Ashok Kumar v. Praveen Kumar Gupta

1. This petition impugns an eviction order dated 15.7.2013 passed by the Additional Rent Controller (Central) in an eviction petition filed by the respondent/landlord under Section 14(1)(e) read with Section 25B of the Delhi Rent Control Act, 1958 (hereinafter referred to as the „DRC Act‟). The landlord had petitioned for vacation of the premises, being shop No.9813, Ahata Thakur Dass, Sarai Rohilla, New Rohtak Road, New Delhi (hereinafter referred to as the „suit premises‟) on the ground that he was unemployed and not gainfully engaged to earn a living, therefore he required the shop for starting a general/kirana store in the tenanted premises, particularly, because it 2014:DHC:5800 is located near the Sarai Rohilla Railway Station which is merely 50 feet away from his residence, hence the tenanted premises would be eminently suitable for his proposed business. The landlord had further submitted that he had no other reasonable or suitable accommodation for his proposed business. His case was that he had purchased the suit premises from its owner and landlord, Shri K.K. Jain, along with one Shri Mukesh Sharma by registered Sale Deed dated 18.1.2006. Later on, he purchased the undivided share of Shri Mukesh Sharma through a registered Sale Deed dated 31.7.2012.

2. The tenant is admittedly the sole surviving legal heir of one Shri Desh Raj in a tenancy created prior to 1947. In his leave to defend application, the tenant had contended that the eviction-petitioner was neither the owner nor the landlord of the suit premises since he could not have gained any right in the property from Shri K.K. Jain through the alleged Sale Deed either in his favour or through Shri Mukesh Sharma because the property was self-acquired by one Shri Thakur Dass who bequeathed it to Shri Jahangir Chand without any right to sell, mortgage or create any charge in the suit premises, therefore, the alleged sale by Shri Jahangir Chand to Shri K.K. Jain itself was illegal and in the absence of any right having been transferred legitimately to Shri K.K. Jain, the latter could not transfer or bestow any better right upon the eviction-petitioner or to Shri Mukesh Sharma. Additionally, the tenant argued that since the evictionpetitioner had acquired the undivided share of Shri Mukesh Sharma only on 31.7.2012, the eviction petition would not be maintainable by virtue of Section 14(6) of the DRC Act which bars the filing of an eviction petition on the ground of bona fide need, unless a period of five (5) years have elapsed from the date of such acquisition. The tenant further argued that the eviction petition did not disclose the complete facts of the case inasmuch as the eviction-petitioner‟s wife owned two properties being property No.9820-A (part), Sarai Rohilla, Amrik Ganj, Ahahta Thakur Dass, New Rohtak Road, Delhi admeasuring 64.[4] sq.yds and a shop on the ground floor of property bearing No.9812, Sarai Rohilla, Amrik Ganj, Ahahta Thakur Dass, New Rohtak Road, Delhi. The tenant had argued that the evictionpetitioner was already running a general store from the aforesaid shop and residing on the first floor above it. Additionally, it was contended that the eviction-petitioner was running a hotel/restaurant/dhaba from property No.9812, and that the evictionpetitioner was the owner of certain other properties. However, no details of such other properties were furnished.

3. In reply, the eviction-petitioner had controverted the submissions of the tenant and submitted that the properties owned by his wife were occupied by tenants, namely Giriraj and Pawan Kumar. The rent receipts in original with regard to both the properties were filed.

4. On the issue of right of ownership being transferred to the evictionpetitioner through J.C. Madhok and Shri K.K. Jain, the Trial Court was of the view that the tenant had not given any account of the person, whom he has attorned as the landlord and it was not his case that he was not a tenant. Relying upon the judicial precedents[1], the Trial Court was of the view that mere denial of ownership is no denial at all and that such denial would not give a licence to a tenant to drag on an eviction petition for years in a trial. Furthermore, the Trial Court was of the view that the law is settled that under Section 14(1) of the DRC Act, a landlord is not supposed to prove absolute ownership but only that he is more than a tenant. The Trial Court was of the view that the eviction-petitioner had claimed his ownership through duly registered sale deeds whereas the tenant had Meenakshi Vs. Ramesh Khanna & Anr. 60 (1995) DLT 524; Rajender Kumar Sharma & Ors. Vs. Leela Wati & Ors. 155 (2008) DLT 383. shown nothing to substantiate his argument that such a right did not flow to the eviction-petitioner/landlord; that if at all anyone were to challenge the said ownership right as claimed by the evictionpetitioner, it would only be the original owners and/or his legal heirs and surely not the tenant. Accordingly, the said contention was not found to be a triable issue.

5. Apropos the constraint of five (5) years as stipulated under Section 14(6) of the DRC Act, the Trial Court was of the view that the bar would operate only when the landlord becomes an owner of the property by virtue of a transfer whereas in the present case he had become a co-owner/landlord of the property in the year 2006 itself when he became a co-owner with Shri Mukesh Sharma. Therefore, it was held that the period of five (5) years would start running from 2006 because the subsequent purchase of the undivided share of Shri Mukesh Sharma merely gave him absolute right of ownership in the suit premises. The Trial Court was of the view that the evictionpetitioner had become the landlord apropos the tenant in 2006 itself along with the co-owner Shri Mukesh Sharma and by the doctrine of agency, a co-owner could file a suit for eviction of a tenant as he does so, not on his own behalf but in his own right[2]. The Trial Court, thus, found that this contention too was not a triable issue.

6. Finally, apropos the issue of suitable alternate accommodation being available to the petitioner with respect to property Nos. 9820-A (part), Sarai Rohilla, Amrik Ganj, Ahahta Thakur Dass, New Rohtak Road, Delhi ad measuring 64.[4] sq.yds and a shop on the ground floor bearing No.9812, Sarai Rohilla, Amrik Ganj, Ahahta Thakur Dass, New Rohtak Road, Delhi, the Trial Court concluded that the tenant had failed to file anything on record, not even photographs to show that the said kirana shop or the dhaba/restaurant as alleged being run by the eviction-petitioner, whereas rent receipts shown by the eviction-petitioner showed that the property had been let out by his wife to the tenants. Therefore, the Trial Court was of the view that neither of them could be said to be available to the landlord, and that since the properties owned by the wife of the eviction-petitioner were already in possession of the tenants, there was no need for the same to have been mentioned in the eviction petition. The Trial Court found the tenanted premises suitable for the proposed business and India Umbrella Mfg. Co. v. Bhagabandei Agarwalla (2004) 3 SCC 178 concluded that this too was not a triable issue. Accordingly, an eviction order was passed.

7. Mr. Sanjeev Sindhwani, the learned Senior Advocate appearing for the petitioner/tenant has reiterated the same arguments as raised before the Trial Court. In addition, he submits that the bar of Section 14(6) of the DRC Act would be operative in the present case since the eviction-petitioner had acquired exclusive ownership rights only on 31.7.2012. In support of his contention, he relied upon a judgment of the Supreme Court in Sk. Sattar Sk. Mohd. Choudhari v. Gundappa Amabadas Bukate, AIR 1997 SC 998, in particular para 37 thereof, which reads as under:

8. From the paragraph referred to hereinabove and the facts of the case, it would be evident that the lis related to division of a joint property between its co-owners to which a tenant could have no objection in law whereas the present case concerns the eviction of a tenant by a landlord who becomes the absolute owner of the premises.

9. The relevant Section 14(6) of the DRC Act reads as under:

Quite clearly, if as a co-sharer of a leased property could file an eviction petition after years from 2006, surely the co-sharer could not be put in a worse-off position upon his becoming the absolute owner of the premises in 2012. Such an interpretation would be a clear absurdity. A co-ownership right which matures into a right for seeking eviction after a lapse of five (5) years thereafter, under Section 14(6) of the Act cannot be diminished, simply because the co-sharer acquires some more right in the interim or becomes the absolute owner of the leased premises. The statute does not stipulate any such successive curtailment of the co-sharers or absolute ownership rights of enjoyment or interest in the property. The aforesaid stipulation cannot be read as to deprive a landlord from the beneficial enjoyment of his property which would come about his way after five (5) years from the initial transfer.

10. The learned counsel for the respondent/landlord has relied upon Jagdish Chander Gulati v. Ram Chand Lakram, 15 (1991) DLT 660 wherein this Court has held as under: