Delhi District Court
ScjCumRc(Central): Tis Hazari ... vs Mahavir Jain Sangh on 28 August, 2021
IN THE COURT OF Ms. ADITI GARG
SCJCUMRC(CENTRAL): TIS HAZARI COURTS: DELHI
RC / ARC : 84/21
Ashish Talwar
S/o Late Sh. Tilak Raj Talwar
R/o A10, 2nd floor, East of Kailash
New Delhi110065
..... Petitioner
VERSUS
Mahavir Jain Sangh
Through AR
C/o Sh. Ramgopal
4645/1, ground floor, Deputy Ganj
Sadar Bazar, Delhi110006
..... Respondent
ORDER
28.08.2021
1. Vide this order, I shall decide application for leave to defend, filed by respondent under section 14(1)(e) read with Sec.25B of Delhi Rent Control Act, 1958 (in short DRC Act). The present petition has been filed with respect to one shop measuring 19.85 sq ft, situated on the ground floor of property no 4645/1, Deputy Ganj, Sadar Bazar, Delhi 110006 , as shown in the red colour in the site plan annexed with the petition ( hereinafter referred to as the tenanted premises).
Brief facts of the present petition as per the petition are that petitioner is the exclusive owner and the landlord with respect to the RC ARC : 84/21 Ashish Talwar Vs. Mahavir Jain Sangh 1 of 25 tenanted premises, and same was let out for non residential purposes to the respondent long time back. It is stated that presently the petitioner is engaged in the business of chemicals , under the name and style of M/S Suade Enterprises, from 2nd floor of the property no 206, Chandi Plaza, 234A, Sant Nagar, East of Kailash, Delhi110065. His son Udit Talwar is independently working from the same office space. The petitioner has a family of 6 members, and owing to increasing financial demands of the family, the petitioner bonafidely want to start another business, ie, trading of utensils, cutlery and allied items made of stainless steel, aluminum, copper, brass, etc, from the tenanted premises. That the tenanted premises is situated on the ground floor of main market of Deputy Ganj, Near Sadar Bazar, Delhi, which is the largest and most prominent commercial market place in India of cutlery and other allied items and the ground floor location can attract lot of customers. It is further stated that the items in which the petitioner intends to trade, are comparatively heavy in weight and therefore the tenanted premises is most suitable to fulfill the needs. Furthermore, considerable space is required for storage as well for display. It is stated that the petitioner has no other suitable accommodation to fulfill the bonafide need. Petitioner had stated that he is the owner of 57.3 sq yards on the 1st floor of property bearing no 4645 46464647, Ward no XIII, Deputy Ganj, Sadar Bazar Delhi, which is currently been let out to tenant namely M/S Aggarwal Kitchenwares Pvt Ltd. It is stated that apart from the tenanted premises and the portion on 1st floor which has been rented out to M/S Aggarwal Kitchenwares Pvt RC ARC : 84/21 Ashish Talwar Vs. Mahavir Jain Sangh 2 of 25 Ltd, the petitioner doesn't own any other part in the larger building.
2. After being served with the notice of the petition, respondent filed affidavit seeking leave to defend U/s 25B(4) of Delhi Rent Control Act, 1958, on the same grounds : (A) That the respondent has been represented through Mr Ram Gopal who is merely a visiting doctor and not the General Secretary of the Mahavir Jain Sangh, therefore the petition is bad in law.
(B) That the erstwhile landlord Sh Tilak Raj Talwar, had entered into an agreement with tenant/respondent on 5.8.1995, as per which the respondent had handed the half portion of then premises to Sh Tilak Raj, on the condition that Sh Tilak Raj would never seek eviction and rent would be Rs 10 per month, and respondent could retain the possession for indefinite period. That the petitioner has acted upon the agreement and has been collecting rent at Rs 10 per month, therefore the present petition is not maintainable.
(C) That the adjacent shop, no 4645, i.e. first floor and second floor of the building in which the tenanted shop is situated, has been rented out by the petitioner to some other tenant at market rate of rent, soon before filing of the petition.
(D) That the need of the petitioner is of additional accommodation.
RC ARC : 84/21 Ashish Talwar Vs. Mahavir Jain Sangh 3 of 25 (E)Concealment of properties owned by the petitioner : It is contended that the petitioner has number of properties including the property bearing no 234A Sant Nagar, East of Kailash, Delhi, which comprises ground, 1st, 2nd, 3rd and 4th floor.
(F)That the petitioner is not the owner of the tenanted premises, neither the need is bonafide and even the income of the petitioner is flourishing.
(G) That the petitioner has not filed the complete site plan of the building 464546464647 ward no XIII, Deputy ganj, Sadar Bazar, Delhi, and had concealed details of the 1st, 2nd and 3rd floor.
3. Reply to the leave to defend application has been filed by the petitioner along with counter affidavit, in which the version of respondent has been denied and the stand taken in the petition had been reaffirmed. It is stated that the defence taken by the respondent in the leave to defend are baseless, meritless, vague and false. It is stated that Mr RamGopal has been receiving rent and signing rent receipts on behalf of Mahavir Jain Sangh. Even otherwise, leave to defend has been filed by the general Secretary, Mr Shakti Vijay Singh. It is denied that filing of the eviction petition is contrary to the Rent Agreement dated 5.8.1995 as the said rent agreement is not a registered document and therefore cabnnot be looked into or taken into evidence. It is stated that even otherwise, section 14 of RC ARC : 84/21 Ashish Talwar Vs. Mahavir Jain Sangh 4 of 25 the DRC Act start with a nonobstante clause and have overriding effect on all other laws and contracts and therefore overrides the alleged rent agreement dated 5.8.1995. It is false and denied that the adjacent shop bearing no 4645 is in the possession of the petitioner , and the petitioner has let out the same just before the filing of the petition. Petitioner had explained and enumerated the history of title of the entire property and had stated that pursuant to an oral family settlement dated 24.2.2019, which was arrived between the legal heirs of Late Mr Tilak Raj Talwar, it was mutually agreed and decided that the tenanted premises and 50 % specified and demarcated share on the first floor situated towards the immovable built up property bearing no 464546464647, ward no XIII, Deputy Ganj, Sadar Bazar, Delhi110006, along with proportionate rights in the land underneath shall be owned and possessed by the petitioner. Later on, the terms were reduced into writing on 24.1.2020. The other adjoining shop no 4645 does not belong to the petitioner and is exclusively owned by Kamal Talwar. It is further stated that the need of the petitioner is not for additional accommodation. It is further denied that the petitioner owns the entire building bearing no 234A , Sant Nagar, East of Kailash, New Delhi. It is stated that the petitioner owns only office space no 206 situated on the second floor of the said building. Petitioner had offered that the Respondent is free to occupy all other spaces in the entire building apart from space at 206. It is further stated that need of the petitioner is bonafide.
RC ARC : 84/21 Ashish Talwar Vs. Mahavir Jain Sangh 5 of 25
4. Respondent filed rejoinder to the reply of petitioner denying the version of petitioner and relied upon the contention made by him in his affidavit accompanying application for leave to defend. Same is not repeated here for the sake of brevity.
5. Arguments on leave to defend application were addressed by counsels for both the parties. I have heard the submissions of counsels for both the parties and have gone through the material on record.
6. Proviso (e) to Section 14(1) is a special provision which has been enacted by the legislature for the class of landlords who require the premises genuinely and their requirement is bonafide and they do not have any suitable accommodation. The essential ingredients for attracting the proviso (e) of the Section 14(1) are :
a) The said premises are bonafide required by the landlord either for himself or for his family member.
b) The landlord or the family member has no other reasonable suitable accommodation.
These twin thresholds are to be satisfied conjunctively in order to attract the provisions of Section 14(1)(e) and the absence of even one of the said ingredients clearly makes the said provision inapplicable.
7. The Delhi Rent Control Act was enacted to balance the rights of the landlord and the tenant. Section 14 (1) (e) DRC Act entitles the RC ARC : 84/21 Ashish Talwar Vs. Mahavir Jain Sangh 6 of 25 landlord to file a suit for eviction showing his bonafide requirement when he has no other alternate suitable accommodation so as to fit in his bonafide requirement. This Section is controlled by procedure enumerated in Section 25B DRC Act, which states that the summary procedure is to be followed and leave to defend is to be granted only when the tenant has been able to raise any defence, which if proved, would disentile the landlord of the eviction relief.
8. I shall deal with all the defences taken by the respondent. A. Respondent has been represented through Mr Ram Gopal, who is not the Secretary Even if Sh Ram Gopal is not the Secretary, the respondent has been served and in fact leave to defend has been filed by the Sh Shakti Vijay Singh, General Secretary, Mahavir Jain Sangh. Even on the rent receipts (copies of which have been filed by the petitioner), same have been countersigned by Ram Gopal. The respondent has nowhere challenged or denied the rent receipts.
Hence, this plea of the respondent is rejected as baseless.
B) Plea regarding perpetual tenancy, in light of Rent Agreement dated 05.08.1995.
The respondent had relied upon the execution of the Rent Agreement dated 05.08.1995, and had taken the plea that the lease was for perpetuity and therefore, the petitioner cannot get the respondent evicted.
RC ARC : 84/21 Ashish Talwar Vs. Mahavir Jain Sangh 7 of 25 The respondent had filed photocopy of Rent Agreement dated 05.08.1995, in which it is stated that the Rent Agreement is for indefinite period.
The Registration Act, 1908, Section 17 (d) of the said Act is the relevant provision and same is reproduced hereinbelow :
"Section 17. Documents of which registration is compulsory :
Section 17(d) : "leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent."
"Section 49 : Effect of nonregistration of documents required to be registered :
No documents required by Section 17 (1) [or by any provision of the Transfer of property Act, 1882 (4 of 1882),] to be registered shall
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence or any transaction affecting such property conferring such power, unless it has been registered.
In the present case, Respondent has urged that the lease was perpetual and had relied upon the Rent Agreement. However, the Rent Agreement is not registered. Even though unregistered documents can be seen for collateral purposes, however, period of lease and determination of leave are the main terms of Lease and cannot be termed as collateral. Hence, in view of the above, the Rentagreement dated 5.8.1995 cannot be looked into for determining the period of lease.
RC ARC : 84/21 Ashish Talwar Vs. Mahavir Jain Sangh 8 of 25 The plea is accordingly rejected.
C) That the adjacent shop, no 4645, i.e. first floor and second floor of the building in which the tenanted shop is situated, has been rented out by the petitioner to some other tenant at market rate of rent, soon before filing of the petition. The respondent has thus challenged the bonafide need of the petitioner.
The respondent had not filed any document in support of his plea. On the other hand, the petitioner had stated that the said portions have not fallen to his share and therefore unavailable to the petitioner. Bonafide requirement and additional requirement As per the petition, the present eviction petition has been filed for starting retail and wholesale trade of utensils, cutlery and allied items made of stainless steel, aluminium, copper, brass, etc, from the suit premises. It is stated that at present the petitioner is carrying out the business of chemicals from his office space at 206, Chandi Plaza, 234A, Sant Nagar, East of kailash, New Delhi, which is on 2 nd floor. It is stated that son of the petitioner is also using the same space for carrying his individual business. That the petitioner and his son are not earning much income.
In order to evaluate whether the need of the petitioner is bonafide or not, let us understand the legislative and judicial connotation of the term, ' bonafide'.
In landmark case Deena Nath v. Pooran Lal, (2001) 5 SCC 705 RC ARC : 84/21 Ashish Talwar Vs. Mahavir Jain Sangh 9 of 25 wherein the Supreme Court observed thus: "The Legislature in enacting the provision has taken ample care to avoid any arbitrary or whimsical action of a landlord to evict his tenant. The statutory mandate is that there must be first a requirement by the landlord which means that it is not a mere whim or a fanciful desire by him; further, such requirement must be bonafide which is intended to avoid the mere whim or desire. The 'bonafide requirement' must be in presenti and must be manifested in actual need which would evidence the Court that it is not a mere fanciful or whimsical desire. The legislative intent is made further clear by making the provision that the landlord has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. This requirement lays stress that the need is pressing and there is no reasonably suitable alternative for the landlord but to get the tenant evicted from the accommodation. Similar statutory provision is made in subsection (e) of Section 12(1) of the Act in respect of accommodation let for residential purposes. Thus, the legislative mandate being clear and unambiguous, the Court is dutybound to examine not merely the requirement of the landlord as pleaded in the eviction petition but also whether any other reasonably suitable nonresidential accommodation in his occupation in the city/town is available. The judgment/order of the court/authority for eviction of a tenant which does not show that the court/authority has applied its mind to these statutory requirements cannot be sustained and the superior court will be justified in upsetting such judgment/order in appeal/second appeal/revision. Bonafide requirement, on a first look, appears to be a question of fact. But in recording a finding on the question the court has to bear in mind that statutory mandate incorporated in Section 12(1)(f). If it is found that the court has not applied the statutory provisions to the evidence on record in its proper perspective then the finding regarding bonafide requirement would cease to be a mere finding of fact, for RC ARC : 84/21 Ashish Talwar Vs. Mahavir Jain Sangh 10 of 25 such erroneous finding illegally arrived at would vitiate the entire judgment."
Chambers 20th Century Dictionary defines bona fide to mean "in good faith and genuine". Requirement is not a mere desire. The degree of intensity contemplated by "requires" is much more higher than in mere desire. The phrase "required bonafide" is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of the landlord and its bonafides would be capable of successfully withstanding the test of objective determination by the court. In short, the concept of bonafide need or genuine requirement needs a practical approach instructed by the realities of life. It is no concern of the Courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own.
The meaning of "bonafide" in the context appears to be in two folds. (a) the need of the landlord must be a genuine one and not a frivolous one. (b) landlord is not motivated by extraneous considerations in trying to recover the possession from the tenant with a view to let it out again to another tenant at a higher rent.
RC ARC : 84/21 Ashish Talwar Vs. Mahavir Jain Sangh 11 of 25 Further, in another landmark case of "Sarla Ahuja v. United India Insurance Co. Ltd., reported as AIR 1999 SUPREME COURT 100", whereby it was held that :
".....The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bonafides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself....".
As far as the availability of the upper floors to the petitioner, right before the filing of the petition is concerned, firstly, the respondent has not filed any document in support of his contentions. There is no document whatsoever, to show that the upper floors were leased out by the petitioner before filing of the present petition. Bald plea has been taken by the respondent.
Secondly,The petitioner had relied upon family settlement and filed copy of the same , dated 24.1.2020, as per which, the petitioner has got limited portion in the property. The respondent, being the tenant, cannot RC ARC : 84/21 Ashish Talwar Vs. Mahavir Jain Sangh 12 of 25 challenge the family settlement of the petitioner. Even if it is assumed that the petitioner has upper floors at his disposal, then also, it is well settled law, that the landlord is the best judge of his requirement and the tenant cannot dictate the landlord how he has to utilize the space. Furthermore, it has been held in catena of judgments that property situated at ground floor is always better than the ones at the upper floors.
It was held by the Apex Court in the matter "Uday Shankar Upadhyay & Ors. Vs. Naveen Maheshwari, VIII (2009) SLT 429", that once it is not disputed that the landlord is in bonafide need of the premises, it is not for the courts to say that he should shift to the first floor or any higher floor. Shops and business are usually conducted on the ground floor, because customers can reach there easily. It was reiterated that the Court cannot dictate to the landlord which floor he should use for his business and that is for the landlord himself to decide. The plea of the landlord of requirement is not to be judged by considering the possibility by which the tenant may be allowed to continue in the premises. The requirement is to be judged on the basis of the property as it stands and not by commanding the landlord to make structural changes therein, to somehow or the other accommodate the tenant.
The Delhi High Court in re "Viran Wali Vs. Keldeep Rai Kochar, cited as 174 (2010) DLT 328", laid down that any business which is being run from the ground floor will attract more customers than the business being run from the basement and the tenant can not landlord as to how and in what manner the landlord should use his own property.
RC ARC : 84/21 Ashish Talwar Vs. Mahavir Jain Sangh 13 of 25 A Conjoint reading of the aforesaid judicial dicta thus naturally entails: That the petitioner, for the successful outcome of his petition u/s 14(1)(e) DRC, has to satisfy the court that his need is bonafide. Bonafide would mean genuine, and not influenced or backed with the intention of merely getting the tenanted premises vacated from the tenant.
In the recent judgment Praveen Kumar Arora Vs Akshay 2019 hon'ble Delhi Court, it had been held 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.'Any business which is being run from the ground floor will attract more customers than the business being run from the basement.;That the tenant cannot dictate terms to the landlord. That the landlord had mentioned about his need in his eviction petition in clear and unequivocal terms, it is not only the mere desire of the respondent to get the premises vacated but he needs the same for his need .
In Gauri Shanker V Laxmi Chand, RC Rev 575/2017 CM Appl 46297/2017 and CM Appl 14645/2018, decided on 15.6.2019, Delhi High Court, while dealing with similar contention that the petition had been filed to get the tenanted premises evicted , it was held, 'there is nothing whatsoever on the record to indicate that the eviction petition had been filed by the respondent herein/ landlord with malafide intent to evict the petitioner from the tenanted premises for sale for in relation thereto, the embargo of section 19(2) of the DRC Ac 1958(as amended) would clearly assist the tenant in the event of the landlord not taking the possession of the tenanted premises within 3 years from the date of possession of the same being ordered in his favour and apparently thus, the landlord cannot let out the suit premises to any other person other than the evicted tenant within 3 years from the date of obtaining possession.
RC ARC : 84/21 Ashish Talwar Vs. Mahavir Jain Sangh 14 of 25 In Sarwan Dass Bange V. Ram Prakash 2010 IV AD (Delhi) 252,observations made by Supreme Court in Baldev Singh Bajwa V Monish Saini MANU/SC/1239/2005 (2005) 12SCC 778, have been quoted as under : It was held that the legislative intent is of expeditious disposal of the application for ejectment of tenant filed on the ground of requirement by the landlord of the premises for his own occupation; a special category of landlords requiring the premises for their own use has been created; if there is any breach by the landlord, the tenant is given right of restoration of possession; the landlord who evicts the tenant on the ground of his own requirement is not only prohibited from letting out the premises or disposing of the same but also required to use the same for his own residence only. It was held that these restrictions and conditions inculcate inbuilt strong presumption that the need of the landlord is genuine;the restrictions and conditions imposed on the landlord make it virtually improbable for the landlord to approach the court for ejectment of tenant unless his need is bonafide no unscrupulous landlord in all probability, under this section, would approach the court for ejectment of the tenant considering the onerous conditions imposed on him. It was further held that his inbuilt protection in the Act for the tenants implies that whenever the landlord would approach the court his requirement shall be presumed to be genuine and bonafide. It was further held that a heavy burden lies on the tenant to prove that the requirement is not genuine. The tenant is required to give all necessary facts and particulars supported by RC ARC : 84/21 Ashish Talwar Vs. Mahavir Jain Sangh 15 of 25 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.
Coming to the facts of the given case, as far as the plea of additional accommodation is concerned, the present need cannot be termed as that of additional accommodation, as the petitioner wants to set up independent business for himself. It is stated that the current business of the petitioner is not yielding much returns, therefore, the need is not that of additional need, it is the genuine need of the petitioner to set up a business to meet the financial needs of the petitioner and his family. Furthermore, the petitioner had stated that his son is also carrying out his business from the same office space as of the petitioner, and therefore, the petitioner want to set up his independent space. The need of the petitioner, as it appears, is genuine, and cannot be looked into with criminal suspicion. As far as the plea that the income of the petitioner is flourishing and therefore sufficient for the petitioner, the respondent is no one to judge the financial needs of the petitioner. One's financial needs are subjective and cannot be ascertained on some fixed parameter.
Therefore, the plea that the need is not genuine, or is of additional accommodation, is baseless and is not acceptable, in view of facts and circumstances of the present case.
RC ARC : 84/21 Ashish Talwar Vs. Mahavir Jain Sangh 16 of 25 D) Concealment of properties owned by the petitioner : It is contended that the petitioner has number of properties including the property bearing no 234A Sant Nagar, East of Kailash, Delhi, which comprises ground, 1st, 2nd, 3rd and 4th floor.
On the other hand, petitioner had contended that the petitioner owns only only one office space at the second floor of the building bearing no bearing no 234A Sant Nagar, East of Kailash, Delhi.
The respondent had not furnished any proof in support of his plea. Merely a plea regarding concealment has been taken by the respondent in leave to defend affidavit, however, it is not explained as to on what basis the respondent had alleged the same.
In Ramesh Chand vs. Uganti Devi, 157 (2009) DLT 405, it has been clearly held that"A tenant who alleges that landlord has at his disposal other accommodation has to place before the Ld. ARC some material to show that the landlord has a specific alternative accommodation at his disposal". Mere bald allegation with respect to availability of additional accommodation with the petitioner does not hold any basis and cannot be a basis to deny the petitioner of his right to vacate the tenanted premises for his bonafide requirement".
In Adarsh Electricals and others vs Dinesh Dayal,
MANU/DE/2782/2010, it was held that " the concept of alternate
accommodation means that accommodation which is reasonably suitable for the landlord, and the court would not expect the landlord to sacrifice RC ARC : 84/21 Ashish Talwar Vs. Mahavir Jain Sangh 17 of 25 on his own comforts and requirements merely on the ground that the premises is with a tenant . The problem had to be approached from the point of view of a reasonable man and not that of a whimsical landlord. The court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need."
In recent judgment by the Apex Court, Balwant Singh @ Bant singh V Sudarshan Kumar, dated 27.1.2021, it was held that ' the adequacy or otherwise of the space available with the landlord for the business in mind is not for the tenant to dictate'.
Supreme Court in Siddalingamma v. Mamtha Shenoy (2001) 8 SCC 561 held that the concept of bonafide need or genuine requirement needs a practical approach instructed by the relatities of life; an approach either too liberal or too conservative or pedantic must be guarded against. If the landlord wishes to live with comfort in a house of his own, the law does not command or compel him to squeeze himself and dwell in lesser premises, so as to protect the tenant's continued occupation in tenancy premises.
The learned ARC has rightly observed that the upper floors' halls cannot be used for setting up office for the son of the respondent and in any case, the office on the ground floor from where the sale is to be conducted, is more convenient than on the upper floor. He also RC ARC : 84/21 Ashish Talwar Vs. Mahavir Jain Sangh 18 of 25 observed, and rightly so, that the tenant cannot compel and dictate the landlord to set up the office for his son on the upper floor of the suit premises, which are undisputedly being used for storage of books. It cannot be disputed that the business of sale of books as also the office for the same can be better looked after and managed from the ground floor than from the upper floor. It is well known fact that office situated on the ground floor is more convenient than on the upper floors and the landlord/owner has all the rights and choices to have the business/office for himself or his family members in the premises which is more suitable and convenient, if the bonafide of the landlord is established R.C.REV. 362/2011 KANTA SACHDEVA & ANR.Versus A.D.CHOUDHARY byHON'BLE MR. JUSTICE M.L. MEHTA Furthermore, it has been held by Hon'ble Delhi High Court in KHEM CHAND & ORS. Vs. ARJUN JAIN & ORS. pronounced on 13.09.2013, "that while applying the principle that landlord is the best judge in case of commercial tenancy, the court should act cautiously and should not apply principle to such case as liberally as applied on residential premises. The principle that the landlord is the best judge to decide his residential requirements and the court has no business to interfere cannot be applied as a matter of necessary consequence without application of the judicial mind. This is due to the reason that even though the ground of eviction available to the landlord to vacate the tenant for both residential or commercial premises is the same, still the requirement of landlord vary from case to case basis. Eviction of the commercial premises effects right to livelihood of one person who is a tenant. The said right of livelihood is equally the other facet of right to live as available to the landlord under Article 21 of the Constitution of India. Thus, in RC ARC : 84/21 Ashish Talwar Vs. Mahavir Jain Sangh 19 of 25 the event of adopting a summary procedure to vacate the tenant, who is earing his livelihood from a commercial place at the behest of the landlord and proceeding to effect the longstanding status of commercial tenancy on the ground of bonafide requirement, the court must take a precautious approach. While deciding question of genuineness of the need or availability of alternative accommodation, the court must apply judicial mind rather than merely reiterating the theorem based principle that landlord is the best judge to decide his need. The court should weigh the competing right to livelihood of both the landlord and the tenant and adopt a balance approach".
The Supreme Court in Dhannalal v. Kalawatibai (2002) 6 SCC 16 held that 'an alternative accommodation', to entail denial of the claim of the landlord, must be 'reasonably suitable', obviously in comparision with the accommodation whereform the landlord is seeking eviction. It was further held that the availability of another accommodation suitable and convenient in all respects as the accommodation from which the landlord is seeking eviction may have an adverse bearing on the finding as to bonafides of the landlord, if he unreasonably refuses to occupy the available premises to satisfy his alleged need. It was yet further held that the bonafides of the need of the landlord for the premises or additional premises have to be determined by the Court by applying objective standards and once the Court is satisfied of such bonafide, then in the matter of choosing out of more accommodation than one available to the landlord, his subjective choice shall be respected by the Court. It was yet further held that for the business which the landlord proposes to start, an RC ARC : 84/21 Ashish Talwar Vs. Mahavir Jain Sangh 20 of 25 accommodation situated on the first floor cannot be said to be an alternative suitable accommodation in comparison with the shops situated on the ground floor; a shop on the first floor cannot attract the same number of customers and earn the same business, as a shop situated on the ground floor would do."
Coming to the facts of the given case, the respondent had stated that the petitioner has all the floors of the building available in property bearing number 234A Sant Nagar, East of Kailash, Delhi. The respondent had not furnished any proof of the same. It has been argued by Ld Counsel for the petitioner that the tenanted shop is located in market famous for utensils. Therefore, the tenanted shop is most suitable for fulfilling the bonafide need of the petitioner and any other shop at some other place cannot be alternatively suitable to the petitioner. The plea is accordingly rejected.
E) Ownership of the petitioner.
The respondent has not disputed the landlord/ tenant relationship. The rent receipts have not been challenged. It is a well settled law that the tenant cannot challenge the title of the landlord.
The Indian Evidence Act, 1872 and Section 116 of the said Act is the relevant provision and same is reproduced hereinbelow :
"Section 116. Estoppel of tenant; and of licensee of person in possession - No tenant of immovable property, or person claiming through such tenant, shall during the continuance of the tenancy, be RC ARC : 84/21 Ashish Talwar Vs. Mahavir Jain Sangh 21 of 25 permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property b the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such license was given."
In view of the above, the plea of the respondent challenging the ownership of the petitioner is rejected being meritless.
F) That the petitioner has not filed the complete site plan of the building 464546464647 ward no XIII, Deputy Ganj, Sadar Bazar, Delhi, and had concealed details of the 1st, 2nd and 3rd floor. When the petitioner himself had filed the Family Settlement, and had contended that the entire building has not fallen to his share and he only has the tenanted shop and one room/shop on the first floor. Therefore, there was no such need to file the site plan of the entire building.
It has been held in R.K. Bhatnagar Vs. Sushila Bhargav 1986 RLR 232; Jagmohan Singh Vs. K.M. Bhatnagar 1995 RLR 527;V.S. Sachdeva vs MLGrover 67(1997) DLT 737;Harvansha Lal vs Madan Lal 1997RLR383, that " If a tenant does not file any site plan, then site plan filed by the landlord is assumed to be correct."
In the present case, no site plan has been filed by the respondent. Therefore, the plea that the petitioner has not filed the completes site plan, is not tenable , and is rejected accordingly.
RC ARC : 84/21 Ashish Talwar Vs. Mahavir Jain Sangh 22 of 25 G) The respondent had taken the plea that he would face difficulty as he has been running dispensary from the tenanted premises for a number of years.
In Prem Prakash Malik vs Ram Gopal Rajvanshi on 29 August, 2012 RC.Rev.344/2011 by hon'ble mr. Justice M.L. Mehta, it was held, "The landlord cannot be directed to squeeze himself into a space, which is not sufficient to meet the requirement of himself and his sons, who are dependent on him for commercial premises, only to prevent any hardship to the tenant."
Hence, any hardship to the tenant, on the ground that he has been running his shop/ work from the tenanted premises, is irrelevant and not a ground for granting leave to defend. The plea is accordingly rejected.
In Ram Swaroop v. Viney Kumar Mahajan dated 24th July, 2017 in RC Rev. No. 112/2016 and Lalta Prasad Gupta v. Sita Ram dated 2nd August, 2017 in RC Rev. No. 352/2017, it has been held that leave to defend application has to be treated differently from a written statement and on the basis of simple denial of averments in the petition for eviction or by merely making vague averments, leave to defend cannot be obtained and that if the same were to be permitted there would be hardly any case where leave to defend would be refused in as such as the Advocates with their skilful drafting would be able to take pleas in the application for leave to defend irrespective of whether there is any merit therein or not.
Section 25 (B) 5 of the Delhi Rent Control Act requires the tenant to, in the application for leave to defend, disclose facts as would RC ARC : 84/21 Ashish Talwar Vs. Mahavir Jain Sangh 23 of 25 disentitle the landlord from obtaining an order of eviction under Section 14 (1) (e) of the Rent Act. If the facts disclosed, even though disputed by landlord, even if believed, would not disentitled the landlord from obtaining an order of eviction under Section 14 (1) (e), then also, no leave to defend has to be granted. Only if the facts disclosed in the application for leave to defend are such which though are disputed by the landlord but on trial if proved would disentitle the landlord from obtaining an order of eviction under Secvtion 14 (1) (e) of the Act, can leave to defend be granted.
When the tenant does not produce anything at all before the Court on the basis whereof there is any chance of the tenant proving what he has stated, the only inference is that the facts disclosed are not capable of being proved and/or not capable of disentitling the landlord from obtaining an order of eviction under Section 14 (1) (e) of the Rent Act.
In Labhu Lal v. Sandhya Gupta, 173 (2010) DLT 318, it was held that "Before leave to defend is granted, the respondent must show that some triable issues which disentitled the applicant from getting the order of eviction against the respondent and at the same time, entitled the respondent to leave to defend existed. The onus is prima facie on the respondent and if he fails, the eviction follows."
Hence, in view of the above discussion, I am of the view that the respondent had not been able to put forth a defence, which if proved, would disentitle the petitioner of the relief claimed. The respondent had not been able to prove how the bonafide need as portrayed by the RC ARC : 84/21 Ashish Talwar Vs. Mahavir Jain Sangh 24 of 25 petitioner is not bonafide or that the peitioner is having alternate suitable accommodation which can be utilized to meet the bonafide need.
10. In view of the above discussion and the judicial pronouncements, leave to defend application is dismissed. Landlord tenant relationship is not disputed. The petitioner has been able to establish its better title on the tenanted premises. As discussed in the aforesaid paragraphs, the petitioner has been able to prove its bonafide requirement as well. Since leave to defend is dismissed, and considering the petitioner has shown its bonafide and fulfilled the requisites of section 14 DRC, petitioner has become entitled to eviction. Consequently, eviction order is liable to be passed against the respondents u/s Section 25 B (4) of the Act. In view of above, petitioner is held entitled for recovery of the tenanted premises, i.e. Shop at ground floor at 4645/1, Deputy Ganj, Sadar Bazar, Delhi 110006, as shown in the red colour in the site plan annexed with the petition.
However, the petitioner would not be entitled to initiate execution proceedings for recovery of possession of the tenanted premises before expiration of six months from today in view of provisions given in Section 14 (7) of the Act. Keeping in view the facts & circumstances of the case, no order as to costs.
Announced in open court on (Aditi Garg)
28th day of August, 2021 SCJcumRC (Central)
Tis Hazari Courts : Delhi
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