Now the petitioner is owner/ landlord of the tenanted shop. Petitioner himself is running a factory at IX/3613, [ENTITY], Mahavir Chowk, Gandhi Nagar, Delhi31. He manufactures shirts. He was earlier having a shop no. 3 in property no. IX/6363, first floor, Main Road, Gandhi Nagar, Delhi on rent, which has been now vacated and handed over to the landlord. Petitioner does not have any alternate premises to continue the wholesale trade of shirts. He also has to settle his son in similar business. One another shop in property in question was sold by petitioner after purchase of the tenanted shop, E172/2011 Page no. 2 of 15 wherein business under the name and style of M/s. Dilip Cycle Store is being run. At that time, the tenanted shop was accessible through the rear side, however, the said passage is now seized to exist as the owner of that portion has constructed his own property, while covering up the aforesaid passage approaching the tenanted shop. Consequently the entire remaining property can be accessed only through the tenanted shop. Therefore, restoration of tenanted shop has become necessity for the petitioner. After restoration of the tenanted shop, petitioner shall have the access to the remaining portion of the property and shall have an accommodation to meet his bonafide requirement. Petitioner does not own or has any other reasonable suitable alternate commercial shop to satisfy his bonafide requirement. At present, petitioner is being provided ingressegress by Sh. [ENTITY], who is a tenant in respect of a room on the rear side of the property. Hence, he has filed eviction petition to evict his tenant from the tenanted premises.
3. In the application for leave to defend and affidavit, respondent has taken following relevant plea:
(a) Petitioner and his son is already in the business of readymade garments in the name and style of Manubhai Garments at 9/6761, Shyam Gali, Near Durga Mandir, Gandhi Nagar, Delhi110031, which is a three E172/2011 Page no. 3 of 15 story shop.
(b) Petitioner has commercial accommodation available at 9/3613, Gali Stayanarayan Mandir, Mahavir Chowk, Near DAV School, Gandhi Nagar, Delhi31 and he is in business of manufacturing readymade garments / shirts. The shirts are being sold by the petitioners alongwith his son at shop situated at 9/6761, Shyam Gali, Near Durga Mandir, Gandhi Nagar, Delhi110031.
(c) Petitioner is also storing and selling his shirts at his residence i.e. at Surajmal Vihar.
(d) Petitioner and his family are having several independent and joint commercial properties at property no. IX/6363, first floor, Main Road, Gandhi Nagar, Delhi.
(e) Respondent was inducted as tenant in the year 1982 by late Sh. [ENTITY], who was the original owner of the property.
(f) On 31/10/1990, the original owner handed over the peaceful possession of the gallary to respondent (shown in dotted lines in the site plan filed by the respondent) against the agreement dated 31/10/1990.
(g) In 1980, left front side portion of this property (as shown in black ink in the site plan filed by the respondent) was let out to Sh. [ENTITY] and it was finally transferred in his own name by the legal heirs of E172/2011 Page no. 4 of 15 the original owner.
(h) Similarly, right front side portion of this property (as shown in yellow ink in the site plan filed by the respondent) has been purchased by M/s. Dilip Cycle from the legal heirs of the original owner.
(i) In 1990, right back side portion of this property (as shown in orange ink in the site plan filed by the respondent) was sold to Sh. [ENTITY] and one room adjoining to this portion was let out to him, which is still in his possession as tenant.
(j) After sale of back portion to Sh. [ENTITY], the original owner was using the passage situated on the left side of that portion to approach the varandah in the property. In 199091, the original owner sold the left side portion of the property (as shown in pink ink in the site plan filed by the respondent) to Sh. [ENTITY] and it was agreed between original owner and Sh. [ENTITY] that the passage would be allowed by Sh. [ENTITY] to be used to approach the varandah. Thus, the varandah was being approached through this passage without any hindrance upto 06/10/2005. On 06/10/2005, legal heirs of the original owner sold the remaining portion of this property i.e. the tenanted premises, varandah and the tenanted shop of Sh. [ENTITY] to the petitioner and even petitioner had been approaching the varandah using this passage.
E172/2011 Page no. 5 of 15 (k) It was well within the knowledge of the petitioner that the said
varandah was accessible only through passage situated in the property of Sh. [ENTITY].
(l) After completion of five years, when the bar created by [SECTION] of the [ACT] was lifted, petitioner in connivance with Sh. [ENTITY] temporarily blocked the said passage. Petitioner wants to take advantage in collusion with Sh. [ENTITY], in order to create a false ground.
(m) Petitioner has misleaded the Court by stating that he has vacated property no. IX/6363, first floor, Main Road, Gandhi Nagar, Delhi around three months ago. The said shop was vacated by him around three years back as he and his son could not manage both the shops simultaneously.
(n) Respondent is running his shop for last twenty years and has created a lot of goodwill for his business. He is also member of local traders association.
(o) Petitioner has filed incorrect site plan and respondent has filed the correct site plan.
(p) Petitioner does not require the tenanted premises for bonafide use.
4. In reply / counter affidavit to the application for leave to E172/2011 Page no. 6 of 15 defend, petitioner has taken following relevant plea:
(a) Petitioner is running his business from the property no. 9/6761, Shyam Gali, Near Durga Mandir, Gandhi Nagar, Delhi110031, which is a tenanted property and petitioner is not owner of the same. Neither his son is the owner of the same.
(b) Petitioner is forced to use tenanted premises because of short space, which is indicative of his urgent requirement to repossess the tenanted shop. Petitioner does not own any accommodation in property no. IX/6363, first floor, Main Road, Gandhi Nagar, Delhi and the same is held by Smt. [ENTITY], sister in law of the petitioner. Petitioner has nothing to do with that property.
(c) The tenancy of the respondent was not perpetual.
(d) The tenancy of the respondent was not perpetual and petitioner is not bound by any oral agreement between respondent and original owner.
(e) The agreement in respect of passage is fabricated paper, which has no relevance with the rights of the petitioner or relationship between the parties.
(f) The access to varandah through passage in the property of Sh. [ENTITY] was never enjoyed as a lawful right. Since, [ENTITY] has raised E172/2011 Page no. 7 of 15 construction over that space, the petitioner can in no way object to it.
5. Petitioner filed copy of general power of attorney and other documents in respect of property no. IX/6363, Gandhi Nagar, Delhi, which was executed by Smt. [ENTITY] in favour of Smt. [ENTITY]; sale deed executed by [ENTITY], [ENTITY] and [ENTITY] in favour of the petitioner in respect of property in question and site plan.
6. On the other hand, respondent filed photographs of certain properties; one visiting card of Mannu Bhai Garments; site plan; copy of electricity bill in respect of property in question; copy of agreement dated 31/10/1990; copy of certificate issued by Head of Department of Orthopedics, Hindu Rao Hospital; copy of certificate issued under [ACT]; copy of receipts of membership fee deposited in Kailash Nagar Traders Association.
7. Ld. Counsel for petitioner relied upon following case laws:
1. [PRECEDENT], in [CASE NUMBER], CM No. 1979192/2011 and CM No. 22616/2011, date of judgment: 16/01/2012.
2. [ENTITY] vs. [ENTITY], RC Rev. 226/2010 and CM No. 21535/2011, date of judgment:22/12/2011.
3. [PRECEDENT], RC. Rev. no.
536/2011, date of judgment: 23/12/2011
8. I have given due consideration to the rival contentions made E172/2011 Page no. 8 of 15 before me and perused the record of this case as well as case laws. However, I do not intend to reproduce the ratio of each and every case law, for the sake of brevity. I shall evaluate the facts of this case on the parameters of legal principles recognized in aforesaid case laws. Findings:
9. I shall first deal with the requirement under [SECTION] [ACT] to seek eviction of a tenant. In order to evict a tenant under [SECTION] [ACT], petitioner has to satisfy the following ingredients.
i) Petitioner has to be landlord as well as owner of the tenanted property.
ii) The premises should be required bonafidly by the landlord for his occupation or for occupation of any member of his family dependent upon him.
iii) Landlord or such person dependent upon landlord should not have other reasonable or suitable accommodation in Delhi.
10. In this case, respondent has neither disputed the relationship of landlord and tenant between the parties nor the ownership title of the petitioner over the tenanted shop. He has also admitted that petitioner has purchased this property five years back from the date of filing of this petition. He has disputed the correctness of site plan filed by the E172/2011 Page no. 9 of 15 petitioner and has filed his own site plan.
11. I have compared both the site plans and I find that the site plan filed by the respondent is mere elaborative in comparison to the site plan filed by the petitioner. However, the location of the tenanted shop as well as other part of the property, as shown in the site plan of the petitioner is not differently shown in the site plan filed by the respondent. Therefore, I do not find any need of trial for the purpose of site plan. In fact, I would refer to the site plan filed by the respondent itself for the purpose of my further discussions.
12. Respondent has raised contention that at the time of creation of tenancy in question, it was orally agreed between him and previous owner that the tenancy would be a perpetual tenancy. However, such contention of the respondent is not tenable in the eyes of law because [SECTION] of the [ACT] provides that lease of immovable property from year to year or for any term exceeding one year can be created only through a registered instrument. Admittedly such registered document was not executed between respondent and the previous owner. Therefore, the tenancy of the respondent cannot be treated as perpetual tenancy.
13. Respondent has referred to the property bearing no. 9/6761, E172/2011 Page no. 10 of 15 Gandhi Nagar, Delhi110031 stating that petitioner and his son is running his business from this property. However, respondent has not stated that such property is owned by the petitioner or his son. In counter affidavit, petitioner has stated that this is a tenanted property. Occupation of any tenanted property by the petitioner or his son cannot be treated as availability of alternate accommodation to the petitioner to satisfy his need, therefore, such contention of the respondent is without any significance.
14. Respondent has also stated that petitioner is having commercial accommodation at 9/3613, Gandhi Nagar, Delhi31. This is even the contention of the petitioner that he is having the factory at the aforesaid property, therefore, there is no dispute regarding this fact. Respondent has acknowledged that petitioner is manufacturing shirts from this property and has stated that petitioner and his son are selling the shirts from 9/6761, Gandhi Nagar, Delhi110031. However, if this property is not owned by the petitioner, then, the admitted fact of running business by the petitioner from the tenanted shop at 9/6761 shows that petitioner's requirement to occupy his own property to run his business is not without a bonfide need.
15. Respondent has vaguely stated that petitioner and his family are E172/2011 Page no. 11 of 15 having several commercial properties at IX/6363, Gandhi Nagar, Delhi. Petitioner has stated that in his counter affidavit that this property is owned by Smt. [ENTITY], who is sister in law of the petitioner. He has also filed the title document of this property on the record. On the contrary, respondent has not filed single document in respect of this property.
16. High Court of Delhi in a case titled as [PRECEDENT] held that mere assertions made by tenant in respect of landlord's ownership of other buildings and in respect of alternate accommodation are not to be considered sufficient for grant of leave to defend. Leave to defend not to be granted to tenant on the basis of false affidavit and false averments and assertions. Only those averments in affidavit are to be considered by Rent Controller which have some substance in it and are supported by some material.
17. Thus, I have no hesitation to assume that such statement made by the respondent is without any sincerity and no property owned by other relative of the petitioner can be counted as alternate accommodation available to the petitioner. Therefore, such contention of the respondent is not sustainable.
E172/2011 Page no. 12 of 15
18. Respondent himself has admitted that the passage shown in dotted lines in the site plan (filed by the respondent) is now owned by Sh. [ENTITY], therefore, his contention that he was given possession of this portion through an agreement dated 31/10/1990 does not stand. Even this agreement on its perusal shows that such passage was given on rent of Rs. 100/ per month to the respondent, though, respondent has not made such contention in his affidavit. The respondent has alleged that petitioner in collusion with Sh. [ENTITY] has blocked this passage. When admittedly, this passage has fallen into property purchased by Sh. [ENTITY], Sh. [ENTITY] has every right to block the same. Just because he had been allowing this passage to be used to access the varandah in the property, it cannot be assumed that he is under duty to provide this passage for all the times to come. Thus, admitted fact emerges out of affidavit of respondent itself that the varandah which is now owned by the petitioner, cannot be accessed using this passage. The factum of running business from the tenanted shop in property no. 9/6761, Gandhi Nagar, Delhi establishes the bonafide requirement of the petitioner to repossess the tenanted shop for his own use because petitioner cannot be dictated by this Court or the respondent that he should continue running his business from the tenanted shop, despite having his own shop i.e. the tenanted shop.
E172/2011 Page no. 13 of 15
19. In this respect, I would like to refer and rely upon the following case laws:
1. Mohd. Uman vs. Siraj Ahmed, 154 (2008) DLT 342
2. [PRECEDENT]
3. [PRECEDENT]
4. [PRECEDENT].
20. The repossession of the tenanted shop is also bonafidely required by the petitioner to have access to the varandah purchased by him.
21. In view of my aforesaid findings and observations, I come to conclusion that the contentions raised by respondent in his affidavit are not sustainable and they do not make out any ground to contest the eviction petition in hand. Therefore, application for leave to defend is dismissed.
22. Eviction petition is hereby allowed and respondent is directed to vacate shop in property no. 9/10, Gali no. 8, Main Road, Kailash Nagar, Delhi31 as shown in red colour in the site plan filed by respondent and marked as MarkX by me, within six months as provided under [SECTION] of [ACT].
E172/2011 Page no. 14 of 15 23. File be consigned to record room. (Announced in the open (PULASTYA PRAMACHALA) Court on 02/03/2012) ARC01, East, Karkardooma, (This order contains 15 pages) 02/03/2012 E172/2011 Page no. 15 of 15