Delhi District Court
Sh. Kailash Chand Gupta vs M/S International Book House on 17 October, 2019
1
IN THE COURT OF MR. SHIRISH AGGARWAL, ARC-1, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
Eviction Petition No. E-84/15 (New No.78952/16)
Unique Case ID/CNR No.DLCT03-001852-2015
Sh. Kailash Chand Gupta
S/o Late Sh. Raghunath Sahai
R/o H.No.1, Flat Staff Road
Civil Lines, Delhi-110054. ...Petitioner
Versus
M/s International Book House
Through its Proprietor
Sh. Swarn Singh Tulsi
Situated at:
12-UB, Ground Floor
Jawahar Nagar, Delhi-110007
2nd Address:
C-115, Third Floor, Shakti Nagar Extn.
Delhi-110007 ...Respondent
Date of Institution of Petition : 16.10.2015
Date on which order was reserved : 15.10.2019
Date of decision : 17.10.2019
Decision : Application seeking leave to defend
filed on behalf of the respondent
is dismissed. Eviction order is
passed.
Eviction petition No.84/15 (New No.78952/16) Page 1 of 39
2
ORDER
1. This is a petition for eviction of tenant under Section 14(1)(e) r/w Section 25-B of the Delhi Rent Control Act, 1958. This order shall dispose off the application seeking leave to defend filed by respondent.
2. The petitioner claims to be the owner of property no. 12-UB, Jawahar Nagar, Delhi-110007. It is stated that the respondent is a tenant in some portion of this property on the ground and mezzanine floors, as shown in red color in the site plan filed alongwith the eviction petition (hereinafter referred to as the 'tenanted premises'). It is stated that the respondent is tenant in this premises at a monthly rate of rent of Rs.66/- excluding all other charges.
3. It is pleaded that the petitioner is not doing any work at present and requires the tenanted premises for opening a showroom of clothes/shoes/mobiles etc., opening a restaurant or for opening an office for consultation in real estate.
4. It is submitted that the petitioner has the following properties in joint names with other co-owners:-
(i) 1, Flag Staff Road, Civil Lines, Delhi-110054 - Being used by the Eviction petition No.84/15 (New No.78952/16) Page 2 of 39 3 petitioner and his family members for their residence.
(ii) Farm House bearing Khasra No.237 to 241, Village Mukhmel Pur -
Rented out to Mr. Praveen Kumar.
(iii) 5-UB, Jawahar Nagar, Kamla Nagar, Delhi-110007 comprising of basement, ground floor, first floor, second floor and third floor - Basement and Ground floor are in name of three co-owners i.e. Smt. Neetu (daughter-in-law of petitioner), Smt. Asha (wife of petitioner) and the petitioner, having 25%, 25% and 50% shares respectively.
a) Basement - Vacant.
b) Ground floor - Rented to M/s Parxvide on 24.07.2012 and
to M/s Vishal Furnishers on 05.02.2015
c) First floor, Second floor and Third floor - In the name of
the petitioner; Rented to Mr. Tejinder Sawhney on
11.07.2014
(iv) 6 F, Kamla Nagar, Delhi-110007 - Petitioner and M/s Pahwa Builtech
are co-owners of this undivided property
(v) Ground Floor of E-44, Kamla Nagar, Delhi-110007 - Rented to Mr.
Kuldeep Chowdhary on 14.09.2015
(vi) Factory plot at Village Badli - In possession of a tenant i.e. M/s Shree
Eviction petition No.84/15 (New No.78952/16) Page 3 of 39
4
Balaji Impex which is proprietorship concern of petitioner's son; Petitioner's son is doing business from this property since 01.10.1999
5. It is pleaded that the petitioner does not have any other suitable commercial premises for doing his business. It is averred that the tenanted premises is bonafide required by the petitioner for doing his 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.
6. 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. Respondent filed an application for seeking leave to defend.
7. It is stated in the application for leave to defend that the petitioner has concealed material facts. It is averred that the petitioner does not bonafide require the tenanted premises for doing his business. Rather, he wishes to make a profit by fresh letting out of the property. It is pleaded that the petitioner requires additional accommodation and therefore the respondent is entitled to an unconditional leave to contest the present case.
8. It is stated that the petitioner already has sufficient and reasonable Eviction petition No.84/15 (New No.78952/16) Page 4 of 39 5 commercial accommodation available with himself. However, he has recently let out or parted with many of these properties. Reference is made to the following properties:-
A). 5-UB, Bunglow Road, Jawahar Nagar, Delhi It is stated that when the petitioner purchased this property, it only had a ground floor and not lower and upper ground floors. However, the petitioner carried out unauthorized changes in this property and the ground floor was converted into two floors i.e. a lower ground floor and an upper ground floor. It is stated that the physical possession of the ground floor was recovered by the petitioner from the tenants soon after purchasing the property.
It is stated that on 05.02.2015, the petitioner let out one shop of this property for a period of nine years and at the rent of Rs.5,75,000/- per month to M/s Vishal Furnishers. It is averred that since this property was let out by the petitioner recently, it can hardly be said that the petitioner has any need for the tenanted premises.
It is submitted that recently, the petitioner and his family members have let out the entire basement of this property to M/s Reliance Footprints Ltd. at Eviction petition No.84/15 (New No.78952/16) Page 5 of 39 6 the rent of Rs.6,00,000/- per month. It is averred that the petitioner was in possession of this property but never used it for his purpose.
It is pleaded that the petitioner dabbles in real estate and does not bonafide require the tenanted premises.
It is stated that the first, second and third floors of this property are in actual physical possession of the petitioner and his family members who are utilizing this accommodation by renting it for short period to the students studying at Delhi University. It is stated that to conceal the availability of this property, the petitioner has created a lease/license of this property in favour of Mrs. Tejinder Sawhney for running a guest house. It is submitted that Mrs. Tejinder Sawhney is an employee of the petitioner and the purported lease/license executed in her favour is a sham. It is pointed out that the lease deed executed in favour of Mrs. Tejinder Sawhney on or about 01.07.2014 has been executed on a stamp paper dated 11.07.2013 and is for execution of a lease deed for a period of less than one year. It is stated that this lease is still continuing and there is no registered lease deed which has been executed.
Eviction petition No.84/15 (New No.78952/16) Page 6 of 39 7
B). D-42, Kamla Nagar, Delhi It is stated that a large shop on the ground floor of this property has been rented out to Yadav Matthiwala. Three shutters adjacent to this shop are vacant, locked and in possession of the petitioner and his co-owners. The shops next to these three shops is under the purported tenancy of Om Vasudeva Namah and Skylark. It is pleaded that even the shops purported to have been rented out to Om Vasudeva Namah and Skylark are lying locked.
It is stated that the photographs filed by the respondent establish that the aforementioned shops on the ground floor are lying locked. It is pleaded that one of the shops bear the sign "Shop on Rent" with a telephone number written on it.
It is stated that upper floors of this building are inaccessible as its entrance has been closed. It is pleaded that the upper floors are vacant, unoccupied and in possession of the petitioner and co-owners.
C). 6-F, Kamla Nagar, Delhi It is stated that this property is a three storey building. One shop on the ground floor of this property has been rented to M/s Aggarwal & Sons, a Eviction petition No.84/15 (New No.78952/16) Page 7 of 39 8 bookseller. Two shops adjacent to the shop were in possession of two different tenants. However, these two shops were got vacated by the petitioner 3-4 years ago on payment of a substantial amount. After getting these shops vacated, the petitioner converted the ground floor into a big hall with basement inside. Since around two years, the ground floor and the basement of this property, besides the first, second and third floors, are vacant and unused. It is stated that this property is at a short distance from the tenanted premises and is in a commercial locality.
D). 12-UB, Banglow Road, Jawahar Nagar, Delhi It is pleaded that the petitioner has sold the mezzanine floor of this building to one Mr. Sachdeva who is doing a business from this property.
E). E-44, Kamla Nagar, Delhi-110007 It is stated that as per the petitioner himself, he has given the ground floor of this property on rent to Mr. Kuldeep Chowdhary for a period of 11 months w.e.f 01.07.2015. It is stated that the first and second floor of this property were with Smt. Aruna Gupta and Sh. Aman Gupta as licensees. It is stated that the case was settled between the petitioner and these licensees Eviction petition No.84/15 (New No.78952/16) Page 8 of 39 9 and since 2011, the first and second floors of this property are with the petitioner.
It is pleaded that since the ground floor of this property have been let out to Mr. Kuldeep Chowdhary as late as in July, 2015, the petitioner cannot claim to have bonafide requirement for accommodation.
9. It is stated that at one place of the eviction petition, it is stated that the petitioner requires the tenanted premises for opening his office of consultation in real estate and at another place, it is stated that he requires the property for business of trading in clothes, shoes, mobiles or for opening a restaurant.
10. The respondent has denied all assertions made by the petitioner. The respondent has pleaded that the alleged bonafide need of the petitioner is fake and malafide and has prayed that leave to defend the petition may be granted to the respondent as the application/affidavit of the respondent/tenant discloses such facts as would disentitle the petitioner from obtaining an order for the recovery of possession of the premises under section 14 (1) (e) of Delhi Rent Control Act.
11. The petitioner filed reply to the application seeking leave to defend. The petitioner reiterated and reaffirmed the contents of his eviction petition. It is Eviction petition No.84/15 (New No.78952/16) Page 9 of 39 10 denied that the petitioner has sufficient and reasonable accommodation available with him and his family members.
A). 5-UB, Bunglow Road, Jawahar Nagar, Delhi.
It is denied that the petitioner carried out unauthorized structural changes in this property. It is denied that the entire basement has been let out to M/s. Reliance Footprints Limited at a rental of Rs. 6,00,000/- p.m. It is pleaded that the basement is still lying vacant.
It is denied that the first, second and third floors of this property are in possession of the petitioner and his family members. It is stated that rent deed of these floors has already been filed. It is denied that the lease of these floors executed in July 2014 has been created to conceal the availability of these floors. It is denied that Mrs. Tejinder Sawhney is an employee of the petitioner.
It is denied that the petitioner has deliberately withheld the site plan annexed with the lease deed dated 25.07.2012.
B). D-42, Kamla Nagar, Delhi.
It is stated that this property belongs to Mr. Nitin Gupta, son of the Eviction petition No.84/15 (New No.78952/16) Page 10 of 39 11 petitioner and that the petitioner does not interfere in the affairs and business of his son, even though the son resides with him.
C). 6-F, Kamla Nagar, Delhi-110007.
It is denied that the petitioner got two shops vacated from M/s. Shubh Laxmi and M/s. Aradhna 3-4 years back after making payment of a substantial amount. It is stated that these shops were got vacated by M/s. Pahwa Builtech and since then M/s Pahwa Builtech is in possession of these two shops. Thereafter, a dispute arose between the petitioner and M/s Pahwa Builtech.
It is denied that the petitioner converted the ground floor of this property into a big hall with a basement inside. It is admitted that since the last about two years, the aforementioned portion on the ground floor alongwith basement, first, second and third floors of this building are vacant and unused. It is however stated that these are vacant and unused due to a dispute between the petitioner and M/s Pahwa Builtech. It is pleaded that no decision regarding division of property has been taken and it is not certain as to which portion will come in the share of the petitioner. It is however clarified that the dispute between the petitioner and M/s Pahwa Builtech has not gone Eviction petition No.84/15 (New No.78952/16) Page 11 of 39 12 to the Court.
It is pleaded that only the ground floor of this property is commercial in nature and not the portion above the ground floor.
D). 12-UB, Bunglow Road, Jawahar Nagar, Delhi It is stated that one hall on the mezzanine floor of this property has already been sold to Smt. Bhawika Sachdeva.
E). E-44, Kamla Nagar, Delhi-110007 It is stated that a settlement had taken place between the petitioner and the other co-owners of this property before the Mediation Centre of Hon'ble High Court of Delhi. As per this settlement, the petitioner became owner of the entire ground floor of this property except the staircase and the passage to the service lane. It is pleaded that this property is a residential property and has already been let out. It is prayed that the application for leave to defend be dismissed.
12. The respondent filed rejoinder to the reply of the petitioner and denied the averments made in the reply of the petitioner and simultaneously Eviction petition No.84/15 (New No.78952/16) Page 12 of 39 13 reiterated and reaffirmed the contents of the application. In particular, it is stated that the affidavit in support of the reply to the application of the respondent has been signed by the petitioner on 18.01.2016 and has been attested by the Oath Commissioner of 21.01.2016. It is averred that the attestation is a farce and deserves to be rejected.
13. It is stated that even if it is presumed that the basement of the property 5 UB, Banglow Road, Jawahar Nagar is vacant, it is apparent that the petitioner has ample accommodation for his business requirements.
14. It is stated that the petitioner has not denied that M/s Reliance Footprints Ltd. is a tenant in a large portion of the property bearing no. 5-UB Banglow Road, Jawahar Nagar, Delhi. It is pleaded that after the petitioner filed his counter affidavit, in March, 2016, the petitioner inducted a new tenant, named, Mr. Gaurav Chawla in place of M/s Reliance Footprints Ltd., at a rental of Rs.6 lac per month.
15. It is stated that the petitioner has still not filed the site plan annexed to the lease deed dated 25.07.2012.
Eviction petition No.84/15 (New No.78952/16) Page 13 of 39 14
16. It is stated that the petitioner never disclosed about the property bearing no. D-42, Kamla Nagar, Delhi. It is stated that the petitioner and his son are living and messing together. Therefore, it can hardly be said that they are not entitled to share and enjoy the assets of each other.
17. It is stated that the petitioner has not placed on record any material which establishes that the petitioner has a dispute with M/s Pahwa Builtech.
18. It is stated that while instituting the present eviction petition, the petitioner did not bring to the notice of this Court about the property no. 6F, Kamla Nagar, Delhi.
19. It is denied that only the ground floor of the property 6F, Kamla Nagar, Delhi is commercial in nature.
20. It is denied that the property E-44, Kamla Nagar, Delhi is a residential property in which the petitioner only has the ground floor which he has let out.
21. I have heard the arguments and have carefully gone through the record. An objection has been taken with regard to the validity of the affidavit in support of the reply to the application for leave to defend on the ground that the date of its execution by the petitioner is different from the date on which Eviction petition No.84/15 (New No.78952/16) Page 14 of 39 15 the Oath Commissioner attested it.
22. It is noticed that the date of verification of this affidavit was earlier stated to be 18.01.2016. However, a stamp has been affixed right above this date. Evidently, the stamp has been affixed to change the date of 18.01.2016 to 21.01.2016, which is the same date on which the affidavit was attested by the Oath Commissioner. Therefore, there is no reason to believe that the petitioner did not execute the affidavit on 21.01.2016 before the Oath Commissioner. Thus, the affidavit is valid and shall be considered by the Court while adjudicating the application for leave to defend.
23. 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:
24. The ownership of the petitioner over the tenanted premises and the Eviction petition No.84/15 (New No.78952/16) Page 15 of 39 16 relationship of landlord and tenant between the petitioner and the respondent has not been denied by the respondent and has been admitted.
25. Accordingly, it is held that the petitioner is competent to have filed the present eviction petition since he is owner of the property and that there exists a relationship of landlord and tenant between the petitioner and the respondent.
Requirement of premises bonafide by the petitioner for himself and non-availability of any other reasonably suitable accommodation:
26. The respondent has alleged that the petitioner does not bonafide need the tenanted premises for doing business. It has been argued by the Ld. Counsel for the respondent that the petitioner has recently let out and parted with many of his properties which he could have used for his alleged bonafide requirement of doing business. It is submitted that since the petitioner did not use these properties, it is evident that he does not require the tenanted premises for doing business.
Basement of Property Bearing No. 5-UB, Banglow Road, Jawahar Nagar, Delhi
27. It is contended by the respondent that the basement of this property Eviction petition No.84/15 (New No.78952/16) Page 16 of 39 17 has been rented out by the petitioner during pendency of the present case. This has been denied by the petitioner and he has stated that the basement is lying vacant.
28. Whether the basement is vacant or not and whether it has been let out by the petitioner during pendency of the present case or not, do not give rise to any triable issue since the basement cannot be considered to be an alternative suitable accommodation for the business of the petitioner. In this regard, reference is made to the decision of the Hon'ble High Court of Delhi in the case of Surinder Singh Vs. Jasbir Singh 172 (2010) DLT 611.
29. It has been argued by the Ld. Counsel for the respondent that the denial of the petitioner to the allegation of the respondent that the petitioner has let out the basement to M/s. Reliance Footprint Limited is vague and evasive in view of Order 8 Rules 2, 3, 4 and 5 of Code of Civil Procedure and therefore, is no denial in the eyes of law. It is stated that the petitioner has not specifically denied having let out a portion of the property no. 5-UB to M/s. Reliance Footprint Limited. It is argued that the petitioner is deemed to have admitted that he has let out part of this property to M/s. Reliance Footprint Limited. Reference is also made to the photograph on page numbers 29, 30 Eviction petition No.84/15 (New No.78952/16) Page 17 of 39 18 and 31 of the application for leave to defend in which the board of Reliance Footprint can be seen outside a property.
30. At the outset, it is observed that the parameters of a written statement with respect to the denials do not apply to the summary procedure provided u/s 25-B of the Delhi Rent Control Act. In this regard, reference is made to the decision of the Hon'ble High Court of Delhi in the case of Gopal Kishan vs Ram Saroop RC Rev. No. 443/2017 dated 22.09.2017.
31. There is no gainsaying the fact that in the photographs on the page no. 29, 30 and 31, boards of Reliance Footprint can be seen. However, these boards only establish that part of the property on which these have been affixed are in possession of Reliance Footprint. This by itself does not give any indication that the requirement disclosed by the petitioner is not bonafide. Even if, the basement or the first floor of the property have been let out to Reliance Footprint, it does not indicate that the petitioner does not really require an accommodation for his business. This is so because the basement and the first floor are not as suitable as is an accommodation on the ground floor for running a business. In tis regard, reference is made to the aforementioned decision in the case of Surinder Singh Vs Jasbir Singh. Eviction petition No.84/15 (New No.78952/16) Page 18 of 39 19 Ground Floor of Property Bearing No. 5-UB, Bunglow Road, Jawahar Nagar, Delhi
32. It is contended by the respondent that the ground floor of this property has been rented out by the petitioner soon before the filing of the present case. It is argued that if the petitioner indeed required an accommodation for his business, he would not have let out the ground floor to other tenants and would have used it for starting his business.
33. The petitioner has himself disclosed in the eviction petition that the ground floor of this property has been rented out to two different tenants. The petitioner did not conceal that this property has been let out. Some part of the ground floor was rented out way back on 24.07.2012 and some portion was rented out on 05.02.2015.
34. In the case of Rishal Singh vs Bohat Ram and Ors. 2014 (144) DRJ 633, where a premises was sold by the landlord 2.5 years before filing of the eviction petition, the Hon'ble High Court of Delhi held that it can be only logically concluded that the landlord did not have a need for the premises at the time of selling the property. The Hon'ble High Court held that in such a situation, it cannot be contended that, if at all the landlord needed the Eviction petition No.84/15 (New No.78952/16) Page 19 of 39 20 premises for a genuine purpose, he should not have sold the other property. It was held that neither the reason nor the timing of the same can be questioned by the tenant nor could a landlord seek possession of a leased property till the bonafide need for it rises. It was held that the court is required to see the condition of the landlord at the time of filing the eviction petition and that in the said case, the shop was sold long back.
35. In the case of Sain Dassberry Vs. Madan Lal Puri 7 (1971) DLT 392, the eviction petition was filed on 26.11.1964 and it was found out by the Court that the landlord was in possession of the whole property on 22.01.1964, when he let out the portion in dispute to the respondent. The following was held by the Hon'ble High Court in this case:-
"10. The first contention of the respondent's learned counsel cannot be accepted as there is nothing in law, which requires the landlord to finally decide about his requirements at the time when he lets out any accommodation to a tenant. His requirements may change from time to time. He may not be clever enough to anticipate things. His inability to do so cannot deprive him of his rights, which he derives under the Act. Reference may be made in this connection to Inder Sain Seengal Vs. J.E. Compose, 1970 RCJ I, where it was observed : "to impose on the landlord an obligation to decide finally three months prior to his date of retirement whether or not be would be shifting and living in his own house three months later, and if he was so desirous then of declining to lease Eviction petition No.84/15 (New No.78952/16) Page 20 of 39 21 the vacant portion of his house is to read in the statutory provisions more than what is clearly discernable therein".
It is therefore, not possible to hold that the landlord must anticipate his needs at the time when he lets out any accommodation to a tenant and that his failure to do so would render his subsequent demand for eviction of his tenant malafide."
36. In the aforementioned case of Inder Sain Seengal Vs. J.E. Compose, the Hon'ble Court was of the view that the landlord cannot be expected to foresee his need for the tenanted premises even three months earlier. In view of the decision in the aforementioned case of Sain Dassberry Vs. Madan Lal Puri, it can be held that the landlord cannot be expected to know of his requirements even ten months prior to the filing of the eviction petition. The requirements of the landlord may change from time to time and he cannot be expected to be clever enough to anticipate things. In view of the decision of the Hon'ble High Court in the Sain Dassberry case, it is held that the petitioner's inability to have anticipated his requirement for premises for doing business at the time when he and other co-owners of the property let out part of the ground floor of property bearing no. 5-UB, Jawahar Nagar cannot deprive him of his right under the Delhi Rent Control Act to seek eviction of the respondent on the ground of bonafide requirement.
Eviction petition No.84/15 (New No.78952/16) Page 21 of 39 22
37. Merely because the petitioner rented out part of the ground floor of a property of which he is a co-owner around 8 ½ months prior to the filing of the present case, it cannot be said that the petitioner does not really need an accommodation for doing business. It cannot be held that on 05.02.2015 when the petitioner and other co-owners of the ground floor rented out the property, the petitioner should have anticipated that he would want to start a business 8 ½ months later and should have stalled the co-owners from letting out the property.
38. In view of the decision of the aforesaid case of Rishal Singh, it is held that the respondent herein cannot question the reason nor the timing of the petitioner and other co-owners letting out the ground floor of property no. 5UB, Jawahar Nagar, Kamla Nagar, Delhi. This Court is required to see the condition of the petitioner at the time of filing of the present case and the shops on the ground floor of property no. 5UB were rented out several months prior to the filing of the present case.
39. Moreover, the petitioner is not the exclusive owner of the ground floor of property no. 5-UB. His wife and daughter-in-law are co-owners in this property. Therefore, the petitioner cannot be said to be the sole decision Eviction petition No.84/15 (New No.78952/16) Page 22 of 39 23 maker about what is to be done with this property. Even though the other co-owners are close relatives of the petitioner, they are separate persons in the eyes of law who have paid consideration to the petitioner herein for purchasing share in the ground floor of property no. 5-UB, Jawahar Nagar, Delhi. The tenanted premises herein is owned solely by the petitioner. Whereas the ground floor of property no. 5-UB has other co-owners. Therefore, the ground floor of this property cannot be considered to be an alternative available accommodation with the petitioner. In this regard, reference is made to the decision in the case of J.R. Ramesh Kumar @ Rameshji vs N. Prabhakar Rao 2000 (6) ALD 796. In this case, the tenant had made reference to a property owned by the landlord alongwith his family member. However, it was held that the landlord must own and possess the alleged alternative premises as an absolute owner. The Hon'ble High Court placed reliance upon a decision of Hon'ble Supreme Court in the case of Prativa Devi vs T.V. Krishnan in which it was held that there is no law which deprives the landlord from the beneficial enjoyment of his property and that the landlord is the best judge of his requirement and cannot be dictated by the Courts on how and in what manner he should use his property.
40. Since the ground floor of property no. 5-UB cannot be considered to be Eviction petition No.84/15 (New No.78952/16) Page 23 of 39 24 an accommodation as suitable as is the tenanted premises since there are other co-owners in the property no. 5-UB, adverse inference cannot be drawn against the petitioner since the ground floor of this property was rented out around 8 ½ months prior to the filing of the present case. Moreover, it is not the petitioner alone who rented out this property. It is evident from the lease deeds, copy of which have been filed by the petitioner, that the ground floor was rented out by the other co-owners of this property besides the petitioner herein. The co-owners also have an interest in the ground floor which they had purchased by paying huge amount of consideration. The petitioner after receiving consideration amount from the other two co-owners cannot be expected to call upon them to not rent out the property.
First, Second and Third Floors of Property Bearing No. 5-UB, Bunglow Road, Jawahar Nagar, Delhi
41. It is contended by the respondent that the claim of the petitioner that these floors have been given on license to Mrs. Tejinder Sawhney is a farce. It is stated by the respondent that Mrs. Tejinder Sawhney is an employee of the petitioner and that these floors are being rented for short periods to girl students.
Eviction petition No.84/15 (New No.78952/16) Page 24 of 39 25
42. At the outset, it is observed that the aforementioned contention of the respondent also does not give rise to any triable issue since it has been admitted by the respondent that these floors are not vacant and have been rented to girl students, even though for short durations. Since these floors are not vacant, it cannot be held that these are alternative suitable accommodations available with the petitioners. The petitioner has relied upon a license deed executed by him in favour of Mrs. Tejinder Sawhney, copy of which has been filed. It is stated in the license deed that the stated property is being taken only for running a P.G. Therefore, it is the case of both the petitioner and the respondent that the first, second and third floors of property no. 5UB is being used for renting out to students. It does not matter whether the petitioner is doing this by himself or through a licensee Mrs. Tejinder Sawhney. Thus, the allegation of the respondent that Mrs. Tejinder Sawhney is an employee of the petitioner and the license deed has been created only to show the non-availability of the first, second and third floors of the property, also does not give rise to any triable issue.
43. Moreover, the first, second and third floors can not be considered as accommodations as suitable as is the tenanted premises for doing business. In the cases of Dhannalal Vs. Kalawatibai (2002) 6 SCC 16 and Uday Eviction petition No.84/15 (New No.78952/16) Page 25 of 39 26 Shanker Upadhyay Vs. Naveen Maheshwari (2010) 1 SCC 503, it was held that judicial notice can be taken of the fact that the upper floors are generally not commercially viable and consumers and patrons of the market are reluctant to walk into the same and are more prone to walk into a shop on the ground floor. Relying on these decisions, the Hon'ble High Court of Delhi in the case of M/s A.K.Woolen Industries & Ors. Vs. Shri Narayan Gupta RC. Rev. No. 495/2017 dated 31.10.2017 held that availability of upper floors above the tenanted premises on the ground floor cannot be said to be alternate suitable accommodation. Therefore, the availability of these higher floors do not give rise to a triable issue. Since these higher floors are not alternative suitable accommodation, it does not matter that the petitioner had rented out these floors soon before instituting the present case. D-42, Kamla Nagar, Delhi
44. The respondent has not placed on record any document which establishes that the petitioner owns property no. D-42, Kamla Nagar, Delhi. 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 Eviction petition No.84/15 (New No.78952/16) Page 26 of 39 27 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."
45. In the case of K.K. Sarin Vs. M/s Pigott Chapman & Co. 46 (1992) DLT 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."Eviction petition No.84/15 (New No.78952/16) Page 27 of 39 28
46. 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."
47. In view of the aforementioned decisions, it was for the respondent to place on record material which establishes that the property no. D-42 is owned by the petitioner and not his son Mr. Nitin Gupta.
48. On the other hand, the petitioner has filed copy of the sale deeds by which Mr. Nitin Gupta, his son purchased the property no. D-42. It is not the case of the respondent that the sale deeds filed by the petitioner are forged and fabricated. In the absence of any material brought on record by the respondent in support of its contention that the petitioner owns property Eviction petition No.84/15 (New No.78952/16) Page 28 of 39 29 no. D-42, there is no reason to disbelieve that Mr. Nitin Gupta is the owner of the property and not the petitioner herein.
49. It is stated by the respondent that since Mr. Nitin Gupta and the petitioner are living together, they are entitled to share and enjoy the assets of each other. It is not in dispute that Mr. Nitin Gupta is living with his father i.e. the petitioner herein. Also, it is not the case of the petitioner that he has disputes with his son. However, he cannot be expected to use the property of his son merely because the respondent herein does not wish to vacate his property. In this context, reference is made to the aforementioned judgment passed in the case of J.R. Ramesh Kumar @ Rameshji Vs. N. Prabhakar Rao and the judgment of the Hon'ble High Court of Delhi in the case of Geeta Malhotra Vs. Ravneet Kaur Chowdhary 240 (2017) DLT 353. In this case of Geeta Malhotra, the Hon'ble High Court held that "It is futile to try and claim that the property admittedly owned by her husband or by her father-in-law or mother-in-law can be utilized by her when she has a property in her own name.".
50. Therefore, the availability of a portion of property no. D-42, Kamla Nagar, Delhi and the renting out of other portion of this property, as alleged in Eviction petition No.84/15 (New No.78952/16) Page 29 of 39 30 the application for leave to defend also does not give rise to any triable issue. 6-F, Kamla Nagar, Delhi
51. It has not been denied by the respondent that besides the petitioner, there is another co-owner of this property i.e. M/s Pahwa Builtech and that the property remains undivided between these two co-owners. Since the petitioner is not an exclusive owner of this property, it cannot be considered as an alternative suitable accommodation available with the petitioner. It has already been held hereinabove that if the landlord is not the exclusive owner of the property, he is not the sole decision maker on what is to be done with the property. It is not in dispute that the co-owner is not even a relative of the petitioner. Therefore, it cannot be expected that the petitioner is entitled to use this property for his exclusive business.
52. Since the property bearing no. 6-F is not an alternative suitable accommodation available with the petitioner, the denial by the respondent that there exist a dispute between the petitioner and the co-owner M/s Pahwa Builtech, does not give rise to any triable issue. Whether there is any dispute between these two co-owners or not is irrelevant because even if there is no dispute, the petitioner cannot be said to have a legal right to use this property Eviction petition No.84/15 (New No.78952/16) Page 30 of 39 31 for his exclusive purposes i.e. starting a business.
53. Merely because the basement, ground floor, first floor, second floor and the third floor of this building are vacant and not being used by the petitioner for his business, it cannot be held that the purported requirement of the petitioner for accommodation is malafide. Since the petitioner is not the exclusive owner of the property, he cannot be expected to use these vacant portions for his exclusive business. It is evident that the property no. 6-F, Kamla Nagar was purchased by the petitioner and M/s Pahwa Builtech way back in the year 2011. It is the own case of the respondent that the petitioner got vacated two shops on the ground floor by making payment of a substantial amount of Rs.80 lacs to each of the two tenants. It is also the case of the respondent that since around 2-2.5 years, substantial part of this property is lying vacant. If there were actually no disputes between the petitioner and M/s Pahwa Builtech, they would have rented out this property which they have got vacated after making payment of huge amounts. There is no material on record placed by the respondent which indicates that there is no dispute between the said two co-owners. It has already been held hereinabove that it is the respondent who has to place on record material in support of the averments made in the application for leave to defend. It is unlikely that the Eviction petition No.84/15 (New No.78952/16) Page 31 of 39 32 petitioner would voluntarily suffer losses of several lacs per month by not letting out the property no. 6-F, Kamla Nagar. It can be inferred that there are indeed some disputes between the two co-owners.
54. It is stated by the respondent in the rejoinder affidavit filed by him that the property bearing no. 6-F, Kamla Nagar was never brought to the notice of this Court while instituting the present case and therefore, the petitioner is guilty of concealing material facts.
55. However, the aforementioned averment of the respondent is contrary to the record. In the first paragraph of page no. 8 of the eviction petition, the petitioner has admitted that he is a co-owner in the property no. 6-F, Kamla Nagar, Delhi. Infact, the petitioner even filed the sale deed executed in his favour and in favour of M/s Pahwa Builtech Pvt. Ltd.
56. The respondent has failed to disclose any property of which the petitioner is either a sole owner or a co-owner, which has not been disclosed by the petitioner in the eviction petition. Infact, the petitioner has himself filed several sale deeds and lease deeds pertaining to all the properties referred to in the present case. It can therefore not be held that the petitioner has concealed material facts.
Eviction petition No.84/15 (New No.78952/16) Page 32 of 39 33 E-44, Kamla Nagar, Delhi
57. The respondent has not placed on record any material which establishes that the petitioner is owner of any portion of this property other than the ground floor. On the other hand, the petitioner has filed copy of the sale deed, license deed and settlement agreement, pertaining to this property. Since no material has been placed on record by the respondent which establishes that the petitioner owns portions of this property other than the ground floor, the contention of the petitioner that he only owns the ground floor of this property shall be presumed to be correct.
58. Even if it is presumed that the petitioner has vacant possession of the first and second floors of the property no. E-44, these higher floors cannot be held to be alternative suitable accommodations for the business of the petitioner. In this regard, reference is made to the aforementioned decisions passed in the cases of Dhannalal Vs. Kalawatibai (2002) 6 SCC 16, Uday Shanker Upadhyay Vs. Naveen Maheshwari (2010) 1 SCC 503 and M/s A.K.Woolen Industries & Ors. Vs. Shri Narayan Gupta RC. Rev. No. 495/2017 dated 31.10.2017.
Eviction petition No.84/15 (New No.78952/16) Page 33 of 39 34
59. Also, since no material has been placed on record by the respondent which establishes that the property no. E-44 is a commercial property, the contention of the petitioner that this property is a residential property shall be accepted to be correct. Moreover, even in the registered sale deed dated 08.11.2006, this property has been described to have been constructed on a "residential plot". Even in the license deed executed by the petitioner in favour of Mr. Kuldeep Chowdhary, it is stated that the property will be used for P.G. purposes only. Even in the photographs of the respondent on page numbers 38 and 39 of the application for leave to defend, the said property looks like a residential property. Since the property is residential, even if the petitioner has given it on rent/license soon before the institution of the present case, it does not imply that the petitioner has created artificial scarcity of accommodation or that he does not bonafide require a commercial property for his business.
60. Even if it is presumed that the petitioner has other premises available for his stated requirement, even then the choice is left to the landlord/petitioner to decide as to which of these premises he should occupy 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:
Eviction petition No.84/15 (New No.78952/16) Page 34 of 39 35
"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."
61. 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.
62. In view of the settled legal position it is not for the respondent to dictate to the petitioner that he should use some other accommodation for his business, even if it is indeed available with the petitioner. The tenanted premises belongs to the petitioner and it is for the petitioner to see whether it is suitable for his requirement or not. It is the right of the petitioner to choose a property which is going to be more profitable and convenient for him. If the tenanted premises is suitable as per his needs, the petitioner has every right to possess the said premises and the respondent cannot contend that the petitioner should manage his affairs otherwise. While deciding the question of bonafide requirement of the landlord, it is quite unnecessary to make an Eviction petition No.84/15 (New No.78952/16) Page 35 of 39 36 endeavour as to how else the landlord could have adjusted.
63. In view of the above discussion, the allegation of the respondent that the petitioner has alternative suitable accommodations does not give rise to any triable issue.
64. It is contended by the respondent that the requirement of the petitioner is for additional accommodation and therefore, leave to defend the present case ought to be granted to the respondent. The Court is of the opinion that besides making this ipse dixit self-serving statement, the respondent has failed to disclose any commercial property which the petitioner solely owns and is on the ground floor. Since no such property is in possession of the petitioner, it cannot be said that his requirement is for additional accommodation.
65. It is stated by the respondent that the petitioner has at one place in the eviction petition stated that he requires the tenanted premises for opening his office as a consultant in real estate and at another place, stated that he wishes to set up a business of trading in clothes, shoes, mobiles or start a restaurant. It is stated that the vagueness of these pleas and wavering movements of the petitioner show that this petition has been instituted by him Eviction petition No.84/15 (New No.78952/16) Page 36 of 39 37 on coined and concocted allegations.
66. The Court is not in agreement with this contention of the respondent. The petitioner is not required to specify the exact business he wishes to do from the tenanted premises. It was held in the case of Raj Kumar Khaitan & Ors. Vs. Bibi Abaida Khatun and Anr. AIR 1995 SC 576 that it is not necessary for the landlord to state the specific business he wants to set up in the tenanted premises. Also, even if a specific business intended to be carried out from the tenanted premises is specified, it is not essential for the landlord to do the same business from the property after he gets its possession. Therefore, merely because the petitioner has mentioned a few different kinds of business that he intends to do from the tenanted premises, it cannot be said that he has a wavering mind and does not really require the tenanted premises for doing any business. Also, even though the petitioner has entered into a few property transactions, it cannot be held that his business is to dabble in real estate and that he cannot start a different business of retailing clothes, shoes, mobile phones or open a restaurant.
67. It is contended by the respondent that the petitioner is not interested in using the tenanted premises for business but wants to earn more out of the Eviction petition No.84/15 (New No.78952/16) Page 37 of 39 38 property by re-letting it after having the respondent evicted. In this context, the Court is of the opinion that in case the petitioner fails to occupy the premises as has been claimed by him, the Delhi Rent Control Act provides for recovery of possession by the respondent/tenant of the tenanted premises for its re-entry and occupation. It has also been the observation of the Hon'ble High Court in the case of M/s A.K.Woolen Industries & Ors. Vs. Shri Narayan Gupta RC. Rev. No. 495/2017 dated 31.10.2017 that section 19(2) of the Rent Act of Delhi provides a remedy to the tenant of repossession, if the landlord is not in use of the premises after obtaining an order of eviction against the tenant on the ground of the requirement of the premises for own use.
68. The net result is that the petitioner has been able to establish that the tenanted premises is required by him for his business and that he does not have any 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.
69. Since the application seeking leave to defend has been dismissed, the petitioner is entitled to an eviction order. Accordingly, eviction order is passed in favour of the petitioner and against the respondent directing the respondent Eviction petition No.84/15 (New No.78952/16) Page 38 of 39 39 to vacate the tenanted premises i.e portions on the ground and mezzanine floors of property no. 12-UB, Jawahar Nagar, Delhi-110007, as shown in red color in the site plan filed alongwith 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.
70. No order as to costs. File be consigned to Record Room.
Digitally
signed by
Shirish
Shirish Aggarwal
Aggarwal Date: SHIRISH AGGARWAL
2019.10.18
13:04:44
+0530
ARC-I, Central District,
Tis Hazari Courts, Delhi
(Announced in open court
on 17.10.2019)
Eviction petition No.84/15 (New No.78952/16) Page 39 of 39