E07/13 1 14.08.2014 IN THE COURT OF MS. KIRAN GUPTA, SENIOR CIVIL JUDGECUM RENT CONTROLLER, NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI E07/13 1. [ENTITY] S/o Sh. S N Sharma [ENTITY] S/o. Sh. S N Sharma Both R/o ER10, Inderpuri, New Delhi 110012 Petitioners Versus Sh. [ENTITY] S/o. Late Sh. S. Desa Singh Shop at EA 20, Ground floor, Inderpuri, New Delhi 110012 Respondent Date of institution : 11.04.2013 Date of arguments : 01.08.2014 Date of order : 14.08.2014 ORDER
1. Vide this order, I shall decide the application u/[SECTION] of the [ACT] (hereinafter referred as "the Act"), filed by the tenant against the landlord/owner praying therein that he be allowed to [ENTITY] and anr. Vs. [ENTITY] No. 1 of 19 E07/13 2 14.08.2014 contest the eviction petition u/[SECTION]/[SECTION] of the Act in respect of the tenanted premises, i.e. one shop at the ground floor of property bearing no. EA 20, Inderpuri, New Delhi, measuring about 11'5 X 6' as shown red in the siteplan (hereinafter referred as tenanted premises). The entire property bearing no. EA20, Inder Puri, New Delhi hereinafter shall be referred as the 'property'.
2. Petitioners have filed the present petition u/[SECTION] of the Act, with the plea that the tenanted premises is required for the bonafide requirement of petitioner no. 2 who is the joint owner of the property with the petitioner no. 1. It is stated that both the petitioners are joint owner and landlords of the tenanted premises. It is stated that both of them have jointly purchased 5 shops situated on the ground floor of the above said property vide registered Sale Deed dt. 22.12.1993, registered as document no.9939 book no. 1 Vol. No.7528 on page no.154160 with SubRegistrar, Delhi. As per the terms of Sale Deed, all the shops were occupied by tenants and the respondent is one of the tenant and the tenancy continued with the petitioners after they became the owner / landlord of the property. They duly informed the respondent and as result the respondent started tendering rent to the petitioner, hence, there is no dispute of the relationship of landlord and tenant between the parties.
2.1 It is stated that that out of the five shops purchased, four shops have been let out and one shop is under the possession of [ENTITY] and anr. Vs. [ENTITY] No. 2 of 19 E07/13 3 14.08.2014 petitioner no. 1 where he is doing the business of trading in building material under the name and style of M/s. S K Traders and Sanjay Store. M/s. S K Traders have two shops for storing building material and one very small office at 556557 Budh Nagar, Inderpuri, New Delhi. One shop i.e. cement store is at EA 20, Inderpuri, New Delhi. It is stated that petitioner no. 1 is also running a stationery shop in the name and style of M/s. Sanjay Store at CSC LIG at Prasad Nagar, New Delhi. Petitioner no. 1 has taken one shop on rent from Smt. [ENTITY] who is the owner of the shop at EA 20, Inderpuri, New Delhi. This shop is used as cement store of S K Traders. Smt. [ENTITY] is doing business from a shop taken on rent at 11881/1, street no. 10, Sat Nagar, Karol Bagh and eviction order has been passed against her by Hon'ble High Court of Delhi in [CASE NUMBER]. It is stated that said Smt. [ENTITY] has asked petitioner no. 1 to hand over the vacant and peaceful possession of the shop for doing her business. Now petitioner no.1 needs one shop for shifting his cement store from the premises of Smt. [ENTITY].
2.2 It is stated that presently, petitioner no. 2 is not doing his own business but working under petitioner no. 1 at stationery shop at Prasad Nagar. Now, Petitioner no. 2 has decided to do his own business of trading in hardware, paints , sanitary fittings, bathroom fittings, ceramic tiles etc. He requires three shops at EA 20, Inderpuri, New Delhi which are presently occupied by the tenants. Petitioner no. 1 requires one shop for shifting his cement store while the petitioner [ENTITY] and anr. Vs. [ENTITY] No. 3 of 19 E07/13 4 14.08.2014 no. 2 requires the three shops for starting his hardware business. One such shop is the tenanted premises. It is stated that the tenanted premises and other adjoining shops are more suitable for the proposed business of petitioner no. 2 as the same is situated on the main road and has bright business prospects. There is no other source of income for petitioner no. 2 and his family which comprises of his wife and two children. His present income is not sufficient to fulfill his needs and for this bonafide requirement. The tenanted premises are required by petitioner no. 2 who is the joint owner with petitioner no. 1.
3. After notice of the petition, which was received by the respondent on 27.04.2013, he filed the leave to contest the present eviction petition on 03.05.2013. He while denying all the contents of the petition has stated that when petitioner no. 1 approached him and informed him that he has purchased the tenanted premises from its erstwhile owner and has now become the landlord, he believing the petitioner no. 1 admitted him as his landlord without seeing any ownership documents and started paying rent to him. It is alleged that petitioner no. 2 is neither the owner nor the landlord of the tenanted premises. Respondent has no concern or relation with petitioner no. 2 as he has never paid nor deposited any rent in favour of petitioner no.
2. There is no relationship of landlord and tenant between the respondent and petitioner no. 2. It is further alleged that petitioner no. 1 has deliberately and intentionally not disclosed the true facts and the respondent after receiving the summons of the present petition, came [ENTITY] and anr. Vs. [ENTITY] No. 4 of 19 E07/13 5 14.08.2014 to know that petitioner no. 2 is the real brother of petitioner no. 1. It is further stated that they have several residential and commercial properties in their names at Inderpuri, New Delhi and also at several places in Delhi as detailed out in para no. 7 of the written statement.
3.1 It is further stated that four shops out of the eight shops in the property are in possession and occupation of the petitioners and they have got vacated the shops from the old tenants. Petitioner no. 2 is already running the business of stationery shop in his own shop at CSC LIG, Prasad Nagar, New Delhi which is a very old and well established business. Petitioners want to get vacated the tenanted premises so that they can relet the same on higher rent. It is stated that petitioners are actually having about 15 self acquired properties in Delhi, however, the respondent could get details of only 11 such properties. The alleged bonafide requirement of the petitioners is not genuine but artificial, made out only to dispossess the respondent. It is further stated that the sale deed filed by the petitioners is self contradictory which does not depicts the exact five shops purchased by the petitioners. The tenanted premises is very small and it is not possible in any manner to run a hardware shop in the same. The properties of petitioners located in the same locality are more than 100 sq yards. Several big halls are lying vacant in possession and disposal of the petitioners. Petitioners have intentionally and deliberately put their big signboards in the name of S K Traders or Sanjay Stores on their most of their vacant commercial properties, just to create false [ENTITY] and anr. Vs. [ENTITY] No. 5 of 19 E07/13 6 14.08.2014 and frivolous grounds of eviction and to create false ground for bonafide requirement. Tenanted premises is in possession of respondent for more than 3035 years and was let out for commercial purposes and is the only source of income of respondent and his family. While the petitioners are having handsome rental income from their other several properties. It is stated that since the respondent has raised various triable issues, his application be allowed.
4. In the reply filed by the petitioner, they while denying the contents of the application have reiterated the facts as stated int he petition. It is stated that the fact that petitioners are the real brother is known to respondent from the date when the property was purchased and further through the reply to the objections filed by them in [CASE NUMBER] . They have denied the details of the property as stated in para 7 of the application. It is stated that petitioners have purchased only five shops which were under occupation of tenants including the respondent. Two shops were got vacated which were under occupation of Smt. [ENTITY] and [ENTITY]. Out of the same, one shop is again let out to Sh. [ENTITY] and his two sons and the other shop is in the possession of petitioner no. 1 which is used as cement store. Petitioner no. 2 is working in the stationery shop of petitioner no. 1 and he is not the owner of the said shop. It is further stated that the respondent has not placed on record any document regarding the ownership of the properties detailed by him in para 7 of his leave to defendant application except bald assertions. It is [ENTITY] and anr. Vs. [ENTITY] No. 6 of 19 E07/13 7 14.08.2014 submitted that the tenanted premises is the most suitable accommodation for the bonafide requirement of petitioner no. 2 for running the business of hardware.
5. It is argued by the counsel for petitioner that the application for leave to defend is not maintainable as no triable issue has been raised by the respondent, hence the application be disallowed and his petition be allowed accordingly. It is further argued that petitioners are two real brothers and joint owners of the tenanted premises by virtue of registered sale deed 22.12.1993. Petitioner no. 2 wants to start his own business of hardware in the tenanted premises which is the only available commercial property along with the other shops, for which he has already initiated the proceedings which are pending in the present court. It is argued that the requirement of petitioner no. 2 is bonafide and the application of respondent being devoid of any merit be dismissed accordingly.
6. Per contra, it is argued by Ld. counsel for respondent that the description of the property is different from the description given in the sale deed . Petitioner no. 2 is not the landlord as the rent was never paid to him but to the peittioner no. 1 and the aspect of ownership of petitioner no. 2 was never brought to the knowledge of respondent. It is further argued that no notice of attornment has been placed on record by the petitioners. The bonafide requirement is actually malafide to oust the respondent and to relet the premises at [ENTITY] and anr. Vs. [ENTITY] No. 7 of 19 E07/13 8 14.08.2014 higher rent . It is further argued that the petitioners have a lot of alternate accommodations available to them in order to meet their requirement, if any. Further Ms. [ENTITY] is none other than the mother of the petitioner. Since respondent has raised various triable issues, his application be allowed accordingly and he be granted leave to contest the present petition.
7. Under [SECTION] of the [ACT], a landlord/land lady will be entitled to an order of eviction, if, he/she is able to show that
(a) the premises in question were let out for residential purpose or commercial purposes [as per the law laid down by the Hon'ble Supreme Court in [PRECEDENT],]
(b) he/she is the landlord/land lady and owner of the suit premises,
(c) the premises is required bona fide by him/her for occupation as residence for himself/herself or any member of his family dependent upon him/her for residence and for any person for whom the premises are held, and
(d) the landlord/land lady or such person has no other suitable residential accommodation.
[ENTITY] and anr. Vs. [ENTITY] No. 8 of 19 E07/13 9 14.08.2014
8. Thus the foremost condition which the landlord has to prove is his bonafide requirement. Further he has to prove that there is no other alternate accommodation available. Thus there are twin requirements which are to be satisfied conjunctively in order to attract the provisions of the [SECTION] of the Act i.e the bonafide requirement coupled with the reasonably suitable accommodation, which means that both are to be satisfied together and collectively. While deciding the question of grant of leave, the court has to consider whether the tenant has raised any triable point / issue, the decision of which may disentitle the landlord from recovering possession of the premises.
9. In [PRECEDENT], it has been observed by the Hon'ble Delhi High Court as follows:
" However, merely because the tenant so disputes and controverts the pleas of the landlord does not imply that the provisions 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 Controller is required to sift/comb through the application for leave to defend and the affidavit filed therewith and to see whether the tenant has given any facts/particulars which require to be established by evidence and which if established would disentitle the landlord from an order of eviction. The test is not of the tenant having [ENTITY] and anr. Vs. [ENTITY] No. 9 of 19 E07/13 10 14.08.2014 controverted/denied the claim of the landlord and thus disputed questions of fact arising; the test is to examine the pleas of facts and then to determine the impact thereof."
10. Thus while deciding the question of leave, the controller is not required to conduct a full fledged trial but only to see from the affidavit of the tenant, as to whether any triable point / issue the decision of which may disentitle the landlord from recovering the possession of the premises is disclosed. The Controller is not required to seek the proof of the defence of the tenant but only to see whether any triable issue is raised by the tenant or not.
11. As regards the question of petitioners being the owner / landlord and the relationship of landlord and tenant between the parties is concerned, the respondent has admitted the ownership and relationship of landlord and tenant with the petitioner no. 1. It is stated by respondent that petitioner no. 2 is neither the owner nor the landlord with respect to respondent. It is further stated that respondent is paying rent to petitioner no. 1 and does not know the fact that petitioners are the real brother. The petitioners in order to show that they are the joint owners have placed on record the copy of the registered sale deed dt. 22.12.1993 whereby they have purchased the property for consideration. The said sale deed has not been challenged till date by the respondent. Further, the respondent in the entire application for leave to contest has not alleged that the sale deed [ENTITY] and anr. Vs. [ENTITY] No. 10 of 19 E07/13 11 14.08.2014 is fraudulent or forged or fabricated document. In the application, he has merely disputed the area which the petitioners have purchased by virtue of the said sale deed. As per the sale deed, petitioners have jointly purchased half portion of the undivided share in the property no. EA 20, Inderpuri which comprises of five shops . The argument of the counsel for respondent that the area is not specified is not tenable as in the sale deed it is clearly stipulated that the vendor has sold five shops on the ground floor without terrace and roof rights as shown red in colour in the site plan out of half portion of free hold property bearing no. EA 20 village Naraina, Inderpuri, New Delhi along with the proprietory possession of the five shops which are occupied by the five tenants and their names are also detailed in the said sale deed. Thus by virtue of the registered sale deed, petitioner no. 2 is the joint owner of the property in question, of which the tenanted premises forms part.
12. In [PRECEDENT], it has been held that "in case of a petition u/[SECTION] of the Act, in order to show the ownership, it is not necessary to show absolute ownership. The legislature used the word "owner", in [SECTION] not in the sense of absolute owner, but it was used in contra distinction with a landlord as defined in the Act who is not an owner but who owns the property for the benefit of another person and merely collects the rent. If the person collected the rent for himself and for his own benefit and the property is his own even in the loose sense and no one is claiming [ENTITY] and anr. Vs. [ENTITY] No. 11 of 19 E07/13 12 14.08.2014 rights over the property, then he is considered as owner for the purpose of [SECTION] of the Act. Even possessory rights over the property of a person have been given recognition as ownership visa vis tenant under [ACT].
13. It is settled preposition of law that the landlord is not supposed to prove absolute ownership. He is only to prove that he is something more than tenant and is /was collecting rent not for someone else but for himself. In the present case, Petitioner no. 1 and 2 are the joint owners of the property by virtue of the sale deed dt. 22.12.1993. Respondent himself has admitted that he is tendering rent to petitioner no. 1 being the landlord. Since the petitioners are joint owners of the property by virtue of the sale deed, respondent cannot be allowed to dispute the title of the petitioner no. 2, thus the objection raised by the respondent in this regard is without any merit and does not give rise to any triable issue.
14. Now coming to the other argument of the counsel for respondent that petitioner no. 2 is not the landlord because respondent has never paid rent to petitioner no. 2 or dealt with him as landlord as he is paying rent to petitioner no. 1. By virtue of registered sale deed and the proprietary possession being specifically handed over to both the petitioners along with the right to recover rent, the petitioners have become the landlord by operation of law on the date when the sale deed was executed/ registered. Even as per [SECTION] of the Act, petitioner no.2 being the owner "is entitled to recover rent"
[ENTITY] and anr. Vs. [ENTITY] No. 12 of 19 E07/13 13 14.08.2014 and thus qualifies to be the landlord of respondent. Merely because the rent is being paid to the petitioner no. 1 is of no avail. The ground raised by the respondent being strictly legal in character, does not necessitate the holding of a trial. It is already well settled that on transfer of title of the property in occupation of a tenant , the transferee under the law becomes the landlord and no overt act of attornment is required. The relationship of landlord and tenant between the petitioner no. 1 and respondent is not disputed. Hence, no triable issue is raised in this regard.
15. Now coming to the other aspect as to whether the premises is bonafide required by the petitioners and as to whether they have any other suitable alternate accommodation. The petitioners in their petition have categorically stated that petitioner no. 2 requires the tenanted premises for running his own business of hardware. He has no other accommodation for running the said business except the tenanted premises. Respondent has not placed on record any document to show that the petitioners are the owner of the properties as detailed in para 7 of his application except the bald assertions. Admittedly, petitioners along with the present petition have also filed two other petitions for recovery of possession in respect of the other shops at the ground floor in the property no. EA 20, Inderpuri which are pending in the present court. Property in both the other cases is adjacent to the tenanted premises.
16. It is not the plea of the respondent that any of the portion [ENTITY] and anr. Vs. [ENTITY] No. 13 of 19 E07/13 14 14.08.2014 in the property is lying vacant which can be used or is more suitable to the petitioner to meet his requirement. Petitioners have placed on record all the sale deed of the properties in their names. Except the tenanted premises and the other shops in the property, there is no other shop in the name of petitioner no.2. The shop at Prasad Nagar is only in the name of petitioner no.1 and not petitioner no.2. Present petition has been filed by petitioners for the bonafide requirement of petitioner no.2.
16.1 In [PRECEDENT], it was held that " The crux of the ground envisaged in [SECTION] of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord in bona fide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself."
16.2 In [PRECEDENT] it has been observed that [ENTITY] and anr. Vs. [ENTITY] No. 14 of 19 E07/13 15 14.08.2014
" The judge of facts should place himself in the arm chair of the landlord and then ask the question to himself - whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural , real , sincere, honest . If the answer be in the positive, the need is bonafide. The 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 inference that the reality was to the contrary and the landlord is merely attempting at finding out a pretence or pretext for getting rid of the tenant , would be enough to persuade the court certainly to deny its judicial assistance to the landlord.
16.3 In [PRECEDENT] it was held that "it is not for the tenant to dictate the terms to the landlord as to how else he can adjust himself without getting possession of tenanted premisessuitability has to be seen for convenience of landlord and his family members and on the basis of circumstances including their profession, vocation , style of living , habit and background".
17. It is settled law that landlord is the best judge of his requirement and has complete freedom in the manner of beneficial enjoyment of his property, once it is not disputed that his requirement is bonafide. The petitioners have specifically pleaded that they need the tenanted premises for starting business for petitioner no. 2. Petitioner no. 2 has specifically stated that he is not doing his own business but is working under petitioner no. 1 at stationery shop at Prasad Nagar. He now has decided to do his own business of trading in [ENTITY] and anr. Vs. [ENTITY] No. 15 of 19 E07/13 16 14.08.2014 hardware, paints , sanitary fittings, bathroom fittings, ceramic tiles etc for which he requires three shops at EA 20, Inderpuri, New Delhi and petitioner no. 1 requires one shop for cement store, which are presently occupied by the tenants, out of which one is the tenanted shop. It is stated that the tenanted premises and other adjoining shops are most suitable for the proposed business of petitioner no. 2 as the same is situated on the main road. Petitioner no. 2 has no other source of income. The respondent has merely denied the bonafide requirement of petitioner and has alleged that he has filed the present petition only to get the premises vacated in order to relet the same at higher rent. In the absence of any substantial material brought before the court or pointed out by the respondent in the affidavit, it cannot be said that the present petition for eviction is actuated by malafide and has not been made with bonafide intention.
18. As discussed above, petitioner no. 2 requires the premises for his starting the business of hardware for himself. He has specifically stated he has no other suitable commercial accommodation for his use. Respondent has not placed on record any document regarding other suitable / alternate accommodation available to the petitioner no.2 except the bald assertions. From the above discussion, this court is satisfied that the need of petitioners is bonafide and appears to be sincere and honest and not a mere pretext to evict the respondent/tenant. The tenanted premises is the most suitable to meet the requirement of petitioner no. 2 for his use. The [ENTITY] and anr. Vs. [ENTITY] No. 16 of 19 E07/13 17 14.08.2014 argument of Ld. counsel for respondent on this count is misconceived and not tenable. Further the petitioners have filed the eviction petition for bonafide requirement of tenanted premises to set up a business for petitioner no. 2 to find a source of income and earn the livelihood for himself and his family. On the face of it, the case of bonafide requirement is made out. Further, the respondent has miserably failed to bring to the notice of this court any alternative accommodation with the petitioner no.2 which would disentitle him for claiming the premises for his own bonafide use. There is no triable issue between the parties on these aspects also.
19. Now coming to the other argument of Ld. counsel for respondent that since tenanted premises is the only means of earning and livelihood of respondent and his family, a lot of hardship shall be caused to him if his application is dismissed or the suit of the petitioners is decreed. The concept of comparative hardship has no application so far as ground of eviction U/[SECTION] of the Act is concerned. Hence, the argument of the Ld. counsel for respondent is untenable. In the case of [PRECEDENT] it was observed that the hardship which appellant would suffer by not occupying their own premises would be far greater than the hardship respondent would suffer by having to move out to another place.
19.1 In [PRECEDENT] decided on 04.02.2014, [ENTITY] and anr. Vs. [ENTITY] No. 17 of 19 E07/13 18 14.08.2014 Hon'ble High Court of Delhi has observed
"we are mindful of the fact that whenever the tenant is asked to move out of the premises some hardship is inherent. But in our opinion, in the facts of this case, that circumstance cannot be the sole determinative factum . That hardship can be mitigated by granting him longer period to move out of the premises in his occupation so that in the meantime he can make alternative arrangement". Hon'ble High Court of Delhi in the said judgment granted one year time to the petitioner to vacate the premises.
20. Hence, in the given facts and circumstances, on the basis of above discussion, there is no triable issue raised by the respondent to allow his application to contest the present eviction petition. The application for leave to contest is without any merits and is accordingly dismissed. As a result of the dismissal of the application for leave to contest, the petitioner is found entitled to recover the possession of the tenanted premises i.e. one shop at ground floor of property no. EA 20, Inderpuri, Delhi , measuring about 11'5 X 6' as shown red in the site plan attached with the petition. The eviction petition is allowed. No order as to costs. File be consigned to record room.
21. In view of provisions of [SECTION] of Act 59 of 1958, the order for recovery of possession of premises is not executable before the expiration of the period of six months from the [ENTITY] and anr. Vs. [ENTITY] No. 18 of 19 E07/13 19 14.08.2014 date of order. However, in the present case, one year time is granted to the respondent to vacate the premises and the present order can be executed only after expiry of one year from the date of the order. Respondent is further restrained not to sublet or create any third party interest during the aforesaid period of one year.
ANNOUNCED IN OPEN ( KIRAN GUPTA ) COURT ON 14.08.2014 SCJCUMRENT CONTROLLER PATIALA HOUSE COURTS:NEW DELHI [ENTITY] and anr. Vs. [ENTITY] No. 19 of 19