Interim Order 8

Order Details: COPY OF JUDGMENT
Pdf Text: RC ARC No.177/2024
Jai Singh Yadav v. Rakesh Chopra and Anr.
Page no. 1 of 15
IN THE COURT OF SH. RUPINDER SINGH DHIMAN, ARC-01,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI.
RC ARC No. 177/2024
Jai Singh Yadav ..........Petitioner
S/o Late Sh. Maharaj Singh Yadav
H.No. 4083, Gali Mandir Wali,
Pahari Dhiraj, Sadar Bazar
Delhi-110006.
Also at:
312, HMM Apartment
Plot no.6, Sector-10, Dwarka
Delhi.
Versus
1. Rakesh Chopra
S/o Late Sh. Mulakh Raj
H.No. 4083, Ground Floor, Gali Mandir Wali,
Pahari Dhiraj, Sadar Bazar
Delhi-110006.
2. Rajeev Chopra
S/o Late Sh. Mulakh Raj
H.No. 4083, Ground Floor, Gali Mandir Wali,
Pahari Dhiraj, Sadar Bazar
Delhi-110006. …......Respondents
Date of Institution of the case 20.03.2024
Under Section Section 14(1)(e) r/w Section
25B, Delhi Rent Control Act.
Date of reserving of Order 27.01.2025
Date of order 21.02.2025
Decision Leave to defend application is
allowed.
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Argued by:
Sh. Jai Singh Yadav, Counsel for petitioner
Sh. Pankaj Singhal and Sh. Rohit Pal, Counsels for respondents.
ORDER
1. This order shall dispose off an application for leave to defend filed by
the respondents/tenants in an eviction petition under Section 14(1)(e) of the
Delhi Rent Control Act (hereinafter the “Act” or “DRC Act”) in respect of
two rooms at ground floor in H.No. 4082, Gali Mandir Wali, Pahari Dhiraj,
Sadar Bazar, Delhi-110006 (hereinafter referred to as the “tenanted
premises”) as shown in red colour in the site plan annexed with the petition.
PETITION
2. Briefly stated, it is the case of the petitioner that he is the joint owner
of the property
H.No. 4082, Gali Mandir Wali, Pahari Dhiraj, Sadar Bazar,
Delhi-110006 (hereinafter referred to as subject premises). It is stated that the
subject premises were owned by the father of the petitioner and after the
demise of his father, the other legal heir/brother of the petitioner has executed
SPA in favour of the petitioner. It is stated that originally father of the
respondent was a tenant in the tenanted portion of the subject premises and
after his death, the respondents being his legal heirs succeeded the tenancy
and starting paying rent. It is, however, stated that the petitioner requires the
tenanted premises for residence of himself and his family members. It is
stated that the petitioner wishes to rebuild the subject premises for residence
of all the family members as the property is old and not in a habitable
condition.
Hence, it is prayed that an eviction order may be passed with
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respect to the tenanted premises in question. Along with the petition,
petitioner has filed site plan, rent receipts, statement of bank account, Aadhar
card of the petitioner and SPA executed in favour of the petitioner.
LEAVE TO DEFEND
3. After being duly served, the respondents has filed an application
seeking leave to defend on 23.04.2024. It is stated by the respondents therein
that the present petition is not maintainable and various objections have been
raised seeking leave to defend.
Firstly, it is contented that the petitioner is not
the owner of the property but merely a rent collector / landlord. It is stated
that originally Maharaj Singh Yadav (father of petitioner) was the landlord
and after his death, petitioner and Jaswant Singh Yadav started collecting rent
from the respondents. It is, however, stated that Jaswant Singh Yadav has
expired and his LRs have not been impleaded as a party as co-landlord.
Secondly, it is contented that the site plan is incomplete as the property
consists of ground floor, first floor and second floor with terrace. It is stated
that the entire first floor and second floor is residential and the said
accommodation is available with the petitioner.
Thirdly, it is contented that
the petitioner is residing in a super HIG Flat, Dwarka, Delhi and therefore,
has alternative accommodation.
Fourthly, it is also stated that the tenanted
premises lie in old Delhi area having narrow streets and therefore, the
petitioner would not shift to the said area. Further, it is contented that the
tenanted rooms are of 8X8 feet only and therefore, not fit for residence.
Fifthly, it is contented that there are about eight rooms on the ground floor
apart from the tenanted premises and further two shops on the front side at the
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ground floor are also in the possession of the petitioner. Additionally, it is
stated that the petitioner is in possession of ten rooms at first floor and five
rooms at second floor. It is stated that the petitioner has let out the same for
his residential purposes.
Sixthly, it is contended that just six months prior to
the filing of the present petition, petitioner had obtained possession of two
shops from tenants Om Tailors and Birju and converted the said shops into
one unit along with adjoining shop which was already in possession of the
petitioner.
Seventhly, it is contented that respondents are using the tenanted
premises for commercial purposes and therefore, the said rooms are not
suitable for residence. It is further stated that the purpose of the petitioner is
to demolish the subject premises and thereafter, sell the entire premises.
Lastly, it is contented that the petitioner is also owner of property no. 4083,
Gali Mandir Wali, Pahari Dhiraj, Sadar Bazar, Delhi-06 and the said fact is
reflected from the memo of parties, affidavit and Aadhar card of the
petitioner. Along with the leave to defend application, respondent has also
filed GST certificate of their firm run from tenanted premises, copy of
invoices, copy of rent receipts and site plan.
REPLY TO LEAVE TO DEFEND
4. Thereafter, the petitioner filed a reply to the leave to defend
application where the petitioner has denied the averments of leave to defend
application and reiterated the averments of his petition. Additionally, it is
stated that the flat of Dwarka is taken on rent by the petitioner and is not
owned by the petitioner. It is further stated that property no. 4083, Gali
Mandir Wali, Pahari Dhiraj, Sadar Bazar, Delhi-06 does not pertain to the
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petitioner as it fell in the share of the uncle of the petitioner at the time of
partition of ancestral property. Along with the reply, petitioner has filed copy
of partition deed dated 14.12.2007, rent agreement with respect to flat at
Dwarka and medical documents of the petitioner.
REJOINDER
5. Thereafter, in rejoinder to the reply of the petitioner, respondents
denied the averments made in the reply and reiterated their grounds of leave
to defend.
FINDINGS
6. Arguments were then advanced by ld. counsels for the petitioner and
respondents on the leave to defend application. At the outset, it is stated that
there is no doubt regarding the case laws relied upon behalf of both the
parties where the Hon’ble Supreme Court and the Hon’ble High Court of
Delhi has laid down the principles with respect to provisions of the DRC Act,
1958 in different factual scenarios. However, each case has its own
distinguishing facts and circumstances. In a petition u/s 14(1)(e) of DRC Act
in order to get an eviction order the petitioner/landlord is required to establish
the following :
(i) That he/she is the owner/landlord of the property;
(ii) That he/she requires the premises bonafide and
(iii) That he/she does not have any other alternative suitable
accommodation for this purpose.
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LANDLORD-TENANT RELATIONSHIP
7. As far as the question of a landlord-tenant relationship between the
parties is concerned, it is observed that
there is no categorical denial on
behalf of the respondents. Rather there is an admission on the part of the
respondents that they are tenants in the premises and copy of rent receipt has
also been filed as per which late father of petitioner was the landlord.
Therefore, the objections that the petitioner is not the owner of the tenanted
premises does not amount to any triable issue. Moreover, in a petition u/s 14
(1) (e) of DRC Act, the petitioner is not supposed to prove absolute
ownership and is only required to show a title better than that of the
tenant/respondent. It is to noted that in the judgment titled as Rajender
Kumar Sharma vs. Smt. Leela Wati reported as 155 (2008) DLT 383, the
Hon'ble High Court of Delhi held the following:
".....It is settled law that for the purpose of
section 14 (1) (e) of Delhi Rent Control Act, a
landlord is not supposed to prove absolute
ownership as required under Transfer of Property
Act. He is required to show only that he is more
than a tenant”.
8. Further, perusal of definition of landlord under Section 2(e) of DRC
also shows that it also includes a person entitled to recover rent whether on
own account or on behalf of or for the benefit of some other person.
Therefore, even as per the version of the respondents, petitioner would fall
under the definition of landlord. Besides, in an eviction petition under the
DRC Act, the question of title is not to be decided. Petitioner is only required
to show that he has a better title than that of the tenant. The principle is very
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clear that once a tenant always a tenant. The tenant cannot dispute the title of
his landlord or his successor-in-interest. The law in this regard has been
elaborately dealt with in the case of in Ramesh Chand vs. Uganti Devi
reported as 157 (2009) DLT 450 the Hon'ble High Court of Delhi held:
".......... The imperfectness of the title of the
premises cannot stand in the way of an eviction
petition under section 14 (1) (e) of the DRC Act,
neither the tenant can be allowed to raise the plea
of imperfect title or title not vesting in the
landlord and that too when the tenant has been
paying rent to the landlord. Section 116 of the
Evidence Act creates estoppels against such a
tenant. A tenant can challenge the title of
landlord only after vacating the premises and not
when he is occupying the premises. In fact, such
a tenant who denies the title of the landlord, qua
the premises, to whom he is paying rent acts
dishonestly.........".
9. Hence, the said contention is devoid of merits.The Hon'ble Supreme
Court in the case of Bansraj Laltaprasad Mishra v. Stanley Parker Jones
(2006) 3 SCC 91 had held that:
".....13. The underlying policy of section 116 is that
where a person has been brought into possession as a
tenant by the landlord and if that tenant is permitted
to question the title of the landlord at the time of the
settlement, then that will give rise to extreme
confusion in the matter of relationship of the
landlord and tenant and so the equitable principle of
estoppel has been incorporated by the legislature in
the said section.
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10. Thus a tenant is estopped from challenging the ownership or denying
the title of the landlord. Further, it is also contended on behalf of the
respondents that the petition is bad for non joinder of necessary party since
the legal heirs of the other co-owner have not been impleaded as a party.
However, it is a well settled law that petition u/s 14 (1) (e) of DRC Act can be
filed even by one of the co-owners without impleading the other co-owners.
In this regard, it is pertinent to refer to the judgment of the Hon’ble Supreme
Court of India in
M/s India Umbrella Manufacturing Company Vs. Bhaja
Bandei Aggarwalla, 2004 (3) SCC 178 whereby it was held that even a co-
owner can file an eviction petition against the tenant and all the co-owners
are not required to be joined as a party. Similarly, it was held by Hon’ble
Supreme Court in case titled as
Dhannalal Vs. Kalawati Bai & Ors. (2002) 6
SCC 16 that even one of the co-owner can file a petition under Section 14 (1)
(e) of DRC Act on the ground of bonafide necessity, against the tenants
without impleading the other co-owners.
Hence, the said contention is
devoid of merits.
11. In view of the aforesaid discussion, it is held that petitioner has been
able to show a better title for the purpose of Section 14 (1) (e) DRC Act, than
that of the tenant.
Thus, with respect to the tenanted premises, the landlord-
tenant relationship between the parties stands established in the instant case.
BONAFIDE REQUIREMENT AND NON AVAILABILITY OF
ALTERNATE ACCOMMODATION
12. As far as the bonafide requirement and non availability of
accommodation is concerned, the said issues being inter connected are taken
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up together. It is pertinent to note here the judgment of the Hon’ble Apex
Court in Abid-ul-Islam Vs. Inder Sain Dua, Civil Appeal No. 9444 of 2016
where it was stated by the Hon’ble court that requirement is the existence of
bona fide need, when there is no other “reasonably suitable accommodation”.
Therefore, there has to be satisfaction on two grounds, namely,
(i) the
requirement being bona fide and (ii) the non-availability of a reasonably
suitable residential accommodation. Further, such reasonableness along with
suitability is to be seen from the perspective of the landlord and not the
tenant.
13. It is contended that the petitioner requires the tenanted premises as he
wishes to rebuild the same for residence of himself and that of dependent
family members.
Per contra, it is contended that the requirement of the
petitioner is not bonafide. It is stated that the tenanted premises are small
room and therefore, not suitable for residence. Further, it is stated that the
tenanted premises lie in narrow street of old Delhi area and therefore, the
petitioner would not shift to the same. However, the Hon’ble Supreme court
in Baldev Singh Bajwa vs Monish Saini (2005) 12 SCC 778 has held that
whenever a landlord seeks eviction of the tenant for bonafide need, the
controller shall presume the need as genuine and bonfide. Additionally, the
burden to refute the said presumption squarely lies on the tenant and mere
assertion on the part of tenant is insufficient. Therefore, the said contention
by itself does not amount to any triable issue. Furthermore, it is trite to state
that it is prerogative of the landlord to choose the premises for his
requirement. Besides in Ragavendra Kumar Vs. Prem Machinery &
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Company (2000) 1 SCC 679, it was held by Hon’ble Supreme Court that
the
landlord is the best judge of his requirement for residential or business
purpose and he has got complete freedom in the matter. Also, in this regard,
the provision of Section 19 (2) of DRC Act is to be emphasized which
protects a tenant in case the landlord recovers possession of any premises and
the premises are not occupied by the landlord or by the person for whose
benefit the premises are held within two months of obtaining such possession
or having obtained the possession, the same are re-let to any other person
within three years from the date of obtaining the possession.
Thus, the said
contention is also devoid of merits.
14. As far as contention of respondents is concerned that the petition is not
maintainable, since they are using the premises for commercial need, the said
contention is no longer valid, in view of Apex Court’s decision in
Satyawati
Sharma Vs UOI AIR 2008 SC 3148. Therefore, landlord cannot be precluded
from filing eviction petition on the ground of bonafide need regarding
premises let out for commercial purpose.
Hence, the said contention does not
amount to any triable issue.
15. Further, it is contended that the petitioner already has HIG flat at
Dwarka. However, petitioner has clarified that the said flat is on rent. Further,
petitioner has also filed a copy of rent agreement in this regard. It is also
pertinent to note that no documents have been filed on behalf of the
respondent to show that the said property is under the ownership of the
petitioner. It is trite to state that the tenant cannot dictate to the landlord to
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adjust in some other property or to live on rent. In this regard, reliance is
placed upon the observation of the Hon’ble Delhi High Court in
Saroj
Khemka Vs. Indu Sharma, 79 (1999) DLT 120 whereby it was observed that
no court can compel a person to stay in a house of his relative or in a hotel.
Furthermore, reference is made to the judgment of the Hon’ble High Court of
Delhi in the case of Lalta Prasad Gupta Vs. Sita Ram, 2017 SCC Online Del
13026, wherein it was held as under :-
“18. Thus, if the tenant seeks leave to defend
controverting the requirement pleaded by landlord
on the ground of the landlord, though at the time of
requirement having alternate premises, having not
used the same and instead having commercially
exploited the same, the tenant must plead (a) the
particulars of such premises; (b) the right/title of
the landlord to the same; (c) that the said premises
were vacant and available for use at the time of
pleaded requirement of landlord; (d) how the said
premises were suitable for the pleaded
requirement; and (e) how the landlord has deprived
himself thereof i.e. by sale or letting and support
the said pleas with material on the basis whereof
such pleas will be proved.”
16. Next, it is contended that the requirement of the petitioner is not bona
fide as just six months prior to filing of present eviction petition, petitioner
had obtained possession of two shops from tenants. Perusal of record shows
that the petitioner has denied the said fact as false and frivolous grounds.
However, the respondent has also filed a counter site plan. Further, it is also
averred on behalf of the respondent that there are various other rooms on the
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ground floor of the subject premises. Respondent has also shown the said
rooms in the counter site plan. However, there is no categorical denial of the
petitioner and further, no clarification regarding the number of rooms and
under whose occupation the said rooms are. Furthermore, respondent has
also alleged that alternative accommodation is available with the petitioner
on the first floor and second floor of the subject premises.
Again , in the reply
there is no categorical denial of the petitioner in this regard. It has been
simply averred that the present petition has been filed considering his own
bonafide requirement and that of family members dependent upon him. Here,
it is also pertinent to note that in the entire petition, the petitioner has not
clarified who are those family members who are dependent upon him and
how many rooms are required for their bona fide requirement. Furthermore,
it is also relevant to note that rebuilding of a premises is also a separate
ground under Section 14(1)(g) of DRC Act. However, for the said ground
summary procedure under Section 25B of the DRC Act has not been
provided. It is trite to state that while deciding an application for leave to
defend, the court is required to only 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 raises
triable issues, leave should be granted. The Hon'ble Supreme Court in
“
Inderjeet Kaur Vs. Nirpal Singh” (2001) 1 SCC 706” held that
“A
s 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
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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”.
17. It is also pertinent to note that the respondent has also raised
contention that the petitioner has alternative accommodation in the form of
property bearing H.No. 4083, Gali Mandir Wali, Pahari Dhiraj, Sadar Bazar,
Delhi-110006. Though the petitioner has stated that the said property fell in
the share of his uncle at the time of partition and has also filed a copy of deed
of partition in this regard, however, perusal of the memo of parties shows that
the petitioner has mentioned his address as H.No. 4083, Gali Mandir Wali,
Pahari Dhiraj, Sadar Bazar, Delhi-110006. Further, the Aadhar card of the
petitioner also has his address as H.No. 4083, Gali Mandir Wali, Pahari
Dhiraj, Sadar Bazar, Delhi-110006. Since, the deed of partition is 14.12.2007
and admittedly, the Aadhar was introduced in the year 2009 only, therefore,
even after the said purported partition, prima facie the address of the
petitioner continues to be H.No. 4083, Gali Mandir Wali, Pahari Dhiraj,
Sadar Bazar, Delhi-110006 in the records. In this regard, it is pertinent to
refer to the observations of Hon'ble Supreme Court in the case of “Precision
& Engineering Works Vs. Prema Deva Niranjan Deva Tayal”, (1982) 3 SCC
270, whereby it is held that the
controller is not to record a finding on
disputed questions of facts on the basis of his preference for one set of
affidavit against other set of affidavits. Thus, in the present case, it is only
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deemed appropriate that petitioner's projected need be tested at the touch-
stone of evidence/cross-examination.
18. In the present case, thus, there is a triable issue qua availability
alternative accommodations. Finding qua the aspect of suitability and
availability of accommodation in the ground floor of subject premises as well
as first and second floor of subject premises and qua property bearing H.No.
4083, Gali Mandir Wali, Pahari Dhiraj, Sadar Bazar, Delhi-110006 as
alternative accommodation cannot be given on the basis of rival affidavits.
Reference in this regard is made to
Rampat v. Ganga Devi RC (Rev.)
No.271/14 whereby it was held by the Hon’ble High Court of Delhi that
where a tenant has pleaded that a shop is lying vacant, a triable issue of
alternative suitable accommodation is made out. Further, there is also a
triable issue on the aspect of bonafide requirement since the petitioner has
concealed the number of dependent members for whose residence, he is
seeking possession of tenanted premises. Neither their names and particulars
have been given nor their requirements disclosed. A proceeding under
Section 14(1)(e) read with Section 25B DRCA, being summary in nature, it
is imperative that ample caution is exercised before a tenant is evicted from
the premises. The legislation is enacted for the benefit of those class of
landlords who genuinely require the premises for their needs and do not have
any other accommodation. The requirement must be sincere and honest and
not a pretense to evict the tenant.
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RELIEF
19. In the petition in hand, as discussed herein-above, since triable issues
have been raised by the respondents. In case titled as “Manoj Kumar Vs.
Bihari Lal (Dead) by LRs”, (2001) 4 SCC 655, it has been held by the
Hon’ble Supreme Court that if a tenant has made out a prima facie case,
raising such pleas that a triable issue would emerge then that would be
sufficient to grant leave. Therefore, leave to defend application of the
respondent is hereby allowed.
However, it is clarified that nothing stated
herein shall tantamount to final opinion or expression on the merits of the
case.
20. Let 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 01.07.2025.
Advance copy of evidence by way of affidavit be supplied to the opposite
side at least 15 days prior to the NDOH.
(Rupinder Singh Dhiman)
ARC-01, Central District,THC.
21.02.2025
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