Subhash Jagota v. Surender Kumar Makkar & Ors

.1 $-* IN THE HIGH COURT OF DELIII AT NEW DELHI % Date of Judgntent:25.4.2012 + RC.REV. 12012010 SUBHASH JAGOTA ..... Petitioner Through: Mr.K.K.Aggarwal and Mr. Rajiv K.Garg, Advs. VETSUS SURENDER KUMAR MAKKAR & ORS ..... Respondents Through: Mr.R.K.Kela, Adv. CORAM: I{ON'BLE MS. JUSTICE INDERMEET KAUR INDERMEET KAUR. J: (Oral) For orders, see file of RCR No. 53/2010. '! APRrL 25,2012 nandan RCR No.120/2010 INDERMEET KAUR, J Page I ofl ( $-A-25 and26 : * IN THtr INIGII COURT OF DELIHI AT NtrW DELI{I % Date of Judgment"25.4.20L2 + RC.REV. 53/20L0 & c.M. 4467/2010 MADHUSUDAN JAGOTA & ANR Petitioner Through: Mr.I(.K.Aggarwal and Mr. Rajiv F . I(-Garg, Advs. versus SURENDER KUMAR MAKKAR & ANR ... Respondents Through: Mr.R.S.Kela;Adv. + RC.REV. 12012010 SUBHASH JAGOTA ..... Petiti.oner Through: Mr.K.I(.Aggarwal and Mr. Rajiv I(Garg, Advs. versLls SURENDER KUMAR MAKKAR & ORS ..... R-espondents Through: Mr.R.I(Kela, Adv. CORAi\{: IilON'tsN,E MS. .IUSTICE XNDtrRMEET KA'UR INDERMEET KAUR, J. (Oral) Orcler impugned. is the order dated 14.01 .2010. Eviction petition filed by the landlord under Section 1a(1)(e) of the Delhi Rent Control RCRNos.53/2010 & t20120I0 Page I of l0 l,] to Act (hereinafter refenecl to as the DRCA) stood decreed; application filed by the tenant seeking leave to defend had been declined' Disputed premises have been declined as a portion of first floor of property bearing No.B-7, Model Towan-II, Delhi. R€cord shows that the present eviction petition has been filed by the landlord on the ground of bonafide requireinent. Surender Kumar Makkar and his wife Priti Makkar are stated to be the owners and landlords of the suit premises. Contention being that the premises have been let out to the tenant for a commercial purpose; the original tenani has since died and the premises are now in occupation of his legal representatives. The tenants had demolished the intervening wall and converted the premises into a hall. Properfy in question was originally owned by Jaswant I(aur the rnother of the petitioner no.1. By virtue of a registered gift deed dated

08.9.2004 these premises had been gifted to the two aforenoted petitioners. Except the portion depicted in blue colour in th'e 1if nlan li (ground floor) the other portion of the ground floor had'beerr sqld by $ Jaswant Kaur. The only portion availablb to the petitionel on the giound to the upper floors; this is is a covered courtYard and floor is a stair case for access portion; on the rear side there RCR Nos.53/2010 & t201201'0 in the front a staircdsd Page 2 of10 ft I which is also depicted in the blue colour in the site plan' Petitioners are the owners of the first floor and the terrace floor; the portion in occupation of the tenant is depicted in red colour; the portibn shown in theyellowcoulourisinthetenancyofKrishnaKumariwhereasthe portion shown in green colour on the second floor is with another tenant ,namelySarlaMahendru'Thepetitioner:undtheirsonsareln occupation of the remaining portion on the terrace floor' The petitioner no.lishimselfengagedinthesale/businessofwaterpurifiers.The premises are required bonafide for the use of their son Amit as he is a lawgraduateandregisteredaSanadvocate;herequirestheaforenoted premisesforthepurposeofdoingpracticeasanadvocateandfor runninghisoffice.Theyhavenootherreasonablysuitable accommodation to accommodate this requirement of their son who is dependent upon them for his accommodation. Accordingly eviction petition had been filed' 3Leavetodefendapplicationhaclbeenfiledandtheaverments contained therein have been perused. contention is that the other legal representatives of the original tenant namely D.D.Jogota have not been joined; this petition is bad for non-joinder of the necessary parties; the RCR Nos.53/2010 & l2OlzOLO Page 3 of l0 l1/ !4 petition has been filed malafide only to usurp the premises and except higher rent from the tenant. Material facts have been concealed' Contention is that other accommodation is available with the landlord and his submission that no other reasonably suitable accommodation is is incorrect. Attention has been drawn to the site plan. It is contended that the petitioner has four bed rooms with a drawing and dining room along with a kitchen and study room on the second floor and also an equal accommodation on the third floor; accommodation is also available with them on the ground floor as also on the first floor. Their contention that the premises are required for the need of their soh has not been substantiated. Furlher conten[ion being that the portion shorvn in yellow colour in the site plan which had beer: tenauted out to Krishna I(umari has since been vacated; further contention being that the accommodation with Sarla lVlahendru on the second floor has. also renewed; had it been a case of bonafide requirement of the petitioners they would have not renewbct the tenancy of Sarla Mahendru; evictioril petition has been filed malafide only to harass the present petitioner-Reply has been filed by the respondent to the corresponding paras of the application seeking leave to defend. Contention is that the RCR Nos.53/2010 & LzOlzOlO /2 accommodation described by the petitioner as depicted in"the site plan is correct; in fact the averments made in the application seeking leave to defend have not challenged the correctness of the site plan as also depiction of the property as given by the landlord in the said site plan' This site plan has shown that the only portion which is available with the landlord on the ground floor is a narrow passage on the front portion which is a stair case allowing access of the landlord to t[e'upper floor from this side; there is an open court yard in the rear portion having a staircase that allows access of the landlord to the upper floor from this portion. This position is undisputed. On the first floor tt'" po'tio" shown in blue colour is with the landlord which has a store having PVC sheet covering. The yellow portion is admittedly with the tenant Krishna I(umari. The red'. portion is r'vith the present petitioner' The portion shown in green colour in the second floor is with another tenant Sarla Mahendru; contention of the petitioner that the tenancy of Sarla : Mahendru has been renewed destroying the bonafide need of the petitioner as had the petitioners required the accornmodation for their son they would have not renewed the tenancy of sarla Mahendru is an argument without force. This factum has been disputed in the RCR Nos.53/2010 & 120/20L0 Page 5 ofl0 t t\ coresponding para of the reply; even otherwise no document has b""tt' placed on record by the tenant to substantiate this submission whicil appears to be only a bald submission; so also is the contention of the tenant qua the yellow portion. Contention of the tenant is that Krishna Kumari has since vacatecl the premises; sllbmission being that these premises have been vacated on 30.II.2009 and the eviction petition has been filed on 07 .10.2009 which is just one month prior to the date of the filing of the eviction petition and this was for a malafide reason as the lanOlo.d did not wish to disclose that the premises would automatically be vacated in November 2009 as the two years lease with Krishna Kumari would then come to a c10se. This oral submission which has been submitted before this Court finds no mention. in the averments made in the application for leave to defend where the only contention is that asper th.e knowledge of the tenant the premises shown in the yellow . portion on the first floor has been vacated. The landlord has vehemently. denied the submission that this yellow portion had been vacated in November 2009. ', 5 The landlord is the best judge of his requirement and this has been reiterated by the courts time and" again that it is not for the court or tho RCR Nos.53/2010 & !2012010 Page 6 of10 a ,-{ ! tenant to describe the manner in which the landlord wishes to chalk out his life style or the schiclule of his business accommodation either for himself or for his family members who are dependent upon him for other accommodation' It is not in dispute that the son of the petitioner is a law graduate having qualified in the'year 2007 and now wishes to set up practice of ,. his own. Pleadings of the parties show that there is no other reasonably suitable accommodation available with the petitioner to settle his son for officeSpace;thetenantedportion(asdepibtedinredcolourinthesite plan) on the first floor would be a suitable accommodation which space is required for the son of the landlord for his office; i.e. not only for placing table, chair but as also to house a stenographer and may be a iunior assistant or a clerk' The Supreme in Prativa Devi (.Smt.) vs. T.V. Krishnan (1996) 5SCC353hadheldinthiscontextinteralianotedas:- . ,,Tile landlorcl is the best judge of his residential recluirenlent. He hasacompletefreec|ominthematter.Itisnoconcernofthecot'rts to clictate to the landlorcl how, and in'what ntanner, he shoz)Id live or to prescribe for him a residential standard of their own' " RCR Nos.53/2010 & lzolzotO Page 7 of10 a L< ; B Unless and until a triable issue arisgs leave to defend should not and cannot be granted in a mechanical and a,routine manner. No triable issue has arisen. ! g A last ditch effort has been made by the petitioner to contest theh petition on the ground of ownership; contention being that the gift deed' is not a valid bequeath'by the mother in favour of the son' This argument is also bereft of force; besides the fact that this argument does not find mehtion in the written pleadings (application for leave to defend) even otherwise the question of ownership does not in any manner raise a triable issue. It is not the case of the tenant that the original landlord was not the owner of the suit premises; admittedly the present tenant has also attorned to the petitioner and was earlier paying rent to their mother and has all along recognized her as the owner and his landlady.. The registered gift deed in favour of the petitioner has bequeathed the property upon them. The status of an owner and landlord as is contemplated under Section 1a(1)(e) of the DRCA has been the subject matter of discussiOn by the Apex Court on numerous , /< a occasrons. m (1987) 4 SCC I93 Smt. Shanti sharnta & ors. vs' ved Prabha & Ors the Apex Court had held as follows: RCR Nos.53/2010 & 1.20t2OLO .j\ ') a_ t7 "The v,ord'otvner' ha,s not been definecl in this Act and lhe word 'ov'ner' has also not been defined in the Transfer of Property Act. The contention of the Iearnecl Cotmsel for the appellant appears to be is that ownership means qbsolzrte ot4)nership in the land as well as of the strt'rcture standing theretrpon. ordinarily, the concept of otunership nx?y be what is contended by the cotmsel for the appellant bti itt the ntodern context wltere it is more or Iess aclntitted that all luncls belong to the State, the persons who hold properties will only be lessees or the persolls holdmg the land on some tenn from the Govt. or thi crztthorities constitttted by the State and in this view of the ntatter it cotild not be thottght of that the Legislature when it u'red the. term'o,yvner'in the provi.sion of Section l41t(d it thought of otvnership as absoltile ownership. It must be prestmrccl that the concept of otvnership only will be as it i.s tmderslood at present. It cotid not be doubted that the ternt 'otvner'has to be tmclerstoocl in the co.ntext of the background of the.law and "nhat is contentplated in the schertte of the Act'" 10 The registered gift deed in favour of the landlord also cannot be the subject matter of challenge. A Bench of this Court in AIRCJ I97I2 Afian Dass Vs. Ltladan Lal, has in fact held, as follows: "a rcnant has no loctls standi to challenge the validity of the Will nmde by the lancllorcl as he is not an heir of the landlord'" ' { l1 Arguments of the petitioner that there has been a non-joinder of the other legal representatives of the original tenant is also an arguments without merit. The law is well settled; the legal representatives of the a\ RCR Nos.53/2010 & 120/2010 -.:l_(, /{ I deceased tenant succeed as joint tenants and.a petition against one legal representative alone is by itself maintainable. This has been upheld by a Benqh of this Court reported in 2008 (S) AD 328 Inder Pal Khanna v.s' Commander Bhupinder Singh Rekhi. This argument also does not raise ariy triable issue. 12 No notice is also'required prior to the filing of eviction petition under section 1a(l)(e) of the DRCA and arguments on this score is also \- without any force. No triable issue having arisen the inpugned judgment decreeing the eviction seeking leave to defend suffers any merit. Dismissed. APRIL 25,2012 nandan c RCR Nos.53/2010 & t2012010 petition and dismissing the application from no infirmity. fetiti|\ is without tt ',,: -_a ,t ,) - ,)r -' +Yll-INDERMEET KAUR, J Page 10 of10