Shri Abdul Waheed Thr. Legal ... vs Abid Hassan
2014 Latest Caselaw 106 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                 Date of Decision: 06.01.2014
+        RC.REV. 4/2014 & CM APPL. 95-97/2014

         SHRI ABDUL WAHEED THR. LEGAL REPRESENTATIVES
         RIYAZUDDIN & ORS.                        ..... Petitioners
                      Through: Mr.Prabodh Kumar, Advocate
                      Versus

         ABID HASSAN                                            ..... Respondent
                           Through:     None.

         CORAM:
         HON'BLE MR. JUSTICE NAJMI WAZIRI

NAJMI WAZIRI, J. (Oral)

1. This petition impugns the order dated 17.10.2013, whereby the petitioner's application for leave to defend was dismissed and an eviction order with respect to the tenanted premises. The respondent/landlord had filed a petition under Section 14(1)(e) read with Section 25B of the Delhi Rent Control Act, 1958 (the Act) for requirement of premises for bona fide need.

2. It was the case of the landlord that the premises are owned by him.

Admittedly the property was let out by his father to the petitioner/tenant. The property was purchased by the father of the landlord/respondent from the Custodian of the Evacuee Property in an auction sale dated 10.12.1960 and a Sale Certificate was issued by the Managing Officer, Evacuee Property and that the Custodian had given the numbers as 16 and 17 to the said property.

Subsequently Municipal No.253, Khureji Khas, Delhi was assigned to the property. After the demise of the landlord's father, viz. late Mr. Mohd. Hasan, his legal heirs and late Mr. Hasan's brother namely Mr. Ali Hasan divided the property by virtue of a written family settlement dated 16.7.2009.

3. The case of the landlord was that in all of Delhi he has no commercial space other than the shop occupied by the tenant whereas the tenant has a number of other shops including shop No.383, Khureji Khas; one shop bearing No.250, Main Road, Khureji Khas, Delhi and premises No.14, New Brijpuri, Delhi. He had also filed photographs to show that the premises were lying vacant. The landlord contended that there was no bakery shop being run by the tenant from the tenanted premises and in fact, it was lying vacant and to prove this he has filed photographs on record. He claimed that he needed the tenanted premises for his bona fide need. The petitioner/tenant is said to be a chronic defaulter and accordingly a petition under Section 14(1)(a) of the DRC Act was filed, which was dismissed, however, an appeal against the said order is pending disposal.

4. In the application for leave to defend the tenant argued that there was no bona fide need; that the eviction petitioner was not the owner of the property; that the land was part of a village pond and that pond was filled up when the father of the landlord was the Village Pradhan and the suit property came up thereon which was identified as Nos.16 & 17, Khureji Khas, Delhi; that the municipal No.253, Khureji Khas was assigned to the suit property did not

match with property Nos.16 & 17 alleged to have been purchased in an auction by the Custodian; that one Shri Aflatoon (deceased) colluded with the eviction-petitioner to benefit the latter; the alleged family settlement too did not show plot Nos.16 & 17 nor did it show Municipal property Nos.253, 254 and 255, Khureji Khas; that widowed mother Smt. Varisa Begum was receiving the rent after the death of Shri Mohd. Hasan and the landlord/respondent had never received rent from the petitioner- tenant; that the eviction petition was motivated primarily by avarice and to re-let it out at a higher rent; that the eviction petitioner had admittedly a very small family and his alleged requirement of opening a kirana shop was a mere sham because there were other alternate suitable accommodation available of 250 sq.yds. of land property No.254, Khureji Khas; that the eviction- petitioner was a compounder with Dr. Santosh Dixit at Parwana Road, Delhi. Therefore, the tenant contended, that it was clear that the landlord did not require the premises and that there were sufficient triable issues raised in the application seeking leave to defend. The tenant further contended that he was about 50 years old and earning his livelihood through a bakery shop from the tenanted premises; that he denied ownership of property No.383, Khureji Khas, Delhi but admitted ownership of House No.320, built over an area of 300 sq.yds., which is built as his residence; that shop No.350 was taken on rent wherefrom the bakery business was run by his son Riazuddin.

5. In his reply, the landlord/respondent denied ownership of all the

other properties mentioned by the tenant; he has submitted that he was not in the employment of Dr. Santosh Dixit for over three (3) months; that he had left the employment of Dr. Santosh Dixit and was unable to find any other job to earn a livelihood; that he required the tenanted premises for his family comprising his wife and two school going sons and himself, for starting a kirana shop in it; that he expected the shop to do well since it was in a thickly populated area.

6. The Trial Court took into consideration the authorities relied upon by the petitioner, i.e. Rajender Kumar Sharma & Ors. v. Leela Wati & Ors. (1) 155 (2008) DLT 383; State of A.P. & Ors. v . D. Raghukul Pershad (D) by Lrs. & Ors. 2012(4) Civil Court Cases 129 (SC); Rakesh Sud v. Arun Kumar Gupta 189 (2012) DLT 161; and Sunil Kumar v. Madan Gopal Suri 2009 (3) Civil Court Cases 107 (P&H).

7. The Trial Court then concluded that the petitioner/tenant had himself categorically and unequivocally terms admitted that the suit/tenanted premises had been let out by the landlord, the late Shri Mohd. Hasan, the father of the landlord about 40 years back at a monthly rent of Rs.700/- and after the demise of late Shri Mohd. Hasan Smt. Varisa Begum, the widow mother of the petitioner was receiving the rent. Therefore, in the light of the abovesaid admission on the part of the tenant it could not be said that the property belonged to Gaon Sabha pond which was filled up by the father of the landlord. Accordingly the Trial Court held that the issue of boundaries of plot Nos.16 & 17 not matching with the

boundaries of the suit shop cannot be countenanced.

8. Insofar as the eviction petitioner's submission that he left his employment as a compounder with Dr. Santosh Dixit 3-4 months earlier to the filing of the eviction petition and that he was unemployed, there was nothing on the record to the contrary to disbelieve this contention, hence the Trial Court found it not to be a triable issue. The Trial Court also did not find any triable issues apropos the various properties mentioned by the tenant to be either owned or being available as suitable alternate accommodation. Therefore, it held that there was bona fide need made out and the eviction order is passed.

9. The learned counsel for the petitioner has raised the same contentions before this Court as were raised in the application for leave to defend. This Court is unpersuaded by any of the contentions inasmuch as the ownership of the property could not be challenged by the tenant who had already admitted to the tenancy. Furthermore, the tenant is nobody to question the family settlement between the relatives of the landlord. The property has been shown to have been purchased in an auction from the Custodian of Evacuee Property through Certificate of Sale dated 10.12.1960. There is admission of payment of rent to Smt. Varisa Begum. However, there was nothing brought on record by the tenant to support this contention. It was, however, denied that Smt. Afsari Begum or Smt. Varisa Begum were receiving rent nor did they claim any right over the suit property. It is only because of non-payment of rent to the eviction-petitioner that a petition

under Section 14(1)(a) of the DRC Act was filed. The tenant having admitted to the tenancy with the father of the landlord and the eviction-petitioner having shown his inheritance of the property through a family settlement, has clearly shown a better title than the tenant. Other than questioning the title which he otherwise could not have, in view of the clear admission to the tenancy with the father of the eviction petitioner, the petitioner has not shown any other suitable alternate property which could be said to be available to the eviction-petitioner. Whereas the landlord has shown that he is not the owner of any other property. Since the requirement of Section 14(1)(e) of the Act had been met, the logical sequiter was the passage of the eviction order.

In view of the preceding discussion it is evident that no triable issues were raised which could warrant the grant of leave to defend to contest the eviction petition. The reasons for the findings and the conclusion arrived at in the impugned order are based on the record and are plausible in law.

This Court finds no reason to interfere with the impugned order. Accordingly the petition is dismissed as being without any merit.

NAJMI WAZIRI (JUDGE) JANUARY 06, 2014 /nk