Delhi District Court
All R/O Wz-93 vs Sh. Surinder Kumar on 23 December, 2019
IN THE COURT OF SHRI AJAY NAGAR,
ADDITIONAL RENT CONTROLLER (WEST), TIS HAZARI
COURTS, DELHI.
ARC No: 25571/2016
Sh. Daya Prakash (Deceased)
Through L.Rs
(i). Smt. Vimlesh Devi (Wife)
(ii). Sh. Raj Kumar Gupta Ms. Neeru Gupta
(iii). Sh. Sat Narain Gupta (son)
(iv). Sh. Murari Gupta (son)
(v). Sh. Gopal Gupta (son)
(vi). Sh. Sunil Gupta (son)
(vii). Sh. Anil Gupta (son)
All R/o WZ-93, Titarpur,
Delhi-110027. ......Petitioners
VERSUS
Sh. Surinder Kumar
S/o Late Banarsi Dass
Shop No. 4, WZ-93,
Titarpur, Tagore Garden,
Delhi-110027. ......Respondent
Date of filing : 22.02.2013 Date of Order : 23.12.2019 ORDER ON LEAVE TO DEFEND
1. By way of present petition, the petitioner is seeking eviction of respondent Sh. Surinder Kumar in respect of One Shop No. 4, in property No. WZ-93, Titarpur, Main Najafgarh Road, New Delhi- 110027, as delineated red in the site plan annexed with the petition (hereinafter referred to as "Tenanted Premises"), Under Section 14(1)(e) of the Delhi Rent Control Act, 1958 (hereinafter referred to as "DRC Act").
ARC No. 25571/16 Sh. Daya Prakash (Through LRs) Vs. Sh. Surinder Kr. Page 1 /212. The case of the petitioner is that the grand mother of the petitioner Smt. Jai Devi owned and possessed the built up property measuring 1000 square yards, out of Khasra No. 9/19 (Known as WZ-93) in Titarpur, Main Najafgarh Road, New Delhi-110027, and she partitioned the property during her lifetime and gave 250 square yards to each of his three sons Sh. Ram Chand, Sh. Jagdish Chand and Sh. Siya Ram and retained one share with her. That she bequeathed the share in the property retained by her to the petitioner vide Will date 03.09.1973, which includes seven shops in the property which is known as WZ-93, Titarpur, New Delhi-110027. As a result of which, the petitioner became owner of seven shops. That the petitioner also received three shops as his share in the property after the death of his father Sh. Ram Chand Gupta. Thus, the petitioner acquired ownership of ten shops in the aforementioned property.
It is further averred by the petitioner that the tenanted premises was let out to the respondent for non residential purposes for a shop by the petitioner/landlord and the same are required bonafide by him for himself or for any member of his family dependent upon him, being the owner thereof for any person for whose benefit the premises are held and the landlord or such person has no other reasonably suitable non residential accommodation available to him. That the tenanted premises was let out to the respondent for non residential purposes on 5 th February, 1987 and the same have been used by him for running commercial activity under the name and style of M/s Judge Battery, and the same are now required by the petitioner/ landlord with the passage of time as his family members have grown up and the non residential accommodation already available to him has become insufficient.
ARC No. 25571/16 Sh. Daya Prakash (Through LRs) Vs. Sh. Surinder Kr. Page 2 /21It is further averred by the petitioner that he has six sons namely Sh. Raj Kumar, Sh. Murari, Sh. Gopal, Sh. Sat Narain, Sh. Sunil and Sh. Anil, who all have attained the age of majority. That out of six sons, three sons of the petitioner i.e. Sh. Murari, Sh. Gopal and Sh. Anil are unemployed and are not engaged in any commercial activity and have no source of income in the absence of non residential accommodation available to the petitioner.
It is also averred that there are in all ten shops in property No. WZ-93, Titarpur, Najafgarh Road, New Delhi-110027 in the ownership of the petitioner/ landlord. Out of which, three shops are with the sons of the petitioner namely Sh. Raj Kumar, Sh. Sat Narain and Sh. Sunil, who are doing the business of tyre puncture and retreading, spare parts in their occupation and all other shops are with the old tenants. That one shop is under the tenancy of Sh. Jitender Chhabra, one shop is under the tenancy of Sh. Shinku Kumar, one shop is under the tenancy of Smt. Kanta Rani and one shop has been with the deceased Sh. Vijay Bahl, one shop is with Sh. Vipin Behl, one shop is with the tenant Sh. Satinder Singh and one shop is with the respondent.
It is also averred that the petitioner needs the tenanted premises in occupation of the respondent in order to accommodate and settle one of his sons, who are unemployed and are not engaged in any business and have no source of income and the petitioner has no other shop or non residential premises available to him to accommodate any of his three unemployed and unengaged sons, who have no source of livelihood for commercial activity in the shop and start trade and business.
Lastly, it is prayed by the petitioner that an eviction order may be passed in favour of the petitioner and against the respondent.
ARC No. 25571/16 Sh. Daya Prakash (Through LRs) Vs. Sh. Surinder Kr. Page 3 /213. Notice of this eviction petition was sent to the respondent in the prescribed format which was duly served on the respondent. In response to which, the respondent filed his leave to defend application accompanied by affidavit.
4. Reply to leave to defend filed by the petitioner refuting the pleas taken by respondent in the leave to defend.
5. I have carefully and minutely gone through the petition, leave to defend application accompanied by affidavit, reply accompanied by counter affidavit, documents, material on record and case law relied upon.
It is pertinent to mention that in between an application filed by the respondent for taking on record the subsequent events which was allowed and subsequent events were taken on record.
6. Perusal of record shows that the respondent has sought the leave to defend on several grounds which will be discussed exhaustively later on.
7. Reply to leave to defend was also filed by the petitioner which will also be discussed exhaustively later on.
THE LAW:
It is well settled that burden placed on a tenant is light and limited in that if the affidavit filed by him discloses such facts as would disentitle the landlord from obtaining an order for the recovery of the possession of the premises on the ground specified in clause
(e) are good enough to grant leave to defend.
It is further well settled that at a stage when the tenant seeks ARC No. 25571/16 Sh. Daya Prakash (Through LRs) Vs. Sh. Surinder Kr. Page 4 /21 leave to defend, it is enough if he prima-facie makes out a case by disclosing such facts as would disentitle the landlord from obtaining an order of eviction. Unless the tenant at that stage itself establishes a strong case as would non-suit the landlord leave to defend should not be granted when it is not the requirement of Section 25 B(5). A leave to defend sought for cannot also be granted for mere asking or in a routine manner which will defeat the very object of the special provisions contained in Chapter IIIA of the Act, leave to defend cannot be refused where an eviction petition is filed on a mere design or desire of landlord to recover possession of the premises from a tenant. Refusing to grant leave in such a case leads to eviction of a tenant summarily resulting in great hardship to her and her family members, if any, although he could establish if only leave is granted that a landlord would be disentitled for an order of eviction.
It is also well settled at the stage of granting leave to defend, parties rely on affidavits in support of the rival contentions. Assertions and counter assertions made in affidavits may not afford safe and acceptable evidence so as to arrive at an affirmative conclusion one way or the other unless there is a strong and acceptable evidence available to show that the facts disclosed in the application filed by the tenant seeking leave to defend where either frivolous, untenable or most unreasonable.
It is also well settled that when a possession is sought on the ground of personal requirement, a landlord has to establish his need and not his mere desire.
In short and substance wholly frivolous and totally untenable defence may not entitle a tenant to leave to defend but when a triable issue is raised a duty is placed on the rent controller by the statute itself to grant leave. It would expeditious disposal of eviction ARC No. 25571/16 Sh. Daya Prakash (Through LRs) Vs. Sh. Surinder Kr. Page 5 /21 petition so that a landlord need not wait and suffer for long time. On the other hand, when a tenant is denied leave to defend although he had fair chance to prove his defence, will suffer great hardship. In this view a balanced view is to be taken having regard to competing claims.
There appears to be a mistaken belief that unless the tenant at that stage makes out such a strong case as would non-suit the landlord, leave to defend cannot be granted. This approach is wholly improper. When leave to defend is sought for, the tenant must make out such a prima facie case raising such pleas that a triable issue would emerge and that in our opinion should be sufficient to grant leave. The test is the test of a triable issue and not the final success in the action.
8. It is expedient to discuss some relevant relevant case law which is as under:-
In the case titled as Sarla Ahuja Vs United India Insurance Co. Ltd. AIR 1999 SC 100, the Hon'ble Supreme Court has held that:-
"The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord in bona fide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself."
In Shiv Sarup Gupta Vs Dr. Mahesh Chand Gupta AIR 1999 ARC No. 25571/16 Sh. Daya Prakash (Through LRs) Vs. Sh. Surinder Kr. Page 6 /21 SC 2507, at pg-2512 in para 14 & 15, Hon'ble Supreme Court held that:-
"14. The availability of an alternate accommodation with the landlord i.e. an accommodation other than the one in occupation of the tenant wherefrom he is sought to be evicted has a dual relevancy. Firstly, the availability of another accommodation, suitable and convenient in all respects as the suit accommodation, may have an adverse bearing on the finding as to bonafides of the landlord if he unreasonably refuses to occupy the available premises to satisfy his alleged need. Availability of such circumstance would enable the Court drawing an inference that the need of the landlord was not a felt need or the state of mind of the landlord was not honest, sincere, and natural. Secondly, another principal ingredient of Clause (e) of Sub-section (1) of Section 14 which speaks of non- availability of any other reasonably suitable residential accommodation to the landlord, would not be satisfied. Wherever another residential accommodation is shown to exist as available than the court has to ask the landlord why he is not occupying such other available accommodation to satisfy his need. The landlord may convince the court that the alternate residential accommodation though available is still of no consequence as the same is not reasonably suitable to satisfy the felt need which the landlord has succeeded in demonstrating objectively to exist. Needless to say that an alternate accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction. Convenience and safety of the landlord and his family members would be relevant fact Ors. While considering the totality of the circumstances, the court may keep in view the profession or vocation of the landlord and his family members, their style of living, their habits and the background wherefrom they come."
In the case titled as Ragavendra Kumar Vs Firm Prem Machinery AIR 2000 SC 534, it was observed as under:-
"It is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter, (See: Prativa Devi (Smt.) v. T.K Krishnan, [1996] 5 SCC
353. In the case in hand the plaintiff-landlord wanted eviction of the tenant from the suit premises for starting his business as it was suitable and it cannot be faulted."ARC No. 25571/16 Sh. Daya Prakash (Through LRs) Vs. Sh. Surinder Kr. Page 7 /21
The moral duty of a father/mother to help establish his/her son/daughter was also recognized by the Hon'ble Apex Court in "Joginder Pal Singh Vs. Naval Kishore Behal" [AIR 2002 SC 2256] in the following words:
"24........Keeping in view the social or socio-religious milieu and practices prevalent in a particular section of society or a particular region, to which the landlord belongs, it may be obligation of the landlord to settle a person closely connected with him to make him economically independent so as to support himself and/or the landlord. To discharge such obligation the landlord may require the tenancy premises and such requirement would be the requirement of the landlord. If the requirement is of actual user of the premises by a person other than the landlord himself the Court shall with circumspection inquire : (i) whether the requirement of such person can be considered to be the requirement of the landlord, and (ii) whether there is a close inter-relation or identify nexus between such person and the landlord so as to satisfy the requirement of the first query. Applying the overlaid tests to the facts of the present case it is clear that the tenancy premises are required for the office of the landlord's son who is a chartered accountant. It is the moral obligation of the landlord to settle his son well in his life and to contribute his best to see him economically independent."
9. Some of the pleas taken by the respondent are that:
That the present petition is the counter blast of the suit filed by the respondent for permanent injunction against the petitioner, which is pending for adjudication.
In response to which, the petitioner has denied the allegations and inter-alia stated that he has already filed his written statement in the aforementioned suit as well as counter claim which are matter of record.
Record manifestly shows that these are not triable issues which could dis-entitle the petitioner to obtain the order of eviction against the respondent.
10. Next plea is that the present eviction petition has been filed for ARC No. 25571/16 Sh. Daya Prakash (Through LRs) Vs. Sh. Surinder Kr. Page 8 /21 the premises with measurement shown as 8'X7' in the site plan annexed by the petitioner along with the petition, whereas the actual premises under the tenancy of the respondent is bigger than that.
In response to which, the petitioner has denied the allegations. Record shows that the respondent has already filed his own site plan in the present case. As such, record manifestly shows that these are not triable issue which could dis-entitle the petitioners to obtain the order of eviction against the respondent.
11. Next plea taken by the respondent is that the correct position is that a shop was let out by the petitioner to the respondent in February 1987 at the rate of Rs. 150/- per month. That the shop was let out with a mezzanine of angle iron and sillies at the height of around 7- ½ feet. That Later on, some more portion was added into that portion by letting by the petitioner to the respondent and some portion out that was also removed by the MCD due to road widening of Najafgarh Road as result of Metro Rail and ultimately the tenanted premises under the tenancy of respondent for last many years remained compromised of a down floor/ground floor with height 7- ½ feet and thereafter angle iron/silli roof is laid down and above that is the roof of T-iron/silli with height of 8- ½ feet.
In response to which, the petitioner has denied the allegations. Record manifestly shows that these are not triable issue which could dis-entitle the petitioners to obtain the order of eviction against the respondent.
12. The another contention of the respondent is that not only the shop of the respondent but the other shops in the line were also demolished by the MCD. As such, the ownership of the petitioner qua the tenanted premises under the tenancy of the respondent is ARC No. 25571/16 Sh. Daya Prakash (Through LRs) Vs. Sh. Surinder Kr. Page 9 /21 denied. That the petitioner has produced photocopy of a Will dated 30.09.1973 and even if the alleged is presumed to be correct, by virtue of the alleged Will, the petitioner gets devolved upon an area of 250 sq. yards with construction of one shop, hall, kitchen, one room and open land situated in the area of village Titarpur, New Delhi-110027.
In response to which, the petitioner has denied the allegations. Record manifestly shows that these are not triable issue which could dis-entitle the petitioners to obtain the order of eviction against the respondent as the respondent/tenant has no right to challenge the Will executed.
In the case titled as Sri Ram Pasricha Vs. Jagan Nath & Ors 1976 AIR 2335, the Hon'ble Apex Court observed :-
"the relationship between the parties being that of landlord and tenant,only the landlord could terminate the tenancy and institute the suit for eviction. The tenant in such a suit is estopped from questioning the title of the landlord Under section 116 of the Indian Evidence Act. The tenant can not deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law, in a suit between the landlord and tenant question of title to the leased property is irrelevant."
Furthermore, in the case titled as Subhash Jain vs. Ravi Sehgal in RC Rev. No. 292/2013, the Hon'ble High Court of Delhi observed as under :-
"The other objection of the petitioner is also without any force that the sale deed dated 29th March, 1993 is a sham document. The petitioner cannot object the history of ownership of the suit property in view of the provisions of Section 116 of the Indian Evidence Act, as the tenant has no right to challenge the ownership of the ARC No. 25571/16 Sh. Daya Prakash (Through LRs) Vs. Sh. Surinder Kr. Page 10 /21 landlord as he has not a contender to the suit property."
In the case of Ramesh Chand vs. Uganti Devi, 157 (2009) DLT 450 and Shanti Sharma vs. Ved Prabha, 1987 RLR 526 SC, wherein it was held that it is not the concern of the tenant as to how the landlord acquired the property.
In the case of Bharat Bhushan Vij vs. Arti Techchandani, 2008 (153) DLT 247 in paras 4 and 5 it was held as under :
"4. The concept of ownership in a landlord-tenant litigation governed by the Delhi Rent Control Act, has to be distinguished from the one in a title suit. If the premises was let out by a person and after his death, the premises has come in the hands of beneficiary under a Will, the tenant has no right to challenge the title of such a beneficiary. If on the death of the original owner the tenant has any doubt as to who was the owner of the premises, he is supposed to file an interpleader suit impleading all the legal heirs of the deceased and ask the Court to decide as to who shall be the landlord/owner after the death of the original owner. Where no interpleader suit is filed by the tenant and the tenant continues in possession after death of the original owner without demur and without raising an objection against the person, who claims to have inherited the property under the Will, he later on cannot challenge the ownership of such a person. It is not the domain of the tenant to challenge the Will of the deceased landlord. If a landlord is able to show that there is a testament in his/her favour, he/she is deemed to have discharged his/her burden of proving the ownership under the Act. If the tenant takes a frivolous objection about ownership, such an objection cannot be entertained unless the tenant comes forward as to who was the landlord/owner of the premises and to whom he has been paying rent after the death of the original owner."ARC No. 25571/16 Sh. Daya Prakash (Through LRs) Vs. Sh. Surinder Kr. Page 11 /21
In view of the law laid down by the Hon'ble Apex Court and Hon'ble High Court of Delhi, the respondent has no right to dispute the title or ownership of the landlord. Moreover, it is well settled that the petitioner/landlord should be something more than the tenant and he is not required to prove his ownership in the absolute terms. It is sufficient for him to show that he is something more than the tenant.
13. Next plea is that at the time of letting the tenanted premises, the petitioner received Rs. 1,00,000/- but the petitioner has not given any receipt.
In response to which, the petitioner has denied the allegations. Record manifestly shows that these are not triable issue which could dis-entitle the petitioners to obtain the order of eviction against the respondent as Sec. 5(2) of the D.R.C. Act clearly prohibits such kind of acts and the respondent/tenant cannot be allowed to take such sort of pleas.
14. Next plea is that the site plan filed by the petitioner is incorrect.
In response to which, the petitioner has denied the allegations. As discussed earlier, the respondent has already filed his own site plan in the present case. As such, these are not triable issue which could dis-entitle the petitioners to obtain the order of eviction against the respondent.
15. It is admitted by the respondent that the petitioner has six sons and it is also admitted that all the sons of the petitioner have attained majority. But, it is denied that out of six sons, three are unemployed.
On the other hand, petitioner has denied the allegations and inter-alia stated that his three sons Sh. Murari, Sh. Gopal and Sh.
ARC No. 25571/16 Sh. Daya Prakash (Through LRs) Vs. Sh. Surinder Kr. Page 12 /21Anil are unemployed and are not engaged in any commercial activity due to paucity of commercial accommodation.
Perusal of record shows that petitioner himself has stated that his three sons are unemployed and not working or having any commercial activity. Moreover, in my considered view, petitioner/landlord or his children need not to be unemployed till the disposal of eviction petition U/Sec. 14(1)(e) of the D.R.C. Act to show the bonafide. Even, an employed person can have the tenanted premises in case bonafide requirement arises.
In view of observations made by Hon'ble Supreme Court; it is well settled that a person is not supposed to remain unemployed till the disposal of the eviction petition. Furthermore, this Court is of the opinion that there is nothing malafide if the petitioner wants to have the tenanted premises for the purpose of settling his children in the business. Rather, the said requirement seems to be bonafide as he wants to settle his sons for their livelihood and the tenant cannot stop the landlord/family member of landlord from starting any business for livelihood. The bonafide requirement of a landlord does not become malafide just because the children of petitioner want to run business for their livelihood from their own property. The consequent hardship to tenant from eviction order could also not convert otherwise bonafide requirement into malafide requirement. In my view, it is a right of every person to excel in his/her life and a person is not supposed to be remained in same position. As such, it is not a triable issue.
In case titled as "Labhu Lal Vs. Sandhya Gupta" [2011(1) RCR,(Rent) 231 (Delhi)], it has been held that the children are very much dependent on the landlord for the purpose of setting up their business and such a requirement is a bonafide one.
ARC No. 25571/16 Sh. Daya Prakash (Through LRs) Vs. Sh. Surinder Kr. Page 13 /21In the judgment of Hon'ble Supreme Court in case titled as Raghunath G. Panhale (dead) through L.Rs. Vs. Chagan Lal Sundarji & Co. (1999) 8 SCC 1 wherein it was held that:-
"It will be seen that the trial court and the appellate court had clearly erred in law. They practically equated the test of "need or requirement" to be equivalent to "dire or absolute or compelling necessity". According to them, if the plaintiff had not permanently lost his job on account of the lockout or if he had not resigned his job, he could not be treated as a person without any means of livelihood, as contended by him and hence not entitled to an order for possession of the shop. This test, in our view, is not the proper test. A landlord need not lose his existing job nor resign it nor reach a level of starvation to contemplate that he must get possession of his premises for establishing a business. The manner in which the courts have gone into the meaning of "lockout" in the Industrial Disputes Act, 1947 appears to us to be nothing but a perverse approach to the problem. One cannot imagine that a landlord who is in service should first resign his job and wait for the unknown and uncertain result of a long-drawn litigation. If he resigned his job, he might indeed end up in utter poverty. Joblessness is not a condition precedent for seeking to get back one's premises. For that matter assuming the landlord was in a job and had not resigned it or assuming that pending the long-drawn litigation he started some other temporary water business to sustain himself, that would not be an indication that the need for establishing a grocery shop was not a bona fide or a reasonable requirement or that it was motivated or was a mere design to evict the tenant".
In the case titled as Ram Babu Agarwal vs. Jay Kishan Das 2009(2) RCR 455, the Hon'ble Apex Court observed as under:-
"However, as regards the question of bonafide need, we find that the main ground for rejecting the landlord's petition for eviction was that in the petition the landlord had alleged that he required the premises for his son Giriraj who wanted to do footwear business in the premises in question. The High Court has held that since Giriraj has no experience in the footwear business and was only helping his father in the cloth business, hence there was no bonafide need. We are of the opinion ARC No. 25571/16 Sh. Daya Prakash (Through LRs) Vs. Sh. Surinder Kr. Page 14 /21 that a person can start a new business even if he has no experience in the new business. That does not mean that his claim for starting the new business must be rejected on the ground that it is a false claim. Many people start new businesses even if they do not have experience in the new business, and sometimes they are successful in the new business also."
In the case titled as Lajpat Rai Vs Raman Jain 2012 Law suit (Del) 1439, it was observed by Hon'ble High Court as under:-
"The facts have been disclosed by the petitioners himself in the eviction petition; the petitioners also being a commerce graduate from the Shri Ram College of Commerce seeks an independent business of his own; thus this need to set up a business of his own cannot be in any manner be said to be imaginative or a need which is moonshine; it is a genuine need; the present petitioners having inherited this shop from his grandmother by virtue of the aforenoted Will wishes to set up his own business of rubber and latex which he was earlier carrying on with his father and in which he has gained expertise and knowledge. Thus in no manner can it be said that this need of the landlord is not a bonafide need. The landlord is the best judge of his requirement; it is not for the tenant to dictate terms to him; neither the Court tell him the manner he wishes to set up his business."
As such, record manifestly shows that these are not triable issue which could dis-entitle the petitioner to obtain the order of eviction against the respondent.
16. Another plea of the respondent is that the shops in Tatarpur Market have not been numbered and it is only the petitioner who has put his own numbers on few of the shops but the other shops are not numbered. That many shops are available with the petitioner and his sons and some of them were let out. That in total, the petitioner owned 16 shops and out of the said 16 shops, six shops are with the petitioner and his sons from which shops the petitioner and his sons are carrying on their independent businesses since last many years.
In response to which, the petitioner has denied the allegations.
ARC No. 25571/16 Sh. Daya Prakash (Through LRs) Vs. Sh. Surinder Kr. Page 15 /21Record manifestly shows that these are not triable issue which could dis-entitle the petitioners to obtain the order of eviction against the respondent for the reasons as stated later on.
17. The next contention of the respondent is that the correct position regarding the availability of the shops with the petitioner and his sons is that Sh. Satnarayan, one of the sons of the petitioner is carrying the business of car repairs in the name and style of M/s Aggarwal Spare parts. Second shop was let out M/s Santa Motors by the petitioner. Third shop was let out to M/s Santa Motors by the petitioner. Fourth shop was let out to respondent. In the fifth shop, petitioner is carrying on the business of battery in the name and style of M/s A-von Batteries along with his son Sh. Sunil. Sixth shop was let out to M/s S.K. Tyres by the petitioner. Seventh shop was let out to M/s Behl Tyres. Eighth shop was let out to M/s Lucky Tyres by the petitioner. Two shops were sold out by the petitioner to Mr. Jaswinder Singh on 22.09.2011. Tenth shop was let out to Kafilla Hotel by the petitioner. Eleventh shop is being run by son of petitioner Sh. Gopal in the name and style of Gopal Tyre Service and above this petitioner has built another shop with shutter which is lying vacant. 12Th Shop is in possession of Sh. Raj Kumar, who is running the business in the name and style of Babu Service Centre and in the 13th shop, son of the petitioner Sh. Murari is carrying on the business of tyre puncture in the name and style of M/s V.K. Tyre punctures. In the 14th shop one of the sons of the petitioner namely Sh. Anil is carrying on the business of tyre puncture in the name and style of Anil Tyre Service.
It is claimed by the respondent that the petitioner has sixteen shops, out of these sixteen shops, six shops are with the petitioner and his sons and seven have been let out to different tenants ARC No. 25571/16 Sh. Daya Prakash (Through LRs) Vs. Sh. Surinder Kr. Page 16 /21 including respondent and two shops have been sold out by the petitioner recently on 22.09.2011 and one shop is lying vacant.
On the other hand, petitioner has claimed that he is the owner of ten shops only and out of which three shops are in possession of his sons and rest seven shops are in occupation of tenants. He has also claimed that as far as disposal of two shops in the year 2011 are concerned, the litigation is already pending in the court of Sh. R.B. Singh.
Perusal of record shows that the respondent himself has admitted that 16 shops are owned by the petitioner, out of which six shops are with the petitioner and his sons and seven have been let out tenants. Moreover, he has also admitted that two shops were sold out by the petitioner on 22.09.2011.
18. It is well settled proposition of law that it is not sufficient that any kind of the property should be available to the petitioner/landlord to rule out the benefit of 14(1)(e) of D.R.C. Act. The property available with the petitioner/landlord should also be reasonably suitable property. If the petitioner/landlord has filed the eviction petition for commercial bonafide requirement but the property available with the petitioner is residential one, it cannot be said that the petitioner is having the alternative reasonably suitable commercial accommodation.
It is well settled whether the property available with the petitioner is convenient and suitable or not is to be determined from the point of view of the petitioner/landlord and not from the point of view of the tenant/respondent. The respondent/tenant cannot dictate the terms to the petitioner to use the property in the particular manner. The petitioner/landlord is the best judge of his requirement.
Perusal of record clearly shows that in the present petition, all ARC No. 25571/16 Sh. Daya Prakash (Through LRs) Vs. Sh. Surinder Kr. Page 17 /21 the shops except in the possession of the respondent are either occupied by the petitioner or his sons or by the tenants and it is not available with the petitioner and his sons for the purposes of starting the business. As far as two shops which have been claimed to have been sold out in the 2011 is concerned, the petitioner has already stated that the litigations in respect of these two shops are still pending.
Perusal of record clearly shows that the commercial accommodation owned by petitioner is either occupied by the petitioner or his sons or by number of tenants and he is not in the possession of any alternative reasonably suitable commercial accommodation which can be used to satisfy the commercial need of his children.
19. As such in my view, the petitioner is not having the alternative reasonably suitable commercial accommodation with him. Moreover, the respondent has not been able to show on record that the petitioner is having alternative reasonably suitable commercial accommodation with him.
20. It is pertinent to mention that an application for taking the subsequent events on record was filed on 15.10.2019 which was allowed by this court.
The claim of the respondent is that the LRs of deceased petitioner have taken vacant possession of another shop, which has been shown as number 6 in the site plan which was filed by the respondent.
On the other hand, in reply to the application, the petitioner has inter-alia stated that respondent has filed this application for subsequent events just three days before the date on which the ARC No. 25571/16 Sh. Daya Prakash (Through LRs) Vs. Sh. Surinder Kr. Page 18 /21 order on leave to defend was to be pronounced by this court with malafide intention to defer the pronouncement of the order. That the petitioner has stated in eviction petition that three sons of the petitioner namely Sh. Murari, Sh. Gopal and Sh. Anil are unemployed and are not engaged in any commercial activity. And the petitioner has also stated in paragraph no. 18(5) of the petitioner that petitioner needs the tenanted premises to accommodate one of his sons, who are unemployed and are not engaged in any business.
I have carefully perused the petition filed by the petitioner which corroborates the facts as stated by the petitioner in his reply to the application for the subsequent events. It is clear from the record that there are three sons for whom the present petition has been filed by the petitioner. Moreover, vacated shop is only one shop whereas two more sons are to be settled in the commercial activities by the petitioner. Hence, this subsequent event has not satisfied the bonafide requirement for sons of the petitioner.
21. Moreover, it is pertinent to mention that present petition U/Sec. 14(1)(e) of the D.R.C. Act was filed by the petitioner on 22.02.2013 but it could not be disposed of due to dilatory tactics adopted by the respondent. A large number of adjournments were taken by the respondent on the one pretext or the other. Even a number of frivolous applications were filed by the respondent to delay the disposal of present petition which is U/Sec. 14(1)(e) of the D.R.C. Act and required to be disposed of as early as possible. It is also pertinent to mention that keeping in view the dilatory tactics being adopted by the respondent, this court on 19.09.2019 closed the opportunity of the respondent to argue on the leave to defend and fixed for orders for 24.09.2019 but in the meantime, on 21.09.2019 an application was filed by the respondent requesting to allow the ARC No. 25571/16 Sh. Daya Prakash (Through LRs) Vs. Sh. Surinder Kr. Page 19 /21 arguments on the leave to defend, due to which the matter again got lingered on and eventually, subsequent events of acquiring the possession of shop no. 6 came into the existence.
In my considered view, this petition has been lingered on for almost seven years and eventually, this subsequent events as claimed by the respondent came into the existence. In my considered view, the respondent is taking advantage of his own wrong. It is always possible that whenever such petition remains pending for such a long time i.e. seven years due to dilatory tactics adopted by the respondent, there is very likelihood of occurrence of subsequent events in between and if such kind of tenants are given liberty and given the advantage of such subsequent events, the court will always encourage the miscreant tenants to delay the disposal of such cases so that there may be some subsequent events.
CONCLUSION:
22. In view of the above discussion, I find no triable issue in the leave to defend application of the respondent which could dis-entitle the petitioner to obtain an eviction order in her favour. The application for leave to defend filed by the respondent is thus, dismissed.
23. Hence, as a consequence thereof, an eviction order is passed U/s. 14 (1) (e) of DRC Act in favour of petitioner and against the respondent in respect of the tenanted premises i.e. One Shop No. 4, in property No. WZ-93, Titarpur, Main Najafgarh Road, New Delhi-110027, as delineated red in the site plan annexed with the petition which is marked as Mark- P1 (Put by the court for the purpose of identification).
ARC No. 25571/16 Sh. Daya Prakash (Through LRs) Vs. Sh. Surinder Kr. Page 20 /2124. However, this order shall not be operative before the expiry of six months from today keeping in view Sec. 14(7) of D.R.C. Act.
25. File be consigned to the Record Room after due compliance.
Digitally signed by AJAYAnnounced in the open court AJAY NAGAR
on 23rd December, 2019 NAGAR Date:
(This order contains 21 pages) 2019.12.23
17:46:51 +0530
(AJAY NAGAR)
Additional Rent Controller,
West District, THC/Delhi.
ARC No. 25571/16 Sh. Daya Prakash (Through LRs) Vs. Sh. Surinder Kr. Page 21 /21