Vinod Kumar & Anr vs Ajay Kumar Singhal
2016 Latest Caselaw 3815 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                    Judgment reserved on : 17.05.2016
                    Judgment delivered on : 20.05.2016

+       RC.REV. 374/2015 & C.M. No.13098/2015
        VINOD KUMAR & ANR
                                                             ..... Petitioners
                           Through      Mr. Dinesh Kumar Gupta and Mr.
                                        Vidit Gupta, Advs.
                           versus

        AJAY KUMAR SINGHAL
                                                              ..... Respondent
                           Through      Mr. A.K. Singla, Sr. Adv. with Ms.
                                        Meenakshi Singh, Adv.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 The petitioner is aggrieved by the judgment dated 27.05.2015 wherein

in the eviction petition filed by the landlord (Ajay Kumar Singhal) seeking a

decree of eviction (qua the suit property i.e. a shop on the ground floor

forming part of property bearing No. P 4756/4758, Ward No. 3, Laxmi

Bazar, Cloth Market, Delhi) (hereinafter referred to as the „said shop‟) was

decreed in favour of the landlord. The petitioner before this Court is the

tenant. It was after a trial that the learned Additional Rent Controller (ARC)

returned a finding that the landlord is entitled to a decree.

2 Record shows that the aforenoted eviction petition had been filed by

the landlord qua the aforenoted shop under Section 14 (1)(e) read with

Section 25-B of the Delhi Rent Control Act (hereinafter referred to as the

„said Act‟). The said shop had been tenanted as a single tenancy; rate of rent

was Rs.99/- per month. The landlord claimed himself to be the owner of the

suit property. Further contention being that initially the said shop had been

tenanted out to the sole proprietorship firm of M/s Sain Dass Dev Raj. Sain

Dass had expired on 13.12.1990 and after his death, his two sons Vinod

Kumar and Dev Raj had inherited the tenancy rights from their father and

accordingly, they have been impleaded in the said petition. The landlord‟s

contention was that this property is required bonafide by him for running a

business by his wife (Vandana Singhal). He has no other reasonably suitable

accommodation for the said purpose. It was further stated that w.e.f.

01.08.2010, his wife was carrying on business under the name and style of

M/s Sidhant Textiles (as a sole proprietor) from a tenanted shop at 650, Gali

Ghanteshwar, Katra Neel, Chandni Chowk, Delhi which she had taken at a

monthly rent of Rs.6,000/- per month. The landlord of the said shop was

Radha Textiles.

3 Leave to defend had been granted in favour of the tenant. Written

statement was filed. The plea raised in the written statement was that the

landlord is in fact neither the owner and nor the landlord of the said

premises; there is a mis-joinder of parties as Vinod Kumar and Dev Raj are

not the tenants of the said shop; the tenancy was under the name of M/s Sain

Dass Dev Raj which is the partnership firm distinct and separate in entity

from Vinod Kumar and Dev Raj. Another objection which was taken in the

written statement was that the documents on record qua the tenancy of

Sidhant Textiles from Radha Testiles were all sham and created documents;

this was only to build up a bonafide need which was actually not bonafide.

Additional submission was that there is alternate accommodation with the

landlord in the form of the first floor of the suit property which is lying

vacant. In the written statement, it was also pleaded that an earlier eviction

petition E-300/2008 titled Ajay Kumar Singhal Vs. Dev Raj had been filed

by the landlord under Section 14 (1)(e) of the said Act which was

subsequently withdrawn on 22.03.2011 which was after the date of the filing

of the present eviction petition which was on 18.03.2011. The present

petition has tried to overcome the lacuna in the first petition and at the cost

of repetition, the bonafide need sought to be set up by the landlord has been

created by fabricating documents to show that the wife of the landlord was

carrying on the textile business from a tenanted shop. She was in fact not

carrying on any business.

4 Before the ARC, two witnesses were examined on behalf of the

landlord. Per contra, one witness was examined by the tenant. On behalf of

the landlord, the statement of Ajay Kumar Singhal and his wife Vandana

Singhal was recorded. On behalf of the tenant, the sole witness was Vinod

Kumar. All the witnesses were duly cross-examined.

5 On behalf of the tenant, it has vehemently been argued that there is no

relationship of landlord-tenant between the parties and this aspect has not

been considered by the Trial Judge in the correct perspective. Submission

being that the tenant was in fact M/s Sain Dass Dev Raj and not Vinod

Kumar or Dev Raj. Vinod Kumar and Dev Raj in their individual capacity

had never accepted Ajay Kumar Singhal as their landlord. To substantiate

this submission, attention has been drawn to various documents including the

earlier eviction petition which had been filed by the landlord wherein the

name of Sain Dass Dev Raj had been shown as a tenant. Attention has also

been drawn to the cross-examination of PW-1 and PW-2 wherein in part of

his cross-examination, PW-1 had admitted that M/s Sain Dass Dev Raj had

deposited rent under Section 27 of the said Act. The second submission of

the learned counsel for the tenant is that the bonafide need of the landlord is

in fact not bonafide; it has been projected and created and is based on false

and fabricated documents; Sidhant Textiles is not a tenant of Radha Textiles;

the wife of the petitioner is in fact not carrying on any business. The eviction

has been sought from the tenant only as a commercial venture i.e. for seeking

enhanced rent. It has lastly been submitted that the essential requirement of

the landlord having no other alternate suitable accommodation has also not

been established. The first floor of the same property is available with the

landlord. Submission is that the submission of the landlord that this property

is tenanted out is negatived by the electricity bill (Ex.PW-1/R-14) of the

aforenoted first floor which clearly shows that there is nil consumption of

electricity establishing the argument of the tenant that there is no person

living in that first floor. Attention has also been drawn to the cross-

examination of PW-1 wherein he had admitted that the first floor of the

property is lying closed for several years; submission being reiterated that

this property is vacant and can well fulfill the need of the wife of the

landlord. An argument had also been propelled to the effect that the landlord

(Ajay Kumar Singhal) being the adopted son of his parents has no right or

interest in this property. However, learned counsel for the tenant, at a later

point in the course of arguments submitted that he is not pressing this

argument.

6 Per contra, learned senior counsel for the landlord submits that the

impugned judgment calls for no interference. This Court is sitting in its

revisional jurisdiction and unless and until, there is a patent illegality, there

is little scope of interference. Learned ARC has martialled the evidence in

the correct perspective and on no count, does the impugned judgment call for

any interference. The relationship of the landlord-tenant has been proved.

The twin requirements of a petition under Section 14 (1)(e) of the said Act

which is the need of the Vandana Sahgal (wife of the landlord) has been

established; she is presently carrying on the business from a tenanted

accommodation; the fact that there is no alternate accommodation is also

clear from the fact that the aforenoted first floor of the said property is under

the tenancy of Anil Kumar, proprietor of M/s Shyam Sunder Anil Kumar. To

support this argument, he has also placed reliance upon Ex.PW-1/8 which is

a document signed by the proprietor of M/s Shyam Sunder Anil Kumar

tendering rent to the landlord for the aforenoted property.

7 Arguments have been heard. Record has been perused.

8 The present eviction petition had been filed on 18.03.2011. Vinod

Kumar and Dev Raj have been impleaded as tenants. The bonafide need has

been noted supra. It is the need of the wife of the landlord for running a

business. It is stated that there are two tenants on the ground floor. One shop

is with the present tenant and the other shop is with Kishan Lal Bansal. The

first floor is under the tenancy of M/s Shyam Sunder Anil Kumar. The

second and third floors of the property are with Kishan Lal Bansal which is a

residential accommodation. While projecting this bonafide need, the landlord

has also stated that the wife of the petitioner is a well educated lady and

belongs to a family of businessman. She is running the business of cloth

merchant from 650, Gali Ghanteshwar, Katra Neel, Chandni Chowk, Delhi.

This business has already started earning revenue and the petitioner and his

wife are eager to expand the business and accordingly the said shop is

required by them. The petitioner has also claimed to be the owner of the suit

property having derived title from his parents. In this petition, it has also

been stated that the initial tenant was M/s Sain Dass Dev Raj but after the

death of Sain Dass on 13.12.1990, his two sons had inherited the tenancy and

accordingly, they had been impleaded.

9 The written statement and the objection taken in the written statement

have already been noted supra.

10 PW-1 was the landlord who had come into the witness box and had

proved various documents i.e. Ex.PW-1/1 to Ex.PW-1/24. Rent receipts

(Ex.PW-1/10) brought on record show that the tenant was M/s Sain Dass

Dev Raj. He was paying Rs.74/- as monthly rent and the total annual rent

w.e.f. 01.04.200 to 31.03.2001 was Rs.888/-. Ex.PW-1/R-10, Ex.PW-1/R-11,

Ex.PW-1/R-12 & Ex.PW-1/R-13 were the cheques signed by Vinod Kumar

from the account of M/s Sain Dass Dev Raj. These cheques are from the

period from 22.03.2005 to 01.05.2007. Sain Dass had expired by that time.

These documents reflect that Vinod Kumar was issuing cheques qua the

aforenoted tenancy. A D.R. petition had also been filed by the tenant in

September, 2009 under Section 27 of the said Act which sought a permission

of the Court to deposit rent. This petition had also been signed by Vinod

Kumar. The affidavit of Vinod Kumar clearly stated that Vinod Kumar s/o

late Sain Dass being a partner in the aforenoted firm was depositing rent for

the said shop. These documents cumulatively thus clearly evidence that the

relationship of landlord-tenant between Ajay Kumar Singhal and Vinod

Kumar stood established. Vinod Kumar had himself deposited rent before

the Rent Controller for the aforenoted property and claimed himself to be a

partner of the said firm. The internal changes inter-se the partners and after

their conversion from a proprietorship firm (after the death of Sain Dass)

into a partnership firm may not have been brought to the notice of the

landlord and also may not be relevant as the jural relationship of landlord

and tenant continued which at the cost of repetition was clearly evidenced

from the afore noted said documents. It was Vinod Kumar himself who was

signing all the cheques on behalf of the firm and he had also in September,

2009 chosen to deposit rent before the ARC. The rule of estoppel contained

in Section 116 of the Evidence Act clearly now estops him from stating that

he was not a tenant of Ajay Kumar Singhal; relationship of landlord-tenant

was clearly evidenced.

11 This Court also notes that while dealing with an eviction petition

under Section 14 (1)(e) of the said Act, ownership in the strict sense is not

required to be proved by the owner/landlord. That apart, the learned counsel

for the tenant had given up his argument qua the status of landlord as an

owner. In view of the aforenoted position, the objection raised by the tenant

that he does not share a relationship of landlord-tenant is negatived. This

objection is over-ruled.

12 The next argument of the learned counsel for the tenant that the

landlord has failed to establish that he has no other alternate suitable

accommodation is also negatived by this Court and this Court draws this

conclusion from the oral testimony of the witnesses as also the documents

which have been proved on record. Although the contention of the tenant

was that the first floor of the suit property is available as an alternate

accommodation to the landlord, he had categorically denied it stating that the

first floor of the property had been tenanted out to M/s Shyam Sunder Anil

Kumar of whom Anil Kumar is the proprietor. In this regard, PW1 had

proved two documents i.e. Ex.PW-1/8 and Ex.PW-1/9. PW-1/8 is a letter

written by Anil Kumar in his capacity as the proprietor of the said firm

tendering rent to Ajay Kumar Singhal. This is for the period from 01.04.2009

to 30.09.2010. Ex.PW-1/9 is a hand-written document which was also a

tender of rent for a subsequent period i.e. w.e.f. April, 2012 to March, 2013.

PW-1 has not been cross-examined on these documents. There is no reason

whatsoever to disbelieve these documents having been written on the

letterhead of M/s Shyam Sunder Anil Kumar disclosing the address of first

floor of property (bearing No. P 4756/4758, Ward No. 3, Laxmi Bazar, Cloth

Market, Delhi. The electricity bill (Ex.PW-1/R-14) had showed nil

consumption of electricity qua the first floor but that by itself does not

establish that the first floor has not been tenanted out; PW-1 has in fact

admitted that the property is lying closed and that was probably the reason as

to why the electricity bill had reflected a nil consumption; that does not take

away the fact that the tenancy is still alive.

13 Thus the submission of the learned counsel for the tenant that there is an

alternate accommodate in the form of first floor to the landlord was rightly

disbelieved by the ARC. The Trial Court has marshalled the evidence on this

count in the correct perspective. This submission calls for no interference.

14 The last submission of the learned counsel for the tenant has now to be

answered which is qua the need of the landlord and whether it is a

deliberately created and a projected need and is in fact not bonafide/genuine.

In this context, this Court notes that an earlier eviction petition had been

filed by the landlord in the year 2008. This was also against two persons

namely Dev Raj and Vinod Kumar who were arrayed as the two tenants. The

need was projected in para 18(a) which was the need of the wife of the

landlord to carry on the business from the aforenoted shop. This petition was

withdrawn on 22.03.2011 on the submission made by the landlord that he

had already filed an eviction petition which was pending. That eviction

petition is the present petition out of which the impugned judgment has

arisen. That eviction petition had been filed on 18.03.2011. The distinction in

the earlier eviction petition and the present eviction petition is to the effect

that in the earlier eviction petition (which has been filed in the year 2008), it

was not the submission of the landlord that his wife was already carrying on

business from a tenanted accommodation. In the present eviction petition,

the contention of the landlord is that his wife who has grown up children is

free to carry on business and has taken a tenanted shop on 01.08.2010 from

Radha Textiles and is carrying on business under the name and style of

"Sidhant Textiles" and she propose to expand it and accordingly the present

eviction petition had been filed. The vehement submission of the learned

counsel for the tenant on this score is that the earlier eviction petition had

been withdrawn as it suffered from insufficient pleadings on the point of

need and only to project this need, the documents showing that the wife of

the landlord is carrying on business from a tenanted accommodation have

been set up; these documents are forged and fabricated. Submission being

that this aspect has not been considered by the Trial Judge in the correct

perspective.

15 The oral and documentary evidence qua this aspect has been perused.

On this count, PW-1 had deposed that his wife is doing her cloth business

from the aforenoted shop at Katra Neel. Radha Textiles is the owner of the

said shop and this shop had been taken on rent w.e.f. 01.08.2010 at a

monthly rent of Rs.6,000/- per month. A rent note had also been placed on

record. This rent note filed on record is dated 22.09.2010 and has been

signed by Vandana Sahgal (wife of the petitioner) and witnessed by two

persons namely Hem Chand Gupta and Ankit Aggarwal. It has not been

signed by the purported landlord. i.e. any person on behalf of Radha

Textiles. The name of the partner of Radha Textiles Rajinder Goyal has been

mentioned in this rent note but admittedly this document has not been signed

by him. In his cross-examination, PW-1 has admitted this fact. He has

admitted that this rent note does not bear the signatures of the landlord and

only the signatures of his wife and two witnesses appear on this document. It

has also come in the evidence of PW-1 that the aforenoted two witnesses are

friends of PW-1. This document is thus of no value. Thus the submission of

the landlord that he had taken the aforenoted property on rent from Radha

Textiles for the purpose of business of his wife does not stand established.

That apart, PW-1 in his cross-examination has admitted that Ex.PW-1/17 to

Ex.PW-22 (invoices filed by the landlord to substantiate his submission that

he was carrying on business from the aforenoted property) do not bear the

address of the premises from where his wife was running the alleged

business. PW-1 admitted that Sidhant Textiles (business house of the wife of

the petitioner) was not maintaining any landline telephone and thus there was

no record to show that there was a landline installed on the aforenoted

premises in the name of Sidhant Textiles. On this count, PW-1 also admitted

that there was no electricity connection either in the name of Sidhant

Textiles. He admitted that his wife had not taken any electricity connection

in her name and she was borrowing electricity from Radha Textiles which

electricity connection was in the name of Radha Textiles. PW-1 admitted

that the rent paid by his wife do not include the electricity charges; His wife

paying a sum of Rs.5,000/- as a lump sum to Radha Textiles on account of

electricity charges. No such document has been brought on record. PW-1 had

further admitted that his wife was filing her income tax returns since the last

10 years as she has a substantial income from bank interest. The income tax

returns of the wife of the petitioner were not placed on record. PW-1 in fact

admitted that „Sidhant Textiles‟ is the proprietorship of his wife and is

earning income and has been assessed for the said purpose but at the cost of

repetition no such ITR of the wife was placed on record. He admitted that

Radha Textiles is owned by three persons but he had not seen the ownership

documents of the aforenoted property. Partners of Radha Textiles are all

family members. He admitted that Radha Textiles also mentions the same

address as their business house i.e. 650, Gali Ghanteshwar, Katra Neel,

Chandni Chowk, Delhi although he stated that the portion in possession of

Radha Textiles and Sidhant Textiles is different and are in distinct portions

but he further admitted that the entrance to this floor has a common

staircase/entrance. He denied the suggestion that there is no cabin separately

given to Sidhant Textiles in the aforenoted property. He further admitted that

his wife did not have any experience of doing business of ladies garments

but she only had knowledge about the same. He denied the suggestion that

his documents were fabricated.

16 In her examination-in-chief, PW-2 had proved certain documents i.e.

Ex.PW-1/14 to Ex.PW-1/24. These documents were bills and goods receipts

received from various business houses to substantiate her submission that

good/clothes were being supplied to Sidhant Textiles in the normal course of

its business. A perusal of these documents would show that „Meenu

Creation‟ had supplied certain material to Sidhant Textiles in April, 2011.

Relevant would it be to note that these documents do not bear the address of

„Sidhant Textiles‟ even through these goods had been dispatched through a

consignment of a Green Roadways. In fact in almost all of these documents

(i.e. Ex.PW-1/17, Ex.PW-1/18, Ex.PW-1/19 and Ex.PW-1/20), Sidhant

Textiles finds mention with a conspicuous absence of its location/address.

The bank statement in the name of Sidhant Textiles also shows that this bank

account has been opened with Inderprastha Apollo Hospital (Faridabad)

whereas the business house of Sidhant Textiles is at Chandi Chowk. It is

difficult to believe how transaction for a business house having its business

at Chandni Chowk is to be conducted from a bank account which is situated

miles away; it is also not the case of any person that there is no Bank

available in the vicinity of Chandni Chowk. A further perusal of this bank

statement (Ex.PW-1/21) shows that the most of the transactions are cash

deposits. Ex.PW-1/22 and Ex.PW-1/23 are profit and loss account for the

period ending from 31.03.2011 of „Sidhant Textiles‟. These documents are

not certified by a Chartered Accountant. They are computer generated plain

paper documents showing the sale figures and stock of „Sidhant Textiles‟.

Ex.PW-1/22 shows that the profit and loss account for the period ending

from 31.03.2011 and shows a balance of Rs.1,50,867/-. This figure also does

not match with the bank statement which starts from 01.04.2011 and which

is a brought forward figure of Rs.24,423/-.

17 In her cross-examination PW-2 has also admitted that she is assessed

to income tax since the last 8-10 years and her income has been shown in her

respective ITRs which include the income received by her from bank

deposits as also the money received by her on festivals by her parents. She

denied the suggestion that she has no experience of running this business.

18 Testimony of RW-1 is also relevant. He had all along stated that the

documents relating to „Sidhant Textiles‟ and „Radha Textiles‟ have been

fabricated by the landlord only to build up a case that his wife is carrying on

business from a tenanted shop when admittedly she has no experience in this

business; she is in fact not doing any business. The relationship of landlord-

tenant sought to be created of Radha Textiles and Sidhant Textiles is

fabricated. In his cross-examination, RW-1 stated that he had visited the

showroom of Radha Textiles wherein he saw that there was only one hall on

the first floor.

19 The evidence thus collated on this point, (both oral and documentary),

shows that there is one hall on the first floor of property bearing No. 650,

Gali Ghanteshwar, Katra Neel, Chandni Chowk, Delhi. Radha Textiles is

admittedly the owner of the said property. This is one hall property. It does

not have any bifurcation or cabin. It has a common entrance/staircase. The

purported rent note executed between „Radha Textiles‟ and „Sidhant

Textiles‟ has not been signed by the landlord. This document is no document

for the purposes of a rent note. Even assuming that there was an oral tenancy

(although belied by the fact that a written rent note has been relied upon and

which has been disbelieved), the other documents discussed supra which

includes the invoices filed by the landlord show that the conspicuous absence

of the address of „Sidhant Textiles‟ which is missing in all these documents.

The figure mentioned in the bank statement also does not co-relate with the

profit and loss accounts of Sidhant Textiles which, at the cost of repetition,

are not certified by a Chartered Accountant. There is thus no explanation as

to why best evidence on this score has been withheld by the landlord as

admittedly since the wife of the petitioner (Vandana Singhal) was assessed to

income tax (since the last 8-10 years) and her submission being that she was

earning handsome amount from this business of Sidhant Textiles, why ITRs

were not placed on record to substantiate this submission; an adverse

inference for withholding this evidence must necessarily be drawn against

the landlord in terms of Section 114 (g) of the Evidence Act.

20 There is also no landline or electricity connection with „Sidhant

Textiles‟; if it is a business house, it is difficult to believe that such a

business house can operate without a telephone line; the electricity

connection is admittedly in the name of „Radha Textiles‟. Admittedly, there

is no independent connection of Sidhant Textiles. There is also no document

to show that money was paid qua the electricity charges purported to have

been consumed by „Sidhant Textiles‟.

21 This Court again notes that an earlier eviction petition had also

projected a need for the business house of the wife of the landlord. This

petition had been filed in the year 2008 but had been withdrawn on

22.03.2011. In between, the present eviction petition had been filed on

18.03.2011. The submission of the tenant that by this time, the landlord had

become wiser and had created documents to show that the need of the wife

to set up her independent business was urgent in view of the fact that she had

now taken an accommodation on rent and she carrying on a profitable

business from this rented accommodation; she wished to continue with this

business and in fact wanted to expand it is an argument worthy of merit. The

fact that Sidhant Textiles was carrying on the business from August, 2010 is

a submission made by the landlord and if this business house was earning

income, at the cost of repetition, why no such document was placed on

record creates a suspicion in the mind of the Court that the argument

propelled by the learned counsel for the tenant that this need has been now

created only to build up a ground under Section 14 (1)(e) of the said Act

cannot be overlooked.

22 In fact the documents placed on record all appear to be suspicious. If a

rent note had been created inter-se the parties, why the landlord who is the

owner of Radha Textiles did not sign it creates a doubt on the authenticity of

this transaction. It has also come on record that the first floor from where

Radha Textiles is carrying on his business has one hall. There is a common

entrance and staircase. The location being at Katra Neel, Chandi Chowk

(substantiated by the site plan Ex.PW-1/1) and it being a well known fact

that accessibility in such a congested portion of old Delhi is extremely

narrow. Two business houses being run at one common hall with no

document to support this stand throws doubt on the version of the landlord

that Sidhant Textiles was being run from 650, Gali Ghanteshwar, Katra

Neel, Chandni Chowk, Delhi.

23 The Trial Court had not considered this evidence in the correct

perspective. The evidence which has been brought on record was neither

marshalled and nor examined in the light of the submissions and counter

submissions of the parties which were a part of the Trial Court record. The

findings of the Trial Court on this aspect were perverse. They are liable to be

set aside.

24 Thus this Court draws a conclusion that the need of the landlord for

eviction of the suit premises is not a bonafide need. The first requirement of

Section 14 (1)(e) of the said Act does not stand established although on other

counts (as noted supra), the landlord has been able to succeed but since the

essential requirement of Section 14 (1)(e) are the two twin requirements i.e.

the bonafide need of the landlord has to be established coupled with the fact

that he has no other reasonably suitable accommodation and since this has

not been established, this Court is of the view that the impugned judgment is

liable to be set aside.

25 Accordingly, the eviction decree passed in favour of the landlord is

set aside. Eviction petition of the landlord stands dismissed.

26      Petition is allowed in the aforesaid terms.



                                                      INDERMEET KAUR, J
MAY 20, 2016
A