Delhi District Court
Sh. Nanda Ballabh Tewari vs Sh. Bhagwat Prasad Goel on 30 January, 2019
IN THE COURT OF SH. AJAY NAGAR, COMMERCIAL CIVIL
JUDGE-CUM-ADDITIONAL RENT CONTROLLER (WEST),
TIS HAZARI COURTS, DELHI.
ARC No.- 26321/2016
Sh. Nanda Ballabh Tewari,
S/o Late Mathura Datt Tewari,
R/o C-181, J.J. Colony, Khayala,
New Delhi-110018. ...Petitioner
VERSUS
Sh. Bhagwat Prasad Goel,
S/o Sh. Chiranji Lal Goel,
R/o C-194, J.J. Colony, Khayala,
New Delhi-110018.
Also at:-
T-90A, Khayala, Vishnu Garden,
New Delhi-110045.
Also at:-
C-181(G.F.), J.J. Colony,
Khayala,
New Delhi-110018. ...Respondent
Date of Filing : 19.10.2016
Date of Order : 30.01.2019
ORDER ON LEAVE TO DEFEND
1. Present petition U/Sec. 14 (1) (e) of Delhi Rent Control Act, 1958 (hereinafter referred to as "DRC Act") has been filed by the ARC No. 26321/16 Sh. Nanda Ballabh Tewari Vs. Bhagwat Pd. Goel Page 1 /16 petitioner for eviction of the respondent from the premises i.e. C-181, J.J. Colony, Khayala, New Delhi-110018 as shown in red colour in the site plan annexed with the petition (hereinafter referred to as 'tenanted premises') in favour of the petitioner and against the respondent.
2. It is averred by the petitioner that the respondent is an old tenant of the tenanted premises who was paying rent @ Rs.450/- per month and now he is paying Rs.2100/- p.m. That the petitioner requires the tenanted premises for his own bonafide use for starting his own business activities as he is superanuated from his job recently. That tenanted premises is situated in his own building which is the most convenient place to start his own venture to earn his livelihood and maximize his earning and profits.
It is also averred that his married daughter and her children also upon his shoulder for their upkeep. Lastly, it is prayed that the respondent may be evicted from the tenanted premises.
3. Notice of this eviction petition was sent to the respondent in the prescribed format which was duly served on the respondent. In response to which the respondent/tenant filed leave to defend application accompanied by affidavit raising various pleas.
4. Reply to leave to defend filed by the petitioner inter-alia contending that the affidavit of the respondent does not disclose any defence or triable issue which entitle him to contest the eviction petition and disentitle the petitioner for obtaining an order for eviction. It is also contended that the defence taken by the respondent is moon shine and bogus which requires no trial in the matter.
ARC No. 26321/16 Sh. Nanda Ballabh Tewari Vs. Bhagwat Pd. Goel Page 2 /165. It is expedient to discuss certain guidelines in respect of leave to defend before dealing with the present case which is as under:-
THE LAW:
It is well settled that burden placed on a tenant is light and limited in that if the affidavit filed by him discloses such facts as would disentitle the landlord from obtaining an order for the recovery of the possession of the premises on the ground specified in clause
(e) are good enough to grant leave to defend.
It is further well settled that at a stage when the tenant seeks leave to defend, it is enough if he prima-facie makes out a case by disclosing such facts as would disentitle the landlord from obtaining an order of eviction. Unless the tenant at that stage itself establishes a strong case as would non-suit the landlord leave to defend should not be granted when it is not the requirement of Section 25 B(5). A leave to defend sought for cannot also be granted for mere asking or in a routine manner which will defeat the very object of the special provisions contained in Chapter IIIA of the Act, leave to defend cannot be refused where an eviction petition is filed on a mere design or desire of landlord to recover possession of the premises from a tenant. Refusing to grant leave in such a case leads to eviction of a tenant summarily resulting in great hardship to him and his family members, if any, although he could establish if only leave is granted that a landlord would be disentitled for an order of eviction.
It is also well settled at the stage of granting leave to defend, parties rely on affidavits in support of the rival contentions. Assertions and counter assertions made in affidavits may not afford safe and acceptable evidence so as to arrive at an affirmative conclusion one way or the other unless there is a strong and ARC No. 26321/16 Sh. Nanda Ballabh Tewari Vs. Bhagwat Pd. Goel Page 3 /16 acceptable evidence available to show that the facts disclosed in the application filed by the tenant seeking leave to defend where either frivolous, untenable or most unreasonable.
It is also well settled that when a possession is sought on the ground of personal requirement, a landlord has to establish his need and not his mere desire.
In short and substance wholly frivolous and totally untenable defence may not entitle a tenant to leave to defend but when a triable issue is raised a duty is placed on the rent controller by the statute itself to grant leave. It would expeditious disposal of eviction petition so that a landlord need not wait and suffer for long time. On the other hand, when a tenant is denied leave to defend although he had fair chance to prove his defence, will suffer great hardship. In this view a balanced view is to be taken having regard to competing claims.
There appears to be a mistaken belief that unless the tenant at that stage makes out such a strong case as would non-suit the landlord, leave to defend cannot be granted. This approach is wholly improper. When leave to defend is sought for, the tenant must make out such a prima facie case raising such pleas that a triable issue would emerge and that in our opinion should be sufficient to grant leave. The test is the test of a triable issue and not the final success in the action.
6. I have carefully and minutely gone through the petition, leave to defend application accompanied by affidavit, reply, documents and material on record and case law relied upon.
7. Perusal of record shows that the petitioner has claimed himself the owner and landlord of the tenanted premises. On the ARC No. 26321/16 Sh. Nanda Ballabh Tewari Vs. Bhagwat Pd. Goel Page 4 /16 other hand, the respondent has also admitted the landlordship of the petitioner as in his leave to defend, the respondent has stated that the tenanted premises was let out to the respondent by petitioner on rent in September 1989. Moreover, the respondent has not disputed the ownership also of the petitioner.
As such, in view of material on record and admission made by the respondent, ingredients in respect of landlordship and ownership are satisfied.
8. One of the pleas of the respondent is that the petitioner does not require the tenanted premises either for his residential use or for commercial use as he has sufficient pension amount for his livelihood and is also earning interest on retirement benefits amounts.
On the other hand, in reply to aforesaid plea, the petitioner has stated that petitioner retired from the Non Governmental Organization i.e. Bar Council of India and this issue as raised by the respondent is not relevant for the just decision of the present eviction petition.
The another plea of the respondent is that the petitioner has not furnished any particulars or any document showing the claim of the organization where he was working.
On the other hand, petitioner has stated that petitioner got retired by Bar Council of India which is a Non Governmental Body registered under Society Registration Act.
The next plea of the respondent is that the petitioner has not furnished any particulars in respect of amount of pension and retirement benefits as he is receiving.
In response to which, the petitioner has replied that he has retired from a private body.
ARC No. 26321/16 Sh. Nanda Ballabh Tewari Vs. Bhagwat Pd. Goel Page 5 /169. I have carefully and minutely gone through the leave to defend and reply thereto and material on record. In my considered view, no triable issue has been raised by the respondent which disentitle the petitioner to obtain an eviction order against him.
In the case titled as Sudesh Kumar Soni & Ors. Vs. Prabha Khanna & Ors. 153 (2008) DLT 652 it was observed that:-
"24. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself.
25. Suitability has to be seen from the convenience of the landlord and his family members and on the basis of the circumstances including their profession, vocation, style of living, habits and background. Landlord is the best judge of his residential requirement".
In the case titled as Ragavendra Kumar Vs Firm Prem Machinery AIR 2000 SC 534, it was observed as under:-
"It is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter, (See: Prativa Devi (Smt.) v. T.K Krishnan, [1996] 5 SCC 353. In the case in hand the plaintiff-landlord wanted eviction of the tenant from the suit premises for starting his business as it was suitable and it cannot be faulted."
In the case titled as Sarla Ahuja Vs United India Insurance Co. Ltd. AIR 1999 SC 100 , the Hon'ble Supreme Court has held that:
"The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the ARC No. 26321/16 Sh. Nanda Ballabh Tewari Vs. Bhagwat Pd. Goel Page 6 /16 Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord in bona fide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself."
As such, in view of the settled proposition of law it is clear that the landlord is the best judge of his requirement and the respondent/tenant cannot dictate any terms to use the property in a particular manner.
10. Perusal of record shows that in the present case, the petitioner has mentioned that he got retired from non-governmental body i.e. Bar Council of India.
In my view, the respondent/tenant does not have any right to claim that the petitioner has sufficient pension amount for his livelihood and the respondent cannot dictate the petitioner/landlord not to start any business with a view to save his tenancy. In my view, everyone has right to start his business at any age and the age should not be a bar to start the business activity.
11. In my view, even if it is assumed for the sake of arguments that petitioner/landlord has received the retirement benefits and is receiving the pension, the petitioner/ landlord is not supposed to give the details of the amount he received from his employer at the time of retirement. It is his money which can be used by him the way he wants to use.
ARC No. 26321/16 Sh. Nanda Ballabh Tewari Vs. Bhagwat Pd. Goel Page 7 /1612. In view of observations made by Hon'ble Supreme Court; it is well settled that a person is not supposed to remain unemployed till the disposal of the eviction petition. Furthermore, this Court is of the opinion that there is nothing malafide if the petitioner wants to start his own business in the tenanted premises. Rather, the said requirement seems to be bonafide as he wants to earn his livelihood and the tenant cannot stop the landlord from starting any business for livelihood. The bonafide requirement of a landlord does not become malafide just because he wants to start his business for his livelihood. The consequent hardship to tenant from eviction order could also not convert otherwise bonafide requirement into malafide requirement. Furthermore, even it is assumed for the sake of arguments that the petitioner is already receiving the pension, it does not show the malafide on the part of petitioner as it is a right of every person to excel in his/her life and a person is not supposed to be remained unemployed or in the same position or not to receive or use his hard earned money till the disposal of the eviction petition.
As such, the the pleas raised by respondent are not triable issues which disentitle the petitioner to get an eviction order.
13. Next plea of the respondent is that the petitioner has nowhere submitted in respect of dependency of his married daughter.
On the other hand, petitioner replied that his married daughter is with him and is a burden on his shoulders to maintain her.
Now, the main point to be determined by this court is whether married daughter of petitioner is dependent upon the petitioner or not.
ARC No. 26321/16 Sh. Nanda Ballabh Tewari Vs. Bhagwat Pd. Goel Page 8 /1614. It was held by Hon'ble High Court of Delhi in Anil Kumar Gupta Vs Deepika Verma passed in RC Revision No. 138/2015 passed on 14.10.2015 that dependency is not restricted to financial or physical but it will also include emotional reliance on another person.
It is a matter of common knowledge that daughters are always dependent upon their parents even after marriage and are always emotionally attached with her parents and a relation of a mother/father and a daughter becomes even stronger after marriage. Moreover, in the present case, the daughter of petitioner is the daughter of the petitioner and there is very likelihood of extreme attachment between petitioner and his daughter. It is well settled that daughter in law may be dependent on father in law or mother in law and father in law/mother in law can file the eviction petition U/S 14(1)(e) of DRC Act for the bonafide requirement of daughter in law.
15. In my view, when mother in law/father in law is entitled to file eviction for her or his daughter in law, an eviction petition can also be filed for bonafide requirement of daughter who is supposed to be attached with her father/mother.
In the case titled as Anil Kumar Gupta Vs Deepika Verma passed in RC Revision No. 138/2015 on 14.10.2015 wherein the Hon'ble High Court held that 'family' word should be interpreted liberally and common blanket approach cannot be followed and the court must look at each case in the light of its own peculiar circumstances.
In Anil Kumar Gupta Vs Deepika Verma (supra) it is further observed as under:-
"12. Customarily or in common parlance a dependent would be defined as any person who is reliant on another either for financial or physical ARC No. 26321/16 Sh. Nanda Ballabh Tewari Vs. Bhagwat Pd. Goel Page 9 /16 support for sustenance of life. It is pertinent to note that the word dependent or as to what constitutes a family has nowhere been defined in the Delhi Rent Control Act. Rather, the legislators consciously and deliberately have used the words "any member of family dependent on the landlord" instead of defining a clear degree of relations so as to construe a wider meaning to the aforesaid words as man is a social creature and part of a complex societal system involving myriad of relations from which he cannot be isolated. It is significant to understand that the dependency is not restricted to financial or physical but will also include emotional reliance on another person. Reliance in this regard is placed on the findings of this court." Further in M/S. Jhalani Tools (India) Pvt. Ltd. vs B.K. Soni; AIR 1994 Delhi 167, wherein the court observed "the social set up of our society is such where a married daughter continues to enjoy a place of pride in her maternal home and therefore while considering the requirement of the landlord her married daughter and her expected visits cannot be lost sight of. Similarly in Sain Dass v. Madan Lal; 1972 Ren CJ (SN) 8 (Delhi), this Court has acknowledged "the word "himself" has to be construed to mean "himself" as cohabiting with his family members with whom he is normally accustomed to live. Therefore, contrary to the submissions of the learned counsel for the petitioner financial or physical incapacitation cannot be the sole premises for determining dependency on another." The Hon'ble Delhi High Court Further observed "14. As it crystallizes from the aforesaid the word dependent cannot be constructed in a narrow and literal manner. The same have to be interpreted judiciously keeping in mind the intent of the legislators. As discussed above the words used under S.14 (1) (e), are "any member of family dependent on him" which would include the daughter in law who in the instant matter is dependent on her mother in law/landlady (respondent herein) and on account of sharing of residence both the daughter in law and the respondent are physically, emotionally and financially inter-dependent." The Hon'ble Delhi High Court Further observed "it is settled principle that no blanket approach can be followed and the court must look at each case in the light of its own peculiar circumstances."
The Hon'ble High Court of Delhi held in Sunder Singh Talwar Vs Kamal Chand Dugar that married daughter is also dependent ARC No. 26321/16 Sh. Nanda Ballabh Tewari Vs. Bhagwat Pd. Goel Page 10 /16 upon her father/mother and the eviction petition can be filed for the bonafide requirement of a daughter by the mother/father.
16. As such, in view of judgment of Hon'ble High Court of Delhi as mentioned earlier, it is well settled that an eviction petition can be filed for the bonafide requirement of daughter of the petitioner/landlord.
17. Next plea of the respondent is that the petitioner has nowhere affirmed that he is having no more properties than the tenanted premises.
On the other hand, petitioner has replied that tenant cannot dictate the landlord in respect of need for his livelihood.
18. It is expedient to discuss some case laws before dealing with these ingredients which are as under:-
In the case titled as "Mittar Sain Vs Rajesh Kumar" passed in RC Revision 196/2013 and CM 8431/2013 passed by the Hon'ble High Court of Delhi, the relevant portion is as under:-
"14. On the issue of alternate accommodation, this court is of the view that the reliance by the tenant on the cases of S.M. Mehra, Santosh Devi Soni and Liaq Ahmad (Supra) are misplaced. This court is of the view that decision in the said cases were given in the peculiar set of facts and such decisions would not be applicable to the present case as the facts are entirely different. Moreover, as has been relied upon by the Ld. Counsel for the landlord, in the case of Madan Lal Gupta (Supra) the Hon'ble Supreme Court has held that neither Santosh Devi Soni (Supra) nor Liaq Ahmad (Supra) laid down any principle of law, it was further observed in these cases, certain orders were passed on the facts arising in them."
In the case titled as Madan Lal Gupta Vs Ravinder Kumar passed in SLP (Civil) 10729/2000 passed by the Hon'ble Apex ARC No. 26321/16 Sh. Nanda Ballabh Tewari Vs. Bhagwat Pd. Goel Page 11 /16 Court, the Hon'ble Apex Court inter-alia observed as under:-
"However, the learned Counsel for the petitioners sought to rely upon two decisions of this court in Santosh Devi Soni Vs Chand Kiran, J.T 2000 (3) SC 397, and Liaq Ahmad ORS Vs Shri Habeeb Ur Rehman, JT 2000 (5) SC 611. Neither of these two decisions set down any principle of law so as to call for interference by us. In these two cases on the facts arising in the case certain orders have been passed by this court."
In Shiv Sarup Gupta Vs Dr. Mahesh Chand Gupta AIR 1999 SC 2507, at pg-2512 in para 14 & 15, the Hon'ble Supreme Court held that:-
"14. The availability of an alternate accommodation with the landlord i.e. an accommodation other than the one in occupation of the tenant wherefrom he is sought to be evicted has a dual relevancy. Firstly, the availability of another accommodation, suitable and convenient in all respects as the suit accommodation, may have an adverse bearing on the finding as to bonafides of the landlord if he unreasonably refuses to occupy the available premises to satisfy his alleged need. Availability of such circumstance would enable the Court drawing an inference that the need of the landlord was not a felt need or the state of mind of the landlord was not honest, sincere, and natural. Secondly, another principal ingredient of Clause (e) of Sub-section (1) of Section 14 which speaks of non- availability of any other reasonably suitable residential accommodation to the landlord, would not be satisfied. Wherever another residential accommodation is shown to exist as available than the court has to ask the landlord why he is not occupying such other available accommodation to satisfy his need. The landlord may convince the court that the alternate residential accommodation though available is still of no consequence as the same is not reasonably suitable to satisfy the felt need which the landlord has succeeded in demonstrating objectively to exist. Needless to say that an alternate accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking ARC No. 26321/16 Sh. Nanda Ballabh Tewari Vs. Bhagwat Pd. Goel Page 12 /16 eviction. Convenience and safety of the landlord and his family members would be relevant fact Ors. While considering the totality of the circumstances, the court may keep in view the profession or vocation of the landlord and his family members, their style of living, their habits and the background wherefrom they come."
In the case titled as Metropolitan Book Company Ltd. vs. Ajay Rastogi & Ors. Passed in RC. Rev. No. 484/2013, the Hon'ble High Court of Delhi observed as under:-
"Even assuming the other properties available, and which actually they are not as stated below, these other properties situated far from the present residence of respondent no. 1 and his family members cannot be considered as alternative suitable accommodation."
In the case titled as Ragavendra Kumar Vs Firm Prem Machinery AIR 2000 SC 534, it was observed as under:-
"It is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter, (See: Prativa Devi (Smt.) v. T.K Krishnan, [1996] 5 SCC 353. In the case in hand the plaintiff-landlord wanted eviction of the tenant from the suit premises for starting his business as it was suitable and it cannot be faulted."
19. As such, in view of the observations made by the Hon'ble Superior Courts, it is not mandatory for the Rent Controller to grant the leave to defend in each and every case where additional accommodation is sought by the petitioner/landlord.
20. Perusal of record shows that the respondent has not given the details of the properties available with the petitioner or his family members excepting three shops on the ground floor of the property in question. As such, the respondent has merely made a vague plea without disclosing the properties owned by the petitioner or his family ARC No. 26321/16 Sh. Nanda Ballabh Tewari Vs. Bhagwat Pd. Goel Page 13 /16 members.
21. Other plea of the respondent is that there are three shops on the ground floor of the suit property; first one is grocery shop rented to respondent and second one is also a grocery shop rented out to another tenant and the third one is also a grocery shop in occupation of Sh. Kailash son-in-law of the petitioner, (the husband of married daughter of petitioner for whom also, the petitioner is seeking the tenanted premises).
On the other hand, the petitioner has replied that the respondent has no locus standi to decide the expenditure of the petitioner or the family.
22. Perusal of record shows that the respondent himself has admitted in his leave to defend that one shop is occupied by him, second shop is occupied by another tenant and third shop is occupied by son in law of the petitioner.
As such, it is clear that no such alternative shop is available to the petitioner to start the business except the shop rented out to the respondent and another shop owned by the another tenant and it is well settled proposition of law that it is the choice of the petitioner/ landlord to get the shop vacated which is more suitable and convenient to him and the tenant cannot dictate the terms to the petitioner/ landlord to get the another shop vacated to save his own shop. As such, this plea of the respondent is also not a triable issue which dis-entitle the petitioner to get the eviction order.
23. Next plea of the respondent is that the respondent will be deprived of his livelihood in case he is evicted.
On the other hand, petitioner has replied that the respondent ARC No. 26321/16 Sh. Nanda Ballabh Tewari Vs. Bhagwat Pd. Goel Page 14 /16 is a well off person.
Next plea of the respondent is that petitioner does not require the tenanted premises bonafide for occupation as residence and his married daughter is already settled and already working in one of the three floors of the suit property and his husband Mr. Kailash is already earning hand and supporting his family as he is running the grocery shop in one of the shops on the ground floor of the suit property. And there is no bonafide requirement by the petitioner as claimed as the petitioner is an old person and he has not disclosed his age, financial status and the name of the institution from where he got retired.
In response to which petitioner has stated that he is retired and no extra income is with him and reiterated his bonafide requirement for earning his livelihood.
In the case titled as Raj Kumar Khanna vs. Parduman Singh passed in RC Rev. No. 548/2012 and C.M. No. 18936/2012 on 04.10.2013; the Hon'ble High court of Delhi observed as under:-
"17. In the case of Mohd. Ayub vs. Mukesh Chand (2012) 2 SCC 155 it was observed that the hardship appellants would suffer by not occupying their own premises would be far greater than the hardship the respondent would suffer by having moved out to another place. We are mindful of the fact that whenever the tenant is asked to move out of the premises some hardship is inherent. We have noted that respondent is in occupation of the premises for a long time. But in our opinion, in the facts of this case that circumstance cannot be sole determinative factor."
24. In my view this plea of the respondent certainly attracts the sympathy of this court but it is well settled that in deciding the present eviction proceeding, this sort of plea need not be weighed by the court.
ARC No. 26321/16 Sh. Nanda Ballabh Tewari Vs. Bhagwat Pd. Goel Page 15 /16CONCLUSION:
25. In view of the above discussion, I am of the considered opinion that no purpose would be served, even if, the petitioner is compelled to appear in the witness box the position would be no different than it is today. For this reason also, I find no triable issue in the leave to defend application of the respondent. The application for leave to defend filed by the respondent is thus, dismissed.
26. Hence, as a consequence thereof, an eviction order is passed U/s. 14 (1) (e) of DRC Act in favour of petitioner and against the respondent in respect of C-181, J.J. Colony, Khayala, New Delhi- 110018 as shown in red colour in the site plan which is marked as Mark- P1 (Put by the court for the purpose of identification).
27. However, this order shall not be operative before the expiry of six months from today keeping in view Sec. 14(7) of D.R.C. Act.
File be consigned to the Record Room after due compliance.
Announced in the open Court Digitally signed
on 30th January, 2019 by AJAY
AJAY NAGAR
(This order contains 16 pages) NAGAR Date:
2019.01.30
16:29:57 +0530
(Ajay Nagar)
Commercial Civil Judge-Cum
Additional Rent Controller,
West District, THC, Delhi.
ARC No. 26321/16 Sh. Nanda Ballabh Tewari Vs. Bhagwat Pd. Goel Page 16 /16