Mohd. Usman v. Mohan Babu Sharma & Anr.

1. This revision petition under proviso to Section 25-B (8) of the Delhi Rent Control Act, 1958 (DRC Act) impugns an order dated 22.07.2013 whereby the petitioner (tenant) has been ordered to be evicted from the tenanted premises i.e., Shop No. 3, Ground Floor in property bearing NO. 1/2766, Main Mandoli Road, Near Shanti Building, Ram Nagar, Shahdara, Delhi-110032. Brief facts

2. The dispute arose with the respondents (landlords) filing an eviction petition under Section 14 (1) (e) of the DRC Act. It was stated that their father was the absolute owner of the property and he passed away on 20.12.1993 leaving behind his wife, four sons and two daughters as legal heirs; that the deceased father had let out the tenanted premises to one Mr. Udai Veer Singh and after his demise, his legal heirs inherited the tenancy as the present tenants; that a family settlement was executed between the 2014:DHC:4956 heirs of the deceased father by which the landlords became co-owners of the tenanted premises; that they were previously doing business on the rear portion of the premises but the same was demolished by the MCD; that they were unemployed; that they intended to start a shop from the tenanted premises and had no alternative suitable accommodation in Delhi; that since the size of the three shops were small, they wanted to convert them into two; that the tenanted premises was required urgently and was most suitable for them.

3. An application for leave to defend was filed by the tenant. Since the landlords did not object to the grant of leave, leave was granted to the tenant to contest the eviction petition. Thereafter, the tenant filed his Written Statement (WS). The case of the landlords was denied entirely. It was stated that the landlords had not come to the Court with clean hands and had concealed material facts; that the eviction petition was bad for misjoinder of necessary parties; that the family settlement of August, 2000 was a fabricated document, unregistered and did not bear the requisite stamp; that the landlords wanted to get the tenanted premises by hook or crook; that the landlords had withheld the electricity connection; that the landlords in connivance with the MCD, got the demolition done; that the landlords were in possession of four other vacant shops on the ground floor of the property; that the landlords were allotted an alternative site at Bawana as per the scheme of the Government; that the landlords possessed a factory at Seema Puri, Delhi where they carried on their business. In view of the above, the tenant prayed for dismissal of the eviction petition with costs.

4. Replication was filed by the landlords whereby the averments of the tenant made in the WS were controverted and the averments made in the eviction petition were reiterated and reaffirmed. Thereafter, parties were directed to lead their evidence. The landlord no. 2 was examined as PW-1 and he was duly cross examined. The landlords had also relied upon various documents in support of their case. For the tenants, Sh. Brahmanand, LDC, MCD was examined as RW-1; the tenant was examined as RW-1A and was duly cross examined; Sh. Mohd. Zafar, a neighbouring tenant was examined as RW-2 and was duly cross examined. Impugned Order

5. The learned ARC, after hearing the learned counsel for the parties, framed three issues and decided them, as discussed below.

6. Ownership: The tenant had challenged the ownership of the landlords on the ground that only a photocopy of the family settlement had been filed which was neither registered nor bore the requisite stamp. It was therefore, submitted that there was no transfer of title in favour of the landlords. On the contrary, the landlords submitted that the property had come to their share by way of a family settlement of August, 2000. The learned ARC opined that the landlords were not required to prove absolute ownership and were only required to prove that they were more than a tenant. With regard to the tenant challenging the family settlement of August 2000, the learned ARC held that the tenant was not entitled to raise such a challenge. For this, the learned ARC placed reliance on A.K.Nayar v. Mahesh Prasad.[1] The learned ARC further noted that paragraph 3 of the family settlement specifically states that the suit property shall be owned by the landlords collectively and jointly. It was (2008) 153 DLT 423 further observed that though the property was not mutated in favour of the landlords but the electricity connection was in the name of PW-1 i.e., landlord no. 2. In relation to the contention of the tenant that the eviction petition was bad for non-joinder of necessary parties, the learned ARC held that one of the co-owners can file a suit for eviction of a tenant and relied on three judgments of the Supreme Court.[2] Consequently, after appreciating the evidence, the learned ARC was of the view that the landlords were the owners of the tenanted premises and the plea of the tenant in this regard was held be bogus and without substance.

7. Bona fide need: PW-1 i.e., landlord no. 2 had deposed that they were unemployed and required the tenanted premises to run a shop and in his cross examination, he denied the suggestion that he was running any business. The tenant had argued that the landlords did not disclose the details of the business which was intended to be started; hence, there was no bona fide need. To this contention, the learned ARC held that the landlord is the best judge of his need and it was not open for the Court or the tenant to dictate terms to him and placed reliance on Tarsem Singh v. Gurvinder Singh.[3] It was further held that non-disclosure of the nature of the business sought to be set up would not render the need of the landlord as mala fide and reliance in this regard was placed on Bata India Ltd. v. Anil Kumar Bahl.[4] In view of the above, the learned ARC held that the landlords were successful in establishing their bona fide requirement. M/s/ India Umbrella Manufacuring Co. v. Bhagbanda Aggarwal (dead) by LRs, (2004) 3 SCC 178; Sri Ram Pasricha v. Jagannath & Ors., (1976) 4 SCC 184; Dhanndu v. Kalawati Bai & Ors., (2002) 6 SCC 16. 173 (2010) DLT 379 (2012) 189 DLT 680

8. Availability of suitable alternate accommodation: The tenant had contended that the landlords were in possession of sufficient accommodation at the property where the tenanted premises was situated (property) and also factory premises at Bawana and Seemapuri. The tenant’s witness, RW-1A had deposed that there were four shops at the property and RW-2 had deposed that there were seven shops and a factory at the property. PW-1 had deposed that there were only three shops at the property and were occupied by tenants. A site plan to this effect was also filed by the landlords. The same had not been challenged by the tenant and he had also not filed his version of the site plan. In relation to running of a factory at the property concerned, RW-1A admitted that no commercial activities were being carried on by the landlords. RW-2 had testified that the landlords were running a factory from the rear portion in the property. However, no evidence in support thereof was adduced. Furthermore, in relation to RW-2’s testimony that the landlords were running a factory from the rear portion in the property, the learned ARC held that it would not have been difficult for the tenant to examine any employee or to produce the relevant documents in support thereof and the same had not been done. In view of the above, it was held that the tenant had failed to establish that the landlords were in possession of suitable accommodation at the property.

9. Regarding the plea of the tenant that the landlords had sufficient commercial accommodation, in the form of factories at Bawana and Seemapuri, the learned ARC noted that the tenant had not produced any material whatsoever in support of the same. Merely, a bald assertion was made and RW-1A did not depose anything about the existence of the aforesaid properties. Therefore, the learned ARC held that the tenants had falsely raised the aforesaid plea.

10. RW-2 had deposed that the landlords had factories at H-15, Site V, Industrial Area, Greater Noida and Babarpur. In his evidence, there was no mention of properties at Bawana and Seemapuri, which was the contention of the tenant. The learned ARC held that the stand of RW-2 was contradictory to the case of the tenant. It was also noted that the said plea was not incorporated in the tenant’s WS and it was for the first time in the examination-in-chief of RW-2, that the tenant had raised the existence of accommodations at Greater Noida and Babarpur. It was held that parties could not go beyond their pleadings and the tenant could not be allowed to change his version by alleging a completely new fact regarding the existence of properties at Greater Noida and Babarpur. Even assuming that the landlords had a factory at Greater Noida, the learned ARC opined that the same would be irrelevant since it was not in the territory of Delhi.

11. The tenant had argued that the landlords had deliberately not disclosed the existence of property at Babarpur Road, Delhi. The learned ARC took note of the deposition made by PW-1, where he stated that they had shifted to K-311, Chajju Gate Gali, Babarpur Road, Delhi after the demolition of the rear portion in the property. The learned ARC further opined that the landlords were not expected to disclose the details of the residential property since eviction was sought for commercial purposes. It was finally argued by the tenant that the landlords wanted to enhance the rent and expressed his apprehension that the landlords would re-let the tenanted premises after getting possession of the same. To this, the learned ARC observed that Section 19 of the DRC Act duly addresses