Delhi High Court

Mobin vs Kausar on 5 March, 2012

Author: Indermeet Kaur

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment: 05.3.2012


+                  RC. REV. No.258/2011

MOBIN                                          ..... Petitioner
                            Through:   Mr.S.D.Ansari, Advocate.

                   versus

KAUSAR                                          ..... Respondent
                            Through:   Mr.Salim Malik, Advocate.


      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1. Impugned judgment dated 17.01.2011 has decreed the eviction

petition filed by the landlord. The application seeking leave to defend

filed by the tenant had been dismissed.

2. Record shows that the present eviction petition has been filed by

the landlord Kausar against her tenant Mobin; premises is a shop being

a part of house No.410, Gali no.19, Main Jafrabad, Delhi; it was an oral

tenancy; rate of rent was `500/- per month excluding other charges.

Petitioner claims herself to be the absolute owner of the suit property;

her contention is that she has three sons and two daughters; elder son

Faimuddin aged about 38 years, having two children is doing the sale of

jackets and coolers at Nala, Main Road, Jafrabad, Delhi; this is a

THIYA and the MCD officials at any time come to his working place

and remove his THIYA; this is only the business space available with

the elder son of the petitioner and the entire family is surviving on this

business; her second son Suhaib is also working with his elder brother;

he is also married and has one child; her third son Salman is studying;

husband of the petitioner is a heart patient. The entire family expenses

are being borne out by Faimuddin; there is no other source of income

available with the family of the petitioner except the present business

which is being carried out by the two sons of the petitioner and which at

a temporary place. The present premises i..e the tenanted shop is

required bonafide by the petitioner for the use of the business purpose of

her two sons. Eviction petition was accordingly filed.

3. In the application seeking leave to defend the ownership of the

landlady was disputed; it was denied that there was a relationship of

landlord and tenant between the parties; contention being that there was

a sufficient commercial accommodation available with the landlady;

there are six shops in property No.410, Main Road, Jafrabad, Delhi of

which five shops are in possession of other tenants and one shop is with

Faimmuddin (elder son of the petitioner) from where he is carrying out

the aforenoted seasoned business; family of the petitioner is also doing a

business of rickshaws; they have 150 rickshaws and they are running

their business from Gali No.4, Near Shamshan Ghat, Kabir Nagar,

Delhi; they also have commercial properties in Delhi, Loni and Bho

Pura, Ghaziabad. The present eviction petition has in fact been filed

malafidely; it is liable to be dismissed.

4. Reply filed by the landlady to the corresponding averments made

in the application for leave to defend have been noted. The averments

qua the family status have been reiterated. It is reiterated that the

petitioner is the owner and landlord of the aforenoted suit premises

which form a part of property bearing No.410, Gali no.19, Main

Jafrabad, Delhi. Contention was that earlier the suit property was

measuring 50 sq. yards; 15 sq. yards of the property was demolished by

the MCD and only 35 sq. yards now remains with the plaintiff; it was

denied that the petitioner's family is doing business of rickshaws from

Gali no.4, Shamshan Ghat; it was explained that the devar (brother-in-

law) of the petitioner namely Fakhruddin has a rickshaw garage and he

runs the same from the aforenoted address; thus has nothing to do with

the petitioner and her family; they have no other commercial

accommodation as has been alleged.

5. Record has been perused. The documents placed on record i.e.

the sale deed dated 16.7.1969 in favour of father-in-law of the petitioner

Maqbool Khan shows that a piece of land measuring 100 sq. yards in

Khasra No.92, Village Jazafrabad, Illaqa Shahdara, Delhi-63 had been

purchased by Maqbool Khan. He had died intestate; vide

relinquishment deed dated 25.9.1991 the legal heirs of late Maqbool

Khan had relinquished their shares in favour of Fakhruddin who is the

younger son of Maqbool Khan. A GPA dated 30.8.2000 has been

executed by Fakhruddin qua the property measuring 50 sq. yards (out of

100 sq. yards) of the aforenoted property; 15 sq.yards of land has since

been demolished by the MCD and the present land which is now owned

by the petitioner is only 35 sq. yards. This has been explained in the

aforenoted documentary evidence. The suit shop with the tenant is

measuring approximately 48 sq. feet which is clear from the site plan;

the identity of the suit shop is also not in dispute; two rent receipts

issued by Samsuddin (husband of the present petitioner) in favour of the

landlady shows that the petitioner has in fact attorned to the landlady; he

is paying rent to her; thus in the aforenoted factual scenario the trial

court had rightly drawn the conclusion that the status of the

landlord/owner is prima facie established. A petition under Section

14(1)(e) of the DRCA is even otherwise not a title suit; a prima facie

right/title of the landlord has to be shown; a mere bald denial by the

landlord denying the relationship of landlord and tenant and

questioning the ownership of the landlord is meaningless.

6. Landlord is also the best judge of his need and how and in what

manner he should live or earn his livelihood is his prerogative alone. In

Prativa Devi (Smt.) Vs. T.V. Krishnan reported in (1996)5SCC353 it

was noted:-

"The landlord is the best judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own."

7. The need of the landlady for the present shop is to enable her two

sons i.e. the elder son Faimuddin and the second son Suhaib to carry on

the business of coolers and jackets which is being run from a THIYA;

MCD officials come and disturb this business at any odd time has not

been disputed. There is also no specific denial to the submission made

by the landlady that this business is the only business which is being

carried out by her son Faimuddin. The landlady has clearly explained

that the five shops mentioned in the application for leave to defend do

not belong to her; she is the owner of only 50 sq. yards out of which 15

sq. yards already stand demolished. This submission has also been

substantiated by documentary evidence; she thus having only 35 sq.

yards of land in which the tenanted shop (measuring 48 sq. feet) is

located. The landlady has also explained that the business of rickshaw

is being run by her brotherin-law from Kabir Nagar, Delhi; she has

categorically denied that she owns any property in Delhi or Ghaziabad.

Mere bald allegation made by the tenant that the landlady is the owner

of these aforenoted properties or business would not in any manner raise

any triable issue.

8. The Courts time and again have held that unless and until a triable

issue arises leave to defend should not be granted in a routine or in a

mechanical manner.

9. In Nem Chand Daga Vs. Inder Mohan Singh Rana 94 (2001) DLT

683, a Bench of this Court had noted as under:-

"That before leave to defend is granted, the respondent must show that some triable issues which disentitle the applicant from getting the order of eviction against the respondent and at the same time entitled the respondent to leave to defend existed. The onus is prima facie on the respondent and if he fails, the eviction follows."

10. In (1982) 3 SCC 270 Precision Steel & Engineering Works &

another Vs. Prem Devi Niranjan Deva Tayal the Apex Court has held

that the prayer for leave to contest should be granted to the tenant only

where a prima-facie case has been disclosed by him. In the absence of

the tenant having disclosed a prima-facie case i.e. such facts as to what

disentitles the landlord from obtaining an order of eviction, the Court

should not mechanically and in routine manner grant leave to defend.

11. The family members of the landlady are not in dispute; the fact

that the family of the petitioner is dependent upon the income being

generated from the business of Faimuddin, who is the elder son of the

petitioner, who is carrying on the business of sale of jackets and coolers

along with the assistance of his younger brother is also not disputed.