Delhi District Court
Smt. Sonia Verma vs Sh. Ajay Garg on 19 April, 2022
IN THE COURT OF MS. SNIGDHA SARVARIA,
ACJ-cum-CCJ-cum-ARC, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI.
RC ARC No : 1094/2016
1. Smt. Sonia Verma
W/o Sh. Rajeev Verma
2. Sh. Rajeev Verma
s/o late Sh. Shamshser Singh
Both r/o 94/4-A, Gali No. 8,
East Ajad Nagar, Krishna Nagar,
Delhi-110051 ......... Petitioners
Versus.
Sh. Ajay Garg
Office 848, Shalimar Park,
Bhola Nath Nagar
Shahdara, Delhi-110032
......... Respondent
Order on application under S. 25-B of The Delhi Rent Control Act, 1958 seeking leave to defend
1. Vide this order I shall decide the application under S. 25-B of The Delhi Rent Control Act (DRC Act) seeking leave to defend filed by the respondent.
2. The brief facts of the case are that the petitioners are the owner/landlord of premises in dispute i.e. Shop at 848, Shalimar Park, Bhola Nath Nagar, Shahdara, Delhi-110032. The premises in dispute were let out by late Sh. Shamsher Singh, father-in-law of the petitioner no. 1 for non residential purposes only and same are being used by the respondent for shop purposes. The premises in dispute are bonafide required for the petitioners and their family members dependent upon them. The petitioners have no other reasonable suitable non residential accommodation in Delhi or elsewhere. It is stated that late Sh. Shamsher Singh has RC ARC No : 1094/2016 Sonia Vs. Ajay Garg 1 of 17 let out property in dispute to the respondent. Late Sh. Shamsher Singh died at Delhi on 01.12.2006. The petitioner no. 1 is the daughter-in-law, while the petitioner no. 2 is the son of late Sh.Shamsher Singh. The father-in-law of the petitioner no. 1 had executed a will dated 22.07.2003 in favour of petitioner nos. 1 and 2 and bequeath the property in dispute in favour of the petitioners. The respondent has attorned the petitioners as landlord/owner of the property and started paying rent to the petitioners against receipt. The respondent as such became the tenant in the property. It is stated that petitioner nos. 1 and 2 are living in the residential premises bearing no. 94/4-A, Gali no. 8, East Azad Nagar,Krishna Nagar, Delhi-110051 with their family member. It is stated that the family of petitioners consists of themselves, two sons namely Deepak Verma, aged about 27 years and Sh. Anshul Verma, aged about 24 years. The sons of the petitioners are unmarried and are of marriageable age. The petitioners' son Sh. Deepak Verma has passed the certificated course of chartered accountancy and want to open office in the shop in dispute. The other son namely Anshul Verma of the petitioners has also completed his civil engineering course and management course. It is further stated that the house of the petitioners bearing no. 94/4-A, East Azad Nagar,Krishna Nagar, Delhi-110051 are not suitable for running the office as the house is situated in residential area and is being used for residential purpose and no commercial activity is allowed. The said house is a double story building and has never been used for any commercial activity. The petitioner and his entire family member are using the said property for residential purpose and no portion of the said property has ever been used for any commercial purpose nor the same can be used. It is stated that premises/shop in dispute is a part of property old no. 469/B-1-A/4 (old) New no. 848, Shalimar Park, Bhola Nath Nagar, Shahdara, Delhi-110032 and ground floor of the same is totally commercial. There are five shops in the ground floor and all the shops in the said property are occupied by the tenants and none of the shops is vacant. Shop no. 1 was sold by the plaintiff on 29 th July 2009 to Sh. Parveen Kumar Sharma, shop no. 2 is in the tenancy of Sh. Mukesh Goyal at the monthly rent of Rs.635/- p.m., shop no. 4 is in the tenancy of the defendant, shop no. 5 is in the tenancy of Kusum Chourasiya at monthly rent of Rs.358/- p.m. and shop no. 6 is in the possession of the petitioner no. 2. The first floor of the said RC ARC No : 1094/2016 Sonia Vs. Ajay Garg 2 of 17 premises is in the tenancy of dentist namely Sarika at the monthly rent of Rs.10,000/- and none of the portion of the property is vacant. It is stated that the petitioners have no accommodation to accommodate his family for the purpose of business and shop in question is more suitable for the petitioners' family. The petitioner no. 2 is a jeweller by profession and has one shop in the property in dispute to run his business. The petitioner required at least two shops for the bonafide need of the petitioners and his son namely Deepak Verma and that is why the petitioners have filed two separate eviction petitions against the two tenants in respect of shop no. 4 and 5. The shops are in small size and as such the petitioner will make shop in dispute as office and other shop as waiting areas of the office for visitor. The petitioners as such bonafidely require the premises in dispute for their son's profession/business i.e. family members which is even required by the petitioners for their livelihood as well as for his family member. It is prayed that eviction order may be passed in favour of the petitioner and against the respondent in respect of shop in question.
3. The respondent was summoned vide order dated 08.06.2016 and was served with the summons of this petition on 08.07.2016, thereafter, affidavit seeking leave to defend under S. 25 B of the DRC Act was filed by the respondent on 20.07.2016 and the petitioner filed reply to it on 25.03.2017.
4. In the affidavit seeking leave to defend under S. 25 B of the DRC Act, the respondent has stated that the respondent is a tenant of one shop bearing no. 4 in property no. 848, Shalimar Park, Bhola Nath Nagar, Shahdara, Delhi-110032 and is running business of Tour and Travels. The petition does not disclose any cause of action against the respondent and hence liable to be rejected under Order 7 Rule 11 CPC. It is stated that the petitioners are not the owner of the property and are only recovering rent from the respondent with respect to shop in question. The petitioners have not filed the correct site plan of the property in question and filed a wrong site plan and the respondent has filed the correct site plan. The present petition has been filed for additional accommodation. The petitioner has not disclosed and suppressed the material facts that one shop is also in possession of RC ARC No : 1094/2016 Sonia Vs. Ajay Garg 3 of 17 the petitioners for which the said shop has been let out by the petitioners in July, 2015 to Sh. Shankar who is running a Pan shop in the name and style of Shankar Pan Bhandar. The said shop is lying vacant in the said property for the last more than 20 years and the petitioner had let out the same in July, 2015 at a monthly rent of Rs.8,000/- p.m. to Shri Shankar. It is stated that the property bearing no. 848 is a three side open property and on the North/Corner side there are two shops i.e. shop no. 1 and 2 duly shown in the site plan filed by the respondent along with leave to defend application shown in green colour. The petitioner intentionally and deliberately has shown the said two shops as one shop and has done the same to create scarcity of accommodation in the present petition. It is further stated that petitioner no. 2 is running the jewellery business from shop no. 2 only and shop no. 1 is still lying vacant and is in power and possession of petitioners. The said shop no. 1 was let out by the petitioners to one property dealer who was doing property dealing business in the said shop and has vacated the same in 2013 and since then the said shop no. 1 is lying vacant. The petitioner has not disclosed the very material fact that the petitioners had let out a big portion which has been shown in the green colour in the site plan filed by respondent i.e. shop no. 9 to a lady who was running Boutique shop in the said shop no. 9. The said shop was given on rent at a monthly rent of Rs.7,000/- p.m. in the month of December, 2014 and has vacated in November, 2015. The said shop no. 9 is in power and possession of the petitioner and is lying vacant till date. It the petitioner has any alleged bonafide requirement as alleged in the petition, then the said shop no. 9 can be used by the petitioner for the said purpose. The petitioner has not disclosed the fact that two sons of the petitioners namely Deepak Verma and Anshul Verma are working in MNC at Noida and are getting handsome salary. The petitioner has not disclosed the vacant portion situated at first floor of property bearing no. 848, Shalimar Shalimar Park, Bhola Nath Nagar, Shahdara, Delhi which is in power and possession of petitioner as on date. It is stated that the front side road where the shop in question is situated is declared as a commercial road by appropriate authority and first floor can also be used by the petitioner for commercial purpose. It is submitted that petitioner had let out the Southern Corner portion of first floor to Ms. Sarika who is running a dental clinic in the said portion which has been let RC ARC No : 1094/2016 Sonia Vs. Ajay Garg 4 of 17 out by petitioner in February, 2015 to her at a monthly rent of Rs.10,000/- p.m. and are getting rent from the said premises. The remaining portion at first floor is still lying vacant and is in power and possession of petitioner. It is further stated that the property bearing no. 94/4-A, East Azad Nagar, Krishna Nagar, Delhi-110051 is measuring about 150 sq. yds and is three storey constructed property consisting of ground floor, first floor and second floor along with terrace floor which is situated at a prime place and the ground floor of the said property can be very well used for the alleged bonafide requirement, if any. It is settled law that for running an office of Chartered Accountant and consultancy business there is no requirement that the said office can be situated only on commercial road. It is stated that the respondent is a tenant in the said property for the last more than about 22 years and has paid handsome amount of pagri to the predecessor of the petitioners
5. The petitioner in her counter affidavit to application for leave to defend denied the averments made in the affidavit seeking leave to defend under S. 25 B of the DRC Act of the respondent.
6. I have heard counsel for the parties, perused the record and have gone through the relevant provisions of the law.
7. The petitioners Sonia Verma and Rajeev Verma are claiming ownership and thus landlordship of the tenanted premises in question by virtue of the registered will dated 22.07.2003 executed by Sh. Shamsher Singh, father - in- law of petitioner no. 1 and father of petitioner no.2, in their favour and Sh. Shamsher Singh has expired on 01.12.2006 as per the death certificate placed on record. The respondent cannot assail the registered will in favour of the petitioner. The respondent is estopped under S. 116 of the Indian Evidence Act from assailing the title of the landlord.
8. In Ramesh Chand vs. Uganti Devi reported as 157 (2009) DLT 450 the Hon'ble High Court of Delhi held:
RC ARC No : 1094/2016 Sonia Vs. Ajay Garg 5 of 17 ".......... The imperfectness of the title of the premises cannot stand in the way an eviction petition under section 14 (1) (e) of the DRC Act, neither the tenant can be allowed to raise the plea of imperect title or title not vesting in the landlord and that too when the tenant has been paying rent to the landlord. Section 116 of the Evidence Act creates estoppels against such a tenant. A tenant can challenge the title of landlord only after vacating the premises and not when he is occupying the premises. In fact, such a tenant who denies the title of the landlord, qua the premises, to whom he is paying rent acts dishonestly........."
time......."
9. In another case titled as Atyam Veerraju v. Pechetti Venkanna (1996) 1 SCR 831, the Hon'ble Supreme Court quoted with approval the judgment of the Privy Counsel in Bilas Kunwar v. Desraj Ranjit Singh, wherein it was observed as follows:
" A tenant who has been let into possession cannot deny his landlords title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord."
10. The principle attracted herein is once a tenant always a tenant. The tenant cannot dispute the title of his landlord or his successor-in-interest. The petitioner is therefore, the landlord and owner of the tenanted premises. In view of the aforesaid clearly, the landlord tenant relationship between the petitioner and the respondent exists. The contention of the respondent that the petitioners are only entitled to recover rent and have no right to file present petition is thus without any merits.
11. Thus, the petitioner is the owner of the tenanted premises and that there is a relationship of landlord and tenant between the petitioner and the respondent herein in respect of the tenanted premises for the purpose of section 14 (1) (e) of Delhi Rent Control Act.
12. It is stated by the petitioners that the house of the petitioners bearing no. 94/4- A, East Azad Nagar, Krishna Nagar, Delhi-110051 are not suitable for running the office as the house is situated in residential area and is being used for residential purpose and no commercial activity is allowed. The said house is a double story building and has never been used for any commercial activity. The petitioner and his entire family member are using the said property for residential purpose and no portion of the said property has ever been used for any commercial purpose nor the same can be used. This property cannot be said to be an alternative suitable accommodation as it is not shown by the respondent as to how this property is better RC ARC No : 1094/2016 Sonia Vs. Ajay Garg 6 of 17 than the shop in question and even otherwise the said property is not in the vicinity or adjacent to the shop in question and is in a different area so cannot be a reasonable alternative suitable accomodation. Also, the shop in question is in a commercial area and the office of a Chartered Accountant has better prospects of flourishing in a market where he can have prospective clients unlike in a residential area as the property bearing no. 94/4-A, East Azad Nagar, Krishna Nagar, Delhi-110051. Thus, this contention of the respondent is without any merits.
13. The contention of the respondent that the property bearing no. 94/4-A, East Azad Nagar, Krishna Nagar, Delhi-110051 is measuring about 150 sq. yds and is three storey constructed property consisting of ground floor, first floor and second floor along with terrace floor which is situated at a prime place and the ground floor of the said property can be very well used for the alleged bonafide requirement, if any and that it is settled law that for running an office of Chartered Accountant and consultancy business there is no requirement that the said office can be situated only on commercial road are without any merits as the respondent has not placed on record any document to show the level upto which construction is raised in the said property. Also, a shop on the ground floor serves better than a shop on the first or the second floor and is not an alternative suitable accommodation.
14. Similarly, merely because the front side road where the shop in question is situated is declared as a commercial road by appropriate authority does not mean that the first floor of the said property is an alternative suitable accommodation. Furthermore, no document to show that the said road is declared as a commercial property has been placed on record by the respondent. Thus, this contention of the respondent is without any merits.
15. Also, in the cases of Dhannalal Vs. Kalawatibai (2002) 6 SCC 16 and Uday Shanker Upadhyay Vs. Naveen Maheshwari (2010) 1 SCC 503, it was held that judicial notice can be taken of the fact that the upper floors are generally not commercially viable and consumers and patrons of the market are reluctant to walk into the same and are more prone to walk into a shop on the ground floor. Relying on RC ARC No : 1094/2016 Sonia Vs. Ajay Garg 7 of 17 these decisions, the Hon'ble High Court of Delhi in the case of M/s A.K.Woolen Industries & Ors. Vs. Shri Narayan Gupta RC. Rev. No. 495/2017 dated 31.10.2017 held that availability of upper floors above the tenanted premises on the ground floor cannot be said to be alternate suitable accommodation.
16. It is stated by the petitioner that premises/shop in dispute is a part of property old no. 469/B-1-A/4 (old) New no. 848, Shalimar Park, Bhola Nath Nagar, Shahdara, Delhi-110032 and ground floor of the same is totally commercial. There are five shops in the ground floor and all the shops in the said property are occupied by the tenants and none of the shops is vacant. Shop no. 1 was sold by the plaintiff on 29 th July 2009 to Sh. Parveen Kumar Sharma, shop no. 2 is in the tenancy of Sh. Mukesh Goyal at the monthly rent of Rs.635/- p.m., shop no. 4 is in the tenancy of the defendant, shop no. 5 is in the tenancy of Kusum Chourasiya at monthly rent of Rs.358/- p.m. and shop no. 6 is in the possession of the petitioner no. 2. The first floor of the said premises is in the tenancy of dentist namely Sarika at the monthly rent of Rs.10,000/- and none of the portion of the property is vacant. It is stated that the petitioners have no accommodation to accommodate his family for the purpose of business and shop in question is more suitable for the petitioners' family. It is well settled that a tenant cannot dictate to the landlord which property out of many will serve landlord best. There is nothing on record to disbelieve this contention of the petitioner.
17. As per the petitioners, the petitioner no. 2 is a jeweller by profession and has one shop in the property in dispute to run his business. The petitioner required at least two shops for the bonafide need of the petitioners and his son namely Deepak Verma and that is why the petitioners have filed two separate eviction petitions against the two tenants in respect of shop no. 4 and 5. The shops are in small size and as such the petitioner will make shop in dispute as office and other shop as waiting areas of the office for visitor. The petitioners as such bonafide require the premises in dispute for their son's profession/business i.e. family members which is even required by the petitioners for their livelihood as well as for his family member.
RC ARC No : 1094/2016 Sonia Vs. Ajay Garg 8 of 17
18. As regards dependency of working son of the petitioner, it is well settled and also held in "Labhu Lal Vs. Sandhya Gupta" [2011(1) RCR,(Rent) 231 (Delhi)], 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.
19. It is also settled principle of law that the landlord is entitled to seek eviction of tenanted premises not only for himself/herself, but for other dependant family members. There is no dispute that the parents are under moral obligation to help establish their sons in business and can seek eviction of the tenanted premises for them. Reference in this regard can be made to the case of Joginder Pal v. Naval Kishore Behal, (2002) 5 SCC 397, where the Supreme Court held that:
"The requirement is not the requirement of the landlord alone in the sense that the landlord must for himself require the accommodation and to fulfill the requirement he must himself physically occupy the premises. The requirement of a member of the family or of a person on whom the landlord is dependent or who is dependent on the landlord can be considered to be the requirement of the landlord for his own use......... 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 the 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."
20. Similarly, in Kharati Ram Khanna & Sons. vs. Krishna Luthra, 2010 (172) DLT 551, wherein it was observed that the requirement of the landlord to settle down her two sons separately and independently was found to be genuine and bonafide. In Labhu Lal Vs. Sandhya Gupta" [2011(1) RCR,(Rent) 231 (Delhi):
2010 (173) DLT 318, it was observed that the landlord's son and daughter in law are dependent for accommodation on respondent the requirement of the landlord's son and daughter in law for expanding clinic being run in premises in question is genuine. In Sh. Ravinder Singh v Sh. Deepesh Khorana (RC. Rev. No.3/2011, Date of decision: 10th December, 2012), it was observed that the son of the respondent is unemployed and is dependent on respondent for his livelihood. It is RC ARC No : 1094/2016 Sonia Vs. Ajay Garg 9 of 17 nothing but bona fide for the respondent to require the suit shop to set up a computer business for his son and to help him find a source of income and subsequently settle down in life. In Brij Mohan vs Shri Pal Jain - 49 (1993) DLT 543, it was observed that it is settled law that grown up children require separate rooms to live in a manner he or she likes. In Ram Babu Aggarwal vs Jay Kishan Das - 2009 (2) RCR 455, the court recognized the right of the landlord for possession of his property for setting up a business for his son.
21. In the instant case, the son of the plaintiffs Deepak is dependant for the premises to start his Chartered Accountancy practice. The requirement is bonafide as the landlord cannot be expected to rent out a space or buy new premises for his/her son to start a business/profession when he has shops which can be used.
22. 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 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 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 RC ARC No : 1094/2016 Sonia Vs. Ajay Garg 10 of 17 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.
23. The Apex Court in the case of Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta reported in SCFBRC 1999 Page 330, has observed as under:
"In Prativa Devi (Smt.) v. T.V. Krishnan, 1996 (5) SCC 353, this Court has held that in considering the availability of alternative accommodation, not availability merely but also whether the landlord has the legal right to such accommodation has to be considered.
Reverting back to the case at hand, the landlord has been living on the ground floor of the Defence Colony house. It was conceded at the Bar that as on the day the family of the landlord consists of the landlord himself (a practicing doctor), his son (again a practicing doctor), the daughter-in-law and two grand children who are gradually growing in their age. Looking at the size of the family, available of three bed rooms in the premises in which the landlord may live, is a requirement which is natural and consistent with the sense of decency-not to talk of comfort and convenience. There is nothing unreasonable in a family with two practicing doctors as members thereof needing a room or two or a room with a verandah to be used as a residential-clinic divided into a consultation room and a waiting place for the patients. A drawing room, a kitchen, a living room and a garage are bare necessities for a comfortable living. The landlord has been living in Defence Colony locality for more than 35 years. The first floor which was let out to the tenant in the year 1978 as being an accommodation surplus with the landlord has with the lapse of time become a necessity for occupation by the landlord and his family members. More than ten years by now have been lost in litigation. The death of the wife of the landlord and the death of landlord's mother-in-law, are events which have hardly any bearing on the case of felt need of the landlord, The need as pleaded and proved by the landlord is undoubtedly natural sincere and honest and hence a bona fide need. There is no material available on record to doubt the genuineness of such need. It continues to subsist inspite of the two deaths. It is not the case of the tenant- appellant that while seeking eviction of the tenant the landlord is moved by any ulterior motive or is guided by some other thing in his mind. It will be most unreasonable to suggest that the landlord may continue to five on the ground floor of the Defence Colony house and some members of the family may move to Sarvodaya Enclave House if the whole family cannot be conveniently and comfortably accommodated as one unit in the Defence Colony house. It would be equally unreasonable to suggest that the entire family must shift to Sarvodaya Enclave House which is admittedly situated at a distance of about 7-8 kms. from Defence Colony. The landlord and his family are used to living in Defence Colony where they have developed friends and acquaintances, also familiarity with the neighbourhood and the environment. The patients usually visiting or likely to visit the residential clinic know where their doctor would be available. Shri Arun Jaitley, learned Senior Counsel for the respondent, has very rightly submitted that it could RC ARC No : 1094/2016 Sonia Vs. Ajay Garg 11 of 17 not have been the intendment of the Rent Control Law to compel the landlord in such facts an circumstances to shift to a different house and locality so to permit the tenant to continue to live in the tenanted premises. 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 rightly into lesser premises protecting the tenant's occupancy."
24. 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....".
25. The respondent has not brought on record anything material apart from bald averments to show that petitioner is not having bonafide requirement. Thus, the contention of the respondent in this regard is without any merits.
26. It is stated by the respondent that the site plan is wrong and that the respondent has filed the correct site plan. It is stated that the petitioner has not shown a shop under the staircase etc. This contention of the respondent is without any merits as the purpose of filing the site plan is to identify the tenanted premises under the possession of the respondent and it is not the case of the respondent that the shop in his possession is wrongly shown. Merely because certain other portions are not clearly demarcated in the site plan filed by the petitioner does not mean that the site plan is wrong.
27. The contention of the counsel for the respondent that there is no cause of action to file the present eviction petition and that the petitioner has not come to the court with clean hands are without any merits as it is not stated by the respondent that how there is no cause of action and how the petitioner has come with unclean hands. Mere bald averments in this regard are of no assistance to the respondent.
RC ARC No : 1094/2016 Sonia Vs. Ajay Garg 12 of 17
28. The contention of the respondent that the present petition has been filed for additional accommodation and the petitioner has not disclosed and suppressed the material facts that one shop is also in possession of the petitioners for which the said shop has been let out by the petitioners in July, 2015 to Sh. Shankar who is running a Pan shop in the name and style of Shankar Pan Bhandar. The said shop is lying vacant in the said property for the last more than 20 years and the petitioner had let out the same in July, 2015 at a monthly rent of Rs.8,000/- p.m. to Shri Shankar. The petitioners have denied this contention and have stated that the said shop is very small and useless for the purpose required. The respondent has not shown by documents how the said shop is a suitable alternative accommodation. Thus, this contention of the petitioner is without any merits.
29. The contention of the respondent that the property bearing no. 848 is a three side open property and on the North/Corner side there are two shops i.e. shop no. 1 and 2 duly shown in the site plan filed by the respondent along with leave to defend application shown in green colour. The petitioner intentionally and deliberately has shown the said two shops as one shop and has done the same to create scarcity of accommodation in the present petition. It is further stated that petitioner no. 2 is running the jewellery business from shop no. 2 only and shop no. 1 is still lying vacant and is in power and possession of petitioners. The said shop no. 1 was let out by the petitioners to one property dealer who was doing property dealing business in the said shop and has vacated the same in 2013 and since then the said shop no. 1 is lying vacant. The said contention of the respondent is without any merits as nothing has been brought on record to show that shop no. 1 in the site plan of the respondent is vacant and also it is not explained even if it is vacant portion of the shop under the occupancy of the petitioner then also how it will be an alternative suitable accommodation.
30. The contention of the respondent that the petitioner has not disclosed the very material fact that the petitioners had let out a big portion which has been shown in the green colour in the site plan filed by respondent i.e. shop no. 9 to a lady who was running Boutique shop in the said shop no. 9. The said shop was given on rent at a monthly rent of Rs.7,000/- p.m. in the month of December, 2014 and has vacated in November, 2015. The said shop no. 9 is in power and possession of the petitioner and is lying vacant till RC ARC No : 1094/2016 Sonia Vs. Ajay Garg 13 of 17 date. If the petitioner has any alleged bonafide requirement as alleged in the petition, then the said shop no. 9 can be used by the petitioner for the said purpose. As per the site plan of the respondent the so called shop no. 9 is at the backside of the premises in question. The said contention of the respondent is without any merits as nothing has been brought on record to show that shop no.91 in the site plan of the respondent is vacant and also it is not explained even if it is vacant portion of the shop under the occupancy of the petitioner then also how it will be an alternative suitable accommodation. A backside shop cannot be an alternative suitable accommodation.
31. The contention of the respondent that the petitioner has not disclosed the fact that two sons of the petitioners namely Deepak Verma and Anshul Verma are working in MNC at Noida and are getting handsome salary. In this regard the respondent has not filed anything on record to show that Deepak Verma is working in a MNC in Noida. Furthermore, even if it is believed that that Deepak Verma is working in a MNC in Noida then also he can start practicing Chartered Accountancy on his own and the respondent tenant cannot force him to not to practice his possession merely because respondent would suffer hardships.
32. It is averred by the respondent that the petitioner has not disclosed the vacant portion situated at first floor of property bearing no. 848, Shalimar Park, Bhola Nath Nagar, Shahdara, Delhi which is in power and possession of petitioner as on date. This contention is without any merits as the petitioners have categorically explained in the petition that the first floor of property bearing no. 848, Shalimar Park, Bhola Nath Nagar, Shahdara, Delhi is rented out to a dentist @ Rs. 10,000/- per month.
33. It is submitted by the respondent that petitioner had let out the Southern Corner portion of first floor to Ms. Sarika who is running a dental clinic in the said portion which has been let out by petitioner in February, 2015 to her at a monthly rent of Rs.10,000/- p.m. and are getting rent from the said premises. The remaining portion at first floor is still lying vacant and is in power and possession of petitioner. Mere bald averments in this regard are of no assistance to the respondent and this contention is also without any merits as no cogent document has been placed on record by the respondent to show that a portion of the first floor is lying vacant.
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34. It is stated by the respondent's counsel that the respondent is a tenant in the said property for the last more than about 22 years and has paid handsome amount of pagri to the predecessor of the petitioners. This contention is not relevant for the purpose of the present petition and even otherwise no document in support of payment of pagri and how much pagri has been filed by the respondent.
35. The averment that the petitioner has filed present false and frivolous petition only to get higher rate of rent from the shop in question is without any merits as nothing has been brought on record in this regard by the respondent.
36. As regards alternate accommodation in Sarwan Dass Bange vs 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 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.
37. 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 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 RC ARC No : 1094/2016 Sonia Vs. Ajay Garg 15 of 17 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."
38. The contention of the respondent that the tenanted shop is small for practicing chartered accountancy is of no assistance to the respondent as there is no standard size prescribed under the law for a shop to practice chartered accountancy. It is well settled that the landlord is the best judge of his needs. It is well settled 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. From the aforesaid submissions of the petitioners, clearly, there need is bona fide. Also, there is no material on record to show that there is any alternative suitable accommodation for the petitioner apart from the tenanted premises in question. In Mahendra Trivedi Vs. Jai Prakash Verma, 157 (2009) DLT 690 and Sudesh Kumar Soni & Anr. Vs. Prabhas Khanna & Anr. 153 (2008) DLT 652, it is held that If landlord wishes to live with comfort in a house of his own, law does not expect or compel him to squeeze himself lightly into lesser premises protecting tenants occupancy. It can similarly be inferred if the petitioner's son wants to practice chartered accountancy in her own shop/property then he cannot be compelled to practice in a rented shop under some landlord or purchase a new shop.
39. In view of the above discussion and the documents filed by the parties, 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 merits.
40. Conclusion:
In these circumstances, the application for leave to defend filed by the respondent is dismissed and the respondent Ajay Garg is liable to be evicted from the tenanted premises i.e. Shop at 848, Shalimar Park, Bhola Nath Nagar, Shahdara, Delhi-110032 as shown in red colour in the site plan (now exhibited as Ex P1) filed with the present petition. Accordingly, the petition filed by the petitioner u/s 14 (1)
(e) r/w S. 25B of the DRC Act is allowed, subject to provisions u/s 19 of the DRC Act. However, the petitioner would not be entitled to initiate execution proceedings RC ARC No : 1094/2016 Sonia Vs. Ajay Garg 16 of 17 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. No orders as to costs. Digitally signed by SNIGDHA SNIGDHA SARVARIA SARVARIA Date: 2022.04.19 15:00:29 +0530 Announced in the open Court (SNIGDHA SARVARIA) On 19th Day of April, 2022. ACJ/ARC/CCJ [This judgment contains 17 pages.] (SHAHDARA) KKD, DELHI.
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