Dharam Veer Goel v. Renu Jain & Anr.

(xv) That the Premises in question is situated in a big market (namely Tota

Ram Bazar) of readymade garments and cloths, hence, the Petitioners want to do business of readymade garments from the premises in question which is hardly 200 meters away from the residence of the Petitioner and it is quite a walk able distance and best suited place for business of petitioners.

(xvi) That the petitioners do not have any suitable commercial accommodation in Delhi to run a Garment Shop. The petitioners are jobless at present and they are in dire need of commercial accommodation, hence, they require the premises bonafidely and genuinely.

(xvii) That other co-owners of the suit property have no objection if an eviction order is passed in favour of the petitioners.

(xviii) That the Petitioners have no other reasonable and suitable accommodation in Delhi to carry out the business of readymade garments and petitioners are in dire need, hence, the present petition may be treated under summery suit.” (emphasis supplied)

5. In the leave to defend application filed on behalf of the petitioner herein, it was pleaded as under:

Petitioner no.1 and 2 respectively had the “so-called bonafide requirement” and now the present Petitioners are posing their "so-called alleged bonafide requirement" for seeking eviction of the respondent. By no stretch of imagination, it can be believed that all the family members, inspite of having multiple properties, requires the same accommodation (suit property). This itself raises a triable issue and therefore, the Respondent urges this Hon‟ble Court to grant leave to contest the present Petition to the Respondent.

(i) Firstly, Property bearing no. 313/73, G[1], Anand Nagar, Inderlok,

(ii) Factory at Mangol Puri, Industrial Area, Phase-I, T-2/142, Delhi.

(iii) Godowns converted into two Offices situated at Mangol Puri

(iv) Besides, the aforesaid properties which have been inherited to the

Petitioners, the Petitioners are also the owners of various other properties, being their self-acquired properties. Therefore, the alleged bonafide requirement for the suit premises, as averred by the Petitioners is not genuine and is purely concocted with the sole purpose of meting out undue harassment to the Respondent.”

6. Besides raising the plea that the eviction petition was barred on account of the earlier eviction petition filed by late Shri Suresh Chand Jain and seeking to urge that the respondents has sufficient accommodation available with them, the petitioner also questioned the unemployment of the respondent no.2 as averred in the eviction petition, and also took the plea that there were other co-owners of the property who had first right over the tenanted premises.

7. The impugned judgment minutely examined all aspects of the matter on the touchstone of the statutory requirements as set out in Section 14(1)(e) of DRC Act. In paragraph 6 of the impugned judgment, it was noticed that under Section 14(1)(e) of DRC Act, a landlord/landlady will be entitled to an order of eviction, if he/she is able show that- “(a) the premises in question were let out for residential purpose or commercial purposes [as per the law laid down by the Hon‟ble Supreme Court in Satyawati Sharma v. Union of India and another, 148 (2008) DLT 705 (SC),] (b) he/she is the landlord/land lady and owner of the suit premises,

(c) the premises is required bona fide by him/her for occupation as residence for himself/herself or any member of his family dependent upon him/her for residence and for any person for whom the premises are held, and

(d) the landlord/land lady or such person has no other suitable residential accommodation.”

8. With regard to the ownership of the respondents in respect of the tenanted premises and the existence of landlord-tenant relationship, it was held in the impugned judgment as under:

9. With regard to the bonafide requirement as asserted by the respondents and the availability of suitable alternative accommodation, it was held as under:

10. The above findings rendered in the impugned judgment are unexceptionable and based on the pleadings/materials on record. There is no infirmity therein which warrants interference in these proceedings. The law is well settled that the revisional power of this court under Section 25B(8) of the DRC Act is restrictive and limited. The same has recently been reiterated by the Supreme Court in Abid-Ul-Islam Vs. Inder Sain Dua, (2022) 6 SCC 30, as under:- “23. The proviso to Section 25-B(8) gives the High Court exclusive power of revision against an order of the learned Rent Controller, being in the nature of superintendence over an inferior court on the decision-making process, inclusive of procedural compliance. Thus, the High Court is not expected to substitute and supplant its views with that of the trial court by exercising the appellate jurisdiction. Its role is to satisfy itself on the process adopted. The scope of interference by the High Court is very restrictive and except in cases where there is an error apparent on the face of the record, which would only mean that in the absence of any adjudication per se, the High Court should not venture to disturb such a decision. There is no need for holding a roving inquiry in such matters which would otherwise amount to converting the power of superintendence into that of a regular first appeal, an act, totally forbidden by the legislature.”

11. Learned counsel for the petitioner has laid much emphasis on the aspect of abatement of the earlier eviction petition filed by late Shri Suresh Chand Jain. He strenuously contends that the same renders the present eviction petition completely non-maintainable. It was contended that the respondents/landlords concealed the factum of abatement by making vague averments in the eviction petition to the effect that the earlier eviction petition became “infructuous”. It was further contended that the subsequent eviction petition (in which the impugned judgment dated 18.12.2021 has been passed) was hit by the doctrine of constructive res judicata. In this regard, attention was drawn to the averments made in the earlier eviction petition as under: “(vi) That the petitioner requires the premises in question bonafidely and genuinely for himself and his family members dependent upon him for the purpose of accommodation. That the family of the petitioner consists of (1) Sh. Suresh Chand Jain (The Petitioner himself) (2) Smt. Nirmla Devi (Mother of the petitioner). (3) Smt. Renu Jain (Wife of the petitioner) (4) Sh. Varun Jain (Son of the petitioner) (5) Sh. TarunJain (Son of the petitioner) (6) Sh. Rakesh Kumar Jain, Aged 56 years (Brother of petitioner). (7) Sh. Sushil Kumar Jain, aged 54 years (brother of petitioner),(Divorcee and unemployed), (8) Sh. Rajendra Kumar Jain, aged 52 years (brother of petitioner), (mentally disturbed and unmarried) (9) Sh. Bijender Kumar Jain, aged 50 years (brother of petitioner), (Unemployed and Unmarried).”

12. It was urged that, since the earlier eviction petition stood abated vide order dated 14.12.2020, unless and until the said abatement order was set aside by taking recourse to provisions under Order XXII Rule 9 CPC, the subsequent eviction petition was clearly barred.

13. It was also contended that the respondents/landlords had indulged in misrepresentation, inasmuch as after the demise of late Shri Devi Chand Jain, his other alive sons (other than late Suresh Chand Jain) also stepped into the shoes of their father and acquired right in respect of tenanted premises. It was urged that the respondents/landlords did not place on record any no objection, of any of the co-owners, and only made averments in the eviction petition to the effect that “that other co-owners of the suit property have no objection if an eviction order is passed in favour of the petitioners”.

14. Having perused the record and having heard respective counsels for the parties, I find no merit in the contention raised by the learned counsel for the petitioner.

15. As regard the contention regarding the instant eviction petition being barred on the principles of constructive res judicata, a bare perusal of the averments made in the instant eviction petition makes it clear that the same is based on a completely independent and distinct cause of action. The earlier eviction petition filed by late Shri Suresh Chand Jain was based on his personal bonafide need, as existing at that point of time. In the earlier eviction petition filed by late Shri Suresh Chand Jain, it was averred as under: “(xiii) That the Premises in question is situated in a big market of readymade garments and cloths, hence, the Petitioner wants to do business of readymade garments from the premises in question which is hardly 200 meters away from the residence of the Petitioner and it is quite a walk able distance and best suited place for business of petitioner.

(xiv) That the petitioner does not have any suitable commercial accommodation in Delhi to run a Garment Shop. The petitioner who is jobless at present is in dire need of commercial accommodation, hence, he requires the premises bonafidely and genuinely.”

16. On the other hand, in the present eviction petition, which was filed after the death of Late Shri Suresh Chand Jain, the circumstances existing in the aftermath of the death of Shri Suresh Chand Jain were referred to, and was made the basis for filing the eviction petition. In this regard, reference may be made to the following averments made in the present eviction petition: “(ix). That after the death of Shri Suresh Chand Jain, the financial condition of the family is worst because huge amounts were spent on the disease of Suresh Chand Jain because he was suffering with the diseases of Covid-19 and Shri Suresh Chand Jain remained admitted in Max Hospital, Shalimar Bagh, New Delhi.

(x) That the petitioner No. I is a widow and wants to run her own business as well as petitioner No.2 is unemployed and got married in 2018 and now, blessed with a daughter which makes him more responsible towards family.

(xi) That the petitioners are jobless and they want to open a Garment shop, however, they are unable to start a Garment Shop because they does not have any suitable commercial accommodation to open a Garment Shop. The financial condition of the petitioners is not good enough to take a suitable shop near their residence on rent for themselves to run the Garment Business.”

17. Thus, it can be seen that the present eviction petition is based on a completely distinct cause of action. Admittedly, the respondents (eviction petitioners) were not a party to the earlier eviction petition filed by late Shri Suresh Chand Jain.

18. In Shantilal Thakordas & Ors. Vs. Chimanlal Maganlal Telwala (1976) 4 SCC 417, the Supreme Court overruled its earlier decision rendered in Phul Rani & Ors. vs. Naubat Rai Ahluwalia (1973) 1 SCC 688 and held that the law permitted the eviction of a tenant for the bonafide requirement of the premises for occupation of the landlord as a residence for himself and members of his family and that such a requirement was both of the landlord and members of his family so that upon the death of the landlord, the right to sue survived upon the members of the family of the deceased.

19. However, the position in the instant case is different inasmuch as the bonafide requirement asserted in the eviction petition filed by the late husband of the respondent no.1 was based on his personal bonafide need viz. requirement of the tenanted premises to enable him to do business of readymade garments from the tenanted premises. It may be that the need asserted by the late husband of the respondent no.1 in the previous eviction petition was for the purpose of maintaining his family; however, the same does not detract from the fact that it was his personal requirement.

20. It is pertinent to note that in the earlier eviction petition, there was no plea to the effect that the premises were required by the petitioner therein for running any “family business”. Had there been such a plea, the right to sue may have arguably survived upon the remaining family members. The Division Bench of Karnataka High Court in Yasimsab Fakruddinsab Dori vs. Basappa ILR 1991 KAR 3954, has recognized that in the case of a proceeding in which the possession is sought for non residential purpose i.e. for running business of one’s own profession or if it is pleaded that the premises is required for carrying on business by the landlord and/or by members of his family or the business pleaded is a family business, the eviction proceedings can be continued even after the death of the original landlord because the requirement pleaded was not confined only to the landlord but it also covered the requirements of members of his family.

21. The aforesaid judgment of Yasimsab (supra) also goes on to hold that in the case of a profession which is personal to the landlord, unless members of his family are also carrying on the same profession and that is pleaded in the petition, the eviction proceedings will not survive on the death of the landlord because the very requirement pleaded in the petition would be that the landlord required the tenanted premises for carrying on his profession, which was personal to him. The same would be the position in the context of a petition filed by a deceased landlord, asserting his bonafide requirement of the tenanted premises to carry on a business/vocation, in the absence of any plea that the said business/vocation proposed to be carried out from the tenanted premises, is a family business. The relevant observations of the Yasimsab (supra) are reproduced as under: “16....In the case of a proceeding in which the possession is sought for nonresidential purpose i.e., for running a business or for one's own profession, if it is pleaded that the premises is required for carrying on the business by the landlord and/or by the members of his family or the business pleaded is a family business, the proceeding can be continued even on the death of the original landlord because, the requirement pleaded was not confined only to the landlord but it also covered the requirement of the members of his family. However, in the case of profession which is personal to the landlord such as legal profession, medical profession and any other profession which requires special acumen or a special qualification unless the members of his family are also carrying on the same profession and that is pleaded in the petition the proceeding will not survive on the death of the landlord because the very requirement pleaded in the petition would be that the landlord required the premises for carrying on his profession which was personal to him....”

22. The Division Bench in Yasimsab (supra) also goes on to rightly hold as under: “16....It is not possible to state in general terms or lay down the trite rule that a particular proceeding will continue or will not continue, as it has to be decided on the pleadings of the case. We have already pointed out that the effect of the Decisions of the Supreme Court in Shantilal [(1976) 4 SCC 417: AIR 1976 SC 2358.] and Pukhraj cases [(1990) 2 SCC 431: AIR 1990 SC 1133.] that whether the proceeding under the Rent Act will survive on the death of the landlord or not would depend upon the actual pleas raised by the landlord and the ground on which the eviction is sought.... **** 19.... It is no doubt true that the L.Rs. of the landlord are not excluded from the definition of the word „landlord‟. In a petition filed under Section 21(1)(h) of the Act they become landlords, as the L.Rs. on the death of the original landlord. But this does not in any way help the respondent because the right to continue the cause by the L.Rs. in a petition under Section 21(1)(h), in turn, depends upon the plea raised in the petition viz., as to whether the possession of the premises is sought on the ground that it is required for the landlord and/or for the members of his family. If no plea is raised in the petition that the premises is also required for the use and occupation of the members of the family and/or for running the business in the case of seeking possession for non-residential purpose that the premises are required by the landlord and/or by the members of his family, the cause will not survive on the death of the landlord. As already pointed out in the instant case, the original landlord has not pleaded that the premises are also required by the members of his family to run the business. The original landlord pleaded that he himself required the premises for running the business in order to maintain his family. Therefore, it is not possible to hold that the L.Rs. of the deceased landlord falling within the definition of the word „landlord‟ are entitled to continue the proceedings because there is no plea that they also reasonably and bona fide required the premises for running the business. Therefore, the petition has to fail.”

23. The Division Bench of the Kerala High Court in the case of Aniyeri Jayarajan vs. Valiya Kooleri Koorma Yesoda (2003) 2 KLJ 27, while dealing with the similar situation held that where the eviction petition was filed on the basis of bonafide requirement of the premises for the purpose of the landlady’s husband to start his business, the eviction petition would abate after death of the husband. It was acknowledged in the said case that the need of the husband cannot be equated with the need of the members of the family even though the husband was to start the business for the purpose of maintaining the family. The relevant observations in the said judgment are as follows: “10. So far as the present case is concerned, the bonafide requirement made by the landlady is that her husband wanted to start business. No doubt, husband was to start business for the purpose of maintaining of family. But that does not mean that the need becomes that of the husband and the members of the family. After death of her husband, there was no need for starting the business. In that view of the matter, we are of the view that the need alleged has become abated after the death of her husband.”

24. In the present case, therefore, the fact that the earlier eviction petition filed by the late husband of the respondent no.1 stood abated vide order dated 14.12.2020 does not prevent or bar the respondents from filing a fresh eviction petition based on their own bonafide requirement in the new circumstances prevalent after death of the late husband of respondent no.1.

25. As regard the contention of the petitioner, that the respondents have alternative suitable accommodation available to them, the impugned judgment clearly analysed the said issue threadbare in paragraphs 9-13 thereof (supra), and has come to the conclusion that the respondents have no alternative suitable accommodation available with them and their need for the tenanted premises is genuine. No ground is made out for disturbing the aforesaid findings contained in the impugned judgement.

26. As regard the contention that the eviction petition was filed without the authorization of the co-owners, the impugned judgment rightly takes note of the judgment in case of Sheikh Mohd Zakir v. Shahanazparveen, 2012 (2) RCR 235 (DHC), wherein it was held that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the coowners and this principle is based on the doctrine of agency. The said position has been reiterated in catena of judgments. Reference in this regard may be made to a judgment of a co-ordinate bench of this court in Puran Chand Aggarwal v. Lekh Raj, 2014 SCC OnLine Del 1506, which takes note of various judgments on the issue of the right of a co-owner to institute an eviction petition, as under: “24. The following cases are relevant in this regard, i.e. on the issue of coownership: -

(i) This Court in Ram Dularithr. LRs v. Om Parkash Gupta, 169 (2010)

DLT 301, observed that the learned Additional Rent Control Tribunal went wrong in holding that the petitioner being owner only of a part of the premises could not have filed the eviction petition unless she was joined by her husband, who was a joint owner of the premises. Even otherwise, it is settled law that the court can take into account subsequent events and in this case, the petitioner's husband had died soon after filing of the petition and she became the owner of not only in her own right but as legal heir of her husband of the remaining portion of the premises. Learned Additional Rent Control Tribunal could not have ignored this fact.

(ii) In Yashpal v. Chamanlal Sachdeva, 129 (2006) DLT 200, it was held that a co-owner can maintain a petition and that the inter se arrangement between owners is no business of the tenant.

(iii) In India Umbrella Manufacturing Co. v. BhagabandeiAgarwalla

(Dead) by L.R.s, AIR 2004 Supreme Court 1321, the Supreme Court observed that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners and this principle was based on doctrine of agency. One co-owner filing a suit for eviction against the tenant does so, on his own behalf in his own right and as an agent of the other co-owners. The consent of other co-owners is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenant.

(iv) In Col. Inderjeet Singh v. Mr. Vikram Singh, 194 (2012) DLT 209, it was observed that it is a settled principle of law that one of the co-owners can file a suit for eviction of tenant in a property generally owned by the co-owners. (also see India Umbrella Manufacturing Co. v. BhagabendeiAgarwalla (Dead) by LRs Smt. Savitri Agarwalla AIR 2004 SC 1321, paragraph 6 cited Sri Ram Pasricha v. Jagannath, 1977 1 SCR 395; Dhannalal v. Kalawatibai, AIR 2002 SC 2572). A co-owner filing a suit for eviction does so on his own behalf and in his own right and as an agent of other co-owners. The consent of other co-owners is assumed to be taken unless, it is shown that other co-owners were not agreeable to eject the tenant and the suit was filed in disagreement. In the present case, the suit was preferred by the plaintiff himself. One of the co-owners, cannot withdraw his consent so as to prejudice the other co-owner. The suit once filed, the rights of the parties stand crystallized on the date of the suit and the entitlement of the co-owners to seek ejectment must be adjudged by reference to the date of institution of the suit. (See also Mohinder Prasad Jain v. Manohar Lal Jain, AIR 2006 SC 1471, paragraphs-7 & 8).

(v) In Sri Ram Pasricha v. Jagannath, AIR 1976 SC 2335, it was observed that jurisprudentially, it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place. It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the meaning of Section 13(1)(f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of Section 13(1)(f) as long as he is a co-owner of the property being at the same time the acknowledged landlord of the defendants.

(vi) In Sheikh Mohd Zakir v. Shahnaz Parveen, 2012 (2) RCR (Rent) 235, it was observed that in the suit between the landlord and tenant, a third person claiming to be co-owner of the property cannot intervene as the issue of ownership could not be decided in the proceedings under the DRCA…… It is not necessary that all co-owners need to file the petition for eviction.

(vii) In Krishan Lal v. Rajan Chand Khanna, AIR 1993 Delhi 1, it was observed that being a heir, the person will be one of the co-owners of the property and as such will be entitled to file the eviction petition under Section 14(1)(e) of the Act.

(viii) In Fibre Bond (Sales) Pvt. Ltd. v. Smt. Chand Rani, 1993 (1) RCR

492 it was held that widow, a co-landlady of the premises can initiate eviction proceedings against the tenant in absence of other co-owners.”

27. In view of the aforesaid, there is no merit in the present petition and the same, along with pending application, is accordingly dismissed, however, with no orders as to costs.

SACHIN DATTA, J JANUARY 11, 2023/ssc/cl