Delhi District Court
Sh. Kailash Narain Malhotra vs Sh. Parvesh Kumar Verma on 20 September, 2018
1
IN THE COURT OF MR. SHIRISH AGGARWAL, ARC-1, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
Eviction Petition No. E-254/13 (New No.79030/16)
Unique Case ID/CNR no. DLCT03-001339-2013
Sh. Kailash Narain Malhotra
Son of Late Jagannath,
R/o 22-A, Kohlapur Road,
Kamla Nagar, Delhi ...Petitioners
VERSUS
Sh. Parvesh Kumar Verma
Son of Late Tilak Raj Verma
R/o 112, Jaipuria Building,
Kohlapur Road, Kamla Nagar,
Delhi-110007
Also at:
Basement in the property bearing
No. 22F, Kamla Nagar,
Delhi-110007. ...Respondent
Date of Institution of Petition : 10.10.2013
Date on which order was reserved : 19.09.2018
Date of decision : 20.09.2018
Decision : Application of respondent seeking
leave to defend is dismissed. Eviction
order is passed.
ORDER
1. This is a petition for eviction of tenant under Section 14 (1) (e) of the Eviction petition No. 254/13 (New No.79030/16) Page 1 of 41 2 Delhi Rent Control Act, 1958. This order shall dispose off the application seeking leave to defend filed by the respondent.
2. The petitioner claims to be the owner and landlord of the basement under the shops on the ground floor of property no. 22F, Kamla Nagar, Delhi having access from the Main Bazar as shown in red colour in the site plan filed by the petitioner (hereinafter referred to as the 'tenanted premises'). It is stated that petitioner was earlier co-owner of this premises and later on became its absolute owner in view of the decision of the Hon'ble High Court of Delhi passed in the case bearing RFA No. 392 of 2009. It is averred that tenancy of this property was created in favour of the father of the respondent by the predecessor of the petitioner. However, after demise of the father, respondent is the tenants at monthly rate of rent of Rs.130/- excluding electricity charges, house tax etc.
3. It is submitted that the respondent has also filed petition under Section 27 of the Delhi Rent Control Act against the petitioner as the sole respondent.
4. It is averred that the petitioner has no source of income and that he is the only earning member of his family. It is submitted that the petitioner is living with his wife and his three married daughters who visits him Eviction petition No. 254/13 (New No.79030/16) Page 2 of 41 3 occasionally, which costs considerably. It is pleaded that petitioner is on the verge of starvation due to unemployment. It is pleaded that the tenanted premises is required by the petitioner to open a strong room for keeping gold ornaments safely. It is stated that the petitioner has experience of dealing in gold ornaments and therefore wishes to open a showroom and workshop of gold ornaments in the premises above the tenanted premises. It is stated that the tenanted premises is located near the residence of the petitioner and is at walking distance. It is averred that the tenanted premises is perfect and appropriate for use by the petitioner.
5. It is stated that the petitioner requires not only the tenanted premises herein, but also the shop and garage on the ground floor of the building in which the tenanted premises is situated. It is averred that this shop and garage are also under tenancy of other persons and are required by the petitioner for opening a showroom and workshop.
6. The petitioner has admitted that he has residential accommodation at property no. 22A, Kamla Nagar, Delhi, which is in the name of his wife. He has stated that he also has 1/42 share in the property no. 807, Katra Neel, Chandni Chowk, Delhi which is measuring 155 sq. yards and is an ancestral Eviction petition No. 254/13 (New No.79030/16) Page 3 of 41 4 property. It is pleaded that the petitioner also has first floor of property no. 22F, Kohlapur Road, Kamla Nagar, Delhi which is vacant. However, it is stated that this property cannot be used for commercial purposes considering the work of jewellery which the petitioner intends to do "as he has already reached to the category of senior citizen". It is submitted that the approach on the first floor is from the back side of Main Kohlapur Road. Therefore, it is not safe and convenient for business.
7. It is pleaded that the petitioner does not have any other accommodation available for him to start business. The petitioner has prayed that eviction order may be passed in respect of the tenanted premises in terms of section 14 (1) (e) of the Delhi Rent Control Act.
8. Summons under Schedule-III of the Delhi Rent Control Act were issued by the Ld. Predecessor of this Court which were served upon the respondent. The respondent filed an application seeking leave to defend. It is stated that the petition has been filed without any cause of action and therefore ought to be rejected under O. 7 R. 11 of CPC. It is averred that the necessary ingredients provided under Section 14(1)(e) r/w Section 25-B of the Delhi Rent Control Act have not been pleaded in the petition. It is stated that the Eviction petition No. 254/13 (New No.79030/16) Page 4 of 41 5 petitioner has not come to the court with clean hands and has suppressed material facts.
9. It is stated that the petitioner is claiming ownership over the tenanted premises on the basis of partition of the property effected by decision of the Hon'ble High Court in the case bearing RFA No.392/2009. It is averred that this decision is not applicable to the present case as the partition deed has not been registered nor is it stamped as is required under the Stamp Act. It is stated that the petition is not maintainable as the petitioner is not the sole and exclusive owner of the tenanted premises.
10. It is pleaded that since there has been no partition and the co-owners of the property have not been impleaded in the present petition, it suffers from non-joinder of necessary parties.
11. It is stated that since five years have not expired from the date of partition, the petition is barred by Section 14(6) of the Delhi Rent Control Act.
12. The respondent has denied the existence of relationship of landlord and tenant between the parties.
Eviction petition No. 254/13 (New No.79030/16) Page 5 of 41 6
13. It is stated that Section 14 (1) (e) of the Delhi Rent Control Act is not applicable to the facts of the present case as the tenanted premise herein is not a residential premises.
14. It is stated that the petitioner has concealed that he has filed other eviction petitions against other tenants. It is pleaded that since these petitions have been filed, the requirement of the petitioner is of additional accommodation and therefore, the petition is not maintainable.
15. It is stated that the petitioner has other accommodations available for his alleged requirement. It is submitted that the petitioner has the basement, ground floor, mezanine floor, first floor and the entire property bearing no. 22-F, Kamla Nagar, Delhi. It is stated that the entire property is being used by the petitioner for his commercial activities. It is averred that this property has three shops, various godowns, garage and store which are all in occupation and possession of the petitioner, besides the mezanine floor. It is pleaded that the entire locality where the tenanted premises is situated is a commercial locality. It is denied that the first floor of this property cannot be used for commercial purposes. It is stated that even otherwise, the first floor can be used for storage of gold ornaments. It is submitted that since the entrance to Eviction petition No. 254/13 (New No.79030/16) Page 6 of 41 7 the first floor is from back side, this property is safer as there are no regular passers by from the back side lane.
16. It is stated that the petitioner is also owner of property no. 22A, Kohlapur Road, Kamla Nagar, Delhi which is a few steps away from the tenanted premises. It is stated that this property no. 22 A comprises of ground, first, second, third and forth floors. It is submitted that the ground floor of this property has six shops and one godown which are in possession of the petitioner and are vacant. It is pleaded that the first floor of the property have recently been let out by the petitioner to two persons- one Doctor and another person running a garment factory. It is stated that the third floor of the property has been let out to students as paying guests from which there is an income of not less than Rs. 50,000/- per month. It is pleaded that on the same floor, there is a multi-purpose mobile tower which has been installed and let out by the petitioner to a reputed mobile company. The petitioner has regular income from the mobile company. It is stated that if the petitioner had bonafide need of premises, he would not have let out his property to other persons.
17. It is further stated that the petitioner has property bearing no. 7259, Ajendra Market, Shakti Nagar, Delhi comprising of basement, ground, first and Eviction petition No. 254/13 (New No.79030/16) Page 7 of 41 8 second floors. It is averred that the basement has around sixteen shops which are all vacant and not being used by the petitioner in any manner. The ground floor is stated to be having about ten shops which are also vacant. One shop out of these ten shops have been sold in the year 2011 and at present, nine shops are with the petitioner. It is stated that similarly, there are eighteen shops on each of the first and second floors of this property. It is averred that there is a multi-storey shopping complex in this property at Ajendra Market which is in possession of the petitioner.
18. It is submitted that the petitioner is running his business from a property at Katra Neel, Chandni Chowk, Delhi which is a few steps away from the wholesale market of gold i.e. Kucha Mahajani, Chandni Chowk.
19. It is stated that the petitioner also has a shop in Kucha Mahajani, Chandni Chowk from where he is running his business under the name & style of M/s Ankur Jewellers.
20. It is denied by the respondent that the petitioner only has 1/42 share in property no. 807, Katra Neel, Chandni Chowk, Delhi which measures 155 sq. yards. It is stated that this property has an area of more than 308 sq. yards and is constructed from ground floor to forth floor.
Eviction petition No. 254/13 (New No.79030/16) Page 8 of 41 9
21. It is averred that the petitioner is also owner of a shop in Regan Tower, Gaffar Market, Karol Bagh, New Delhi from where he is selling mobile phone accessories and repairing.
22. It is stated that the petitioner has not filed his income tax returns. It is averred that he has shops in various localities and has an income of more than Rs. 2 lacs per month. It is pleaded that the present case has been filed for having the respondent evicted and then selling the tenanted premises at a higher price.
23. It is averred that the petitioner has not disclosed the source of his income since his teenage till date. It is pointed out that the petitioner is 65 years of age.
24. It is stated that the petitioner has not disclosed as to how much gold ornaments he wishes to keep in safe custody for which the tenanted premises is required. It is pleaded that gold ornaments can be kept in an almirah measuring 2 ft. in depth and 8 ft. in height. It is submitted that the petitioner can keep the ornaments at his residence which is the safest place. It is stated that the tenanted premises is measuring 28 ft. x 12 ft. which is much more than the requirement of the petitioner for keeping gold ornaments. Eviction petition No. 254/13 (New No.79030/16) Page 9 of 41 10
25. The respondent has pleaded that the alleged bonafide need of the petitioner is fake and malafide and have prayed that leave to defend the petition may be granted to the respondents as the application/affidavit of the respondent/tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises under section 14 (1) (e) of Delhi Rent Control Act.
26. The petitioner filed reply to the application seeking leave to defend. The petitioner reiterated and reaffirmed the contents of his eviction petition. It is stated that by virtue of the order of the High Court itself, it is evident that the petitioner is the sole owner of the tenanted premises. It is pleaded that the tenant has no right to suggest mode of partition. It is averred that prior to the filing of the application for leave to defend, the respondent has filed petition under Section 27 of the Delhi Rent Control Act against the petitioner stating that the petitioner is the person entitled to receive rent. It is submitted that the respondent is now estopped from challenging the ownership of the petitioner.
27. It is stated that the petitioner is the owner of the green and red portion in the site plan and of the shop on the front side of the premises. It is averred that the remaining part of the accommodation belongs to the brother of the Eviction petition No. 254/13 (New No.79030/16) Page 10 of 41 11 petitioner, namely, Mr. Mallu Mal Malhotra. It is pleaded that the first floor of the property no. 22F is not practical for use by the petitioner for running his commercial activities.
28. With respect to property no. 22 A, Kamla Nagar, it is stated by the petitioner that the flats on the southern side of the second and third floors of the property are owned by his wife. On the second floor, the petitioner and his wife reside. The third floor is kept for stay of the three married daughters and their family members whenever they visit the petitioner and his wife.
29. It is stated that the basement of the property no. 22 A belongs to one Sh. Chander Mohan Goyal. Ground floor belongs to one Smt. Renu Gupta, MCD Counselor. It is stated that one commercial shop is under the occupation and possession of M/s J.K. Jewellers. Other shops belong to one Raju and Nand Kishore. It is stated that there is another closed shop which belongs to one Sh. Kailash, who is not the petitioner herein, but has a similar name. Upper ground floor belongs to Mr. Chander Mohan Goyal. First floor is of Dr. Vishal Goyal and another flat on the first floor is of Smt. Madhu Gupta. A flat on the northern side on the second floor is of Mr. Sunil Chopra. Flat on the northern side on the third floor is of Mr. S.K. Wadhwa. It is stated that the Eviction petition No. 254/13 (New No.79030/16) Page 11 of 41 12 Airtel tower is of Mr. Vikram Chopra, Mr. Pawan Duggal and Mr. Hari Om Goyal, who have nothing to do with the petitioner. It is stated that they are deriving benefits from the Airtel tower. It is denied that the third floor flat has been let out to anybody. It is averred that it is vacant.
30. It is denied that the petitioner is owner of any portion of property no. 7259, Ajender Market, Shakti Nagar, Delhi.
31. It is denied that commercial premises situated in Katra Neel, Chandni Chowk, Delhi belongs to the petitioner. It is pleaded that the petitioner only has 1/42 share in premises no. 1087, Katra Neel, Chandni Chowk, Delhi which is an ancestral property. It is affirmed that this property measures 155 sq. Yards. It is stated that it is in dilapidated condition. It is stated that co-owners of property no. 807 are Mr. Mallo Mal and Mr. Kallu Mal. It is submitted that Mr. Kallu Mal died in the year 2005 and is survived by his legal heirs Mr. Rajesh Malhotra, Mr. Rakesh Malhotra and his wife Smt. Laxmi Devi. It is stated that there is another cousin brother Mr. Shanker Lal who died in year 1994 and has left behind his legal heirs named Mr. Gul Narain who also died and his son Mr. Ankur Mehra has share to the extent of 1/6th of the entire property. It is pleaded that Smt. Memo Devi was entitled of 1/5th share in the Eviction petition No. 254/13 (New No.79030/16) Page 12 of 41 13 premises, but she died and bequeath her share in favour of one Mr. Raj Narain. It is stated that there was another owner named Mr. Gopal Narayan who was having 1/16th share. However, he died leaving behind his legal heirs, Mr. Sat Narayan, Mr. Mahesh and Mr. Naeem. It is stated that the co-owner Mr. Puran Chad also died and left behind his legal heirs named Mr. Uday Malhotra and Mr. Ajay Malhotra. Another co-owner named Mr. Ram Narayn also died and left behind his son Mr. Braham Naran, Mr. Narayn and Mr. Prahlad Narain as legal heirs. It is denied that the property no. 807 belongs to the petitioner and his wife.
32. It is denied that the petitioner has a property in Kucha Mahajani, Chandni Chowk or has any concern with M/s Ankur Jewellers.
33. It is also denied that the petitioner has a shop in Regent Tower, Near Gaffar Market, Karol Bagh, Delhi.
34. It is stated that even though it is not necessary to file income tax returns, yet same are being filed by the petitioner to meet the objection raised by the respondent. It is prayed that the application for leave to defend be dismissed.
Eviction petition No. 254/13 (New No.79030/16) Page 13 of 41 14
35. The respondent filed rejoinder to the reply of the petitioner and denied the averments made in the reply of the petitioner and simultaneously reiterated and reaffirmed the contents of the application. In particular, it is stated that the petitioner is carrying out jewellery business from the third floor of premises no. 22A, Kamla Nagar, Delhi. It is pleaded that since some portion of property no. 22A belongs to the wife of the petitioner, it is possible that rest of the portions also belong to the petitioner or his wife.
36. It is stated that the property no. 7259 is owned by the daughter of the petitioner, Smt. Parul Mehra who is a family member of the petitioner. The respondent has filed photocopy of the sale deed and has stated that the property is in the name of the daughter of the petitioner. It is pleaded that a portion of this property was also in the name of the wife of the petitioner, namely, Smt. Deepa Mehra, who sold it on 18.06.2012. Copy of the sale deed executed by his wife has also been filed.
37. The respondent has also filed copy of electricity bill and have stated that the petitioner has a shop in premises no. 2886, Ground Floor, Gali No. 17, Beadonpura, Karol Bagh, Delhi.
Eviction petition No. 254/13 (New No.79030/16) Page 14 of 41 15
38. I have heard the arguments and have carefully gone through the record. In order to succeed in a petition for eviction filed under section 14 (1)
(e) of the Delhi Rent Control Act, the petitioner must establish that:
i. He is owner and landlord in respect of the tenanted premises. ii. He requires the premises bonafide for himself or for any member of his family dependent upon him.
iii. He has no other reasonably suitable accommodation.
Ownership of tenanted premises and relationship of landlord-tenant between petitioner and respondent:
39. The respondent has stated that the petitioner is not the sole owner of the tenanted premises. It is pleaded that the partition which is being relied upon by the petitioner is not tenable legally since there is no registered partition deed and stamp duty has not been paid. Per contra, petitioner has relied upon a decision of the Hon'ble High Court of Delhi dated 26.11.2010 by which an appeal was disposed off in terms of the settlement arrived at between the petitioner and his brother Mr. Mallo Mal Malhotra. The terms of settlement are embodied in a document which has also been filed. As per this document, a property was divided between the petitioner and his brother. Eviction petition No. 254/13 (New No.79030/16) Page 15 of 41 16
40. Even if the contention of the respondent is accepted that the partition is not legally tenable, same is inconsequential as a co-owner/co-landlord can also institute a petition seeking eviction of the tenant under the Delhi Rent Control Act. In this regard reference is made to decisions passed in the cases of Kanta Goel v. B.P. Pathak AIR 1977 SC 1599 and Pal Singh vs. Sunder Singh AIR 1989 SC 758. Even being a co-owner/co-landlord, the petitioner is complete landlord in respect of the entire property and he is competent to file the present eviction petition against the tenant without joining the other alleged co-owner, co-landlord i.e. Mr. Mallo Mal Malhotra and the petitioner is to be considered as an owner for the purposes of section 14 (1) (e) of the Delhi Rent Control Act. Therefore, the petition does not suffer from non-joinder of necessary parties. Also, there is nothing on record to show that other alleged co-owner Mr. Mallo Mal Malhotra has objected to the filing of the present petition.
41. In judgment titled as Rajender Kumar Sharma vs. Smt. Leela Wati reported as 155 (2008) DLT 383, the Hon'ble High Court of Delhi held the following:
".....It is settled law that for the purpose of section 14 (1) (e) of Delhi Rent Control Act, a landlord is not supposed to Eviction petition No. 254/13 (New No.79030/16) Page 16 of 41 17 prove absolute ownership as required under Transfer of Property Act. He is required to show only that he is more than a tenant. In this case, the landlady had placed on record the documents by which she became owner. The attornment given by the erstwhile landlord in her favour as well as an admission made by the tenant by filing petition under section 27 of Delhi Rent Control Act acknowledgement the landlordship of landlady. Thus, the conclusion arrived at by the ARC regarding ownership and relationship of landlord and tenant were based on sound legal position and the cogent material before it......."
42. Principle is very clear that once a tenant always a tenant. The tenant cannot dispute the title of his landlord. The respondent has been paying rent to the petitioner by filing of petition under Section 27 of the Delhi Rent Control Act solely against the petitioner. In view of the provisions of section 116 of the Evidence Act, the respondent is now estopped from challenging the title of the petitioner. In the case of Atyam Veerraju v. Pechetti Venkanna (1996) 1 SCR 831, the Hon'ble Supreme Court quoted with approval the judgment of the Privy Council in Bilas Kunwar v. Desraj Ranjit Singh, wherein it was observed as follows:
" A tenant who has been let into possession cannot deny his landlords title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord."Eviction petition No. 254/13 (New No.79030/16) Page 17 of 41 18
43. The petitioner is therefore, the landlord and owner of the tenanted premises and the respondent is his tenant for the purpose of section 14 (1) (e) of Delhi Rent Control Act.
Requirement of premises bonafide by the petitioner for himself and for members of his family dependent upon him and non-availability of any other reasonably suitable accommodation:
44. The respondent has alleged that the petitioner does not bonafide need the tenanted premises. It is stated that the contention of the petitioner that he is unemployed and on the verge of starvation is false. It is contended that the petitioner has sufficient income and does not need the tenanted premises for his business. It is pointed out that the petitioner has not filed his income tax returns and balance sheet to substantiate that he does not have sufficient income.
45. The following was held by the Hon'ble High Court in the case of Naresh Khanna Vs. Saroj Gupta RC Rev. 281/2017 dated 28.08.2017:-
"11. Merely because the landlady is well to do or her husband is a practitioner of law, does not prevent him/her from invoking Section 14(1)(e) of the Act and vague arguments, without any specifics, cannot be considered. Supreme Court in Bhimanagouda Basanagouda Patil Vs. Mohammad Gudusaheb (2003) 3 SCC 101 held that the Eviction petition No. 254/13 (New No.79030/16) Page 18 of 41 19 fact that a person has a capacity to purchase the property cannot be the sole ground to hold against him, if has a genuine need for the premises purchased. This Court also, in Ramesh Kumar Vs. Neelam Dawar MANU/DE/175/2014, (SLP (C) No. 23911/2014 preferred whereagainst was dismissed on 3rd September, 2014) held that although the landlord may be financially well off but in the absence of suitable accommodation for his need, his financial well being cannot deny him the eviction order."
46. In the case of Anil Kumar Verma Vs. Shiv Rani & Ors. RC Revision No. 522/2011 dated 07.03.2012, the landlord sought possession of the tenanted premises on the ground that his married son Sidharth is unemployed, has experience in business and needs the premises to carry on his business. The tenant objected to the same and alleged that the son is employed. The Hon'ble High Court of Delhi held the following:
"Even assuming that petitioner no. 4 is working with M/s Home Appliances and petitioner no. 6 is working with Ozone Pvt. Ltd. Health Club; these employments of petitioners No. 4 & 6 are private jobs and it does not take away their bonafide need to start their own business from the shop which is owned by them..."
47. In the case of Smt. Phool Kumari & Ors. Vs. Sh. Shyambir Tyagi RCR No. 318/2013 dated 01.10.2014, the landlord sought possession of the tenanted premises on the ground that he was unemployed and needed the Eviction petition No. 254/13 (New No.79030/16) Page 19 of 41 20 premises to open a shop. The tenant denied that the landlord was unemployed. The Hon'ble High Court of Delhi upheld the order of the Ld. Trial Court and observed that no triable issues were raised which warrant that the application for leave to defend be allowed. The Hon'ble Delhi High Court relied upon the decision of the Hon'ble Supreme Court in the case of Raghunath G. Panhale Vs. M/s Chaganlal Sunderji & Co. in which the following was held:
"A landlord need not lose his existing job nor resign it nor reach a level of starvation to contemplate that he must get possession of his premises for establishing a business."
48. Reference is also made to the decision of the Hon'ble High Court of Delhi in the case of M/s A.K. Woolen Industries and Ors. Vs. Shri Narayan Gupta RC Rev. 495/2017 dated 31.10.2017 in which the following was held :-
"19.The law to be applied in this regard has been laid down by the Supreme Court in Ragavendra Kumar Vs. Firm Prem Machinery & Co. (2000) 1 SCC 679, Sait Nagjee Purushottam & Co. Ltd. Vs. Vimlabai Prabhulal (2005) 8 SCC 252 and Anil Bajaj Vs. Vinod Ahuja (2014) 15 SCC
610. It has been held that even if the landlord has other commercial premises available to him and even if the landlord is carrying on other businesses, if it is found that the landlord intends to use the premises in occupation of the tenant for carrying on his business therefrom, the landlord is entitled to an order of eviction and the Courts Eviction petition No. 254/13 (New No.79030/16) Page 20 of 41 21 cannot intervene in the same.
49. In the case of Royal Nepal Airlines Corporation Vs. Shrishti Properties Pvt. Ltd. RC Rev. No. 132/2011 dated 02.11.2011, the Hon'ble High Court of Delhi found the need for expansion of business as bonafide. The following was held in this case:
"19. The Apex Court has time and again noted that it is prerogative of the landlord to decide whether the premises are required for expansion of his business or not; in this context the observations of the Apex Court in the case of Sait Nagjee Purushotam & Co. Ltd. Vs. Vimalbai Prabhulal and Others (2005) 8 SCC 252 is relevant; it reads as under:-
"It is always the prerogative of the landlord that if he requires the premises in question for his bonafide use for expansion of business this is no ground to say that the landlords are already having their business at Chennai and Hyderabad therefore, it is not genuine need. It is not the tenant who can dictate the terms to the landlord and advise him what he should do and what he should not. It is always the privilege of the landlord to choose the nature of the business and the place of business".
50. In view of the aforementioned decisions, this court is of the view that the aforesaid allegations of the respondent regarding the financial standing of the petitioner and his already being engaged in business do not raise any Eviction petition No. 254/13 (New No.79030/16) Page 21 of 41 22 triable issue since even a landlord having sufficient means and established businesses can seek eviction of a tenant for expanding his business or for starting a new business.
51. In the social setup of our society, it is common for married daughters to visit and reside with their parents. It is not in dispute that the petitioner has three married daughters. Copy of the income tax returns of the petitioner and of his wife filed alongwith the reply to the application of leave to defend discloses that the joint income of the petitioner and his wife is not much for their sustenance and for expenses incurred during the stay of their daughters. It is normal for the petitioner to desire that his income increases so that he can lead a comfortable life.
52. It is averred by the respondent that the petitioner has the following properties:
i) Property no. 22F, Kohlapur Road, Kamla Nagar, Delhi comprising of basement, ground floor, mezzanine floor and first floor.
ii) Property no. 22A, Kohlapur Road, Kamla Nagar, Delhi comprising of ground floor, first floor, second floor, third floor and forth floor.
iii) Property no. 7259, Ajendra Market, Shkati Nagar, Delhi comprising of Eviction petition No. 254/13 (New No.79030/16) Page 22 of 41 23 basement, ground floor, first floor and second floor.
iv) Property in Katra Neel, Chandni Chowk, Delhi from where petitioner is doing business.
v) Property in Kucha Mahajani, Chandni Chowk, Delhi from where petitioner is doing business under the name of M/s Ankur Jewellers.
vi) Property no. 807, Katra Neel, Chandni Chowk measuring 308 sq. yards.
vii) Shop in Regan Tower, Near Gaffar Market, Karol Bagh, New Delhi from where petitioner is doing business of mobile phone accessories and repairing.
53. The petitioner has denied that the aforementioned properties are available with him which can fulfill his requirement stated in the eviction petition. With respect to property no. 22F, Kohlapur Road, Kamla Nagar, Delhi, it is stated that this property was divided between the petitioner and his brother Mr. Mallo Mal Malhotra. It is contended by the petitioner that after partition, the petitioner only has the premises in red and green color as shown in the site plan. As such, it is the case of the petitioner that he only has the first floor, certain portions of ground floor and the basement of property no. 22F.
Eviction petition No. 254/13 (New No.79030/16) Page 23 of 41 24
54. On the other hand, the respondent has disputed the legality of the partition. Therefore, as per the respondent, the petitioner has the entire property bearing no. 22F. Even if it is presumed that the partition between the petitioner and his brother has no valid legal sanctity, the brother of the petitioner also become co-owner of the entire property. Thus, the entire property bearing no. 22F is not exclusively owned by the petitioner and therefore cannot be used by him for his separate business.
55. Also, even if it is presumed that the petitioner has all the floors of property no. 22F, it cannot be held that the floors other than the basement are reasonably suitable alternative accommodations available with the petitioner for his stated requirement. The petitioner wishes to open a showroom and workshop of gold ornaments on the ground floor of property no. 22F. Since the showroom and workshop are going to be on the ground floor of property no. 22F, it shall be convenient for the petitioner to even have his strong room for safe custody of ornaments either on the first floor or in the basement. The petitioner has admitted that he is the owner of the first floor of property no. 22F. However, he has contended that this floor is not suitable for his requirements as its entry is from the rear side and it is not safe for business of jewellery. On the other hand, the entry of the basement is stated to be from Eviction petition No. 254/13 (New No.79030/16) Page 24 of 41 25 the Main Bazar. It has been argued by Ld. Counsel for the petitioner that storage of ornaments is going to be safer in the basement than on the first floor. If this is how the petitioner feels, the respondent has no locus standi to argue that the ornaments are going to be safer on the first floor and is therefore an alternative suitable accommodation available with the petitioner. Therefore, it cannot be held that the mezanine floor and the first floor of property no. 22F are reasonably suitable alternative accommodations available with the petitioner for keeping of ornaments. The tenanted premises is owned by the petitioner and if as per him, it is suitable for his requirements, he has a right to have it back from the respondent.
56. Also, the Court is of the view that the respondent has no locus standi to question the validity of the partition between the petitioner and his brother. Moreover, the fact that the respondent is in possession of a property in the same building where according to him, the petitioner has alternative accommodations available, they should have been able to furnish some documentary proof including photographs in support of their contention that the petitioner has vacant possession of shops, godowns, garage and store in property bearing no. 22F and that the petitioner has portions in the property no. 22F other than what he has admitted in the petition and in reply to the Eviction petition No. 254/13 (New No.79030/16) Page 25 of 41 26 application for leave to defend. In this regard, reliance is placed upon the decision of the Hon'ble High Court passed in the case of Mohd. Naseer Vs. Mohd. Zaheer and Anr. RC Rev. No. 267/2016 dated 03.11.2016 in which the following was held:-
"19. Clearly, the contentions raised by the petitioners appear to be an allegation without any basis whatsoever. The respondent on affidavit has denied the contention and has name the occupants/tenants. The petitioner themselves are occupying a shop in the premises and would certainly have better details if the respondent was in occupation of the two shops. Mere raising of baseless contentions against the landlord cannot be a ground for being granted leave to defend to the petitioners. It cannot be said that the petitioners have given facts or particulars which require to be established by way of evidence. The petitioners have merely made allegations for the sake of making allegation. There is no merit in the said plea of the petitioner.
20. The trial court has rightly concluded that the petitioners have failed to place on record any material to raise a suspicion that the respondents are having a vacant space on the ground floor of the suit property which can be used by them to open his workshop for industrial tools."
57. Besides making self-serving assertions in the application for leave to defend, no credible material which can be believed by the Court has come on record for the Court to even have a prima facie opinion that the petitioner has alternative suitable accommodation in property no. 22F. If such oral assertions Eviction petition No. 254/13 (New No.79030/16) Page 26 of 41 27 are believed and on its basis, leave to defend is granted, in all cases, the respondent will be successful in obtaining leave to defend the case by merely alleging that the landlord has other properties available. The photographs filed by the respondent does not establish that the petitioners have vacant possession of any alternative suitable accommodation.
58. Even otherwise, as per the own case of the respondent, the entire property no. 22F is already being used by the petitioner for his commercial activities. Reference is made to paragraph K of the affidavit of respondent in support of the application for leave to defend. Since the entire property bearing no. 22 F is already in use and is not vacant, it cannot be said to be an alternative suitable accommodation available with the petitioner for starting his new business. As has already been observed hereinabove, there is no bar for a landlord to seek possession of tenanted premises for the purpose of expanding his current business or for starting a new business.
59. With respect to the availability of the various floors of property no. 22A, Kohlapur Road, Kamla Nagar, the petitioner has only admitted having access to the flats on the southern side of the second and third floors of the premises. He has stated that these flats are owned by his wife. It is averred that the flat Eviction petition No. 254/13 (New No.79030/16) Page 27 of 41 28 on the second floor is used for their residence and the third floor is used by his daughters when they visit him. No material has been placed on record by the respondents to establish that the petitioner also has other floors in property no. 22A which are indeed vacant and available for use by the petitioner. In the case of Rajender Kumar Sharma v. Smt. Leela Wati 155 (2008) DLT 383, the Hon'ble High Court of Delhi held that the respondents tenants have to place on record some material in support of the assertions made in the application for leave to defend. In this context, the following was held by the Hon'ble Delhi High Court in the case of Sarwan Dass Bange Vs. Ram Prakash, 161 (2010) DLT 80:
"However, merely because the tenant so disputes and controverts the pleas of the landlord does not imply that the provision of summary procedure introduced in the Act with respect to ground of eviction on the ground of requirement is to be set at naught....The tenant is required to give all the necessary facts and particulars supported by documentary evidence if available to prove his plea in the affidavit itself so that the Controller will be in a position to adjudicate and decide the question of genuine or bonafide requirement of the landlord; a mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine."
60. In the case of K.K. Sarin Vs. M/s Pigott Chapman & Co. 46 (1992) DLT Eviction petition No. 254/13 (New No.79030/16) Page 28 of 41 29 352, the Hon'ble Delhi High Court held the following:
"Due to paucity of accommodation in Delhi the tenants are likely to plead facts and if they are held to be raising triable issue in every case, hardly any application seeking leave to defend would fail. This certainly is not the idea behind this provision. While deciding the application seeking leave, what is required of the Rent Controller is to observe the rules of natural justice and to give opportunity to both the parties to produce the affidavits and material on which they rely. When leave to defend is sought, the tenant must make out a prima facie case raising such pleas that a triable issue would emerge."
61. In this regard, reliance is also placed upon the decision of the Hon'ble High Court passed in the case of Mohd. Naseer Vs. Mohd. Zaheer and Anr. RC Rev. No. 267/2016 dated 03.11.2016 in which the following was held :-
"19. ...Mere raising of baseless contentions against the landlord cannot be a ground for being granted leave to defend to the petitioners. It cannot be said that the petitioners have given facts or particulars which require to be established by way of evidence. The petitioners have merely made allegations for the sake of making allegation. There is no merit in the said plea of the petitioner.
20. The trial court has rightly concluded that the petitioners have failed to place on record any material to raise a suspicion that the respondents are having a vacant space on the ground floor of the suit property which can be used by them to open his workshop for industrial tools."Eviction petition No. 254/13 (New No.79030/16) Page 29 of 41 30
62. In the present case, bald assertions have been made by the respondent that the petitioner has other floors available for use for his requirement. In view of the aforementioned decisions, it was for the respondent to place on record material to establish that these floors are indeed vacant and available with the petitioner. Having failed to do so, there is no reason to disbelieve the petitioner that these floors and portions other than the flats on the southern side of the second and third floors, are not in his possession.
63. As per the own case of the respondent, the first and third floors of this property are not vacant and are in possession of some tenants. The petitioner has disclosed the names of all persons who own various portions of the property no. 22A. Since no material has been placed on record by the respondent which controvert the case of the petitioner that other persons own various portions of property no. 22A, it shall be presumed that these portions are not available with the petitioner for his use. Moreover, as has already been observed hereinabove, only a property in premises no. 22F where the petitioner intends to open showroom and workshop of gold ornaments, can be held to be alternative suitable accommodations for use by the petitioner. It is argued on behalf of the respondent that the petitioner can have a strong room Eviction petition No. 254/13 (New No.79030/16) Page 30 of 41 31 for safe custody of ornaments at his residence which is going to be the safest. The Court is of the view that it is for the petitioner to see where it is more comfortable and safer for him to have the strong room. The respondent has no say in this regard. If the petitioner intends to have the entire basement for having a strong room, the respondent cannot compel him to manage his requirement only in a cupboard at his residence.
64. With respect to property no. 7259, Ajendra Market, Shkati Nagar, Delhi, it is the own case of the respondent that this property is in the name of Smt. Parul Mehra. Smt. Parul Mehra is stated to be the daughter of the petitioner. It is not in dispute that the daughters of the petitioner are all married. Since the property no. 7259 is owned by the married daughter of the petitioner, it cannot be said that it is available for the petitioner to do his business. Merely because the father's name and not the husband's name is mentioned after the name of Smt. Parul Mehra in the sale deed does not at all imply that the property is of her father and is merely registered in the name of Smt. Parul Mehra.
65. The respondent has relied upon a sale deed dated 18.06.2012 executed by the wife of the petitioner by which she sold part of the property no. 7259 to another person. It is contended by the respondent that it is evident Eviction petition No. 254/13 (New No.79030/16) Page 31 of 41 32 from the sale deed that the petitioner has interest in property no. 7259. With respect to this contention, it is observed that the sale deed was executed much prior to the filing of the present case. Therefore, it cannot be said that on the date of filing of the present case, the petitioner had a property in Ajendera Market which was sold by him. Also, it is observed that a property owned by the wife of the petitioner need not necessarily be available for the petitioner for his use. The Court is also of the opinion that only because the petitioner's wife own and his daughter owns portions of property no. 7259, it cannot be inferred that the petitioner or his relatives also own other portions of property no. 7259.
66. Also, since the tenanted premises is situated at a walking distance from the residence of the petitioner, the property in Ajendera Market, Shakti Nagar cannot be said to be an accommodation as suitable as is the tenanted premises.
67. With respect to the allegation of availability of properties in Katra Neel and Kucha Mahajani, Chandni Chowk, the petitioner has stated that he only has ownership to the extent of 1/42 share in property no. 807, Katra Neel, Chandni Chowk, Delhi which is an ancestral property and is dilapidated. The Eviction petition No. 254/13 (New No.79030/16) Page 32 of 41 33 petitioner has disclosed the names of the co-owners of this property. On the other hand, the respondent has not placed on record any material which discloses that the contention of the petitioner in this regard is false. As has been held hereinabove, it is for the respondent to file material for establishing the availability of alternative accommodations with the petitioner. There is no reason to disbelieve that the property no. 807 is dilapidated and that it is measuring only 155 sq. yards and do not 308 sq. yards. Also, since the property at Katra Neel, even if available with the petitioner for use, is not at walking distance from his residence, it is not as suitable as is the tenanted premises for the requirement disclosed in the eviction petition.
68. The petitioner has denied having a shop in Regan Tower, Near Gaffar Market, Karol Bagh, New Delhi. In support of the contention that the petitioner has this property, the respondent has filed copy of an electricity bill issued in the name of the petitioner of a property no. 2886, Ground Floor, Gali No. 17, Beadon Pura, Karol Bagh, New Delhi. At the outset, it is observed that this document cannot be looked into by the Court since it has been filed alongwith the rejoinder and not with the application for leave to defend. It is settled law that only those documents of the tenant which have been filed alongwith the application for leave to defend can be looked into while deciding the Eviction petition No. 254/13 (New No.79030/16) Page 33 of 41 34 application for leave to defend. The electricity bill pertains to a property which does not find mentioned in the application for leave to defend. The application for leave to defend discloses alleged availability of a property in Regan Tower, near Gaffar Market, Karol Bagh. However, the present bill is not of a property in Regan Tower, but is of a property in Beadon Pura. It is evident from the address mentioned on the bill that it is not of any property situated in a tower, but is in a lane of Karol Bagh. In the rejoinder, the respondent cannot be permitted to introduce a new ground of availability of a property which does not find mention in the application for leave to defend. If they are permitted to introduce a new ground in the rejoinder, the petitioner will not even have an opportunity to reply to it and to rebut it.
69. Even otherwise, the property in Karol Bagh cannot be said to be alternative suitable accommodation since it is not at a walking distance from the residence of the petitioner which is in Kamla Nagar and far from Karol Bagh.
70. The photographs filed by the respondent alongwith the rejoinder do not establish availability of alternative accommodations suitable to the requirement of the petitioner. Even if it is presumed that the petitioner has Eviction petition No. 254/13 (New No.79030/16) Page 34 of 41 35 other premises available for his requirements as stated in the petition, even then the choice is left to the landlord/petitioner to decide as to which of these premises he should use for his requirement of doing business and the tenant does not have any say in this matter. In the case of Ravichandran and Ors. Vs Natrajan Nadar and Ors. (2004) 1 MLJ 458, the following was held:
"Even assuming that other premises are available, then the choice is left to the landlord to decide as to which non-residential premises he should occupy, and the tenant cannot have any say in the matter. If the landlord is able to show the bonafide, then the tenant cannot dictate terms to the landlord that he should occupy some other building and not the one mentioned in the petition."
71. In the case of Ragavendra Kumar vs. Firm Prem Machinery AIR 2000 SC 534, the Hon'ble Supreme court held that 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. Reference may also be made to the case of Prativa Devi (Smt) v. T.V. Krishnan (1996) 5 SCC 353.
72. In the case of Sarla Ahuja v. United India Insurance Co. Ltd. AIR 1999 SC 100, the following was held:
" the crux of the ground envisaged in clause (e) of Section 14 (1) of the Act is that the requirement of the landlord for Eviction petition No. 254/13 (New No.79030/16) Page 35 of 41 36 occupation of the tenanted premises must be bona-fide. When a landlord asserts that he requires his building for his own occupation the 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 is 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 endeavor as to how else the landlord could have adjusted himself..."
73. In the case of Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta AIR 1999 SC 2507, it was held as under:
"...The landlord may convince the court that the alternate residential accommodation though available is still of no consequence as the same is not reasonable suitable to satisfy the felt need which the landlord has succeeded in demonstrating objectively to exist. Needless to say that an alternate accommodation, the entail denial of the claim of the landlord, must be reasonable suitable, obviously in comparison with the suitable accommodation wherefrom the landlord is seeking eviction. Convenience and safely of the landlord and his family members would be relevant factors. 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..."
74. In view of the settled legal position it is not for the respondent to dictate Eviction petition No. 254/13 (New No.79030/16) Page 36 of 41 37 to the petitioner that he should use any other property for his business, even if they are indeed available with the petitioner. The tenanted premises belongs to the petitioner and it is for the petitioner to see which of his properties is suitable for his business. It is the case of the petitioner that he is unemployed and he wishes to do a business of jewellery. The tenanted premises is in the basement of a building which is at walking distance from the residence of the petitioner. The petitioner desires to have a showroom and workshop of gold ornaments on the ground floor of the same premises where the tenanted premises is situated. It is the right of the petitioner to choose a premises which is going to be more profitable for his business and is convenient and safe for him to use. If the tenanted premises is suitable as per his needs, he has every right to possess the said premises and the respondent cannot contend that he should use any other property for his business. While deciding the question of bonafide requirement of the landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted.
75. The respondent has contended that the petitioner does not bonafide need the tenanted premises for starting a business and that he only wishes to sell the tenanted premises after having the respondent evicted from it. Eviction petition No. 254/13 (New No.79030/16) Page 37 of 41 38
76. As has been held by the Hon'ble Delhi High Court in the case of M/s A.K. Woolen Industries and Ors. Vs. Shri Narayan Gupta RC Rev. 495/2017 dated 31.10.2017, in case the petitioner sells the tenanted premises or rent it out at a higher rate of rent after obtaining its possession from the respondent, the respondent herein have the remedy of getting back the possession of the property under Section 19 of the Delhi Rent Control Act.
77. The Court is of the view that the petitioner has pleaded all necessary ingredients of Section 14(1)(e) of the Delhi Rent Control Act.
78. The petition is not barred by section 14 (6) of the Delhi Rent Control Act since the petitioner did not acquire interest in the tenanted premises only on the date of the partition. He was already co-owner of the tenanted premises and it cannot be said that he became its owner only on the date of partition.
79. Merely because the petitioner has filed eviction petitions against his other tenants does not imply that his need is for additional accommodation. It is not the case of the respondent that the petitioner has been successful in the other eviction petitions and has obtained possession of premises from his other tenants. Mere filing of the eviction petitions does not imply that he has got possession of those properties and that the present case is for additional Eviction petition No. 254/13 (New No.79030/16) Page 38 of 41 39 accommodation.
80. Merely because the petitioner has not disclosed the source of his income from his teenage till now also does not give rise to any triable issue. As has been held hereinabove, even if the petitioner is rich and has sufficient income, there is no bar for him to start another business and seek eviction of his tenant for using the tenanted premises for the business.
81. It has been argued by the Ld. Counsel for the respondent that the petitioner does not need the tenanted premises for storing ornaments and that for this purpose, one cupboard is enough. The Court is of the opinion that it is for the petitioner to see as to how he will utilize the space of the tenanted premises for his requirement and the respondent cannot direct him in this regard.
82. It is argued by Ld. Counsel for the respondent that on one hand the petitioner contends that he is on the verge of starvation and on the other hand he claims that he wishes to start a business of jewellery. It is submitted that for starting a business of jewellery, huge amount of investment is required which as per the petitioner is not available with him. It is submitted that the alleged requirement of the petitioner is malafide and not bonafide. The Court Eviction petition No. 254/13 (New No.79030/16) Page 39 of 41 40 is of the view that it is for the petitioner to see how he will finance his business. He may even take a loan. Merely because he does not have sufficient funds at present does not make it impossible for him to start business of jewellery of which he claims to have knowledge.
83. The net result is that petitioner has been able to establish that the tenanted premises is required bonafide for his business and that he has no other reasonably suitable alternative accommodation for this purpose. The respondent has failed to raise any reasonable triable issue. The application for leave to defend is dismissed.
84. Since the application seeking leave to defend has been dismissed, the petitioner is entitled for an eviction order. Accordingly, eviction order is passed in favour of the petitioner and against the respondent directing the respondent to vacate the tenanted premises i.e. basement under the shops on the ground floor of property no. 22F, Kamla Nagar, Delhi, more specifically shown in red colour in the site plan filed with the eviction petition, in terms of Section 14 (1)
(e) r/w Section 25-B of the Delhi Rent Control Act. The landlord however shall not be entitled to obtain possession thereof before the expiration of a period of six months from the date of this order.
Eviction petition No. 254/13 (New No.79030/16) Page 40 of 41 41
85. No order as to costs. File be consigned to Record Room. Digitally signed
Shirish by Shirish Aggarwal Aggarwal Date: 2018.09.20 16:23:10 +0530 SHIRISH AGGARWAL ARC-I, Central District, Tis Hazari Courts, Delhi (Announced in open court on 20.09.2018) Eviction petition No. 254/13 (New No.79030/16) Page 41 of 41