Archies vs Sanjeev Khandelwal & Anr
2012 Latest Caselaw 1087 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         Date of Judgment: 16.02.2012.
+            RC.REV. 390/2011 & CM No.18056/2011

ARCHIES                                           ..... Petitioner
                            Through   Mr. Harish Malhotra, Sr.
                                      Advocate with Mr. Tanmay
                                      Nagar, Adv.
                   versus

SANJEEV KHANDELWAL & ANR                ..... Respondents
                Through  Mr. Pravir K. Jain, Adv.

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1 The impugned judgment is dated 08.06.2011. The eviction

petition filed by the petitioners namely Sanjeev Khandelwal and Charu

Khandelwal claimed to be the owners/landlords of the suit property

seeking eviction of their tenant M/s Archies from the suit premises

which was on the ground floor of property bearing No. 4714 Dayanand

Road 21, Darya Gang, New Delhi in eviction proceedings under Section

14 (1)(e) of the Delhi Rent Control Act (DRCA) had been decreed in

their favour. The application seeking leave to defend filed by the tenant

had been dismissed.

2 The eviction petition discloses that there are two petitioners

(hereinafter referred to as the landlords) who had filed the petition.

Contention was that the premises were initially owned by the

grandmother of landlord No. 1 namely Smt. Suraj Mukhi Khandelwal

who in terms of a registered Will dated 11.12.1997 executed by the

deceased had bequeathed this entire property to petitioner No. 1. The

respondent was a tenant of the erstwhile landlord namely Smt.Suraj

Mukhi Khandelwal. There is no dispute to this position. Suraj Mukhi

Khandelwal had died on 06.02.2000. A suit for injunction and

declaration was thereafter filed by the present landlords seeking

payment of rent by the tenant in their favour; in the course of these suit

proceedings, a compromise was arrived at inter-se between the family

members on 16.04.2004 and in terms of this compromise the portion

shown in green colour in the site plan Ex. C-1 on the first floor and the

second floor of the property bearing No. 4712-14 Dayanand Road 21,

Darya Ganj, New Delhi had fallen to the share of the present landlords;

the portion shown in blue colour in the said site plan had fallen to the

share of mother and brother of petitioner No. 1; the tenanted portion red

on the ground floor had also fallen to the share of the present petitioners.

This was in terms of a compromise decree dated 16.04.2004. Copy of

the aforenoted compromise dated 16.04.2004 is a part of the record;

there is no dispute to these averments which have been substantiated

from the aforenoted compromise decree. This submission of the landlord

is further substantiated by documentary evidence which is mutation

Sub-Division Letter dated 07.06.2004 and house tax payment receipts

which have been issued in the name of Saroj Khandelwal, the mother of

landlord No. 1 substantiating his submission that the blue colour portion

had fallen to the share of his mother in terms of the aforenoted

compromise. This has been clearly averred in the eviction petition. The

eviction petition further contends that because the parties wanted to

maintain cordial relations with one another, the petitioners (who were in

terms of the Will dated 11.12.1997 of the grandmother entitled to full

share in the property) had given up their right in the blue coloured

portion in favour of their mother Saroj Khandelwal and brother Rajiv

Khandelwal; the landlords continued to remain the owners of the green

coloured portion on the first and the terrace floor as depicted in the site

plan; red colour portion with the tenant had also fallen to their share.

Further contention of the landlord is that the accommodation presently

available with the landlords is insufficient; the family of two petitioners

comprises of themselves as also their adult daughter; they are three

persons; present accommodation available with them on the first floor is

only two rooms of which in one room along with the terrace, a beauty

parlour is being run by landlord No. 2 since last 11-12 years under the

name and style of 'Jhalak'; the submission of landlord that his wife i.e.

landlord No. 2 is carrying out this work of a beauty parlour; there is no

business space with petitioner No. 1 to carry out his business; because of

compelling circumstances and lack of office space, he had in fact taken

up a private service which he had left in 2007 and had started his own

business in the name of 'Vasudha Impex' which was of sale of sanitary

pipes and fittings for plumbing and medical applications; he is carrying

out his business of 'Vasudha Impex' from the portion shown in 'X' in

the site plan i.e. a small portion of the verandah (measuring 9.9'X7.5'

feet on the first floor and as depicted in portion 'X') in the green colour

portion which was his share. To support this submission documents i.e.

the Central Sales Tax registration number of 'Vasudha Impex'; income

tax returns for three consecutive years ranging from 2004-2005, 2005-

2006 & 2006-2007 have also been filed showing that landlord No. 1 is

earning business income after the year 2007. Bank statement of

'Vasudha Impex' as also VAT returns also substantiate the submission

of petitioner No. 1 that the business of 'Vasudha Impex' is being carried

out from the portion X on the first floor of the aforenoted property. In

fact this has also not been disputed by the tenant; his submission being

that it is not petitioner No. 1 who is carrying on the business of

'Vasudha Impex' but it is his bua. Further contention of landlord No. 1

being that the place available with him is not sufficient for running his

office for the storage of goods which includes sanitary pipes which have

a standard length of 10 feet. Photographs substantiating this submission

are also a part of the trial court record.

3 The averments made in the application seeking leave to defend

have been perused. The vehement contention of learned counsel for the

petitioner is that the accommodation available with the landlord on the

first and second floor is sufficient to meet his needs; attention has been

drawn to the site plan; contention being that the compromise decree

(Ex.C-1) dated 16.04.2004 has in fact noted that the parties have not

made any physical partition wall demarcating their respective shares;

contention being that this by itself substantiates the submission being

made by the tenant that in fact even the blue coloured portion is in use

and occupation of the landlords. Further contention being that the

brother and mother of landlord No. 1 are in fact residents of Bikaner,

Rajasthan. The corresponding para of the reply filed by the landlord has

been perused wherein it is stated that his brother is working with an

NGO in Rajasthan for which has to attend to his work in Rajasthan;

vehement submission of learned counsel for the landlord in his reply

that the mother at all times live in this blue colour portion to which there

is no denial. Even assuming that the brother of petitioner No. 1 is away

for period of time for work purposes in Bikaner Rajasthan and even if

there has been no physical partition wall made between the blue and

greet coloured portion, it does not mean that there is a right which has

arisen in favour of the landlords to use the area by their brother and

mother and which is admittedly their share. A partition wall has not

been made only to maintain cordial atmosphere between the families of

two brothers and in fact this has been noted in the compromise decree

itself. Thus this submission of the petitioner that the accommodation in

the blue colour on the first and second floor is also a part and parcel of

the accommodation of the landlords is an argument which is bereft of

any merit.

4 The green coloured portion shows that there are only two rooms

on the first floor and there is no construction on the second floor in the

green coloured portion which is the share of the landlords. Out of two

rooms on the first floor, one room is being used as beauty parlour by

petitioner No. 2 which is portion mark 'Y' and extended verandah in

front of room 'Y' is also being used for the said purpose. A fact that the

beauty parlour is being run by landlord No. 2 has in fact been admitted

by the tenant himself. The fact that the business of 'Vasudha Impex' is

carried out from the portion mark 'X' on the first floor in the green

colour has not been disputed by the tenant; this has been admitted. The

only contention being that this business is not the business of landlord

No. 1 but it is being run by his Buha. This is negatived by the

documentary evidence which has been placed on record by petitioner

No. 1 reflecting the bank statement of 'Vasudha Impex'. The VAT

returns as also income tax returns filed by the landlord showing his

business income which is reflected in this aforenoted returns. The

Central Sales Tax Registration Certificate granted under the Central

Sales Tax (Registration and Turnover) Rules, 1957 is also a document

which has been filed by the landlord along with his eviction petition.

This document shows that the business of 'Vasudha Impex' is the

business of sanitary pipes, sanitary fitting, sanitary tubes, pipe and

fitting for medical applications.

5 The next argument of the learned counsel for the petitioner/tenant

is that the MCD does not permit a godown to be functional from the

ground floor of Darya Ganj and this is evident from the answer which

the petitioner had received to his query raised under the RTI Act;

attention has been drawn to this communication dated 22.01.2010 which

states that property bearing No. 4712-14 Dayanand Road 21, Darya

Ganj, New Delhi where a sanitary godown is not permissible;

submission of the petitioner being to the effect that a sanitary godown is

not permitted in the portion of the premises of which the eviction has

been sought by the landlord. Thus it cannot be said that this is a

bonafide need and this in fact raised a triable issue. In this context, the

certification of registration under the Sales Tax Authority as noted supra

is relevant; it clearly states that the business of 'Vasudha Impex' is

sanitary pipes, sanitary fitting, sanitary tubes, pipe and fitting for

medical applications; the requirement of the landlord as is evident from

the eviction petition is not only for the purpose of storage of these goods

which includes goods for medical applications but also for the purpose

of an office space for business space which in terms of the eviction

petition is clearly falling short and there is no other space available for

the petitioner except the portion 'X' in his green colour portion of the

site plan. Moreover even as per the answer to the RTI query this is Mix

Use Commercial Street (MSCS) which would be both a residential and

commercial purpose; the requirement of the landlord in terms of his

eviction petition is for an office space which is admittedly a permissive

user. Thus this submission of the petitioner is also without any merit; it

does not raise any triable issue.

6 Last submission raised by the petitioner is bordered on the

provisions of Section 14 (6) of the DRCA.

7 Section 14 (6) of the DRCA reads as under:-

"Section 14 (6):- Where a landlord has acquired any premises by transfer, no application for the recovery of possession of such premises shall lie under sub- section (1), on the ground specified in clause (e) of the proviso thereto, unless a period of five years have elapsed from the date of the acquisition."

8 The emphasis is on the word 'transfer'; acquisition should be by

way of transfer. To substantiate this submission learned counsel for the

petitioner has placed reliance upon the provision of Section 5 of the

Transfer of Property Act where the definition of 'transfer of property'

has been contained; reliance has been placed upon a judgment of this

Court reported in ILR (1984) I Delhi 913 Nand Lal Patel Vs. Shiv Saran

Lal & Others; attention has been drawn to para 57 to substantiate an

argument

„that partition is a mixture of surrender and conveyance and may fall within the definition of the words „transfer of property‟ in Section 5 if strictly construed‟;

9 Even if this provision is strictly construed, the instant case is

clearly not a case of transfer. The averments made in the eviction

petition state that the original owner of these premises was Suraj Mukhi

Khandelwal, the grandmother of petitioner No. 1 who had in terms of

her Will date 11.12.1997 bequeathed the entire property to her grandson

i.e. petitioner No. 1. Thereafter in terms of a compromise dated

16.04.2004, petitioner No. 2 had agreed to give up a part of this whole

property which has fallen to his share in terms of the Will; the blue

coloured portion had been given up in favour of his mother and brother;

it is not his case that the petitioners for the first time had acquired this

property. Eviction petition has been filed in 2008; even on a strict

construction of Section 14 (6), this bar does not come in the way qua the

present landlord. In fact the whole purpose of engrafting this provision

in the statute was to keep a check on those landlords who had got

evictions effected from their tenants with ulterior reasons; it was with a

view to check this menace that this provision had been engrafted to

safeguard the interest of the tenant. In the instant case, after the death of

original owner on 06.02.2000, landlord No. 1 become entitled to a share

in the property; whether it was by intestacy or by Will; even if there was

no Will, he would have received a share in the property by way of

inheritance; the facts of this case do not qualify or come within the

mischief of Section 14 (6) of the DRCA. Provisions of Section 14 (6)

are clearly not applicable.

10 In 1972 RCR 924 Nand Kaur Vs. Pandit Taleshwar Ji, it was

inter-alia held as under:-

" The transfer referred to in sub-section (6) of section 14 of the Act cannot be considered to include the case of relinquishment by a co-owner in favour of the other co-owners. The appellants were co-owners of the said property along with the said three married daughters of Balwant Singh. The property had not been

partitioned between them by metes and bounds. They were, therefore, owners of the entire property in proportion to their shares. Which the relinquishment executed by the aforesaid three married daughters of Balwant Singh, the appellants became full owners of the entire property. This cannot be said to be a transfer of the nature contemplated by sub-section (6) of Section 14 of the Act. The contention of the learned counsel, therefore, is without any substance."

11 Judgment of Nand Lal Patel (supra) is inapplicable.

12 The bonafide requirement of the landlord has been established;

this is clearly averred in the eviction petition; accommodation presently

available with the landlords is falling short; details have been detailed

supra ; there are two rooms in the first floor of which in one portion i.e.

portion 'X' is the area business from where landlord No. 1 is being run;

from the portion mark 'X' & 'Y' beauty parlour of landlord No. 2 is

being run; the family is thus left with only one room on the first floor;

the family comprises of three adult persons i.e. two petitioners and their

adult daughter. There is no construction on the second floor. There is

also no other accommodation available with the said landlords. The

tenanted premises which are the ground floor has a huge area and is thus

bonafide required by the petitioner for running the business of landlord

No. 1 as he has no other space to run his business of 'Vasudha Impex';

business of sanitary pipes, sanitary fitting, sanitary tubes, pipe and

fitting for medical applications is not a prohibited user in terms of the

RTI answer dated 22.01.2010; it is a mix land use which has not

prohibited storage purpose of medical applications.

13 All the ingredients of Section 14 (1)(e) of the DRCA stand

established. No triable issue has been raised by the tenant entitling him

to leave to defend. The tenant unless and until sets up a prima face

defence cannot in a routine or a mechanical manner be granted leave to

defend otherwise the very purport of Section 25-B of the DRCA which

is the summary procedure depicted for a special class of landlords would

be defeated and this was not the intent of the legislature. Impugned

judgment decreeing the eviction petition in these circumstances suffers

from no infirmity.

14    Petition is without any merit. Dismissed.




                                             INDERMEET KAUR, J
FEBRUARY 16, 2012
A