Interim Order 10

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF MS. TISTA SHAH, ARC-01, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI.
RC ARC NO. 46/2023
Sh. Ravi Kant Gupta @ Ravi Gupta,
S/o Late Sh. Bishan Swaroop Gupta,
R/o Shyam Bhawan, 812- Joshi Road,
Karol Bagh, New Delhi. ..........Petitioner
Versus
Sh. Dharamvir,
S/o late Sh. Ram Phal,
Shop in property known as Shyam Bhawan,
812, Joshi Road, Karol Bagh, New Delhi. …......Respondent
Date of Institution of the case 24.01.2023
Under Section Section 14(1)(e) r/w Section
25B, Delhi Rent Control Act.
Date of Order 13.03.2024
Decision Leave to defend application is
allowed.
ORDER
1. This order shall dispose off an application for leave to
defend filed by the respondent/tenant in an eviction petition under
Section 14(1)(e) of the Delhi Rent Control Act (hereinafter the
“Act” or “DRC Act”) in respect of shop no. 814 forming part of
Shyam Bhawan Property Door No. 812, Joshi Road, Karol Bagh,
New Delhi (hereinafter referred to as the “tenanted premises”).
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The same is shown in red colour in the site plan annexed with the
petition.
2. The brief facts of the present petition as stated by the
petitioner are that the petitioner is the owner /landlord of premises
which forms part of the property known as Shyam Bhawan bearing
property no. 812, Joshi Road, Karol Bagh, New Delhi by virtue of a
mutual oral partition between the petitioner and his uncle Sh. Brij
Prakash Gupta and the petitioner is the owner of the portion of the
property which is shown in green colour in the site plan, out of
which the tenanted premises are shown in red colour in the site plan
annexed with the petition. The other portion in the property bearing
no. 812, Joshi Road, Karol Bagh, New Delhi is stated to have come
into the possession of Sh. Brij Prakash Gupta.
It is further stated that the petitioner is a senior citizen and
aged about 69 years and he requires the tenanted premises from the
respondent for carrying on his own business in the tenanted
premises. It is further stated that the petitioner is not in physical
possession or occupation of any other commercial premises to carry
on his business.
3. It is further stated that the family of the petitioner consists of
the petitioner himself, his wife, widowed daughter-in-law and her
minor daughter. It is further stated that petitioner is presently
carrying on business by the name of Toy Sadan in partnership with
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other persons in a tenanted premises bearing no. 5407/2015, Pratap
Market at Sadar Bazar, Delhi and the said tenanted premises is
situated on the second floor in the congested locality of Sadar Bazar,
Delhi. It is further stated that tenanted premises is most convenient to
the petitioner as the petitioner has his residence in the other
residential part of the said suit premises and therefore he would not
have to travel to long distances for business. Moreover, the petitioner
can also take the help of his daughter in law and his wife as they are
both residing with the petitioner and would be easily available to
help and assist the petitioner in the business. The petitioner has thus
prayed that an eviction order may be passed in respect of the
tenanted premises in terms of Section 14 (1) (e) of the DRC Act.
4. After being duly served, the respondent had filed an
application seeking leave to defend. It is stated by the respondent
that there is no relationship of landlord and tenant between the
petitioner and the respondent. It is further stated that the petitioner is
not the exclusive owner of the tenanted premises. It is stated that the
father of the petitioner namely Sh. Bishan Swaroop Gupta had
inducted the father of the respondent late Sh. Ram Phal as tenant in
the tenanted shop. It is further stated that after the demise of the
father of the respondent, the respondent alongwith his other siblings
had stepped into the shoes of their father and became the joint
tenants and the respondent started using the said premises for his
business and was paying rent @ Rs. 190/- per month to Sh. B. S.
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Gupta, however, after the death of Sh. B. S. Gupta, the petitioner
alongwith his other siblings had acquired the tenanted premises and
on the request of the petitioner, the respondent started paying rent
qua the tenanted premises and the rent of the tenanted premises
stands paid upto the month of December 2019. In the month of
December 2019, the other legal heirs of late Sh B. S. Gupta also
started demanding the rent from the respondent but due to dispute
between the petitioner and his siblings, the respondent could not pay
the rent qua the said premises from January 2020. It is stated that
alleged counter of rent receipts no. 662 dated 28.10.2018 filed do not
bear the signature of the respondent.
5. It is further stated that the petitioner is not the sole and
absolute owner of the property in question of which the tenanted
shop forms part, however, the siblings and uncle of the petitioner are
also the co-owners and the said property has not till date been
partitioned amongst its co-owners. It is stated that the petitioner has
made false declaration about the property bearing no. 812, Joshi
Road, Karol Bagh, New Delhi being orally partitioned between him
and his uncle and the petitioner has failed to mention about the date
and time when the alleged mutual oral partition had taken place. It is
stated that site plan filed by the petitioner is not correct. It is further
stated that petitioner has concealed the factum of various
accommodation, both residential and commercial being available at
his disposal. That the petitioner has more than 8 shops in the above
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said property i.e. three shops on the main road and 5 shops inside the
building and all the said shops have been kept by the petitioner by
putting locks over there and, if the petitioner really wants to start his
business, he can run his alleged business from the shops lying vacant
and the petitioner has concealed the said accommodation available
with him from the court. It is further stated that premises in question
is a very big property measuring about 1205 sq. yards. It is further
stated that petitioner and his family members have also various other
properties, both commercial and residential properties at his disposal
in Karol Bagh and Sadar Bazar Area but the petitioner has also
concealed the said fact from the court.
6. It is further stated that petitioner has also falsely alleged
that the premises no. 5407/15, Pratap Market, Sadar Bazar, Delhi
from where he is running his business is a tenanted premises. It is
submitted that when the petitioner is already running his flourishing
family business from a reputed market in Sadar Bazar, Delhi, there is
no question for the petitioner to leave the said business and start
fresh business from the tenanted premises which is situated in
residential and much backward area than the area of Sadar Bazar,
Delhi.
7. It is further stated that the petitioner is already more than
70 years of age and he is not in a position to start his new business in
such old age. It is submitted that since the respondents have raised
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several triable issues, therefore, it is prayed that the respondents may
be granted leave to defend to contest the present petition on merits.
8. Reply has been filed to leave to defend application on
behalf of the petitioner wherein the averments of the petitioners have
been re-affirmed and contentions of leave to defend application have
been denied. Further, it has been clarified that there are only three
shops in the portion of the petitioner which have been rented out
since long, out of which, one of them is tenanted premises.
Alongwith the reply, the petitioners have filed the proof of the
tenancy of the premises being taken by the petitioners on rent in
Sadar Bazar where the copy of the rent receipts have been filed.
9. The respondents have also filed a rejoinder to the reply
to the leave to defend in which the contents of the leave to defend
have been reiterated and the reply of the petitioners have been
denied.
10. Ld. Counsel for petitioner has relied upon following
judgments:-
(i) Puran Chand Aggarwal Vs. Lekh Raj, RC. Rev. No.
291/2012 decided on 16.04.2014, by Hon’ble High Court
of Delhi
(ii) Department of Posts & Ors. Vs. Surinder Babu Jain,
RC. Rev. NO. 99/2018 decided on 25.05.2022 by Hon’ble
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High Court of Delhi.
11. Ld. Counsel for the respondent has relied upon
following judgments:
(i) Precision Steel and Engineering Works & Anr. Vs. Prem
Deva Niranjan Deva Tayal, 1982 Legal Eagle (SC) 152
(ii) Inderjeet Kaur Vs. Nirpal Singh, 2000 Legal Eagle (S)
1817
(iii) Prit Pal Singh Vs. Ramesh Kumar Dora, 2014 Legal
Eagle (SC) 7.
(iv) Charan Dass Duggal Vs. Brahma Nand, 1982 Legal
Eagle (C) 7
(v) Gurbachan Singh Sachdeva Vs. Gurbachan Singh Puri,
2014 Legal Eagle (Del) 174
(vi) Prahlad Rai Mittal Vs. Rita Devi, 2012 Legal Eagle
(Del) 1401
(vii) S. K. Seth & Ors. VS. Vijay Bhalla, 2012 Legal Eagle
(Del) 1401.
(viii) Santosh Kumar Vs. Bhai Mool Singh, 1958 Legal Eagle
(SC) 3.
(ix) Mukesh Sharma Vs. Harmesh Singhal decided on
04.10.2013
(x) Ramesh Chand Aggarwal Vs. Munshi Lal decided by
Delhi Hon’ble High Court decided on 21.08.2014.
(xi) Rampat Vs. Ganga Devi, 2015 Legal Eagle (Del) 493.
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(xii) Vinod Kumar Sharma Vs. Mithlesh Rani, 2017 Legal
Eagle (Del) 493.
(xiii) Tarun Pahwa Vs. Pradeep Makin, 2012 Legal Eagle
(Del) 2191.
(xiv) Nitin Chandra Vs. Sardar Gurdeep Singh, 2015 Legal
Eagle (Del) 3622
(xv) Deepak Gupta Vs. Sushma Aggarwal, 2013 Legal Eagle
(Del) 959
(xvi) Ramesh Kumar Aggarwal Vs. Rani Ravindran & Ors.
2009 Legal Eagle (SC) 866.
(xvii) Mohd. Illyas VS. Nooruddin & Ors., 2011 Legal Eagle
(Del) 1493.
(xviii)Santosh Devi Soni Vs. Chand Kiran, 2000 Legal Eagle
(SC) 111.
(xix) Mohd. Jafar & Ors. Vs. Nasra Begum, 2012 Legal
Eagle (Del) 1314.
12. Arguments advanced by ld. counsels for both the parties
heard and the records have been perused.
13. While deciding an application for leave to defend, the
court is required to see if the facts alleged in the tenant's affidavit are
such that, if proved at the trial if leave is granted, the landlord would
be disentitled to relief claimed, then the Controller must grant leave
and proceed to hold a regular trial. Thus, the test is that if the defence
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raises triable issues, leave should be granted. As is held by the
Hon'ble Supreme Court in “Inderjeet Kaur Vs. Nirpal Singh”
(2001) 1 SCC 706 “as is evident from Section 25 B (4) & (5) of the
Act, burden placed on a tenant is light and limited in that if the
affidavit filed by him discloses such facts as would disentitle the
landlord from obtaining an order for the recovery of the possession
of the premises on the ground specified in clause (e) of the proviso to
Section 14 (1) of the Act, with which we are concerned in this case,
are good enough to grant leave to defend”. Thus, based on the
aforesaid principle of law, it is to be examined as to whether in this
petition the respondent/tenant has been able to raise any triable issue
or not.
14. The primary objection that has been raised by the
respondent is that there is no relationship of landlord and tenant
between the petitioners and the respondent, where it is denied that
the petitioner is the exclusive owner of the tenanted premises. It is
stated that the father of the petitioner namely Sh. B. S. Gupta had
inducted the father of the respondent as a tenant and after his death,
the petitioner alongwith his other siblings had acquired the said
property. It is stated that in the month of December 2019, the other
legal heirs of the father of the petitioner had also started demanded
rent of the petitioner. It is therefore stated that the siblings and the
uncle of the petitioner are also the co-owners and the property has
not been partitioned by metes and bounds amongst the co-owners.
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Hence, the petitioner cannot claim himself to be the sole owner of
the tenanted premises.
15. Per contra, the petitioner has relied upon conveyance
deed dated 20.06.2014 between DDA as the vendor and Sh. Brij
Prakash Gupta and the petitioner as the purchasers. Another
document which is a relinquishment deed dated 08.04.2016 has been
filed wherein it is mentioned that Smt. Asha Goyal and Sh. Ravi
Kant Gupta i.e. the petitioner had become co-owners of the property
with Sh. Brij Prakash Gupta, who was the real uncle of the petitioner
in equal shares. The said relinquishment deed has been executed by
Smt. Asha Goyal in favour of Sh. Ravi Kant Gupta. In the petition,
the petitioner has stated that by virtue of a mutual oral partition
between the petitioner and his uncle Sh. Brij Prakash Gupta, the
petitioner became the sole owner of a portion of the property bearing
no. 812, Joshi Road, Karol Bagh, New Delhi shown in the green
colour in the site plan and the tenanted premises shown in the red
colour was the part of portion falling in the share of the petitioner.
16. A perusal of the site plan shows that certain portion of
the property marked in green colour has been stated to be of the
petitioner and the other portion has been stated to be of Sh. Brij
Prakash Gupta.
Even if it is assumed that the submission of the
respondent that there was no partition was correct and the petitioner
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was only a co-owner of the suit property, it is a well settled law that a
suit for eviction of the tenant under Section 14 (1) (e) of DRC can be
filed even by one of the co-owners, as long as there is no objection of
any of the other co-owners and there was no need of impleadment of
other co-owners. However whether the petitioner was the sole owner
of the portion shown in green colour and whether there was actually
a partition of the property, is necessary to be seen in the context of
whether the petitioner had any other alternative accommodation in
his possession.
17. Ld. Counsel for the respondent has stated that the
petitioner has various other shops in his possession for the
fulfillment of his bonafide need, if any and reliance has been placed
upon certain photographs and a site plan placed on record on behalf
of the respondent. It was averred during oral arguments that in the
photographs filed by the respondent there are certain shops shown on
the left hand side of a common passage which are vacant and locked
and in the possession of the petitioner. The tenanted shop is shown in
the middle of two other shops on the right side of the passage.
Similarly the site plan filed on behalf of the respondent also shows
certain other shops on either sides of the passage and it has been
stated that the said shops are in the possession of the petitioner.
18. Ld. Counsel for the petitioner has opposed the said
averments of the respondent and has stated that as evident from the
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site plan filed on record by the petitioner, the petitioner has only
three shops in his ownership where one of the shop bearing no. 814
was the tenanted premises in possession of the respondent and the
other shops bearing no. 815 and 813 were not vacant and have been
rented out since long. It is submitted by the petitioner that on account
of the oral partition, the portions shown in the photographs on the
left side of the passage came into the share of Sh. Brij Prakash Gupta
with whom the petitioner has already entered into an oral partition
and the portion on the right of the passage were the three shops of
the petitioner including the tenanted shop. Further, reliance has been
placed upon the site plan filed by the petitioner where the portion
shown in green is stated to be of the petitioner and that in red is
stated to be of Sh. Brij Prakash Gupta.
19. Thus, the petitioner, for showing that there was no
alternative accommodation available to the petitioner in the property
bearing no 812, Joshi Road, has solely relied upon an oral partition
and the site plan demarcating the suit property in red and green. The
petitioner has not disclosed the date, month or year as to when the
oral partition had taken place.
20. An affidavit has been filed on behalf of the petitioner
stating the same to be the affidavit of Sh. Brij Prakash Gupta.
However, as rightly pointed out by ld. Counsel for the respondent,
the said affidavit only bears the thumb impression of Sh. Brij
Prakash Gupta while in the conveyance deed filed on record on
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behalf of the petitioner, the signatures of Sh. Brij Prakash Gupta are
clearly reflected. No reason has been stated for the absence of the
signatures of Sh. Brij Prakash Gupta on the affidavit filed. Thus, the
affidavit by itself, in the absence of any corroborative material for
brining on record the fact of the partition does not inspire the
confidence of the court at this stage.
Besides in the affidavit, there is no mention of whether
the demarcation in color as shown in the site plan of the petitioner
,had been arrived at in consequence of the partition. It is merely
written in the affidavit that the property was orally partitioned
several decades earlier and the suit shop falls exclusively in the
portion of the petitioner. Thus whether the portion shown in green
exclusively belonged to the petitioner and the remaining portion to
Sh Brij Bhushan Gupta can also not be ascertained from the said
affidavit.
21. Although ld. Counsel for the petitioner has argued that
the respondent has himself admitted in his leave to defend
application that there were only three shops on the main road of the
petitioner and since the same are not vacant, they cannot be stated as
alternative accommodation yet the entire leave to defend application
has to be read holistically and reliance cannot be placed in the
abstract on any one particular sentence mentioned in the leave to
defend application. It is seen that in the leave to defend application,
it is specifically mentioned that the petitioner is having more than 8
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shops,including three shops on the main road which are lying locked
and vacant under the lock and key of the petitioner.
The photographs that have been filed on behalf of the
respondent in support of his application for leave to defend show that
there are three shops on the main road including the tenanted
premises from which certain business is being carried out and they
are not vacant. Admittedly the said shops are of the petitioner.
However, the defence of the respondent does not pertain to the
abovesaid shops which are not vacant, rather the respondent has
specifically stated in his leave to defend application about such shops
on the main road which are locked and in the possession of the
petitioner. The said shops can also be seen in the photograph filed by
the respondent on record as being closed shops with their shutters
drawn and are shown on the left side of the common passage. Thus,
the averments of the leave to defend application cannot be read in
such a way which the ld. counsel for the petitioner has sought them
to be read.
22. In such circumstances, it needs to be tested in trial
whether the entire property bearing no. 812, Joshi Road, Karol Bagh,
New Delhi had actually been orally partitioned with only the green
colour portion remining in the ownership of the petitioner whereas
the rest of the portion came into the ownership of Sh Brij Bhushan
Gupta. It is also the case of the respondent that there are certain
shops on the inner side of the building as well. The said averment
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also needs to be tested by way of evidence being led.
23. In view of the above discussion, application for leave to
defend filed on behalf of the respondent is allowed. However,
nothing stated herein shall tantamount to an expression on the merits
of the case. Written statement be filed within 30 days from today
with advance copy to the opposite party thereafter, replication if any
be also filed with advance copy to the opposite party.
To come up for PE on 27.05.2024
Advance copy of evidence by way of affidavit be
supplied to the opposite side at least 15 days prior to the NDOH.
(Tista Shah)
ARC-01, Central District,
Tis Hazari Courts, Delhi
13.03.2024
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