Delhi District Court
Neeraj Chhabra vs Neeraj Ahuja on 27 January, 2024
E-156/19 New No.951/19 Neeraj Chhabra Vs. Neeraj Ahuja
In the Court of Ms. Neetu Nagar, JSCC cum Additional SCJ cum
Guardian Judge, South East District, Saket District Court, Delhi
(the then Additional Rent Controller-02, Central District, Tis
Hazari Courts, Delhi)
E-156/19
New no.951/19
In the matter of:
Sh. Neeraj Chhabra
Proprietor Samarth Exports
1320-21, 1st Floor Ward No. XVI,
Nai Wala Desh Bandhu Gupta Road
Karol Bagh New Delhi- 110055. ...Petitioner/Landlord
VERSUS
Sh. Neeraj Ahuja
New Tea Stall
1320-21, Ward No. XVI
Naiwala, Desh Bandhu Gupta Road,
Karol Bagh, New Delhi. ... Respondent/Tenant
******
Date of Instituion : 20.12.2019
Date of order : 27.01.2024
Decision of order : Leave to defend application
dismissed and eviction petition
allowed.
******
ORDER
1. This order of mine shall decide the question whether the respondent be granted leave to contest the present eviction petition filed by the petitioner against the respondent under section 14 (1) (e) (Neetu Nagar) Page 1/30 JSCC-ASCJ-GJ/South East District, Saket Courts (the then ARC-02, Central District, THC) 27.01.2024 Digitally signed NEETU by NEETU NAGAR NAGAR Date:
2024.01.27 17:37:21 +0530 E-156/19 New No.951/19 Neeraj Chhabra Vs. Neeraj Ahuja read with Section 25-B of Delhi Rent Control Act, 1958 (hereinafter referred to as 'DRC Act') in respect of one commercial shop in the front portion of the ground floor of the property/subject property bearing No.1320-21, Ward No.XVI, Naiwala, Desh Bandhu Gupta Road, Karol Bagh, New Delhi as shown in green colour in site plan attached with the petition (hereinafter referred as "tenanted premises").
2. The brief facts necessary for disposal of leave to defend application can be enunciated as follows:
2.1. It is the case of the petitioner that the petitioner is the lawful owner of the subject property comprising of ground floor, first floor and barsati with one room. The ground floor has two shops one in the possession of the petitioner and another shop was rented out by the previous owner of the property to the father of the respondent namely late Sh. Ram Asra. After the death of Sh. Ram Asra, the present respondent has acquired the tenancy rights who is running a tea stall namely 'New Tea Stall' therein. At the time of purchasing the said property, the Petitioner used to work as an employee in the business concern of the Petitioner's brother- in- law.
The said business was of export of automobile and two-wheeler spare parts to various countries overseas. Thus, the petitioner gained substantial experience in the said field while working with his brother-in-law. It is submitted that the Petitioner started his own business of automobile and two wheeler parts ("said Business") around in the year 2007.
2.2. It is stated that the there is other shop on the Ground (Neetu Nagar) Page 2/30 JSCC-ASCJ-GJ/South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally signed 27.01.2024 by NEETU NEETU NAGAR Date:
NAGAR 2024.01.27
17:37:30
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Floor of the subject property which was also occupied by a tenant but the same is too small for running the said Business. It is further stated that the export business of the Petitioner did not do well enough. The Petitioner applied to obtain Franchise/ Agency and Dealership of automobile parts manufactured by SAP vide Expression of Interest dated 28.11.2019, to which he received a reply on 10.12.2019 wherein it is clearly stated that the "entity must have appropriate commercial space in the relevant geographical market which is known for sale and purchase of automobile parts having minimum area 350 Sq. ft." The requirement specifically states that commercial space at the ground floor shall be considered for opening the dedicated showroom. The Petitioner fulfills all other requirements as stated by SAP in its letter dated 10.12.2019. On obtaining the tenanted premises, the Petitioner will be able to obtain the Franchise/Dealership without any hurdles. 2.3. It is submitted that the First Floor and the Barsati Floor were occupied by different tenants for their residential purposes. On account of bonafide need of the Petitioner to set up storage facility, the Petitioner filed an Eviction Petition against the erstwhile tenants of the First and Barsati Floor of the Property.Vide Judgment dated 06.02.2018, the First floor and Barsati floor comprised in the subject property were directed to be vacated as the said space was bonafidely required by the Petitioner for running his business. However, the First and Barsati Floor of the property are in a very dilapidated state and can be only used for the limited purpose of storing the automobile spare parts.
(Neetu Nagar) Page 3/30JSCC-ASCJ-GJ/South East District, Saket Courts (the then ARC-02, Central District, THC) 27.01.2024 Digitally signed by NEETU NEETU NAGAR Date:
NAGAR 2024.01.27
17:37:41
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2.4. It is stated further that the petitioner issued eviction notice as well as legal notice dated 23.09.2019 to the Respondent calling upon him to handover the peaceful vacant possession of the tenanted premises as the same is required bonafidely by the Petitioner to run his own business. It is further submitted that the shop on the Ground Floor of the Property, which is in possession of the Petitioner and highlighted in Pink Color in the annexed site plan admeasures approximately 190 Square Feet. The tenanted premises admeasures approximately 160 Square Feet. Thus, the combined area of the shop and the Tenanted Premises admeasures approximately 350 Square Feet ("Combined Area") which is equivalent to the required area for opening a dedicated showroom as stated in the Reply sent by SAP which can be used by the Petitioner for display of automobile parts manufactured by SAP and to have adequate staff and enough space for the customers to walk as well as for creating an art of display of two-wheeler automobile parts manufactured by SAP for the purpose of expansion of his business.
2.5. It is submitted that the petitioner is not having any other adequate alternate accommodation for his bonafide purpose.
3. Summons were served upon the respondent who filed his leave to defend alongwith separate detailed affidavit, by taking following grounds inter alia which can be outlined as follows:
3.1. It is averred that the case in hand is that of artificial scarcity, which in reality does not exist, and the petition requires dismissal. No document showing endorsement of tenancy in the favor of the petitioner after purchasing the property has been filed.(Neetu Nagar) Page 4/30
JSCC-ASCJ-GJ/South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally signed by NEETU 27.01.2024 NEETU NAGAR Date:
NAGAR 2024.01.27 17:37:51 +0530 E-156/19 New No.951/19 Neeraj Chhabra Vs. Neeraj Ahuja Hence, there does not exists any landlord tenant relationship without endorsement. The legal notice dated 23.09.2019 has not been received by the respondent, however the respondent admits of having received an envelope containing 2-3 blank papers. Even if assuming the said notice to have been received by the respondent, it has been alleged therein that the rent of the tenanted shop is Rs. 2500/- pm, but the petitioner remains totally silent as to what he had been doing since last 19 years, when he had allegedly purchased property on 22.06.2000. Further, the rent of the tenanted shop has been shown in the said sale deed as Rs.275/- p.m. It is astonishing as to how and when it shot to Rs. 2500/- pm.The respondent admits that he is in receipt of legal notice dated 11.08.2011 issued on behalf of the petitioner through Sh. Sanjeev Bajaj, Advocate, addressed to his father Late Sh. Ram Asra. It is submitted that though the respondent's father Sh. Ram Asra had expired long back on 13.03.2003, but the petitioner through notice dated 11.08.2011 terminates the tenancy and asks for paying arrears of rent for 11 years i.e. from June 2000 till August 2011. It is admitted that another notice dated 29.02.2012 was sent on behalf of the petitioner through Sh. Sanjeev Bajaj, Advocate, through which it was conveyed to him that he is in illegal and unauthorized possession of the shop and he was to pay damages, use and occupational charges. The respondent was again sent notice dated 23.08.2012 denying existence of any relationship of landlord and tenant between the petitioner and the respondent. Hence, there does not remain any relationship of landlord and tenant between the petitioner and respondent. Further, (Neetu Nagar) Page 5/30 JSCC-ASCJ-GJ/South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally signed by 27.01.2024 NEETU NEETU NAGAR NAGAR Date:
2024.01.27 17:38:01 +0530 E-156/19 New No.951/19 Neeraj Chhabra Vs. Neeraj Ahuja advocate for the petitioner Sh. Sanjeev Bajaj has sent reply dated 31.03.2012, whereby the rent of Rs. 12,190/- sent to the petitioner by way of cheque dated 21.03.2012, drawn on ICICI Bank, was returned back solely on the ground that he is not their tenant. 3.2. It is stated that the petitioner has already got vacated first and the second floor vide order dated 06.02.2018 in eviction case which are lying vacant and unused. The petitioner had got vacated the other tenant on the ground floor, namely Sh.Sher Singh somewhere in the year 2011-12. It is submitted further that the father of the respondent was inducted in the tenanted shop by virtue of a rent agreement in the year 1965. Since then, its ownership has changed many hands and that lastly the respondent has rent receipt for the year 1996 issued by Ms. Rai Kumari Khurana. It is further stated that the petitioner has not mentioned the place from where he started his own business of automobiles and two-wheeler parts. 3.3. It is averred that the petitioner is not doing any business from premises in question and it is one Mr. Ashok Kalra who is operating and working from the adjoining shop to that of the respondent.
3.4. Upon these grounds, the respondent prayed that there exists triable issue(s) that would disentitle the petitioner from obtaining an eviction order in respect of tenanted premises.
4. Reply to leave to defend application has been filed by the petitioner alongwith supporting affidavit wherein he has denied that the present petition is based on false and frivolous grounds and does not contain the ingredients of Section 14(1)(e) of DRC Act. The (Neetu Nagar) Page 6/30 JSCC-ASCJ-GJ/South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally 27.01.2024 signed by NEETU NEETU NAGAR NAGAR Date:
2024.01.27 17:38:12 +0530 E-156/19 New No.951/19 Neeraj Chhabra Vs. Neeraj Ahuja petitioner denied all the allegations and assertions made in leave to defend application and affidavit. It is submitted that the petitioner wants the tenanted premises for expanding his business of automobile and two-wheeler parts and such type of business requires appropriate space.
4.1. It is submitted that in the reply dated 20.03.2012 to the legal notice dated 29.02.2012 issued on behalf of the Petitioner, the Respondent has asserted himself as the tenant in the tenanted premises on the basis that he is the legal heir of Late Sh. Ram Asra and inherited the tenancy rights therein and also issued cheque towards payment of rent to the Petitioner which was not accepted because there was a dispute between the parties with respect to the amount of rent to be paid.
4.2. It is also stated the Respondent is guilty of concealing the reply dated 20.03.2012 and letter dated 21.03.2012, which was issued in response to the Legal notice dated 29.02.2012 issued on behalf of the Petitioner. As per the said reply dated 20.03.2012, the Respondent has admitted being in tenancy of the tenanted premises by inheritance and volunteered to pay arrears of rent alongwith interest @ 15% per annum.
5. Rejoinder was not filed by the respondent to the reply of leave to defend application of the petitioner.
6. I have heard learned counsel for both the parties and have gone through the material on record carefully. I have given my thoughtful consideration to the submissions made on behalf of both the parties as well gone through the written submissions along with (Neetu Nagar) Page 7/30 JSCC-ASCJ-GJ/South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally signed 27.01.2024 by NEETU NEETU NAGAR Date:
NAGAR 2024.01.27 17:38:21 +0530 E-156/19 New No.951/19 Neeraj Chhabra Vs. Neeraj Ahuja case laws.
7. The present petition for eviction is under clause (e) of proviso to sub-section (1) of section 14 of Act 59 of 1958 which after the judgment of Hon'ble Supreme Court in "Satyawati Sharma Versus Union of India", on 16.04.2008 reads as under :-
14.(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by and court or Controller in favour of the landlord against a tenant:Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:-
* * *
(e) that the premises are required bona fide by the landlord for occupation for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation :
8. In order to succeed in a petition for eviction filed (Neetu Nagar) Page 8/30 JSCC-ASCJ-GJ/South East District, Saket Courts (the then ARC-02, Central District, THC) 27.01.2024 Digitally signed by NEETU NEETU NAGAR Date:
NAGAR 2024.01.27 17:38:30 +0530 E-156/19 New No.951/19 Neeraj Chhabra Vs. Neeraj Ahuja under section 14 (1) (e) of the DRC Act, the petitioner must establish the following ingredients:-
(i) That he is the owner of the tenanted premises and there exists relationship of landlord and tenant between him and the respondent.
(ii) That tenanted premises is required bonafide by the petitioner for himself or for any member of his family dependent upon him.
(iii) Petitioner does not have any other alternate, reasonable and suitable accommodation.
9. It is now well settled that while deciding the question of the grant of leave to contest under the provisions of section 25B of Act 59 of 1958, the Rent Controller should see the affidavit filed by the tenant and the counter affidavit filed by the landlord. The Controller is not required to conduct a full fledged trial and should only see that if the affidavit of the tenant raise any triable point the decision on which may disentitle the landlord from recovering possession of the premises. At the time of the decision on the question of leave, the Controller is not required to seek the proof of the defence of the tenant. The tenant should only disclose such facts in his affidavit that would disentitle the landlord from recovering possession of the disputed premises. At the stage of granting the leave to defend, the Rent Controller should confine himself to the affidavit and reply, if any. The controller does not have the task of testing the veracity of the issues raised by the tenant, since that stage of the case will arise only after a leave to defend application has been allowed . The level of proof at this stage is that of a prima facie (Neetu Nagar) Page 9/30 JSCC-ASCJ-GJ/South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally 27.01.2024 signed by NEETU NEETU NAGAR NAGAR Date:
2024.01.27 17:38:40 +0530 E-156/19 New No.951/19 Neeraj Chhabra Vs. Neeraj Ahuja case. Reference at this point can be made to the landmark judgment of the Apex Court in "Precision Steel Engineering Works and Anr. Versus v. Prem Deva Niranjan Deva Tayal, 1982 (2) RCR 544: AIR 1982 Supreme Court 1518", wherein it was held that:-
"If the averments in the affidavit disclose such facts which, if ultimately proved to the satisfaction of the Court, would disentitle the landlord from recovering possession, that by itself makes it obligatory upon the Controller to grant leave. It is immaterial that facts alleged and disclosed are controverted by the landlord because the stage of proof is yet to come. It is distinctly possible that a tenant may fail to make good the defence raised by him. Plausibility of the defence raised and proof of the same are materially different from each other and one cannot bring in the concept of proof at the stage when plausibility has to be shown."
10. Further, the above cited case also poses a statutory duty on the Controller to grant leave to defend, if the tenant is able to disclose certain facts which would have to be tested at a later stage.Relevant paragraphs of the judgment are as under:
"Statutory duty is cast on the Controller to give leave as the legislature uses the expression 'the Controller shall give' to the tenant leave to (Neetu Nagar) Page 10/30 JSCC-ASCJ-GJ/South East District, Saket Courts (the then ARC-02, Central District, THC) 27.01.2024 Digitally signed by NEETU NEETU NAGAR NAGAR Date:
2024.01.27 17:38:49 +0530 E-156/19 New No.951/19 Neeraj Chhabra Vs. Neeraj Ahuja contest if the affidavit filed by the tenant discloses such fact as would disentitle the landlord for an order for recovery of possession. The Controller has to look at the affidavit of the tenant seeking leave to contest. Browsing through the affidavit if there emerges averment - of facts which on a trial, if believed, would non-suit the landlord, leave ought to be granted. Let it be made clear that the statute is not cast in a negative form by enacting that the Controller shall refuse to give to the tenant leave to contest the application unless the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order etc.... The language of sub-section 5 of section 25B casts a statutory duty on the Controller to give to the tenant leave to contest the application, the only precondition for exercise of jurisdiction being that the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of 13; possession of the premises on the ground mentioned in section 14(1) (e)."
11. Let us now discuss the facts and circumstances of the present case keeping the principle of law as discussed above.
I. Ownership of the petitioner over the tenanted premises as (Neetu Nagar) Page 11/30 JSCC-ASCJ-GJ/South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally signed 27.01.2024 by NEETU NEETU NAGAR Date:
NAGAR 2024.01.27 17:38:57 +0530 E-156/19 New No.951/19 Neeraj Chhabra Vs. Neeraj Ahuja well as existence of landlord-tenant relationship between the petitioner and the respondent.
12. It is contended on behalf of the petitioner that the petitioner is the sole owner of the subject property having purchased the same vide sale deed dated 22.06.2000 duly registered on 06.07.2000. The petitioner has placed on record copy of the same from which ownership of the petitioner qua subject property is crystal clear.
Even otherwise, same is not disputed by the respondent.Hence, no triable issue arises regarding ownership of the subject property.
13. It is urged on behalf of the petitioner that there exists relationship of landlord and tenant between the parties to the present petition by way of operation of law. Per contra, it has been argued on behalf of the respondent that the respondent has never attorned in favour of the petitioner as neither there is any endorsement nor any notice regarding transfer of the subject property to the respondent by the petitioner or by the erstwhile owner.
14. The fact of purchase of the subject property by the petitioner is not disputed by the respondent. Admittedly, the respondent is the legal heir of original tenant late Sh.Ram Asra.Hence, by operation of law, the transferee gets into the shoes of the erstwhile owner and the father of the respondent late Sh.RamAsra and after his death, the present respondent became tenant under the transferee and no attornment was thus required. Reliance in this regard is placed on case law titled as Nalakath Sainuddin Vs. Koorikadan Sulaiman (2002) 6 SCC 1, Mahendra (Neetu Nagar) Page 12/30 JSCC-ASCJ-GJ/South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally 27.01.2024 signed by NEETU NEETU NAGAR NAGAR Date:
2024.01.27 17:39:07 +0530 E-156/19 New No.951/19 Neeraj Chhabra Vs. Neeraj Ahuja Raghunathdas Gupta Vs. Vishwanath Bhikaji Mogul (1997) 5 SCC 329 and Mohar Singh Vs. Devi Charan (1988) 3 SCC 63 wherein it was held that on transfer of tenanted premises by the landlord, the transferee automatically becomes the landlord of the tenant by operation of law and the coming into being of the relationship of landlord and tenant between the transferee and tenant is not dependent upon any overt act on the part of the tenant.
15. The concept of attornment is contained in Section 109 of the Transfer of Property Act, 1982 which reads as under:
"Rights of lessor's transferee-If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him:
Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such (Neetu Nagar) Page 13/30 JSCC-ASCJ-GJ/South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally 27.01.2024 signed by NEETU NEETU NAGAR NAGAR Date:
2024.01.27 17:39:16 +0530 E-156/19 New No.951/19 Neeraj Chhabra Vs. Neeraj Ahuja transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee. The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased."
16. According to Section 109 of Transfer of the Property Act , the transferee succeeds to the rights and liabilities of the lessor in respect of covenants which run with the land. By virtue of Section 109, the tenant is bound to pay the rent to the transferee and he cannot deny the rent merely on the ground that there is no privity of contract.
17. In Mohd. Ilyas & Another vs Mohd. Adil & Others, AIR 1994 Delhi 212, it was explained that "to attorn" merely means to agree to become a tenant of the owner or landlord of a property previously owned or held by another or to agree to recognise a new owner of the property and promise to pay the rent to him. Black's Law Dictionary, Legal Glossary (1988 Edition) issued by the Ministry of Law & Justice defines "attorn" as "to agree to become tenant to one owner or landlord of any estate previously held by (Neetu Nagar) Page 14/30 JSCC-ASCJ-GJ/South East District, Saket Courts (the then ARC-02, Central District, THC) 27.01.2024 Digitally signed by NEETU NEETU NAGAR NAGAR Date:
2024.01.27 17:39:24 +0530 E-156/19 New No.951/19 Neeraj Chhabra Vs. Neeraj Ahuja another". In the Concise Oxford Dictionary, the word "attorn" means 'transfer: make legal acknowledgment of new landlord. Thus, "to attorn" merely means to acknowledge the relation of a tenant to a new landlord. It merely means acceptance of the new owner as landlord and estoppes the tenant to dispute the landlord's title thereafter. It was held that attornment by the tenant of the landlord is not required.
18. In Mohar Singh (through LRs) vs. Devi Charan & others, 1988 AIR 1365, it was explained that under the general law such an assignment effects a severance, and entitles the assignee on the expiry of the term to eject the tenant from the land covered by the assignment. Section 109 of Transfer of Property Act provides a statutory exception and enables an assignee to exercise all the rights of the landlord in respect of the portion respecting which the reversion is so assigned subject to the other covenants running with the land. There is no need for a consensual attornment as it is brought about by operation of law. It has the same effect as contractual attornment so that because of a transfer of the lease property, the transferee ipso facto acquires all the rights of the lessor and a new relationship is created between the transferee and the lessee. Letter of attornment is not necessary to complete title to the assignment of the reversion under Section 109 of the Transfer of Property Act. Title of the assignee is complete on the execution of the deed of assignment and is not postponed till the notice of the assignment is given right to ejectment which is inherent in (Neetu Nagar) Page 15/30 JSCC-ASCJ-GJ/South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally 27.01.2024 signed by NEETU NEETU NAGAR NAGAR Date:
2024.01.27 17:39:32 +0530 E-156/19 New No.951/19 Neeraj Chhabra Vs. Neeraj Ahuja ownership. Section 109 embodies the principle "Qui in jus deminiumve alterius succedit jure ejus uti debet" i.e. rights and liabilities attached to the property (arising out of possession and control of that property) pass with the property as observed in Shankar Sahai vs. Kamal 1971 MP LJ 436. It was further observed that there is nothing in Section 109 of Transfer of Property Act which provides attornment as a condition precedent for the owner to be so. No attornment of the landlord by the tenant is therefore necessary. Reference may also be had to Brij Bihari Prasad & Another vs. Smt. Deoki Devi & Another, AIR 1978 Pat 117 and Hajee K. Assainar & Company vs. Chacko Joseph, AIR 1984 Ker 113.
19. Hence, the claim of the respondent that he never attorned to the petitioner as his owner/landlord is of little consequence. The respondent has himself sent a cheque to the petitioner to pay rent.
Hence, a plea cannot be raised now about doubting the ownership of the tenanted premises.
20. It would also be pertinent to refer to Section 116 of the Indian Evidence Act which deals with estoppel against tenants or licencees or lessees in possession and falls in the category of estoppel by contract. This principle prevents a tenant in occupation of the demised premises, from denying the title of the landlord, who let him into possession.Having himself attorned by payment of rent by way of cheques, now it does not lie in the mouth of the (Neetu Nagar) Page 16/30 JSCC-ASCJ-GJ/South East District, Saket Courts (the then ARC-02, Central District, THC) 27.01.2024 Digitally signed by NEETU NEETU NAGAR Date:
NAGAR 2024.01.27 17:39:40 +0530 E-156/19 New No.951/19 Neeraj Chhabra Vs. Neeraj Ahuja respondent to challenge the ownership of the petitioner qua the tenanted premises as well as the relationship of landlord and tenant between them.
21. It was next urged on behalf of the respondent that the respondent's father Sh. Ram Asra had expired long back on 13.03.2003, but the petitioner through notice dated 11.08.2011 terminates the tenancy and asks for paying arrears of rent for 11 years i.e. from June 2000 till August 2011. It was further urged that notice dated 29.02.2012 was sent on behalf of the petitioner through Sh. Sanjeev Bajaj, Advocate, through which it was conveyed to him that he is in illegal and unauthorized possession of the shop, and that as his possession was illegal he was to pay damages, use and occupational charges. Further, reiterating and confirming sending of notice dated 29.02.2012 the respondent was again sent notice dated 23.08.2012 denying existence of any relationship of landlord and tenant between the petitioner and the respondent. It was vehemently contended that the petitioner through above 3 notices, i.e. notice dated 11.08.2011, 29.02.2012 and 23.08.2012, has denied the respondent to be his tenant, thus there has not remained any relationship of landlord and tenant between the petitioner and respondent and the present eviction petition thus deserves dismissed.
It was highlighted that the non-existence of landlord-tenant relationship between the parties herein, also gets ascertained from the response of the advocate for the petitioner Sh. Sanjeev Bajaj vide reply dated 31.03.2012, whereby the rent of Rs. 12,190/- sent to the (Neetu Nagar) Page 17/30 JSCC-ASCJ-GJ/South East District, Saket Courts (the then ARC-02, Central District, THC) 27.01.2024 Digitally signed by NEETU NEETU NAGAR Date:
NAGAR 2024.01.27 17:39:51 +0530 E-156/19 New No.951/19 Neeraj Chhabra Vs. Neeraj Ahuja petitioner by way of cheque dated 21.03.2012, drawn on ICICI Bank, was returned back solely on the ground that he is not their tenant, which confirms the non-existence of any landlord-tenant relationship between the parties.
22. Same is controverted by the petitioner arguing that the Respondent is heavily relying on the said legal notice so as to slip out of the present proceedings by blaming the Petitioner that his counsel in the year 2011/12 issued notices stating that the Respondent is not a tenant but illegal occupant. However, a perusal of Reply dated 20.03.2012 to the legal notice dated 29.02.2012 issued on behalf of the Petitioner makes it clear as the Respondent has asserted himself as the tenant in the tenanted premises on the basis that he is the legal heir of Late Sh. Ram Asra and inherited the tenancy rights therein. To my mind, all the legal notice and the reply thereto have to be read together rather in isolation. In the reply dated 20.03.2012 issued to the Petitioner against the legal notice dated 29.02.2012 issued by the Petitioner, the Respondent issued cheque towards payment of rent. From cumulative reading of the legal notice as well as reply and conduct of the respondent in making the payment of rent, the stand of the respondent is very much clear that he is the tenant qua the tenanted premises and the petitioner is the owner thereof. Merely for the reason that the counsel of the petitioner has made different statements in the legal notice does not efface the admission of the respondent and factum of creation of landlord and tenant relationship by way operation of law as (Neetu Nagar) Page 18/30 JSCC-ASCJ-GJ/South East District, Saket Courts (the then ARC-02, Central District, THC) 27.01.2024 Digitally signed by NEETU NEETU NAGAR NAGAR Date:
2024.01.27 17:40:06 +0530 E-156/19 New No.951/19 Neeraj Chhabra Vs. Neeraj Ahuja discussed above. Hence, contention of the respondent in this regard totally fails as no triable issue arises taking into consideration the admission of the respondent regarding landlord and tenant relationship.
II. Bonafide need and availability of alternate reasonable accommodation
23. As far as bona fide need of the petitioner is concerned, it is argued that the Petitioner had applied to obtain Franchise/ Agency and Dealership of automobile parts manufactured by SAP vide Expression of Interest dated 28.11.2019, to which he received a reply on 10.12.2019. Neither the said letter nor its reply is controverted by the respondent. However, a perusal of the said reply dated 10.12.2019 makes it manifestly clear that the requisites for dealership are that the entity must have appropriate commercial space in the relevant geographical market which is known for sale and purchase of automobile parts having minimum area 350 Sq. ft and further that commercial space at the ground floor shall be considered for opening the dedicated showroom. It is argued on behalf of the petitioner that the Petitioner fulfills all other requirements as stated by SAP in its letter dated 10.12.2019. The only cause preventing the petitioner from obtaining a Franchise/Dealership of the automobile parts manufactured by SAP, is the requisite space for opening a showroom. On obtaining the tenanted premises, the Petitioner will be able to obtain the Franchise/Dealership without any hurdles. Same is disputed by the (Neetu Nagar) Page 19/30 JSCC-ASCJ-GJ/South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally 27.01.2024 signed by NEETU NEETU NAGAR NAGAR Date:
2024.01.27 17:40:17 +0530 E-156/19 New No.951/19 Neeraj Chhabra Vs. Neeraj Ahuja respondent saying that the other conditions are not fulfilled. It is highlighted that the the other conditions as stated in the reply require minimum annual turnover of Rs.50,00,000/-; that the entity must be engaged in automobile industry and the person involved must have a requisite experience of at least 10 years and that the entity must have an appropriate space of minimum 600 squre feet for godown for storage of their products. It was vehemently urged that the the petitioner has not revealed where he was working earlier and there is nothing on record to show his experience as alleged by him which he gained by working with his brother-in-law. To my mind ,the said contention is not worthy of any merit as the fulfilment of the remaining conditions for the purpose of agency /franchise has to be verified by M/s SAP Swiss Solutions Private Limited and in any case if any of the said conditions are not fulfilled then the dealership will not be granted in favour of the petitioner. It is not the respondent who has to grant the dealership in favour of the petitioner. Hence contention in this regard totally fails.
24. It is next contended on behalf of the respondent that the petitioner is not working in the subject property. However, there is nothing on record brought by the respondent to substantiate the same.
25. It is next argued that the petitioner can use the portion of First Floor and the Barsati Floor which got vacated and lying unused. Admittedly, the Petitioner filed an eviction petition against the erstwhile tenants of the First and Barsati Floor of the Property as (Neetu Nagar) Page 20/30 JSCC-ASCJ-GJ/South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally signed 27.01.2024 by NEETU NEETU NAGAR Date:
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the said space was bonafidely required by the Petitioner for running his business. It is urged on behalf of the petitioner that the said petition was allowed on account of bonafide need of the Petitioner to set up storage facility. The same is not controverted by the respondent. It was contended on behalf of the petitioner that the First and Barsati Floor of the property are in a very dilapidated state and can only be used for the limited purpose of storing the automobile spare parts. Even if for the sake of arguments ,it is believed that the First and Barsati Floor of the property are not in dilapidated state, the same can not be treated as alternate accommodation as the condition for grant of franchise is that it has to be ground floor property.
26. Further, it is not controverted by the respondent that the shop on the Ground Floor of the Property, which is in possession of the Petitioner admeasures approximately 190 Square Feet. The tenanted premises admeasures approximately 160 Square Feet. Thus, the combined area of the shop and the tenanted premises admeasures approximately 350 Square Feet which is equivalent to the required area for opening a dedicated showroom as stated in the Reply sent by SAP. There is nothing on record by the respondent to substantiate that the petitioner is not in possession of the premises shown in the said portion or if the same is occupied by Mr. Ashok Kalra as alleged.
27. It is argued on behalf of the petitioner that the petitioner is not having any other adequate alternate accommodation for his (Neetu Nagar) Page 21/30 JSCC-ASCJ-GJ/South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally signed by 27.01.2024 NEETU NEETU NAGAR NAGAR Date:
2024.01.27 17:40:34 +0530 E-156/19 New No.951/19 Neeraj Chhabra Vs. Neeraj Ahuja bonafide purpose of creating a display outlet for the automobile parts on obtaining a Franchise/ Agency and Dealership of automobiles from SAP, the Combined Area of which will be sufficient to meet the needs of the Petitioner. Nothing has been brought on record to controvert the same by the respondent. Once the landlord has stated that he requires the tenanted premises for a particular purpose, the courts are required to believe the statement to be true and genuine, unless and until it is shown by the tenant through cogent material that the rquirement is fanciful or whimisical. I am of the view that the petitioner's ground that he requires the tenanted premises for setting his showrom comes within the category of bonafide requirement. Thus, the requirement for running the business by the petitioner can not be doubted in the absence of anything contrary shown by the respondent. In this regard, reliance can be placed on case tiled as Balwant P. Doshi Vs Shantaben Dhirailal Shah &Ar 2003 (2) Bom CR 190, wherein the coordinate bench has held that the Courts cannot ordinarily doubt the bonafide need of the landlord nor the Courts can dictate to the landlord as to how the premise owned by him should be used. It is sufficient for the landlord to express his desire to occupy the premises owned by him. It is not necessary for the landlord to establish the dire necessity but it is enough to show that some need exists.
28. Besides making self-serving assertions in the application for leave to detend, 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.
(Neetu Nagar) Page 22/30JSCC-ASCJ-GJ/South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally signed 27.01.2024 by NEETU NEETU NAGAR Date:
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29. 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."
30. 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 (Neetu Nagar) Page 23/30 JSCC-ASCJ-GJ/South East District, Saket Courts (the then ARC-02, Central District, THC) 27.01.2024 Digitally signed by NEETU NEETU NAGAR Date:
NAGAR 2024.01.27 17:40:59 +0530 E-156/19 New No.951/19 Neeraj Chhabra Vs. Neeraj Ahuja 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."
31. 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 (Neetu Nagar) Page 24/30 JSCC-ASCJ-GJ/South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally signed 27.01.2024 by NEETU NEETU NAGAR Date:
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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."
32. In view of the aforementioned decisions, it was for the respondent to place on record material to establish that the petitioner has other accommodations which are indeed vacant and available with them. The upper floors cannot be treated as suitable in comparison with the shops at ground floor as the shop on the upper floor cannot attract the same number of customers and earn the same business as a shop situated on the ground floor would do. Reliance can be placed on case law titled as Dhannalal Vs. Kalawati Bai (2002) 6 SCC 16. Hence, there is no reason to disbelieve that the petitioner does not have alternative suitable accommodations his commercial need. Hence, in these circumstances, the need of the petitioner not only seems to be genuine but greater than the respondent.
33. The law is well settled that the landlord is the best judge of his necessity and he has got complete freedom in the matter. Therefore, a tenant cannot dictate terms to the landlord regarding his (Neetu Nagar) Page 25/30 JSCC-ASCJ-GJ/South East District, Saket Courts (the then ARC-02, Central District, THC) 27.01.2024 Digitally signed by NEETU NEETU NAGAR Date:
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necessity. Reliance in this regard can be placed on case law titled as Balwant Singh alias Bant Singh and Anr. V. Sudarshan Kumar and Anr., 2021 SCC Online SC 114, it has been held as under:-
"11. On the above aspect, it is not for the tenant to dictate how much space is adequate for the proposed business venture or to suggest that the available space with the landlord will be adequate...."
34. In Prabhudayal Batra V Shreyans Buildwell Pvt Ltd, decided on 10th March, 2015, the tenanted premises were required for commercial purposes and not residential and the landlord had filed the eviction petition for expansion of business, the eviction order of the trial court was upheld by Hon'ble High Court of Delhi.
35. In Praveen Kumar Arora Vs Akshay decided on 11th January, 2019, the Hon'ble Delhi High Court observed that it sounds really strange that owner/landlord shall be at the mercy of the tenant for running his own business in the property owned by him as per the dictates of the tenant.
36. 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 (Neetu Nagar) Page 26/30 JSCC-ASCJ-GJ/South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally signed 27.01.2024 by NEETU NEETU NAGAR Date:
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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".
37. In Sudesh Kumari Soni v. Prabha Khanna, 2008 SCC OnLine Del 1128, inter alia, it held as under:-
"25. 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 (Neetu Nagar) Page 27/30 JSCC-ASCJ-GJ/South East District, Saket Courts (the then ARC-02, Central District, THC) 27.01.2024 Digitally signed by NEETU NEETU NAGAR Date:
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to make an endeavour as to how else the landlord could have adjusted himself."
38. In the present case as well, the landlord had mentioned about his need in his eviction petition in clear and unequivocal terms, it is not only his mere desire to get the premises vacated but he needs the same for his need.
39. The Hon'ble High Court of Delhi in Anita Jain Vs. Praveen Kumar Jain 2023/DHC/000068 held as under (relevant paras 12-15):
"12. Even otherwise, it is not for the petitioner/tenant to insist that the respondent/landlord must seek to occupy/ carry out business from the adjacent shop in preference over the tenanted premises. The law is well settled that it is not for the tenant to dictate terms to the landlord as to how he can adjust himself without getting possession of the tenanted premises.
40. It was next contended on behalf of the respondent that the petitioner wants to sell/let out the tenanted premises. Here it would be relevant to state that the said apprehension is already taken care of in the DRC Act itself by our legislative forefathers while enacting the laws who have already considered possibility of misuse in the hands of unscrupulous landlords and thereby inserted Section 19 of DRC Act which reads as follows:-
(Neetu Nagar) Page 28/30JSCC-ASCJ-GJ/South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally 27.01.2024 signed by NEETU NEETU NAGAR NAGAR Date:
2024.01.27 17:41:49 +0530 E-156/19 New No.951/19 Neeraj Chhabra Vs. Neeraj Ahuja "Where a landlord recovers possession of any premises and the premises are not occupied by the landlord or by the person for whose benefit the premises are held, within two months of obtaining such possession, or the premises having been so occupied are, at any time within three years from the date of obtaining possession, relet to any person than the evicted tenant without obtaining the permission of the Controller such tenant can be put back to the premises or can be paid such compensation as the Controller thinks fit."
41. Hence, if the requirement of landlord is not bonafide and if a landlord abuses the process of the court, obtains an order of eviction, subsequently lets out the property or sells the same, the tenant can always apply for restitution under section 19 of the DRC Act. Merely stating in the affidavit that the application for eviction has been made with mala fide intention is not sufficient to sustain the contention of the respondents.
42. In view of above discussion and the documents filed by the parties, this court is of the considered view that there is no triable issue between the parties which entitles the respondent for leave to contest the present application for eviction. The application for leave to contest is without merit and the same is dismissed.
43. Consequently, the present petition for eviction is allowed. Petitioner is held entitled for recovery of the tenanted (Neetu Nagar) Page 29/30 JSCC-ASCJ-GJ/South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally signed by 27.01.2024 NEETU NEETU NAGAR NAGAR Date:
2024.01.27 17:41:57 +0530 E-156/19 New No.951/19 Neeraj Chhabra Vs. Neeraj Ahuja premises consisting of one commercial shop in the front portion of the ground floor of the property/subject property bearing No.1320-21, Ward No.XVI, Naiwala, Desh Bandhu Gupta Road, Karol Bagh, New Delhi as shown in green colour in site plan(s) annexed with the petition. However, the petitioner would not be entitled to initiate execution proceedings for recovery of the possession of the tenanted premises before expiration of six months from today in view of provisions given in Section 14 (7) of the Act.
44. In the facts and circumstances of the case, there shall be no order as to costs.
45. File be consigned to record room.
Announced in the open Court Digitally signed by NEETU on 27.01.2024 NEETU NAGAR Date:
(This order contains 30 pages) NAGAR 2024.01.27 17:42:07 +0530 (Neetu Nagar) JSCC-ASCJ-GJ/South East Saket Courts: New Delhi (the then ARC-02, Central District, Tis Hazari Courts, Delhi) (Neetu Nagar) Page 30/30 JSCC-ASCJ-GJ/South East District, Saket Courts (the then ARC-02, Central District, THC) 27.01.2024