Suresh Chand Jain vs Godavari Devi Jeswani & Ors
2016 Latest Caselaw 2772 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                   Judgment reserved on : 31.03.2016.
                   Judgment delivered on : 08.04.2016.

+      CM(M) 1116/2014 & Crl.M.A. No.3578/2015
       SURESH CHAND JAIN                          ..... Petitioner
                      Through     Mr.S.S.Jain and Mr. Nikesh Jain,
                                  Advocate.
                      versus
       GODAVARI DEVI JESWANI & ORS                ..... Respondents
                      Through     Dr.Sarabjit Sharma, Ms.Shidhika
                                  Verma      and  Ms.        Priamvada,
                                  Advocates.

+      CM(M) 1117/2014 & Crl.M.A No.3514/2015
       SURESH CHAND JAIN                         ..... Petitioner
                      Through    Mr.S.S.Jain and Mr. Nikesh Jain,
                                 Advocate.
                      versus
       GODAVARI DEVI JESWANI & ORS'              ..... Respondent
                      Through    Dr.Sarabjit Sharma, Ms.Shidhika
                                 Verma      and  Ms.        Priamvada,
                                 Advocates.

+      RC.REV. 230/2015
       SURESH CHAND JAIN                                         ..... Petitioner
                       Through                Mr.S.S.Jain and Mr. Nikesh Jain,
                                              Advocate.
                   versus
       RAJENDER KUMAR & ANR                   ..... Respondents
                   Through  Mr.H.K.Gangwani, Advocate

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR




C.M. (M) Nos 1116/2014 & 1117/2014 & RCR No. 230/2015            Page 1 of 18
 INDERMEET KAUR, J.

1 The petitioner before this Court is Suresh Chand Jain. He claims

himself to the owner and the landlord in all the aforenoted three petitions.

Two of the suit properties have been tenanted out to a tenant namely

Godavari Devi Jeswani & Others. The third tenant is Rajender Kumar and

another. The suit premises qua the tenancy of Godavari Devi Jeswani &

Others is shop Nos. 3911 & 3912, Gali Barna, SAdar Bazar, Delhi-110006.

The third tenanted shop i.e. qua the third tenant Rajender Kumar is shop

No.3910 forming part of the same property i.e. Gali Barna, Sadar Bazar,

Delhi. A perusal of the site plan in fact shows that all these three shops are

adjacent and adjoining one another. All of them face a front façade i.e. a road

measuring 25.6 feet.

2 On 14.10.2014, vide two impugned judgments, leave to defend had

been granted to the tenant Godavari Devi Jeswani & Others qua thw shop

Nos.3911 & 3912. The Trial Court was of the view that triable issues have

arisen. The third judgment is the judgment dated 10.03.2015. In this case

also, the Additional Rent Controller (ARC) was of the view that the triable

issues have arisen and leave to defend had been granted qua shop NO. 3910

as well.

3 The first two petitions i.e. the petitions qua the tenancy of Godavari

Devi Jeswani & Others were heard and reserved for orders. The third petition

i.e. qua the tenancy of Rajender Kumar and Another was heard at a later date

but also reserved for orders. All these three petitions shall now be decided by

this common judgment.

4 The landlord Suresh Chand Jain has made common averments in all

the three eviction petitions. In C.M. (M) No.1116/2014, the shop No. is

3912. It is a non-residential property. The need of the landlord has been

descrbed in para 18. The landlord has stated that he is the owner of the suit

premises. The same has been let out to the respondent-tenant for non-

residential purposes. It is bonafide required by the petitioner for running

business of sanitary ware/tiles by his son. Submission being that apart from

shop No. 3912, he also requires the adjoining and adjacent shops i.e. shops

No.3910 & 3911 as also a portion of property bearing No.3908 (at theback

side) for running the business which his son is already doing from Mangol

Puri but being a rented accommodation at Mangol Puri, he now wants the

present premises from which he wishes to carry out his business. Submission

being that the petitioner has two sons namely Nitesh Jain and Nikesh Jain.

These premises are required for his elder son Nitesh Jain aged 36 years and

as noted supra, he is already running a shop of sale of tiles and sanitaryware

from a rented accommodation at 70/1/1, Marble Market, Mangolpuri Kalan,

Rohini Delhi. He is carrying out this business for the last several years. It is

under the name and style of M/s Vardhman Tiles. That shop has been taken

on rent at a rate of Rs.6,000/- per month. A godown has also been taken for

the purpose of storage for which a monthly rent of Rs.9,500/- is being paid.

Tehse rented premises at Mangol Puri from where his elder son is carrying

out his business is about 16 kilometeres away from Sadar Bazar where the

parties are residing. The landlord and his family including his son Nitesh

Jain are living in property bearing NO. 3760-61, Gali Barna, Sadar Bazar,

Delhi. The present property i.e. shop No. 3912 when co-joined with the other

shops No. 3910 & 3911 (for which separate eviction petitions have been

filed) would enable the son of the petitioner to have an area of about 800-900

square feet which would be adequate for the purpose of carrying on his

business. Shop No. 3908 (for which a separate eviction petition has also been

filed) which is on the backside would be suitable for storage purposes. The

son of the petitioner is presently carrying on his business from the rented

accommodation which beside the fact is far from his place of residence, even

otherwise is not suitable as the area is much smaller; the shop at Mangol Puri

measures 300 square feet. The present premises are accordingly required for

the bonafide need of his son who is dependent upon his father for his need

for accommodation. Submission being that this property being located in

Sadar Bazar which is a well known market for wholesale and retail business

would be a viable suitable accommodation for the purpose of carrying on

business by Nitesh Jain; the petitioner-father also has necessary funds for

enabling his son to do this business. The petitioner has also no alternate

suitable accommodation for enabling his son Nitesh Jain to carry out this

business of sanitary ware which he is carrying on from a rented place. The

eviction petition further discloses the other properties which are owned by

the petitioner. It is stated that shop No. 3913 is also owned by him it is a

staircase leading from the ground floor to first and second floors of the suit

property; this portion consists of three room, a kitchen and a bathroom has

been let out to the erstwhile tenant namely Parduman Kumar Jain and after

his death his legal heir Anil Jain is in occupation of the same. The second

floor of the suit property is in occupation of one Gian Chand Jain. The

eviction petition further discloses that the wife of the petitioner Nisha Jain is

the owner of the property No. 7036-7041, Gali Tanki Wali, Mandi Ghass,

Pahari Dhiraj, Delhi and the same have been tenanted out.

5 These facts as disclosed in the present eviction petition are almost

verbatim the facts which are disclosed in the corresponding eviction petitions

i.e. C.M.No.1117/2014 & R.C.R. No.230/2015.

6 Separate applications seeking leave to defend were filed by all the

tenants. In C.M.(M) No.1116/2014 and C.M.(M) No.1117/2014, the tenant is

common namely Godavari Devi Jeswani & Others who is in occupation of

shop Nos.3911 & 3912.

7 The site plan depicts that both these shops are adjacent to one another.

The area of shop No. 3911 comprises of about 500 square feet; the area of

shop No.3912 is approximately 150 square feet. The portion of this shop

(No.3912) is encumbered by the staircase which has a separate municipal

No.3913. The site plan further shows that shop No.3910 is immediately

adjoining shop NO.3911. Shop No.3908 opens out on the back lane. The

back lane is about 6 feet wide. There is no dispute to these facts.

8 The two applications seeking leve to defend filed by Godavari Devi

Jeswani & Others has raised identical issues. Submission is that the landlord

has failed to prove that he is the owner of the suit property. He is claiming

his ownership on the basis of a Will of Ajit Prasad Jain and Chander Wati.

The tenant Godavari Devi Jeswani & Others was paying rent to Chander

Wati and the rent receipts issued by her in December, 1978 (filed in the trial

Court) clearly show that Chander Wati had signed her name in Hindi. The

Will of Chander Wati pursuant to which the landlord is now claiming

ownership in the suit property is thumb marked; this document is suspicious

as Chander Wati having signed all the rent receipts till the year 1978, it

would be difficult to believe that in 1980 when this Will was prepared, she

was not in a position to sign it but merely thumb mark on it. This raises a

serious doubt on the veracity of this document. The ownership of the

petitioner does not stand proved. This raises a triable issue. It is submitted

that the petitioner is admittedly an adopted son of Ajit Prasad Jain and

Chander Wati; attention has also been drawn to the adoption deed.

Submission being that although this is a registered document but it cannot be

looked into as the essential requirements of a valid adoption as contained in

Section 7 of the Hindu Adoption and Maintenance Act, 1956 (hereinafter

referred to as the 'HAMA') has not been adhered to. The consent of Chadner

Wati i.e. the mother of the petitioner had not been taken by her husband at

the time of the so called adoption. This also raises a triable issue. Evidence is

required.

9 The additional triable issue sought to be raised by the tenant in this

application seeking leave to defend is to the effect that the premises in

question is not required bonafide by the petitioner. The petitioner is aged 75

years of age and his elder son for whom this bonafide need has been

disclosed is 36 years of age and by no stretch of imagination, can it be said

that the son who is in his mid thirties would be dependent upon his father.

10 The application seeking leave to defend in C.M.(M) No. 1117/2014 is

also by and large on the same points. The same triable issue i.e. qua the

ownership of the landlord as also his bonafide need have been raised.

11 The question about the veracity of the Will of Ajit Prasad Jain and

Chander Wati (the parents of the landlord) has been raised; it is stated to be

fabricated. Attention has also been drawn to the rent receipts issued by

Chander Wati. Submission being that same which is to the effect that

Chander wati used to sign in Hindi and the Will carrying her thumb

impression clearly creates a doubt on the veracity of the document. The

bonafide need pleaded by the petitioner also appears to be not genuine as an

adult who is in his mid 30's carrying on his own business cannot qualify as

'dependent'upon his father.

12 Àrguments have been heard. Record has been perused.

13 The petitioner claims himself to be the adopted son of Ajit Prasad Jain

and Chander Wati. The adoption deed dated 28.01.1955 is a registered

document by virtue of which Ajit Prasad Jain had adopted the petitioner

Suresh Chand Jain as his son. Admittedly Ajit Prasad Jain had only one

daughter namely Gurkamal and he had accordingly adopted Suresh Chand

Jain not only pursuant to a ceremonial ritual but also by virtue of this

registered adoption document. This document at the cost of repetition is

dated 28.01.1955 and being prior in time to the enactment of the HAMA.

The provisions of Section 7 even presuming thave not been complied with

and the consent of Chander Wati had not been taken would not make this

deed invalid. That apart, there is nothing to suggest that Chander Wati had

not given her implied consent to this adoption. The enunciations contained in

this document do not support this version of the tenant. This document is not

assailable. The petitioner having established himself to be the adopted son of

Ajit Prasad Jain and Chander Wati not only became entitled to the

aforenoted properties by inheritance but as also under the testamentary law.

The petitioner has relied upon the Will of his father Ajit Prasad Jain dated

11.05.1969. This document is also registered. By virtue of this document,

Ajit Prasad Jain had given life interest in his property in favour of his wife

Chander Wati and after her death to the petitioner Suresh Chand Jain.

Chander Wati had thereafter executed a Will on 27.12.1981 by virtue of

which she had bequeathed all her properties both moveable and immoveable

to Suresh Chand Jain. This Will is admittedly thumb marked. Chander Wati

had expired on 04.07.1982 i.e. within less than six months of her having

executed this document.

14 The submission of the learned counsel for the respondent that till 1978

Chander Wati was signing in Hindi on the rent receipts being issued by her

and it is difficult to believe that at the time when she executed her Will, she

had thumb marked it which raises a doubt on the veracity of the document is

an argument noted to be rejected. Admittedly Chander Wati was in her mid

80's at the time when she executed her Will. Even presuming that she had

signed the rent receipts till December, 1978 but this Will had been executed

more than three years later i.e. on 27.12.1981. The rule of ageing is well

known; a person ages much faster in his later years as compared to his early

years and the submission of the learned counsel for the petitioner-landlord

that at the time when Chander Wati had executed the Will, she was not in a

position to pen her signatures is a submission which carries complete force;

there is no reason to dis-believe this submission. More so, it is noted that

within less than six months of execution of the Will, Chander Wati had

expired.

15 This Court notes that the tenant Godawari Devi Jeswani & Others had

disputed the Will of Chander Wati. The tenant Rajender Kumar and another

had disputed both the Wills i.e. of Ajit Prasad as well as of Chander Wati.

This Court is not in agreement with this submission of the learned counsel

for the respondents as the aforenoted documents cannot be made the subject

matter of challenge by the tenant who cannot deny and in fact does not deny

his status as a tenant in the suit property. The question of ownership sought

to be raised by him would not be crucial in an eviction petition filed under

Section 14(1)(e) of the Delhi Rent Control Act (DRCA). The law on this

aspect is clear.

16 The Apex Court in Kamaljit Singh Vs. Sarabjit Singh in Civil Appeal

No.8410/2014 had noted that the rule of estoppel as contained in Section 116

of the Evidence Act prevents the tenant who is in occupation of the premises

from denying the title of the landlord; once the jural relationship of the

landlord-tenant exists between the parties is proved, the concept of

ownership would fade into oblivion. The rule embodied in Section 116 of the

Evidence Act prevents the tenant in occupation of the premises from denying

the title of his landlord. This was the ratio laid down by the Apex Court in

the aforenoted judgment.

17 In another judgment of a Bench of this Court reported as 1995 RLR

162 Jiwan Lal Vs. Gurdial Kaur & Others while dealing with the concept of

ownership sought to be raised by the tenant, the Court has noted as under:-

"There is a tendency on the part of tenants to deny ownership in cases under

Section 14(1)(e). To test the substance of such a plea on the part of the

tenants the Courts have insisted that they should state who else is the owner

of the premises if not the petitioner. In the present case it is not said as to

who else is the owner. Further these cases under Section 14(1)(e) are not

title cases involving disputes of title of the property. Ownership is not to be

proved in absolute terms. The respondent does not claim the owner of the

premises."

18 On the question of the challenge laid to a Will by virtue of which the

landlord had become the owner of the suit property, a Bench of this Court in

Ravi Prakash Garg Vs. Jaswanit Singh Jaiswal in R.C.Rev.No.44/2012 had

noted that the tenant had no locus standi to challenge the Will by virtue of

which the property had been bequeathed in favour of the landlord.

19 This Court is thus of the considered view that this argument raised by

the respondent here is a cloud over the ownership of the landlord is an

argument which is worthy of no merit and the Trial Court having noted this

as a triable issue has committed a grave illegality.

20 At this stage, it would be relevant to note that the status of the landlord

has never been disputed. In fact in the application seeking leave to defend,

the status of the landlord has never been challenged; the only submission all

along being that the landlord is the owner of the suit property. In the very

first paragraph of the affidavit filed by Godavari Devi Jeswani & Others she

has admitted that she is the tenant in the aforenoted premises i.e. premises

No. 3911 & 3912 and the monthly rent has also been disclosed. In the

eviction petition qua the tenancy of Rejender Kumar and another, again the

concept of tenancy has also not been challenged. It is the status of the

landlord as the owner which has been challenged. The rent receipts which

are admitted documents and which have been relied upon by the tenant

himself and which have been placed on record clearly show that the rent was

being paid to Suresh Chand Jain. These rent receipts are of the years 1987

and 1988. They are also a part of this record and are not in dispute.

21     This argument thus raises no triable issue.





 22     The second triable issue noted by the Trial Court for which leave to

defend had been granted to the tenant relate to the bonafide need of the

landlord. The Trial Court was of the view that there is enough

accommodation with the landlord and his bonafide need has to be tested in

trial. This Court is not in agreement with this submission also of the learned

counsel for the tenants.

23 The eviction petition discloses that the elder son of the petitioner is

aged 36 years. He is carrying on his business of sanitary and hardware at

Mangol Puri from a rented accommodation where he is paying rent of Rs.

6,500/- per month for a 300 square feet shop and Rs. 9,500/- for a separate

godown. The business of his son requires all the three shops from where he

can run this business as also a godown fro storage purposes. His present shop

is at a distance of 16 kilometers from the residence of the parties who are

living in Sadar Bazar. The disputed premises i.e. the premises which are now

the subject matter of the impugned judgment comprise of shop No. 3910,

3911 & 3912. Shop No. 3910 is on the extreme left. Shop No. 3912 is on the

extreme right. Shop No. 3911 is much larger. This shop opens out into a hall

which is much larger; total area is about 500 square feet. The total area

available to the petitioner in case all these three shops which are adjacent and

adjoining one another (as is evident from the site plan) would be around 800-

900 square feet which is the area which is required by the petitioner for

enabling his son to carry on his business. It is a ridiculous preposition raised

by the tenant that the son of the petitioner should continue to carry out his

business from his rented accommodation as his need appears to be fulfilled

from that rented property. At the cost of repetition, the rented property is in

Mangol Puri and where the son of the petitioner is paying a cumulative rental

of Rs. 15,000/- per month. The premises which are in occupation of the three

tenants before this Court would be not only more viable and commercially

suitable for the business of the son of the petitioner as admittedly Sadar

Bazar is a well known market for wholesale and retail business but it is also

established that the petitioner has no other alternate suitable accommodation

available with him. A rented accommodation can by no stretch of

imagination be an alternate accommodation where admittedly apart from the

burden of a monthly rental of Rs. 15,000/- the accommodation is also at a

distance of 16 kms from where the incumbent (son of the petitioner) resides.

The suit premises (the three shops) are also on the main road of Sadar Bazar

and when joined together would have an area of about 800-900 square feet

which would be wholly conducive business preposition for the son of the

petitioner. The fact that the son of the petitioner is dependent upon his father

for his accommodation has been specifically averred in the eviction petition.

Even presuming that the son is paying a rental of Rs. 15,000/- per month,

that would not prevent him from him being dependent upon his father for the

purpose of accommodation.

24 The concept of 'dependency' as contained in the Section 14(1)(e) is

not limited to a financial dependency only. The concept is much wider.

25 In 1986 (1) RCJ 717 R.K. Bhatnagar versus Sushila Bhargava, the

word 'dependent' was analysed to include not only a person who is

financially dependent upon the landlord/landlady but has as such inder

ambit. In this context it was noted as under:

"It is now well settled that the word „dependent‟ cannot be construed

as wholly dependent in the sense of earning nothing at all and the entirely

dependent on the parents for lodging and maintenance. It connotes a wider

concept and covers a larger field. It takes a person who is not financially

dependent upon the landlord but who would in normal course look upto the

landlord to provide him/her with the facility of a house/portion possessed by

the landlord."

26 In 10(2003) DLT 746 Om Prakash Bajaj Vs. Chander Shekar, a

Bench of this Court had noted that the members of the family of the landlord

and their need for accommodation is in fact the need of the landlord himself

and even where the son and grandson of the landlord were noted to be

financially well of, it could not be said that they were not dependent upon

their father and grandfather for the need of accommodation.

27 This need also thus has been fully established. By no stretch of

imagination could it be said that any triable issue has arisen on any count.

The Trial Court had preceded on conjectures and surmises. In fact the order

itself records that ordinarily the rent Courts are not obliged to decide the

question of ownership.

28 Accordingly the impugned judgments dated 14.10.2014 & 10.03.2015

are set aside. No triable issue has arisen. Leave to defend was illegally

granted to the tenants. The whole purpose of a summary procedure contained

in Section 25-B of the DRCA would be given a go-bye if in a routine

manner, leave to defend is granted to a tenant. At the cost of repetition, the

Trial Judge had himself noted that the question of ownership does not raise a

triable issue in rent matters. The question of adoption which was sought to

be raised by the respondent is also wholly meritless and so also the Trial

Court holding that the bonafide need of the petitioner has not been disclosed.

On all counts, the impugned judgments are liable to be set aside. They are

accordingly set aside. All the three eviction petitions filed by the landlord

stand decreed.

29     Petitions disposed of.

                                                        INDERMEET KAUR, J

APRIL 08, 2016
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