Md. Irfan v. Jamuna Devi & Ors.

1. Exemption allowed subject to just exceptions. C.M. stands disposed of. C.M.No.11576/2014 (condonation of delay)

2. For the reasons stated in the application, delay of 30 days in refiling the appeal is condoned. C.M. stands disposed of. 2014:DHC:3408 + RC.REV. No.238/2014 and C.M. No.11575/2014 (stay)

3. This petition under Section 25B(8) of the Delhi Rent Control Act, 1958 (hereinafter referred to as ‘the Act’) impugns the judgment of the Additional Rent Controller dated 18.12.2013 by which the leave to defend application filed by the petitioner/tenant has been dismissed and the eviction petition has been decreed with respect to the premises being a shop in the front of property bearing no.2956, Gali no.41-42, Beadon Pura, Karol Bagh, New Delhi.

4. The respondent/landlords required the premises for carrying on their business. Three respondents/landlords are the sons of the respondent no.1/mother. All the respondents are legal heirs of Sh. Chattru Ram who expired on 21.9.1992. Sh. Chattru Ram was the husband of the respondent no.1 herein. Sh. Chattru Ram as also Sh. Manohar Lal and Sh. Tej Singh were sons of Sh. Sukhdev (expired on 27.2.1988) who was co-owner of the suit property alongwith one Sh. Manohar Lal. Therefore, Sh. Sukhdev was half owner of the suit property and Sh. Chattru Ram alongwith Sh. Manohar Lal and Sh. Tej Singh became 1/3rd co-owners in the half portion of Sh. Sukhdev, and the respondents/landlords became 1/6th owners of the suit property. There was an oral partition by which the legal heirs of Sh. Chattru Ram became 1/6th owners of the property and the portion allotted to them on partition comprised of the tenanted shop at the ground floor and three rooms on the first floor.

5. In a petition for bonafide necessity, three aspects are required to be established. First is the relationship of landlord and tenant. Second is the bonafide requirement of the landlord for himself or for the need of his family members. Thirdly that the landlord/respondent has no other alternative suitable accommodation. 6(i) In the present case, so far as the aspect of relationship of landlord and tenant is concerned, the same is clearly established by two aspects. Firstly, many counterfoils of rent receipts bearing the signatures of the petitioner/tenant were filed by the respondents/landlords and therefore the present petitioner is undoubtedly a tenant. In any case, it is not disputed that the petitioner/tenant had taken tenancy from the predecessor-in-interest of the respondents, and therefore the respondents/landlords being co-owners of the suit property are entitled to file the eviction petition. As per the definition of ‘landlord’ as found in Section 2(e) of the Act a person who is entitled to receive the rent is a landlord. An owner is always entitled to receive rent and therefore all owners are automatically landlords. Therefore, the respondents/landlords are owners and landlords of the suit premises.

(ii) As already stated above, the suit premises originally belonged to Sh. Manohar Lal and Sh. Tej Singh and the respondents/landlords are claiming through Sh. Chhatru Ram who was the son of Sh. Sukhdev. As per the eviction petition oral partition was pleaded whereby the respondent/landlords have become the co-owners of 1/6th share in the property and their share comprising of the tenanted shop at the ground floor and three rooms on the first floor in the property. In the leave to defend application the aspect of partition is not denied by the present petitioner. Once the aspect of partition is not denied by the petitioner/tenant, then, it cannot be disputed that the respondents/landlords are the owners of the suit shop. Also, I may note that a tenant would have no locus standi to question the ownership of the landlord once there are no inter se disputes between the co-owners, and the other co-owners do not dispute or challenge the ownership of the respondents/landlords of the suit shop. I therefore hold that the Additional Rent Controller has rightly held that there was a relationship of landlord and tenant between the parties.

7. At this stage, I would like to advert to one aspect urged on behalf of the petitioner/tenant with respect to the relationship of landlord and tenant between the parties and which aspect is that the tenancy is pleaded not only to be of the present petitioner but also of one Mohd. Irfan. The Additional Rent Controller, in this regard, has rightly dismissed this argument by observing that by a bald allegation, a person cannot become a co-tenant, more so because in the present case many counterfoils of the rent receipts have been filed by the respondents/landlords showing tenancy only of the present petitioner. The petitioner/tenant may conveniently deny his signatures on the rent receipts, however, such denial cannot raise bonafide triable issues. If in fact such a stand of the petitioner/tenant is permitted to be raised for grant of leave to defend, then, in almost every case, leave to defend has to be granted where the tenant will state existence of an imaginary co-tenant. This argument urged on behalf of the petitioner is also therefore rejected.

8. So far as the bonafide urgency and availability of alternative premises is concerned it is be noted that, the aspect of partition is not disputed by the petitioner, and as a result of the partition the respondents/landlords have got the suit shop alongwith three rooms for residential purpose on the first floor. Once partition is not disputed it cannot be said that the bonafide necessity does not exist because the facts are that the elder son of the respondent no.1 is an electrician and he has no shop to carry out his business. Accordingly, there is no other alternative suitable premises for carrying on the business, and for which purpose the tenanted shop is the only premises available to the respondent/landlord. I may also note that the rooms on the first floor are residential and are being used for residential purpose and therefore cannot be an alternative suitable premises for being used as a shop.

9. In view of the above, I do not find any merit in the petition, and the same is therefore dismissed, leaving the parties to bear their own costs. JULY 22, 2014 VALMIKI J. MEHTA, J. Ne