Prem Chand Sharma (Now Deceased) & ... vs Ram Gopal
2016 Latest Caselaw 1279 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                  Judgment reserved on : 09.02.2016
                  Judgment delivered on : 18.02.2016

+   RC.REV. 363/2014
    PREM CHAND SHARMA (NOW DECEASED) & ANR
                                                 ..... Petitioners
                    Through Petitioners with their counsel Mr.
                            Satish Sahai, Adv.
                    versus
    RAM GOPAL
                                               ..... Respondent
                    Through Respondent with his counsel
                            Mr. J.P. Sengh, Sr. Adv. with
                            Mr.A.C. Bhasin and Ms. Sana
                            Ansari, Advs.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 The petitioner before this Court is the landlord in the Trial Court.

He is aggrieved by the order dated 04.07.2014 vide which leave to

defend had been granted in the pending eviction petition filed by the

landlord under Section 14 (1)(e) of the Delhi Rent Control Act (DRCA)

to the tenant. Contention before this Court is that besides the fact that

the order is cryptic, even otherwise no triable issue having arisen, leave

to defend should not have been granted to the tenant.

2 Needless to state that these argument have been refuted.

3 Record shows that the present eviction had been filed by Prem

Chand Sharma. He was an 84 years old citizen at the time when he had

filed this petition. During the pendency of this eviction petition, Prem

Chand Sharma expired. He was survived by his daughter-in-law, widow

of his predeceased son (Ishwar Chand Sharma) and Yogeshwar Chand

Sharma, his second son. The legal heirs namely Pushpa Rani Sharma

and Yogeshwar Chand Sharma were impleaded in his place on

03.02.2012.

4 The tenant is Ram Gopal, son of Mohan Lal. The tenanted

premises has been described as property No. 42-43, U.B. Jawahar

Nagar, Delhi. Contention in the eviction petition is that the premises are

non-residential and were being used for business purpose by the tenant.

The monthly rent was Rs.1,250/- excluding other charges. It was a

single tenancy. The tenancy was created long back but a rent agreement

was reduced into writing on 14.07.2008. The bonafide need of the

landlord was contained in para 18 (a) wherein it was stated that the

petitioner is the owner and landlord of the premises. The site plan has

depicted the portion tenanted out to the tenant in red colour. The

premises were required bonafide for starting the business of the

daughter-in-law namely Pushpa Rani Sharma as also for their son

Navneet Kaushik aged 32 years. Pushpa Sharma has no source of

income and she wanted to start the business of sale of readymade

garments from the suit premises which is in a viable commercial area.

Her son had also completed a hotel management course from Bangalore.

He was earlier residing in Hong Kong and now he has returned to Delhi

and he would also assist his mother in this business. They have no other

suitable accommodation to carry out this venture. The son and the

daughter-in-law of Pushpa Sharma have sufficient resources to help

their mother in the business. The requirement is bonafide.

5 An application seeking leave to defend was filed by the tenant.

His contention was that triable issues have arisen. His first averment is

that the premises in question had been sold by the petitioner to the

tenant for a total consideration of Rs. 54.70 lacs. The tenant had agreed

to purchase this property and as a consideration he had agreed to pay a

sum of Rs.36,70,000/- to Sardar Surender Singh (who was another

tenant in the suit property) and Rs.5 lacs to M/s Hindustan Book Agency

through its partner Jainender Kumar Jain (who was yet another tenant in

the suit property); balance of Rs.13 lacs was agreed to be paid to the

landlord. A sum of Rs.36.70 lacs on different dates was paid to Sardar

Surender Singh and an agreement was entered into between Sardar

Surender Singh and the deponent/tenant on 28.05.1992. The petitioner

was aware of this deal. The portion in occupation of M/s Hindustan

Book Agency through its partner Jainender Kumar Jain was also

purchased by the tenant for a sum of Rs.5 lacs on different dates for

which payment of Rs.25,000/- on 02.06.1992, Rs.75,000/- on

04.06.1992 and Rs.4 lacs on 18.08.1992 to Jainender Kumar Jain was

made and this was on a consent given by the petitioner. On 19.10.1992,

an oral agreement to sell the suit premises was made pursuant to which

Rs. 13 lacs was agreed to be paid to the landlord which was paid on four

different dates. A sum of Rs.3.25 lacs was paid to the landlord on

19.10.1992 and the part payment of Rs.4.75 lacs on four different dates

i.e. Rs.1.5 lacs on 07.03.1993, Rs. 50,000/- on 09.11.1993, Rs.2 lacs on

30.01.1994 and Rs.75,000/- on 02.04.1994. The tenant has thus become

the owner of the suit premises. Eviction petition is not maintainable as

there is no landlord-tenant relationship between the parties. In fact, the

house tax is being paid by the tenant to the MCD. Premises had been re-

built by the tenant and no objection was also raised by the petitioner on

this count. The tenant had also approached the landlord for entering into

a sale deed on 09.04.1994 but the landlord has failed to do so. Further

averment is that Pushpa Sharma is already carrying on the business left

behind by her husband which is under the name and style of Ishwar

Chand Sharma; her son Navneet Kaushik is still working in Hong Kong.

He is a citizen of Hong Kong; he has no plans to return to India. The

bonafide need is in fact malafide. The details of the property have not

been correctly described by the landlord. There are three floors

including a mezzanine floor in property No. 42; in property No. 43,

there is ground, first and second floor. The portions which are in use and

occupation of the petitioner have been depicted in black colour; he has

enough rooms; the submission of the landlord that there is no alternate

accommodation available with him is false. In property No. 42 on the

mezzanine floor, there are two rooms which are lying vacant. In the

same breath, it is submitted that one room on the mezzanine floor has

been sold by the landlord in the year 2009-2010; two rooms on the

backside are lying vacant and is in use and occupation of the petitioner

(now deceased); one room and one myani has been tenanted out by

Pushpa Rani on the first floor to another tenant namely Dharmesh; the

three room set on the second floor is the residence of Yogeshwar Chand

Sharma; that on the third floor also, five rooms have been let out from

which Pushpa Rani Sharma is enjoying a monthly rent. Qua property

No. 43, it is stated that the shops on the ground floor are fetching huge

rent to the landlord; on the first floor, the property has been let out to a

tenant; on the second floor, a three room set has been tenanted out from

which the landlord (now deceased) is enjoying a rental income. There

are in fact 24 rooms in property No. 42 and 18 rooms in property No.43

making a total of 42 rooms which are available to the petitioner and the

same are sufficient to fulfill the requirement of Pushpa Rani Sharma.

All these submissions raise triable issues and the tenant was thus

rightly granted leave to defend the eviction petition.

6 Reply had been filed to the pending application. It was denied that

the landlord had sold this property to the tenant. It was reiterated that an

oral document cannot create a transfer of title and an immoveable

property cannot be transferred orally; submission of the tenant that the

sale consideration of Rs.54.70 lacs has been paid was absolutely wrong;

even as per the tenant, most of these amounts had been paid to Sardar

Surender Singh and Hindustan Book Agency; only a sum of Rs.13 lacs

was allegedly paid to the landlord but the documents in support of this

submission themselves show that the landlord had agreed to change the

tenancy in favour of the present tenant; earlier it was in the name of

another tenant; these documents even as per the petitioner's own

showing are not documents of transfer. The rent agreement dated

14.07.2008 executed between the parties has not been denied; it is

deemed to be admitted. It was denied that the need of Pushpa Rani

Sharma to run a garment business is not genuine or that Navneet

Kaushik has not come back to India from Hong Kong. It was denied that

Navneet Kaushik had a Hong Kong citizenship. It was admitted that

Pushpa Rani Sharma was living on the first floor of property No.42 but

it was the premises which are on the ground floor which were required

for a commercial purpose; i.e. for running a garment business for

Pushpa Rani Sharma. The property No. 43 has no concern with the

petitioner as it had fallen to the share of other brothers of Prem Chand

Sharma namely Parkash Chand and Mohan Partap Chand who were the

sons of late Mool Chand. This partition had been effected way back in

the year 1964 and this property had been sold by them in the year 1996

except the back portion on the first floor which is in possession of legal

heirs of Parkash Chand for which the petitioner has nothing to do and

that is why the site plan depicting only the property in question has been

placed on record.

7 Learned counsel for the petitioner vehemently submits that the

intent of the Legislature would be given a go-bye if such like petitions

are permitted to be allowed; the summary procedure contained in

Section 25B of the DRCA in fact envisages a situation that where no

triable issue has arisen, trial should not be permitted. The eviction

petition had been filed in the year 2007 and till date it has not progressed

on one pretext or the other. The tenant is delaying the proceedings. The

whole idea is to buy time. The landlord Prem Chand Sharma who had

filed this petition has also passed away; the need of the landlord Pushpa

Rani Sharma is genuine and she is also progressing in age over the

years; she is entitled to her property which is owned by her and over

which she has a right to carry out the business of her choice. Learned

counsel for the petitioner in support of his submission has placed

reliance upon 204 (2013) DLT 12 Sanjay Singh Vs. Corporate

Warranties Pvt. Ltd. to support his submission that in a suit between the

a landlord and a tenant, it is the title as a landlord which is relevant and

not ownership and even if there was an oral agreement as has been set

up by the tenant, it would not confer title upon the tenant and his status

would still remain the same as immoveable property cannot be

transferred by way of an oral agreement to sell. Learned counsel for the

petitioner has also brought to the notice of the Court a fact i.e. that a suit

for specific performance had which been filed by the tenant which stood

dismissed on 01.03.2012. The appeal filed against that order also stood

dismissed vide judgment dated 25.07.23012. Reliance has been placed

upon 2005 (8) SCC 252 Sait Nagjee Purushotam and Co. Ltd. Vs.

Vimalabai Prabhulal and Others to support a submission that it is the

prerogative of the landlord to decide for what purpose the premises is

required by him. It is for him to decide his bonafide need. A party

cannot be expected to sit idle. The test to determine whether a triable

issue has arisen or not has to be gathered from the pleadings of the

parties in the present factual matrix; no triable issue has arisen.

8 Arguments have been refuted. Learned senior counsel for the

tenant submits that triable issues have arisen. Submission is that the

even in the reply filed by the landlord to the application seeking leave to

defend, the broad issues raised by the tenant have not been denied.

Impugned order calls for no interference.

9 Record has been perused. Arguments have been heard.

10 The eviction petition was filed by deceased Prem Chand Sharma.

The fact that that the predecessor-in-interest of the respondent was

paying rent to Prem Chand Sharma is not disputed. After the

predecessor-in-interest of the respondent, the respondent Ram Gopal

also continued to pay rent to Prem Chand Sharma during his lifetime.

The legal heirs of Prem Chand Sharma after his demise are Pushpa Rani

Sharma and Yogeshwar Chand Sharma. The tenant/respondent does not

dispute that there was no relationship of landlord-tenant between the

parties; the defence set up by him is that he had purchased this property

in the year 1992. This defence will be considered later.

11 There is also no gainsaying to the settled proposition of law that

the ownership of a suit property is not relevant in dealing with a eviction

petition under Section 14 (1)(e) of the DRCA, it is a landlord-tenant

relationship which is relevant. Under Section 14 (1)(e) of the DRCA,

there are two twin requirements which have to be satisfied and the onus

is upon the landlord to prima-facie show that (i) he has a bonafide need

for the suit premises (they may be residential or commercial) and (ii) he

has no other alternate suitable accommodation to fulfill this bonafide

need.

12 The eviction petition in para 18 (a) discloses that the need of the

suit premises (which is one shop in municipal Premises No. 42-43, U.B.

Jawahar Nagar suit shop (encircled in red colour) being located in

premises No. 42 as is evident from the site plan annexed) was the need

of Pushpa Rani Sharma to start her garment business with the assistance

of her son Navneet Kaushik and her daughter-in-law. Relevant averment

being that her son had done a hotel management course and he had gone

to Hong Kong for a job but he wished to return to India with his wife

and he had sufficient finance to assist his mother in this business of

garments which his mother proposes to carry out from the shop. Her

further averment is that this shop is located in a viable commercial area

being close to Kamla Nagar market which is well known to be a hub of

garment business.

13 The first most vehement submission for the tenant is that he had

purchased this property. As per the tenant, this purchase had been

effected by him sometime in the year 1992 for which he had paid a sum

of Rs.54.70 lacs of which admittedly (even as per his own showing) a

sum of Rs.36,70,000/- was paid to one Sardar Surender Singh (another

tenant in the premises); Rs. 5 lacs to M/s Hindustan Book Agency

through its partner Jainender Kumar Jain (another tenant in the suit

premises) and Rs.13 lacs was paid to the petitioner. Further contention

was that out of this sum of Rs.13 lacs, Rs.3.75 lacs was paid on

19.10.1992 i.e. on the date of the oral agreement and subsequent

amounts of Rs.4.75 lacs was paid on four different dates i.e. on

07.03.1993, 09.11.1993, 30.01.1994 and 02.04.1994 in split amounts of

Rs.1,50,000/-, Rs.50,000/-, Rs. 2 lacs and Rs.75,000/-. The candid

averment also being that there was admittedly no written document to

this effect but it was only an oral agreement.

14 In the reply filed to this averment, these narrations are vehemently

denied.

15 This Court finds it difficult to believe this plea set up by the

tenant. It is impossible to believe that a buyer has paid Rs.54.70 lacs of

which Rs.36,70,000/- has been paid to another tenant (admittedly not the

landlord), Rs. 5 lacs to yet another tenant (admittedly not the landlord);

all these are payments are not documented; they are payments

presumably by cash as no detail of any negotiable instrument by which

these payments were made has been given. All this happened in the

year 1992. How these payments even if paid are binding upon the

petitioner/landlord is not answered. A sum of Rs.13 lacs was also

allegedly paid to the petitioner in 1992 for which an oral agreement

(19.10.1992) was entered into but the payment chart shows that these

payments were made not in 1992 but up to April, 1994. Besides the fact

that an oral agreement without any documentation of payment would

have no sanctity in the eyes of law for the transfer of title of an

immovable property; even if the version set up by the tenant is accepted

in its entirety and leave to defend is granted to the tenant, how he would

be able to prove this issue of ownership is wholly un-understandable and

even on a specific query put to the learned senior counsel for the tenant

on this count, he has no answer. Interest in an immoveable property

cannot be created through an oral document; it has to be by a registered

document in writing duly stamped. This is clear from the provisions of

Section 54 the Transfer of Property Act.

16 The whole story set up by the tenant that he had purchased this

property is humbug and is nothing but a ploy to derail the proceedings.

This is apparent for the reason that this eviction petition was filed in the

year 2011 but even in the year 2016, there has hardly been any progress

in the case.

17 Another relevant point in this context is that the averment of the

landlord in his eviction petition (wherein he had stated that although the

tenancy was originally created orally but thereafter a written document

was signed by the parties on 14.07.2008) and which finds mention in

para 14 of the eviction petition is an agreement nowhere denied by the

tenant. There is not a whisper about this agreement dated 14.07.2008;

the tenant has not denied that he has not executed this agreement with

the landlord. This amounts to an admission and again reflects upon the

dishonest intent of the tenant. If the defense of the tenant was anywhere

near the truth and he had actually purchased this property in the year

1992, he would not have entered into a written document on

14.07.2008. The fact that there is no mention of this document in the

application seeking leave to defend in spite of the specific averment to

this effect in para 14 of the eviction petition clearly leads to the

inevitable conclusion that this document is admitted meaning thereby

that the relationship of landlord-tenant inter se the parties stands even as

on date. There is also no evidence of the tenant having paid any house

tax as is his averment. This is only a bald averment; payment of house

tax even otherwise would not confer title.

18 Thus this defence set up by the tenant that there is no relationship

of landlord and tenant being without merit is rejected. It does not raise

any triable issue and the finding of the Trial Court which is contrary on

this score being an illegality is set aside.

19 The second submission of the learned senior counsel for the

tenant is that the property has not been described correctly; the property

is a common property comprising of municipal Nos. 42-43, U.B.

Jawahar Nagar. It is not clear as to in which property the suit premises is

located.

20 This submission is also incorrect as the site plan which is an

integral part of the eviction petition has depicted the site plan of

properties No. 42-43 but the encircled portion red on the ground floor

clearly shows that this property is located in U.B. 42, Jawahar Nagar.

There is no mis-description of the property.

21 The third submission of the learned senior counsel for the tenant

that there is enough alternate accommodation with the petitioner and she

does not require this accommodation is also an argument which is bereft

of force. Besides the fact that the bonafide need is of the landlady

Pushpa Rani Sharma (widow of late Ishwar Chand Sharma and

daughter-in-law of Prem Chand Sharma) and her bonafide need being to

start a garment business in the suit premises which is located on the

ground floor and the main road of Jawahar Nagar in which she would be

assisted by hers son who had done a course in hotel management and

who presently (because of lack of business in India) are working in

Hong Kong, has been explained. The fact that the suit premises is

located in a viable commercial area is an admitted fact. The suit shop is

on the ground floor and facing the main road of Jawahar Nagar which is

in close proximity to Kamla Nagar which is a huge market for all kinds

of wares including garments.

22 The submission of the tenant that there are 42 rooms which are

available with the petitioner is also incorrect. This is clear from his

pleadings itself as detailed in his application seeking leave to defend.

Even as per the tenant, all the portions in property No. 42 (owned by the

petitioner) are on rent except the back portion of the mezzanine floor

where petitioner No.2 is residing and which is a residential area. The

other room on the mezzanine floor has admittedly been sold in the year

2009-2010. One room and one myani on the first floor has been

tenanted out to one Dharmesh and the second floor is the residence of

petitioner no.2 namely Yogeshwar Chand Sharma and the other room

has been tenanted out. The third floor is also tenanted out to another

tenant. The reply filed by the landlord has categorically stated that

property No. 43 has no concern with the petitioner as this property had

fallen to the share of Prakash Chand Sharma and Mohan Partap Chand,

the other two brothers of Prem Chand Sharma (father-in-law of

petitioner No.2) and this partition had been effected way back in the

year 1964. The site plan in fact clearly shows that the suit property is

located in property No. 42; since the property has a common municipal

number, the site plan of the entire property has been filed along with the

eviction petition.

23 Pleadings which are filed on the affidavit of the parties thus

clearly decipher that the landlady has no other reasonably suitable

alternate accommodation from where she can carry out her garment

business. It is not the case of the tenant that there is any other property

with the petitioner which can be used by her. His submission that two

rooms on the backside of the mezzanine floor are lying vacant has been

denied; even presuming that this position is correct, the mezzanine floor

cannot be used for the purpose of business; it would be impossible to

imagine that prospective purchasers and clients would climb a flight of

stairs to access the shop. This proposition raised by the tenant is wholly

absurd.

24 In this context, the following observations of the Apex Court in

Prativa Devi versus T.V. Krishnan, 1996 (5) SCC 353 are relevant:-

The Supreme Court in Prativa Devi v. T.V. Krishnan MANU/SC/0811/1987: 1996 (5) SCC 353 reiterated that the landlord is the best judge of his residential requirement and has a complete freedom in the matter and it is no concern of the courts to dictate to the landlord how, and in what manners he should live.

25 Time and again, the Courts have reiterated that the need of the

landlord has to be decided by himself. It is the prerogative of the

landlord to decide how he/she wishes to use the property. For an

eviction petition to succeed under Section 14 (1)(e) of the DRCA, the

landlord must satisfy the twin requirements (noted supra) which in view

of this Court have been satisfied. The landlady has been able to satisfy

her bonafide need as also the additional fact that there is no other

reasonably suitable accommodation available with her and being a

widow, she does not wish to remain idle. Her son who has completed a

hotel Management course is presently working in Hong Kong but he

wishes to return to India and has sufficient fundsto help his mother in

this business along with his wife. The submission of the tenant that the

son of the landlady is a resident of Hong Kong and he has a citizenship

of Hong Kong has been vehemently denied by the landlady. Moreover

the need is not for the son; it is primarily for petitioner No. 2 herself.

26 The need being bonafide and there being no other alternate

suitable accommodation available with the landlady, the Trial Court

holding that there were triable issues which had arisen and which

require trial has committed an illegality. The submission of the landlady

that the order passed by the Trial Court is cryptic is also borne out from

the order itself. After noting the contentions of the parties, the triable

issues have been summed by the Trial Court in one concluding

paragraph which findings are wholly perverse and thus call for an

interference.

27 At this stage, it would also be relevant to note that the submission

of the tenant that he had purchased this property was the subject matter

of a suit for specific performance (CS (OS) No.177/2012) filed by the

tenant against the petitioners which stood dismissed by a Bench of this

Court on 01.03.2012. The appeal filed against that order was also

dismissed in RFA (OS) No.68/2012 on 25.07.2012. While dismissing

the appeal, the Bench had noted the contention of the tenant that he had

become owner by virtue of an oral agreement to sell had been negatived.

The Bench of this Court while dismissing the suit had additionally noted

that the said suit had been filed only after the filing of the eviction

petition and appeared to be a couter-blast to the eviction petition.

28 In this background, the impugned order is liable to be set aside. It

is accordingly set aside. The eviction petition is decreed.

INDERMEET KAUR, J

FEBRUARY 18, 2016 A