Delhi District Court
(1) Sh. Mukesh Kumar vs (1) Sh. Kranti Kumar Sharma (Since ... on 29 January, 2022
IN THE COURT OF SENIOR CIVIL JUDGE-CUM-RENT
CONTROLLER, SOUTH-EAST DISTRICT, SAKET COURTS,
NEW DELHI
Presided By : Ms. Manisha Khurana Kakkar, DJS
RC ARC. No: 5120/16
(1) SH. MUKESH KUMAR,
S/O LATE SHRI RAM KISHORE,
R/O C-43, II FLOOR (LEFT SIDE)
JANGPURA EXTN. ,NEW DELHI ........Petitioner
Versus
(1) SH. KRANTI KUMAR SHARMA (SINCE DECEASED)
THROUGH HIS LR SH. AMIT BHARDWAJ
(a) SH. ALOK BHARDWAJ
(b) MS. ALKA SHARMA
(c) SH. AMIT BHARDWAJ
ALL SONS/DAUGHTER OF LATE KRANTI KUMAR SHARMA
ALL R/O /E- 44/2, SIDDHARTH NAGAR, NEW DELHI
...Respondents
Application for eviction of tenant Under Section 14 (1) (e) read with
section 25-B of the Delhi Rent Control Act, 1958
DATE OF INSTITUTION : 20.10.2015
DATE OF CONCLUSION OF ARGUMENTS : 12.01.2022
DATE OF DECISION :29.01.2022
JUDGMENT
Petitioner's case:
1. Brief facts of the petitioner's case are that petitioner is the co-
owner /landlord of the property bearing No. 25 Bazar lane, Bhogal Jangpura, New Delhi (hereinafter referred to as "suit property") . The said suit property is stated to have been inherited by the petitioner alongwith his brother namely Sh. Rakesh Kumar, from their father RC ARC NO. 5120/2016 MUKESH KUMAR VS. KRANTI KUMAR SHARMA Page 1 of 33 namely Late Sh. Ram Kishore, as the other legal heirs (daughters) of late Sh. Ram Kishore are stated to have relinquished their rights in the said suit property in favour of the petitioner and his brother Sh. Rakesh Kumar. Petitioner further states that suit property is a three side open property, one side of the same opens on Bazar lane, Bhogal New Delhi, while the other side is situated on Bhogal road and third side opens towards a gali, which connects with the Bazar Lane and Bhogal Road. As per the petitioner, on the ground floor, there are tenanted portions, under the tenancy of respondent, one shop known as shop no. 74,76 Bhogal road with basement therein, under the name and stype of M/S Royal Baths (under the possession of Rahul, nephew of petitioner), shop no. 72 is under the possession of petitioner and shop no. 70 is under the possession of Sh. Srikant (son of petitioner) and beside this, one shop is at the back side i.e. on the side of Bazar Lane, which is being used as a godown by the petitioner. It is stated that due to paucity of space, there is no partition between the shop of the petitioner and his son and petitioner is also running a firm under the name and style of M/S Ram Kishore & sons.
2. It is stated that the tenanted portion i.e. six rooms, veranda, toilet on the ground floor out of suit property bearing No. 25 Bazar Lane Bhogal, Jangpura, New Delhi was let out to one Sh. Om Praksh Shatri i.e. the father of the respondent in the year 1958. Sh. Om Prakash Shashtri had expired on 16.05.2006. Petitioner claims that after the death of Sh. Om Prakash Shastri, respondent came into the shoes of his father as a tenant and started paying rent to the petitioner or to the brother of the petitioner, namely Sh. Rakesh Kumar Garg (who is the co- owner of the property). It is further stated that the brother of the petitioner namely Sh. Rakesh Kumar Garg had issued a notice dated RC ARC NO. 5120/2016 MUKESH KUMAR VS. KRANTI KUMAR SHARMA Page 2 of 33 04.06.2011 to the respondent for vacating the tenanted/suit premises and had filed an Eviction Petition bearing no. 69/2012, on the ground of bonafide requirement against him as Sh. Rakesh Kumar Garg had lost a case in respect of his tenanted shop. It is claimed that considering the genuine needs of his elder brother namely Sh. Rakesh Kumar Garg, the petitioner had given an NOC to file the said petition. Petitioner claims that there was bonafide requirement of the suit premises by the petitioner, however, considering the genuine need of his younger brother, he had put his bonafide requirement behind. It is further stated that the brother of the petitioner had decided to withdraw the said petition on 04.09.2015 from the court of Ld. Rent Controller, Saket Courts.
3. It is further stated that the tenanted/suit premises which is under the use and possession of the respondent is required bonafidely by the petitioner for himself and his son, namely Shrikant as the petitioner is stated to be doing a business of seeds and greens, for which a huge godown and display centre is required. Petitioner claims that due to paucity of space, business of petitioner as well as that of his son had been suffering. Petitioner states that his son Shrikant is also doing the business of horticulture machinery and their repairs. It is further stated that there is only one godown with the petitioner which is small in size and his son does not have a godown and work shop to put his items, which further restricts the growth of his business. It is further stated that for the purpose of godown, display and workshop, the petitioner has no vacant and suitable space available except the tenanted/suit premises. Petitioner further conceded that his wife has a flat in Jangpura which is being used by the petitioner and his family members for residential purpose. It is further stated that petitioner has also a small space at the first floor of the suit property which is being used as a office of his firm. It is further RC ARC NO. 5120/2016 MUKESH KUMAR VS. KRANTI KUMAR SHARMA Page 3 of 33 stated that on the second floor of the suit premises, there are four small rooms, which are occupied by the tenants on the first floor, which are being used for the residential purpose of the family of his brother and family of brother's son. It is further averred that due to paucity of space, petitioner had to use two small rooms as a godown on the same floor. It is further claimed that the first and the second floor of the suit premises are being used for residential purpose and ground floor is being used for commercial purpose. As per the petitioner, the ground floor of the suit property is best suitable place for commercial purpose. It is further stated that the respondent is running a unrecognized nursery school in suit premises despite having another space which bears no. 44/2, Siddharth Nagar, New Delhi. Hence, the present petition.
Respondent's case:
4. In the written statement filed on behalf of respondent, it is stated that the petition filed by the Petitioner is misconceived. Respondent further states that a school is running in the name and style of "ADARSH VIDYA NIKETAN" and there are about 250 students and classes from Nursery to 5th are being held and there are 10 employees consisting of teachers and other staff besides management. Respondent states that the suit premises was let out to the father of the respondent and he had stepped into the shoes of his father. It is further stated that the petitioner's brother namely Sh. Rakesh Kumar Garg had filed a similar eviction petition on the ground of bonafide requirement being Eviction Petition No. 69/2012. Respondent further states that in the said petition, Petitioner herein had given his 'No Objection' in favour of his brother Sh. Rakesh Kumar Garg and the Petitioner had even filed an affidavit of evidence and had also been appearing and attending the said proceedings RC ARC NO. 5120/2016 MUKESH KUMAR VS. KRANTI KUMAR SHARMA Page 4 of 33 till 04.09.2015. Respondent states that the earlier petition was dismissed as withdrawn on the ground that "the Petitioner is not well and not in a position to continue the case" It is averred that the earlier petition was withdrawn and as such the present petition had been filed immediately thereafter, in collusion with Shri Rakesh Kumar. It is further stated that the aforesaid Eviction Petition No. 69/2012 was filed on the basis of fabricated documents and a plea was taken therein that Sh. Rakesh Kumar Garg had medical problem and was unable to climb stairs and also on the ground that there was paucity of accommodation for both residential and commercial purposes and on other various other grounds. Respondent denied that Sh. Rakesh Kumar Garg was suffering from any neurological sickness or any ill health. It is further stated that initially in the said petition, leave to defend was rejected by the learned Addl. Rent Controller vide order dated 17.10.2011 and the Respondent herein filed Civil Revision Petition bearing No. 31/2012 before Hon'ble Delhi High Court. It is further stated that the leave was granted vide judgment dated 19.09.2012 against which an SLP ( C.C. no. 6439/2013), was filed in Hon'ble Supreme Court and the same was dismissed vide order dated 01.04.2013.
5. Respondent further states that having already failed to prove the alleged grounds for eviction and after leading false evidence, the said eviction petition no. 69/2012 was withdrawn. It is further stated that in the earlier aforesaid eviction petition, it was claimed that Petitioner herein has sufficient accommodation both, residential and commercial. It is further stated that the present eviction petition has been filed only to pressurize the respondent herein to pay exorbitant rent. It is further stated that the Petitioner and his brother have not been accepting the rent tendered by the respondent and on rent being deposited by the RC ARC NO. 5120/2016 MUKESH KUMAR VS. KRANTI KUMAR SHARMA Page 5 of 33 respondent in the Court of Ld. Rent Controller on various occasions, they even refused to accept the said rent and did not contest the petition. It is further stated that the petitioner is in possession of sufficient and spacious accommodation and the alleged need is neither bonafide nor just or proper.
6. Respondent further claims that petitioner is not the exclusive owner of the suit property, which has neither been partitioned nor divided between the family members of late Shri Ram Kishore Garg and late Shri Raj Kishan. It is further stated that as such, the present petition is not maintainable. As per the respondent, the other co-owners are liable to be impleaded in the present petition. It is further stated that there is a huge basement under the premises no 70,72, Bhogal Road in the name of Ram Kishore and sons and also another shop with basement where business in the name of M/S Ganesh Greenz Valsons is being carried out. Respondent claims that petitioner has not described the property (where suit premises is located) properly and has deliberately shown incorrect address, with a view to mislead this Court. It is further stated that the main building is divided into two parts and there is separate entry from Ist floor and above and that an area of more than about 3500 sq ft is in possession of the petitioner besides the G. F. It is further stated that the respondent has an electricity connection in his name at premises no 70 Bhogal road and the meter is installed at 76 Bhogal road.
7. Respondent further states that the petitioner and his son are carrying on the business jointly and that there is no separate business as claimed. It is further stated that the rent agreement was executed by M/s Ram Kishore, Rajkishan and there is no partition between the families. It is further stated that the petitioner has also suppressed true facts as RC ARC NO. 5120/2016 MUKESH KUMAR VS. KRANTI KUMAR SHARMA Page 6 of 33 regards his ownership of another shop bearing no. 84/4872, Bhogal Road, opp., Bank of Baroda, Bhogal Road, New Delhi. It is further stated that the petitioner has also suppressed possession of portions of first, second floor and 3rd floor of the entire premises. It is further stated that the petitioner as well as his son have other various other properties in Delhi/ NCR. It is further stated that the suit premises in occupation of the respondent is part of 25, Bazar Lane, & 70, Bhogal Road and part of it is the back portion of municipal No. 70, 72, 74& 76, Bhogal Road, New Delhi. Respondent denied that petitioner is the landlord qua the suit premises, in as much as, he has just recently deposed in previously instituted proceedings that Sh. Rakesh Kumar is the owner and landlord of the suit premises.
8. It is further stated that the petitioner has 4 huge shops in his possession, out of which, two shops each are occupied by the petitioner and his son and similarly, the other brother Sh. Rakesh Kumar also has 4 shops occupied by him and his son. Both the petitioner and Sh. Rakesh Kumar and their sons are stated to be doing business collectively. It is further stated that the shop at the back portion of the suit property has huge space of about 11 X 31 ft. with basement of the same size and the same is lying unused and there is sufficient space available with the petitioner in part of the suit premises no. 25, Bazar Lane, & 70, Bhogal Road, & 72, 74 & 76, Bhogal Road, New Delhi. It is further stated that there is no paucity/ shortage of accommodation with him and his family. It is further stated that the petitioner also has 6 to 7 big rooms and a big covered drawing room over the entire length of courtyard on the 1 st floor. It is further stated that petitioner has 6-8 rooms available to him on the 1st to 3rd floor and are also in occupation of the petitioner.
RC ARC NO. 5120/2016 MUKESH KUMAR VS. KRANTI KUMAR SHARMA Page 7 of 339. It is further stated that the petitioner is the owner of a floor of the size of about 1800 sq. ft. in Jangpura Ext. It is also stated that petitioner's son also has an independent floor in the same area and is learnt to have a palatial property in Noida and also rental income from other properties. It is further stated that the 2nd floor has been recently let out and being used as a paying guest accommodation, in order to create a ground for eviction of answering respondent. It is further stated that respondent has kept a large portion on the ground floor locked and unused and an accommodation in front of Bank of Baroda is also owned by him and is lying unused. It is, therefore, prayed that the petition be dismissed.
Petitioner's Evidence:
10. In order to prove his case, petitioner Sh. Mukesh Kumar examined himself as PW-1. In his examination-in-chief, he had mostly reiterated the averments made in the petition and he had relied upon the following documents:
1. copy of relinquishment deed dated 25.09.2000 i.e. Ex. PW1/1(OSR);
2. copy of NOC i.e. PW1/2;
3.Copies of sale tax regd. of firms i.e. Mark A(colly);
4.Copy of site plan and DR petition u/s 27 Delhi Rent Control Act i.e. Ex. PW1/4 & Ex. PW1/5 respectively; and
5.Copy of petition filed by brother (Rakesh Kumar Garg) i.e. Ex. PW1/6.
11. Sh. Shrikant i.e son of petitioner /PW1 was examined as PW2. He also reiterated the averments made in the petition.
Respondent's Evidence:
12. In order to prove his defence, respondent Sh. Kranti Kumar Sharma examined himself as RW-1. In his examination-in chief, he RC ARC NO. 5120/2016 MUKESH KUMAR VS. KRANTI KUMAR SHARMA Page 8 of 33 mostly reiterated the averments made in his written statement. He relied upon the following documents:
1. Site plan i.e. Ex. RW1/1;
2. certified copy of criminal case no. 473940/16 i.e. Ex. RW1/2 (colly);
3. photocopy of internet generated copy of order of Sh.
Shailender Malik, Ld. ADJ, Central, Tis Hazari Courts, dated 30.07.2016 i.e. Mark A.
13. Respondent further examined Sh. Rajendra Singh, JSA, from House Tax office, Sanwal Nagar, Sadiq Nagar, New Delhi. He had produced the summoned house tax record for the property bearing no. 25, Bazar Lane, Bhogal filed by Sh. Rakesh Kumar for the year 201011, 201112 and 201819 and the calculations sheets of house tax of above mentioned years i.e. Ex. RW2/A (colly) and the house tax receipts for the year 201011 and 201112 i.e. Ex. RW2/B (colly) He had also produced the house tax calculation sheets of property bearing no. 7072, Bhogal road filed by Sh. Mukesh Kumar for the year 20102011, 2011 12 and current year i.e. Ex. RW2/C and the online history of the house tax receipts i.e. Ex. RW2/D.
14. Respondent further examined Dr. Arun Sharma as RW3. In his testimony, he had deposed that Sh. Mukesh Kumar and his son Shrikant were doing business in the said property bearing no. 70 and 72, Bhogal road, Bhogal since last several years in the name of M/s Greens Garden Shop and M/s Greenz. He further deposed that there is ample vacant space available with the petitioner and his son and there is a long basement under all shops (4 shops). RW3 further deposed that there are two shops bearing no. 74 & 76, Bhogal Road in the name of Royal Bath RC ARC NO. 5120/2016 MUKESH KUMAR VS. KRANTI KUMAR SHARMA Page 9 of 33 including basements. He further deposed that the shop bearing no. 74 & 76, Bhogal road does not belongs to Sh. Mukesh Kumar and both the shops are with the son of Sh. Rakesh Kumar. He further deposed that both brothers i.e. petitioner and Sh. Rakesh Kumar Garg are living separately and are in possession of the property under family settlement. He also deposed that there is a wall between the portions of the petitioner and Sh. Rakesh Kumar. He further deposed that there are 5 shops in the ground floor and the respondent is in the possession of the back side space of the shops for more than 60 years.
15. In his cross examination, RW3 Dr. Arun Sharma had deposed that the tenanted premises is not 25 Bazar lane, it is 70, Bhogal Road. He denied the suggestion that in municipal shop no. 70 & 72, the son of petitioner and petitioner are doing the business and in municipal shop no. 74 & 76, son of brother of petitioner is doing the business. He further deposed that there is a basement under the shop no. 70, 72, 74 and 76. He denied the suggestion that there is no basement under shop no.70. He further denied the suggestion that he had come to depose to support his brother.
16. Thereafter, respondent evidence was closed and the matter was fixed for final arguments.
Appreciation of Evidence & Finding:-
17. I have heard the counsels for both the parties carefully and perused the record.
RC ARC NO. 5120/2016 MUKESH KUMAR VS. KRANTI KUMAR SHARMA Page 10 of 3318. The present petition had been filed by the petitioner in respect of the suit property bearing no. 25 Bazar lane, Bhogal Jangpura, New Delhi on the ground that the said suit property is required by the petitioner bonafidely for himself as well as for his son namely Srikant for the purpose of godown, display and workshop as petitioner is carrying on a business of seeds & greens, while his son is running a business of horticulture machinery and their repairs and that petitioner has no other vacant and suitable space for the same except the tenanted/suit premises. In order to prove the same, petitioner had examined himself as PW1. In his examination in chief, he had mostly reiterated the averments made in the petition.
19. PW1/petitioner had also examined his son namely Srikant as PW2. PW2 had supported the testimony of his father i.e. PW-1/petitioner.
20. Per contra, respondent had contested the present petition on the ground that earlier also, younger brother of petitioner namely Sh. Rakesh Kumar had filed a petition under Section 14(1)(e) Act vide Eviction petition no. 55/11 against the respondent and in that petition, petitioner had voluntarily relinquished/waived off his right to sue his brother and had executed an NOC in favour of said brother and that in the present petition also, Sh. Rakesh Kumar is stated to have executed an NOC in favour of the petitioner. It is claimed that petitioner had fraudulently executed the NOC placed on record i.e. Ex. PW1/2 on behalf of his brother. Respondent had also claimed that petitioner has no bonafide requirement of the suit premises and has sufficient accommodation in the building where the suit property is located apart from other suitable properties.
RC ARC NO. 5120/2016 MUKESH KUMAR VS. KRANTI KUMAR SHARMA Page 11 of 3321. Be that as it may, in order to claim eviction of a tenant under section 14(1)(e) of Delhi Rent Control Act, 1958, petitioner has to prove the following:
(1) that there is landlord-tenant relationship between the parties; (2) that there is bonafide requirement of the petitioner in respect of the suit premises; and (3) that there is no vacant suitable accommodation available with the petitioner to fulfill the bonafide requirement.
Landlord-Tenant Relationship:
22. In order to prove the same, petitioner/PW1 had appeared in the witness box and had deposed that he is the co-owner /landlord of the suit property bearing no. 25, Bazaar Lane, Bhogal, Jangpura, New Delhi as the same was inherited by him and his brother Sh. Rakesh Kumar from their father and the other legal heirs (dauthters of late Sh. Ram Kishore) had relinquished their rights in the said property in their favour. PW1/petitioner Mukesh Kumar had relied upon copy of relinquishment deed dated 25.09.2000 i.e. Ex. PW1/1(OSR). He had further testified that his brother namely Sh. Rakesh Kumar had authorized him and had given NOC in his favour to file the present petition for his bonafide requirement of the suit property.
23. The respondent/RW1 in his testimony had deposed that in an earlier petition filed by the brother of petitioner namely Sh. Rakesh Kumar i.e. Eviction petition no. 69/2012, petitioner herein had waived /relinquished his rights by giving no objection in favour of his brother Sh. Rakesh Kumar on 30.05.2011. The said NOC was placed on record as Ex. PW1/D1. It is, thus, claimed by the respondent/RW1 in his RC ARC NO. 5120/2016 MUKESH KUMAR VS. KRANTI KUMAR SHARMA Page 12 of 33 testimony that the petitioner is not the exclusive owner of the suit property which had neither been partitioned nor divided between the family members of Late Sh. Ram Kishore Garg and Late Sh. Raj Kishan.
24. Be that as it may, nowhere in his testimony, respondent had raised the contention that petitioner being the co-owner in respect of undivided property, could not have filed the present petition as he had already given an NOC in favour of his brother Sh. Rakesh Kumar Garg in the earlier eviction petition as already mentioned. However, the fact that an earlier eviction petition was filed by the brother of the petitioner namely Sh. Rakesh Kumar Garg, had not been denied by the petitioner herein. The petitioner had also not denied the fact that he had given an NOC in favour of his brother to file the earlier eviction petition and the said NOC had been placed on record as Ex. PW1/D1. Perusal of the said NOC shows that petitioner had stated therein that he is the co-owner of half (50%) share of the suit property no. 25, Bazaar Lane, Bhogal, Jangpura, New Delhi and that he had authorized his brother Sh. Rakesh Kumar Garg to file and prosecute a petition for eviction against the respondent (tenant) herein in respect of the suit property. Thus, from the said no objection placed on record, it is apparent that in the earlier eviction petition, petitioner had only given an authority to his co-owner i.e. his brother Sh. Rakesh Kumar Garg to initiate proceedings for eviction against the respondent/tenant herein and had in no way relinquished his right in the suit property. It is well settled that in order to relinquish his right in a property, the petitioner should have executed a registered relinquishment deed which is not the case in the present matter. In fact, an application under Section 151 CPC r/w section 115 of Indian Evidence Act had been moved on behalf of the respondent before the Ld. Predecessor as stated vide order dated 09.10.2017 on the ground that RC ARC NO. 5120/2016 MUKESH KUMAR VS. KRANTI KUMAR SHARMA Page 13 of 33 since the brother of the petitioner had filed another eviction petition in which the present petitioner had given no objection certificate to his brother, therefore, the present petitioner had no right to seek eviction of respondent from the tenanted/suit premises. The said application was dismissed by Ld. Predecessor vide the said order dated 09.10.2017 and it had been held that merely because one co-owner had allowed another co- owner to prosecute a tenant for his bonafide requirement as it existed, it did not mean that the said co-owner had relinquished his right over the tenanted premises for all times to come. The said order passed by Ld. Predecessor had been upheld in an appeal in RCT ARCT no. 18/27 vide order dated 14.12.2018, passed by Sh. Girish Kathpalia, Ld. District & Sessions Judge, South East, Saket Court. Thus, there is no merit in the contention raised by the respondent and the same had already been decided vide the aforesaid orders.
25. Apart from the said contention, no other contention had been raised by the respondent to dispute that the petitioner is the landlord in respect of the suit property. In fact, the landlord-tenant relationship stands fortified between the parties from the petition under Section 27 Delhi Rent Control Act, dated 14.11.2007 filed by the respondent himself against the petitioner and his brother i.e. Sh. Rakesh Kumar Garg, which had been placed on record by the petitioner as Ex.PW1/5. In the said petition filed under Section 27 DRC Act, respondent himself had categorically stated in Para 10B that the respondent had been repeatedly going to petitioner Sh. Mukesh Kumar Garg to pay the rent and he, with the consent of his brother i.e. Sh. Rakesh Kumar Garg, used to receive the rent and he even used to issue rent receipts for the same. Thus, from the said previous proceedings inter se between the parties herein, it RC ARC NO. 5120/2016 MUKESH KUMAR VS. KRANTI KUMAR SHARMA Page 14 of 33 stands established that there is landlord-tenant relationship between the parties.
Bonafide requirement:
26. In order to prove the same, petitioner/PW1 had deposed that on the ground floor of the said property, shop no. 72 is under the possession of the petitioner and shop no.70 is under the possession of his son namely Sh. Srikant and that due to paucity of space, there is no partition between the shop of the petitioner and his son and that petitioner is also running a firm in the name and style of M/s Ram Kishore & Sons.
PW1/petitioner had also deposed that M/s Ram Kishore & Sons and M/s Greens Garden shop and M/s Greenz are running from the same shop due to paucity of space. PW1/petitioner had also deposed that the said firm had no space to put it's goods and that suit premises is required for storage of goods. Specifically, petitioner/PW1 had deposed that the tenanted/suit premises is required bonafidely by the petitioner and his son namely Sh. Srikant because the petitioner is doing the business of seeds and greens for which a huge godown and display center is required and his son is also doing the business of horticulture machinery and their repairs and there is only one godown with the petitioner at the ground floor which is small in size and that his son has no godown and workshop to put his items which restrict the growth of his business. The petitioner had, therefore, claimed that for the purpose of godown, display and workshop, petitioner bonafidely requires the suit premises. The said testimony of the petitioner was also supported by the testimony of his son namely Sh. Sri Kant i.e. PW2 who had also deposed to that effect. PW2/Sh. Sri Kant had also deposed that the ground floor premises is more suitable for commercial purpose and the first and second floors are RC ARC NO. 5120/2016 MUKESH KUMAR VS. KRANTI KUMAR SHARMA Page 15 of 33 not suitable to run any retail business of workshop of horticulture machine business and that ground floor is best suitable for the footfall of customers as well as supervision in comparison to other floors.
27. Per contra, the respondent had disputed the said contention raised by the petitioner and his son. Respondent had claimed that the petitioner had intentionally and malafidely not given the actual measurement of the accommodation available with him and that the site plan i.e. Ex. PW1/4 filed by the petitioner is defective as it does not disclose the area, boundaries and measurement of the tenanted premises as well as of the building. Respondent had claimed that the petitioner had malafidely mentioned the details of the suit property as 25, Bazar lane in the site plan, however, actually the said property bears municipal no. 70, 72,74, 76, Bhogal Road and 25, Bazaar Lane and that as per the house tax record filed by the petitioner, he had 143 sq. meters at the ground floor and that he had intentionally mentioned less measurement of the suit property in his testimony. Respondent had also claimed that the petitioner did not admit that there is a basement under the property bearing no. 70,72 and that the same was not shown in the site plan. Counsel for respondent had vehemently argued that the site plan of the respondent i.e. Ex. RW1/1 clearly shows the portion of the tenanted premises which falls under the property bearing municipal no. 74, 76 as well as property no. 70, 72.
28. When the matter was listed for final arguments on 09.02.2021, an application under Order 8Rule 1A r/w section 151 CPC was moved on behalf of the respondent for placing on record another site plan. Since the present petition had been long pending at the stage of final arguments, therefore, it was deemed expedient in the interest of justice that the said RC ARC NO. 5120/2016 MUKESH KUMAR VS. KRANTI KUMAR SHARMA Page 16 of 33 application be decided along with the present petition. Counsel for the petitioner had objected to the said application on the ground that site plans had already been filed on behalf of both the parties and there was no requirement of filing of fresh site plan through the said application.
29. Be that as it may, during the course of final arguments, counsel for respondent had also vehemently argued that as per the house tax record in respect of the suit premises, the petitioner had been paying the house tax of municipal no. 70,72 and the brother of the petitioner had been paying house tax for property bearing no. 25, Bazaar Lane. It had been argued that the property bearing municipal no. 72 is situated at Bhogal Road and the property bearing no. 70 is situated at Bazaar lane. Thus, it was concluded by counsel for respondent that the property of the petitioner bearing no. 70,72 is from Bhogal road, Bazaar Lane and rest of the property towards the side of shop of his brother fall under municipal no. 74, 76 & 25, Bazaar lane. Respondent had claimed that the petitioner had misrepresented the said fact and that there was no bonafide need of the petitioner to seek eviction qua the suit premises.
30. Be that as it may, PW-1/petitioner had been cross examined at length by Ld. Counsel for respondent. In his cross examination, PW1 had deposed that NOC dated 30.05.2011 Ex. PW1/D1 was given by him to his brother in the proceedings initiated qua the suit property by his brother. He further deposed that the said NOC was given voluntarily to get the premises vacated. PW1 further deposed that he had given no objection to his brother even though he also needed the suit property. He further deposed that he gave priority to the needs of his brother since the shop from where he had been earning earlier, had been vacated. PW1 further admitted the affidavit Ex. PW1/D2 dated 14.02.2014, filed in Ev.
RC ARC NO. 5120/2016 MUKESH KUMAR VS. KRANTI KUMAR SHARMA Page 17 of 33Petition no. 69/2012/11, titled 'Sh. Rakesh Kumar Garg vs. Shri Kranti Kumar Sharma'. He affirmed that in the said affidavit, he had written that his brother had bonafide need of the suit property. PW1 denied the suggestion that the present petition and the earlier petition for eviction were filed in collusion between him and his brother. He further denied the suggestion that he had relinquished his rights in the suit property, therefore, he had no right to file the present suit. He further deposed that he could not say if the petition was filed by his brother on the ground that he was dependent on his daughter and had strained relations with his son and that he had suffered a heart attack. He further deposed that the said petition was withdrawn in August/September 2015 from Saket Court. He further deposed that he could not say whether any proceedings u/s 340 Cr.P.C were initiated in that matter but were dismissed on the ground that the court of the Rent Controller was not a civil court.
31. In his cross examination, PW1/petitioner admitted the genuineness of the certified copy of all the proceedings pertaining to eviction petition Rakesh Kumar Garg vs. Kranti Kumar Sharma, which was disposed off by the Court of Ms. Surya Malik Grover. The certified copies of the same were taken on record as Ex. PW1/D5(colly). He further deposed that since 2003, a case pertaining to shop no.90, Bhogal Road had been pending, and again a joint case was filed by him and his two sisters qua the Bhogal property as a co-owner against Ashok Kumar and Vijay Kumar. PW1/petitioner denied the suggestion that intentionally and malafidely, he had not mentioned about the said property in his petition as well as his affidavit. He further deposed that the decree in the said case was obtained in 2017.
RC ARC NO. 5120/2016 MUKESH KUMAR VS. KRANTI KUMAR SHARMA Page 18 of 3332. PW1/petitioner further deposed that the whole property where the suit property/tenanted premises was located was measuring 342 sq. yrds. 40 x 78 sq. feet. He admitted that the shop of M/s Greens is located in shop no. 70 and 72. As per his testimony, shop no. 70 is in the name of M/s Green and shop no. 72 is in the name of Greens Garden shop. PW1/petitioner further deposed that one room behind shop no. 72 is in the tenancy of respondent but it is not a part of shop no. 72. As per his testimony, the said room is a part of 25 bazar lane. PW1/petitioner denied the suggestion that portion of property no. 72 is in the tenancy of the respondent. He admitted that behind shop no. 70 there is a shop of M/s Ram Kishore Sons. He denied that there is a basement under shop no. 70 and 72 along with M/s Ram Kishore Sons. He deposed that M/s Royal bath is located in shop no. 74 and 76 and M/s Balaji Home Decor is located in shop no. 74 and 76. PW1 admitted that there is a basement in the property bearing no. 74 and 76. He further denied the suggestion that intentionally and malafidely to create a ground of bonafide requirement of suit property, he had not mentioned in the petition, affidavit as well as in the site plan about the basements below property bearing no. 74 and 76 and about the basements below property bearing no. 70 and 72.
33. PW1/petitioner further denied the suggestion that intentionally he was not stating that M/s Green has an area of 600 sq. feet, M/s Ram kishore Sons has an area of 600 sq. feet, M/s Royal Bath has an area of 600 sq. feet at the ground floor and that the measurement is the same under the basement of these shops. PW1/petitioner further denied the suggestion that shop situated at Bazar Lane is being used as a godown, however, he admitted that under this shop, there is a basement. He, RC ARC NO. 5120/2016 MUKESH KUMAR VS. KRANTI KUMAR SHARMA Page 19 of 33 however, volunteered that the same had been destroyed. PW1/petitioner denied the suggestion that intentionally & malafidely in order to create the ground of bonafide requirement of suit property/tenanted premises, he had not mentioned regarding the basement under this shop in his petition, affidavit as well as in the site plan. PW1 admitted that the entire property had the municipal no. 70, 72, 74 and 76 bhogal road and 25 Bazar Lane. He denied the suggestion that tenanted/suit premises also falls in 70,72,74 and 76 Bhogal Road. He denied the suggestion that the respondent had electricity bill in his name at municipal no. 70 since the tenanted premises is also the part of shop no. 70. PW1 further deposed that the premises in which the suit property is located was constructed upto ground, first and second floor. He further deposed that the shop of M/s Ram Kishore and sons had been merged into the shop bearing no.
70. He further deposed that the shop bearing no. 70 is approximately 50 ft. and breadth is 9 ½ ft. He further deposed that he had been paying the house tax for the municipal no. 70 & 72. He further deposed that the layout plan of the building is not correct. He further deposed that the covered hall shown in the site plan at the second floor are covered with plastic fiber sheets. He denied the suggestion that all the rooms on the first and second floors were used as godowns.
34. PW1/petitioner admitted that there is a basement under the municipal shop no. 70. He denied the suggestion that earlier he had deposed falsely that there is no basement in shop no. 70. He further denied the suggestion that he intentionally did not tell the court that third floor was constructed. He denied the suggestion that there are three rooms of the suit/tenanted premises falling in municipal no. 72 as shown RC ARC NO. 5120/2016 MUKESH KUMAR VS. KRANTI KUMAR SHARMA Page 20 of 33 in site plan Mark X (Ex. RW1/1). He further denied the suggestion that there is one and half room of the tenanted premises which falls in municipal no. 76. He further denied the suggestion that the tenanted/suit premises is part and parcel of municipal area 70,72,74 & 76, Bhogal road and 25, Bazar Lane. He further denied the suggestion that he had sufficient accommodation and he did not need any further accommodation. He further deposed that the premises 90, Bhogal Road is 810 shops away from his shop on Bhogal Road. He denied the suggestion that the said shop measures approximately 600 sq. ft. in area. PW1/petitioner volunteered that the said shop is not in his possession and the litigation qua the same was going on. PW1/petitioner denied the suggestion that his brother had given NOC i.e. Ex. PW1/2 in his favour and the said NOC was fabricated by him to file the present petition. He further deposed that his brother had given NOC in the year 2015.
35. PW1/petitioner admitted that respondent used to tender rent to his brother and not to him. He denied the suggestion that his brother was the landlord and that is why respondent was tendering rent to him. He further denied the suggestion that there was enough accommodation available at basement, ground, backside of the premises, first, second and third floor of premises.
36. PW1 further admitted that house tax and receipts for the property bearing no. 7072 was filed by him as shown in document Ex PW1/D6 and the house tax calculation alongwith the receipts for the property bearing no. 25 Baazar lane had been filed by his brother Rakesh Kumar i.e. Ex PW1/D7(colly). He further deposed that the shop showing Mark RC ARC NO. 5120/2016 MUKESH KUMAR VS. KRANTI KUMAR SHARMA Page 21 of 33 A, B,C and D in site plan i.e. Ex PW1/4 is 70 and A,E,F, G is municipal no. 72. PW1 denied the suggestion that the basement measuring 57.56 sq. meter shown in his house tax return is from Bhogal Road to Baazar Lane and this basement was divided in two portions. He further deposed that the said basement was below shop no. 25 Baazar lane and 70 Bhogal Road. He further deposed that he had not paid any house tax specifically mentioning shop no. 25 Baazar Lane as this was the same property which had the no. 70 Bhogal Road from other side. He further deposed that the measurement shown in the ground floor in Ex PW1/D6 measuring 63 sq. yards is of 7072 and 25 Baazar Lane. He deposed that the measurement shown in the ground floor in Ex PW1/D6 measuring 80 sq. yards is of tenanted premises 25 Baazar Lane. PW1 denied the suggestion that the property no. 25 Baazar lane runs from Bhogal road to baazar Lane and is exclusively owned by his brother. He further deposed that the number 7072 is only for the shop and the portion constructed above the shop has the number 25 Baazar Lane. PW1 denied the suggestion that 25 baazar lane does not exist on the first floor and second floor above the property bearing municipal no. 7072. He further denied the suggestion that he and his brother had partitioned the property and the property adjacent to the no. 7072 had the municipal no. 25 Baazar lane belonging to his brother.
37. PW2 Shrikant, son of petitioner, in his cross examination, had admitted that there was a tin shade on the roof of the third floor, however, he deposed that it was not on their side and was on the side of his uncle namely Rakesh Kumar. He denied the suggestion that a partition had taken placed between his father and his uncle. He had admitted that there was a wall between their portion and the portion RC ARC NO. 5120/2016 MUKESH KUMAR VS. KRANTI KUMAR SHARMA Page 22 of 33 occupied by their uncle as shown at Point A, B, C and D on the first floor and second floor in the site plan Ex. PW1/4. He further admitted that they are in the possession of municipal no. 70 and 72, Bhogal Road. He further deposed that he did not know if the total area of their side is 143 sq. meters. He denied the suggestion that municipal no. 70 & 72 runs from Bhogal road to Bazar Lane. He further denied the suggestion that the property occupied by his uncle Sh. Rakesh Kumar bears no. 25, Bazar Lane. He further denied the suggestion there was a basement below municipal no. 70 & 72. He, however, volunteered that there is a basement below shop no. 70. He further admitted that the tenanted premises falls under municipal no. 70, 72, 74 & 76. He further admitted that they are in the possession of godown at Bazar lane which has a basement. He, however, volunteered that the same was being used by his father for his business purpose. PW2 further denied the suggestion that there is a basement under shop no. 70,72,74 and 76 as well as under the godown on Bazar lane side. He further denied the suggestion that he along with his father had been doing joint business and that he has no separate business. He further denied the suggestion that the possession of shop no. 72 is under the possession of his father and the possession of shop no. 70 is with him. He denied the suggestion that M/s Greenz and M/s Ganesh Greenz Valsons and M/s Ganesh Greenz are dummy firms and were created for creating grounds for bonafide requirement of suit premises in the present case. He further denied the suggestion that there are 9 rooms on the first floor, five rooms and hall on the second floor and two huge tin shades in the building were being used by them. PW2/Shrikant further denied the suggestion that he and his father had ample space for business, workshop, display. He further deposed that the shop bearing no. 90, Bhogal road is situated at a distance of 3-4 shops from the existing building. He denied the suggestion that his father had RC ARC NO. 5120/2016 MUKESH KUMAR VS. KRANTI KUMAR SHARMA Page 23 of 33 not been filing the execution of the possession of the property bearing no. 90, Bhogal road in order to avoid showing that he had sufficient alternate accommodation. PW2/Shrikant denied the suggestion that the tenanted premises falls within the municipal area 25 Bazar lane and that portion falls under the share of his uncle. He also denied the suggestion that his uncle failed to get the suit property vacated on false grounds and consequently, his father in collusion with his uncle, had filed the present petition on false grounds of bonafide requirements.
38. Per contra, in his cross examination, RW1/respondent had deposed that the premises where the tenanted premises is situated is three side open. He further deposed that the building is known from one side as Bhogal Road and on the other side as Bazar Lane. He further deposed that there is interconnecting gali between Bhogal road and Bazar lane. RW1 further deposed that he did not know whether the evidence of Sh.Rakesh Kumar in earlier suit was completed or not. He admitted that petitioner never came into the witness box to depose. He affirmed the suggestion that the suit which was decided by the court of Sh. Shailender Malik was relating to the ownership and possession of property no. 90, Bhogal road between petitioner and his family on one side and Sh. Ashok Kumar and another on the other side. RW1/respondent further deposed that he did not know whether the said decree was stayed by Hon'ble High Court or not. He affirmed the suggestion that he had filed the petition u/s 27 DRC Act for deposition of rent of the tenanted premises which is Ex. PW1/5. He volunteered that he had paid the rent upto December, 2019. He denied the suggestion that petitioner was not the owner of the property bearing no. 84/4872, Bhogal road so he had not filed any document relating to the ownership documents of the petitioner. He denied the suggestion that Shrikant did RC ARC NO. 5120/2016 MUKESH KUMAR VS. KRANTI KUMAR SHARMA Page 24 of 33 not have any independent floor in the same area of Bhogal and in Noida. RW1/respondent denied the suggestion that as the municipal number of tenanted premises is only 25 Bazar lane, therefore, he had mentioned the description of tenanted premises in his earlier petition u/s 27 DRC Act as only 25 Bazar lane and not the premises bearing no. 70-72, 74 & 76 Bhogal Road. He denied the suggestion that 70-72, 74 & 76 Bhogal Road are the shop number owned by petitioner and Sh. Rakesh Kumar. RW1/respondent denied the suggestion that the petitioner and his son could not carry on the business of display and sale from the first floor. He further denied the suggestion that the bonafide need of the petitioner and his son is genuine.
39. Be that as it may, perusal of the site plan of the petitioner placed on record i.e. Ex.PW1/4 shows that the tenanted premises which is also stated to be a school in the said site plan, consists of 6 rooms and is enclosed by two shops and a godown. The said site plan, however, does not mention the dimensions of the rooms which fall part of the suit premises, while perusal of the site plan placed on record by the respondent i.e. Ex. RW1/1 shows that there are room nos. 1, 2, 3 adjacent to the shops where M/s Royal Bath and M/s Balaji Home Decor are being run in part of the property bearing no. 74,76 Bhogal Road and room no.5 is adjacent to the shop where M/s Greens is running in the property bearing no. 70,72, Bhogal Road and one room no.4 is adjacent to the shop where M/s Ram Kishore & Sons is being run. Respondent has mentioned the remaining part of the tenanted premises as 25, Bazaar lane and the same is adjacent to a shop measuring 30.7 x 11 ft. which is towards Bazaar lane. In fact, respondent had filed an area calculation of the school i.e. 'Adarsh Vidya Niketan' which is being run RC ARC NO. 5120/2016 MUKESH KUMAR VS. KRANTI KUMAR SHARMA Page 25 of 33 by the respondent along with the application for leave to defend which was moved on behalf of the respondent. Since, the same was filed during the course of procedure to be followed under Section 25B Delhi Rent Control Act, therefore, 'judicial' notice of the same is hereby taken. As per the said area calculation, there are, in fact, five rooms in the tenanted premises along with two corridors and a headmistress office and entry in toilet area and the total area of the suit property is around 235.3.0 sq. yards. The said property is stated to be 25, Bazar lane and 70, 72,74,76, Bhogal Road.
40. In fact, PW2 Shri Kant, son of the petitioner had conceded in his cross examination that the tenanted/suit premises falls under municipal no. 70, 72,74 & 76, Bhogal Road, though he had denied that the site plan Ex. PW1/4 filed by the petitioner is incorrect. In fact, PW1/petitioner, in his cross examination, had conceded that the suit property falls under municipal no. 70, 72,74,76, Bhogal Road. In fact, petitioner had also placed reliance upon the petition under Section 27 Delhi Rent Control Act which had been filed by the respondent against the petitioner i.e. Ex. PW1/5. Perusal of the said petition shows that the respondent himself had mentioned the tenanted premises as house no.25, Bazaar lane, Bhogal, New Delhi. Perusal of the site plans filed on behalf of the petitioner i.e. Ex. PW1/4 as well as the respondent i.e. Ex. RW1/1 shows that suit property is three sides open and is bound by Bhogal Road, Bazar lane and a side road from three sides. Thus, it appears that from Bhogal road side, the said suit property is known by the Municipal no. 70,72,74,76, Bhogal road and from Bazar lane side, the said property is known as 25, Bazar lane. Although, the said property may be identified by different municipal numbers from two side of Bhogal road and Bazar RC ARC NO. 5120/2016 MUKESH KUMAR VS. KRANTI KUMAR SHARMA Page 26 of 33 lane, the fact remains that six rooms inclusive of the office/room of headmistress (as conceded by the respondent in the said area calculation) had been let out to the respondent. Broadly speaking, it can also be said that the tenanted/suit premises which had been let out to the respondent, is at present bound by a shop running in the name of M/s Royal Bath, M/s Balaji Decor, M/s Ram Kishore & Sons, M/s Greens from the side of Bhogal road and is bound by a godown from the side of Bazaar lane. Thus, the remaining portion (i.e. apart from the said shops as well as the said godown) appears to be part of the rented/suit premises. Even otherwise, since the respondent is stated to be running a school from the tenanted premises, it is hard to believe that the respondent or the petitioner cannot identify the tenanted portion of the property on the ground floor from where the said school is being run. Therefore, even though the municipal numbers may be referred to as 70,72,74,76, Bhogal Road or 25, Bazaar lane or 70,72,74,76 and 25 Bazaar Lane as mentioned by the respondent herein, there is no prima facie dispute regarding the tenanted premises in question. The said fact emerges from the site plans that have been placed on record on behalf of the petitioner and the respondent during their respective testimonies. Although the site plan filed by the petitioner is very rudimentary and is very basic, however, it does delineate the portion in red under the tenancy of the respondent. Perusal of the site plan i.e. PW1/4 shows that room no. 1, 2, 3, 4, 5 along with two corridors and toilet area and the area shown as open to sky and the area next to M/s Ram Kishore & Sons shop and the area between the M/s Ram Kishore & sons shop and the toilet form part of the tenanted premises and the site plan Ex. RW1/1 shows the current position of the suit property. Therefore, there is no dispute regarding the basic demarcation or identification of the property between both the parties and both the site plans and both the site plans RC ARC NO. 5120/2016 MUKESH KUMAR VS. KRANTI KUMAR SHARMA Page 27 of 33 actually show almost similar identification of the suit property. Therefore, there is no requirement of a third site plan, which the respondent seeks to file via application under Order 8 Rule 1A CPC, at this belated stage. The said application is, hereby, dismissed.
41. Having said that, the dispute regarding identification of the property does not lead to an inference that the need of the petitioner qua the suit property is not bonafide. Respondent had raised the contention that there had been no partition between the properties of the petitioner and his co-owner Sh. Rakesh Kumar and that, in fact, petitioner had been paying property tax for property no.70-72, Bhogal road, Jangpura, New Delhi-17 while his brother Sh. Rakesh Kumar had been paying property tax for the premises bearing no. 25, Bazar lane, Bhogal as is evident from the property/house tax receipts placed on record on behalf of respondent as Ex. PW1/D-6 & Ex. PW1/D-7.
42. Be that as may, it may have been the case that the petitioner and his brother had entered into a mutual settlement inter se whereby the petitioner had occupied a part of the property while his brother had occupied the other half of the property and were paying house tax/property tax of their respective portions. However, the fact remains that they both are co-owners qua the suit property and there has been no partition of property. The said fact had been duly admitted by the respondent in his testimony. It is well settled that co-owners are owners of each part and parcel of property. Therefore, there is no impediment if a co-owner chooses to file an eviction petition on the ground of his bonafide requirement, with the consent of the other co-owner. Moreover, mere filing of an eviction petition by a co-owner does not preclude the other co-owner from initiating similar proceedings on a different RC ARC NO. 5120/2016 MUKESH KUMAR VS. KRANTI KUMAR SHARMA Page 28 of 33 ground of bonafide requirement, that too after lapse of considerable period of time.
43. The other contention that has been raised by the respondent is that there is a basement underneath the property bearing no. 70, 72, Bhogal road and the said fact had not been categorically mentioned by the petitioner in his testimony. However, the said contention is without any basis as perusal of the testimony of PW2 Sri Kant shows that he had categorically mentioned that one shop no. 70, Bhogal Road with basement of the same building is under his possession and shop no. 72 is under the possession of his father. In fact, respondent himself had led the testimony of one Dr. Arun Sharma i.e. RW3 and he had deposed in his testimony that there is a long basement under all the four shops bearing no. 70,72,74 &76. Thus, it appears that there is no separately demarcated basement under these shops. Even otherwise, in the judgment Viran Wali vs. Kuldeep Rai Kochhar, in R.C Rev. no. 124/2010 & CM No.10165/2010, dated 12.11.2010 of Hon'ble High Court of Delhi, it has been held that:
"38. The court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need".
44. Further, in judgment Dhannalal vs. Kalawatibai and others, Civil Appeal nos.3652 with 3653 of 2002 (arising out of SLP © Nos.8193 with 8776 of 2001), dated 08.07.2002, of Hon'ble Supreme Court, it has been held that:
RC ARC NO. 5120/2016 MUKESH KUMAR VS. KRANTI KUMAR SHARMA Page 29 of 33"For the business, which the respondents no.2 and 3 propose to start or continue respectively, an accommodation situated on the first floor cannot be said to be an alternative suitable accommodation in comparison with the shops situated on the ground floor. A shop on the first floor cannot attract the same number of customers and earn the same business as a shop situated on the ground floor would do".
45. The petitioner had categorically deposed that the suit premises is required for the purposes of godown, display and workshop for himself as well as for his son as his son is running a business of horticulture, machinery and repairs and he himself is running a business of seeds and greens. It is well known that display centers are most feasible on the ground floor, which can be easily accessed by the customers and a premises on the basement would not be suitable for carrying out any such business, where the footfall of customers would not be as much. Moreover, the petitioner had categorically deposed that first and second floor, of the premises are being used for residential purpose and only the ground floor is being used for commercial purpose. No evidence has been led by the respondent to show that the first and second floor, wherein the respondent had claimed that 9 and 5 rooms are available with the petitioner, are not being used for residential purpose. In fact, respondent had led the evidence of Dr. Arun Sharma as RW3, who's father was a tenant under the father of the petitioner, to prove that there is ample space available with the petitioner and his son and that there is a long basement under all these shops. However, a stranger to the premises cannot be allowed to decide as to whether the premises is sufficient/suitable for running a business or not and it is the prerogative of only the landlord /business owner to decide for what purposes and how the premises in question is to be used for the purpose of or for expansion of his business. PW1/petitioner had categorically deposed that RC ARC NO. 5120/2016 MUKESH KUMAR VS. KRANTI KUMAR SHARMA Page 30 of 33 he had been facing hardship and restriction in the growth of his business. Therefore, respondent cannot be allowed to plead that there is a basement under the suit premises which can be used by the landlord for the purpose of his business. Moreover, respondent cannot be allowed to use the suit premises of a legitimate owner to his detriment. Therefore, there is no merit in the contention raised by the respondent that there is no bonafide need of the petitioner.
Alternate Accommodation:
46. Petitioner/PW1 had deposed that there is no other reasonable, vacant, suitable accommodation available to fulfill his bonafide need. Per contra, respondent had claimed that the petitioner has the following alternate accommodations available to him:
(a) basement below the municipal no. 70,
(b) basement below the municipal no.72,
(c) basement below the shop towards the Bazar Lane.
47. In respect of the aforementioned basements, as already discussed, basements cannot be said to be suitable alternative accommodation for running a business or for running a display center. As aforementioned, ground floor premises are more suitable for such purposes. Therefore, there is no merit in the said contention.
(d) first floor of the building comprising of several rooms, and
(e) second floor of the building comprising of several rooms.
48. PW1/petitioner had already stated that first floor of the building is being used for the residential purposes and as already stated, even first, second floor would not be conducive for running a display center in the same way as basement is not conducive. The petitioner had, infact, stated that second floor is also being used for residential purposes.
RC ARC NO. 5120/2016 MUKESH KUMAR VS. KRANTI KUMAR SHARMA Page 31 of 33Therefore, the said premises also cannot be said to be suitable accommodation. Therefore, there is no merit in the said contention.
(f) tin shed on the roof of the third floor
49. There is no permanent structure on the third floor of the suit property as per the testimony of the petitioner/PW1. It is, therefore, hard to comprehend that a display center can be run from the third floor where there is no permanent structure available.
(g) shop bearing municipal no.90, Bhogal Road.
50. In respect of the said premises, PW1/petitioner had categorically deposed that the said premises is about 8-10 shops away from his shop at Bhogal Road and he had also deposed that the said shop was not in his possession and litigation qua the said shop had been going on. In fact, respondent/RW1 in his testimony had affirmed the suggestion that the suit which was decided by the Court of Sh. Shailender Malik, pertained to the ownership and possession of property bearing no. 90, Bhogal Road between the petitioner and his family on one side and Sh. Ashok Kumar and another on the other side. In his cross examination, RW1/respondent was confronted with the copy of order no. RFA 1012/2016, titled 'Ashok Kumar & Anr. vs. Mukesh Kumar & Ors.' which had been stayed by Hon'ble High Court vide order dated 21.12.2016 i.e. MARK C and the said order had been confirmed by order dated 06.07.2018 i.e. MARK D. Thus, from the said documents placed on record, it is apparent that the said property is not available to the petitioner for his business purposes and is under litigation.
51. During his cross examination, respondent/RW-1 had also mentioned about property bearing no.84/4872, Bhogal road. However, RC ARC NO. 5120/2016 MUKESH KUMAR VS. KRANTI KUMAR SHARMA Page 32 of 33 petitioner had denied the suggestion that he is the owner of the said property. However, no evidence had been led on behalf of respondent regarding the same.
52. Thus, from the aforesaid facts, it is apparent that the petitioner does not have any alternate suitable accommodation available for the purposes of godown, display and workshop. Therefore, there is no merit in the contention of respondent. The petitioner has, therefore, duly proved that he requires the tenanted/suit premises bonafidely for the purpose of his business as well as of his son and he has no other suitable alternate accommodation available with him to fulfill the said need. Therefore, the petition stands allowed.
53. In view of the aforesaid facts, the eviction petition filed on behalf of the petitioner stands allowed. Eviction order is passed accordingly. Respondent shall hand over the possession of suit premises to the petitioner. However, the petitioner shall not file any execution petition within six months of the present eviction order in terms of Section 14(7) Delhi Rent Control Act.
54. File be consigned to record room after due compliance.
MANISHA Digitally signed by MANISHA
KHURANA KAKKAR
KHURANA Date: 2022.02.14 14:20:04
KAKKAR +0530
Announced in open Court (Manisha Khurana Kakkar)
today on 29.01.2022 Senior Civil Judge cum Rent Controller
South-East, Saket Courts, New Delhi
RC ARC NO. 5120/2016 MUKESH KUMAR VS. KRANTI KUMAR SHARMA Page 33 of 33