Delhi District Court
Sh. Arjun Uppal vs M/S. Seth & Sons Pvt. Ltd on 27 August, 2015
In the Court of Sh. Sunil Kumar : Additional Rent Controller02,
Central District, Tis Hazari Courts, Delhi.
E. No. 542/14/10
Unique ID No. 02401C0362602010
In the matter of:
1. Sh. Arjun Uppal,
S/o. Sh. Balvinder Uppal
2. Sh. Balvinder Uppal,
S/o. Late Sh. C.L. Uppal,
Both residents of
29, Shri Ram Road, Civil Lines,
Delhi110 054 .................... Petitioners
VERSUS
M/s. Seth & Sons Pvt. Ltd.,
1647, S.P. Mukerjee Marg,
Delhi110006. .................... Respondent
APPLICATION UNDER SECTION 14 (1) (e) READ WITH
SECTION 25B OF THE DELHI RENT CONTROL ACT, 1958.
Date of Institution : 18.08.2010
Date of Arguments : 18.08.2015
Date of Judgment : 27.08.2015
E. No. 542/14/10 Page No. 1 of 26
JUDGMENT:
This is an application under clause (e) of proviso to sub section (1) of section 14 of the Delhi Rent Control Act, 1958 (Act 59 of 1958) by the petitioners against the respondent for recovery of possession of premises Shop Mpl. bearing no. 1647, Shayama Prasad Mukherjee Marg, Delhi110006 as shown in grey colour enclosed in red line in the site plan attached with the petition.
2. It is stated in the application that the premises in question, was let out for nonresidential purposes i.e. shop at Rs. 208.63 ps / p.m. exclusive of any other charges; It is stated that both the petitioners are the joint absolute owner of the entire property to the extent of their respective shares which they rely from previous owners. It is stated that petitioner no. 2 is a hotelier and has been running his hotel under the name and style of M/s. New Royal Hotel on the first and upward floor of the property. The petitioner no. 1 is very ambitious to run an independent business on his own as he completed his M.B.A. from abroad. It is stated that the petitioner no. 1 has finally decided to open a plush restaurant on a magnified scale for which he has got prepared the project report. It is further stated that there are about 50 hotels without the facility of any posh restaurant in the area which is an additional asset giving an added strength to the requirement of the petitioner no.1 for the space for the E. No. 542/14/10 Page No. 2 of 26 proposed project. Therefore, the petitioners require an area of approximate 5000 sq. feet to open this restaurant for petitioner no. 1 which they require the entire ground floor to complete the project. It is stated that the petitioner no. 1 has acquired sufficient knowledge and experience by working at the family hotel business and since his return from Australia he has been working for the launching of the project taking advantage of his experience in the trade. However, because of the portions of the ground floor of the property being under the occupancy of the tenants, petitioners have not been able to give it the practical shape. It is stated that the suit premises under the tenancy of the respondent and the other adjoining shops under tenancy of other tenants are most suitable for petitioner no. 1 to set up and run a restaurant as the property in the question is located very near to the Old Delhi Railway Station. It is stated that the strategic location of the property has all the potential to make the project a great success. It is stated that the opening of restaurant by petitioner no. 1 on the ground floor of the property including the suit portion will also get a boost thus proving the project to be mutually inclusive and exclusive. It is stated that the petitioners require the tenancy premises bona fidely for the running of the restaurant by petitioner no. 1 and the petitioners have no other reasonably suitable alternative commercial property for the running of the said business. It is E. No. 542/14/10 Page No. 3 of 26 therefore prayed that an eviction order be passed in favour of the petitioners and against the respondent in respect of the tenanted premises i.e. Shop Mpl. bearing no. 1647, Shayama Prasad Mukherjee Marg, Delhi110 006.
3. Having obtained leave to contest the application for eviction, a written statement was filed on behalf of the respondent wherein preliminary objections are taken to the effect that the petition for eviction is not maintainable as the same is without any cause of action with the sole motive to cause harassment to the respondent so that under pressure he may vacate the tenanted premises as the rate of rent soared sky high and the shop in question is situated in a congested area where it is difficult for passerby and the vehicles to pass therein due to restrictions on traffic. That the petitioners wants to get the shop vacated from the respondent by one way or the other and other all possible needs. It is further stated that the petitioner did not disclose how much accommodation in the building is already with them on the ground floor, as also as to how the petitioner have dealt with the same as also how they intend to utilize the vacant or other portion of the building. That as a matter of fact the petitioner has sufficient accommodation in their possession for their need and that is why they have not deliberately filed the site plan of the premises owned and occupied by them with their other family members. The E. No. 542/14/10 Page No. 4 of 26 alleged need is concocted and imaginary based upon sham and bogus transactions created with the sole motive to evict the respondent. That the petitioner is having greed to recover the possession of commercially exploitable property, having high market value. That the petitioner is fighting and is seeking eviction for their greed than their need, whereas the respondent is fighting for his legitimate need. The respondent paid a huge sum towards pagri which was almost the sale consideration at the time of taking on rent the tenanted shop. The petitioner cannot deny this fact of having received a huge sum towards pagri. As per market practice and commitments between landlord and tenant no landlord files any eviction petition against those tenants. That the petitioner is otherwise barred by principle of resjudicata because while withdrawing the earlier eviction petition on the same ground, the petitioners didn't seek leave of the court and the same was dismissed. Hence, the second petition on the same ground is barred. That it is an admitted case of the petitioner's that they have some accommodation in the premises. Thus, the petitioner's case is of additional accommodation. That the eviction petition is based on a totally hyper technical and coined set of allegation, and is even otherwise misconceived, frivolous and untenable in law. The petitioner has no need much less bonafide need qua the premises in suit. Their alleged desire is inconsequential. It is intended at E. No. 542/14/10 Page No. 5 of 26 prematurely encasing upon a chance that has suddenly come to the petitioner's way (by a recent judgment of the Hon'ble Apex Court) and that too on a cause of action which is ex facie coined and concocted. The petitioners (even if it be assumed for a moment that they are the absolute owner, in respect of the premises in suit, even on the face of what is alleged in the body of eviction petition itself is not competent to maintain this eviction petition under section 14(1)(e) of the Act, according to their own allegation in the eviction petition, the premises in reference were let out inter alia to the respondent way back in the 1950's or thereabout for commercial purposes. The petitioners are admittedly in actual possession of much more reasonable/ suitable required accommodation (residential as well as nonresidential) in this very locality and most of it (occupied by the petitioner landlord and their family members is in their self occupation). That the petitioners have deliberately concealed the extent of accommodation available to them at their (present) residence which is an expansive and imposingly spacious property built upon more 5000 square yards in a prime location more commonly known as Civil Lines. Accordingly, the petitioners do not need the suit premises for their so called bonafide use or occupation. On these fact and allegation, it is well settled, that an eviction petition on the ground enumerated in section 14(1)(e) of the Act is not E. No. 542/14/10 Page No. 6 of 26 maintainable (Particularly in view of the statutory requirement that the tenancy (subject matter of the eviction petition) ought to have been created exclusively and only for residential purpose, and that the same are bonafidely required by the landlord an individual person for his/ her own residential requirement. Admittedly, this is not the case here. It is now well settled that in a case such as the present one, notwithstanding the said judgment of the Apex Court in Satyawati's Case, Section 14(1)(e) of the Act is not attracted. This eviction petition is therefore ex facie misconceived and untenable. That in furtherance of their illegal mischievous as also farfetched designs the petitioners have falsely claimed in the texts of this eviction petition that petitioner No.1 is in bonafide need of the accommodation for "expanding their business". In fact, as submitted hereinafter the petitioners own several shops in the same building and are doing business there from. Each of their socalled dependents is in occupation of separate business premises. The petitioners are supervising their work and is associated with all those business (virtually as a partner or may be actually as a partner). In this background the respondent states that in case the petitioners has any need, much less bonafide requirement of the demised premises or the premises in suit or any other premises as they now vehemently (but mischievously) propounds before this Hon'ble court, they would not E. No. 542/14/10 Page No. 7 of 26 have ( recently a few months prior) let out excellent business accommodation actually available to them. This tenancy, the respondent submits, in itself demolishes the petitioner's allegation of bonafide requirement for accommodation or "business purposes" of themselves as alleged intended business. The petitioners are an influential and " raees" landlords. They own several properties in prime Civil Lines etc. which are not only residential but also residentialcumcommercial. It is my respectful submission that in view of these facts and backgrounds it is not only inequitable but also patently false to allege that the petitioner requires more accommodation for "commercial/ business purposes". That the respondent states and submits that this in itself shows and establishes that this petition is manifestly an afterthought and that the petitioners (even assuming that this petition is maintainable at law) has no need (except a desire to earn premium from a new transferee) much less bonafide requirement of the premises in suit or even of the demised premises. All this is without prejudice to the earlier submission(s) that this eviction petition is on its own face misconceived and untenable, under Section 14(1)(e) of the Act. That last but not the least, the petitioners has not title much less "Ownership rights" in the premises in suit so as to entitle them to plead that they are entitled to invoke clause (e) to the proviso to subsection (1) of Section 14 of the E. No. 542/14/10 Page No. 8 of 26 Act qua the premises in suit against me. The premises in suit are jointly owned (as is now the common knowledge in the locality) by the petitioners along with other family members. They petitioners are therefore, not competent to invoke the jurisdiction of this Hon'ble Court propounding bonafide requirement. That this eviction petition is also a step in the aforesaid direction (i.e. harassing the respondent into an out of court settlement) and has not been presented bonafide. That the respondent states that it is an admitted fact in Para 14 of the petition that the respondent is an old tenant and the respondent was already a tenant when the petitioners purchased the entire building. It is stated that the tenant is for over 60 years in the premises with PAN No. AAACS 2080 dated 16.04.1947 along with a Sale Tax registration No. IC/28/003682/0151 of the year 1951 with Incorporation No. 1204 dated 16.04.1947. This fact alone disentitles the petitioners from obtaining an order of eviction in respect of the premises in suit, against the respondent herein. Thus, the petition of the petitioners is liable to be dismissed. That the respondent states that petitioner No.2 is having huge undisclosed properties apart from a big house in the elite are of Civil Lines, Delhi and runs a hotel above the tenanted shop of three stores and every floor is more than six times the area of the tenanted shop in question. It is an admitted fact that the respondent is running a Hotel in the name of "New Royal E. No. 542/14/10 Page No. 9 of 26 Hotel". It is stated that there are three other shops much bigger than ours one on our right and two on our left, however the petitioners have chosen this shop only. It is deliberate attempt to get our shop vacated under the garb of bona fide need and thus in such a situation respondent ought to be granted unconditional leave to contest the eviction proceedings. That the respondent states that petitioners wants to run a restaurant in the shop but the area is not so good for the same as one was opened by someone in the third shop on our left but was soon closed. That admittedly and apparently the petitioners have not furnished the details, of the alleged business which they themselves propose to set up as alleged. The petitioners have not annexed to the petition the true and complete record of the business which the petitioners and their family are doing and have handled, which may justify that the purported need of the petitioner for additional accommodation is bonafide. In the absence of specific details and due particulars in the text of the eviction petition and particularly on admitted facts that the petitioners and their family members are already well settled in business, having spacious shops available to them (for their business activities) the respondent states that the present petition is liable to be dismissed as the respondent has established that on fact(s) the alleged need of the petition is neither immediate nor bonafide particularly in the view of the bald facts as E. No. 542/14/10 Page No. 10 of 26 stated in pare 18(d) of the eviction petition. It is an admitted position of fact that five years ago, the petitioners have already got the shop next to us on our left side, which is more in size than our shop, from M/s Vikas Motors. They then rent it out to INDIABULLS and have recently rented out to Laxmi Transport. If the petitioner No.1 really want to do some of his own business, he could have started it there itself. It is further stated that the petitioners are already having surplus space which is lying vacant/unused and unoccupied. That on inquiry it is revealed that more than 2000 sq. ft. of commercial accommodation besides is admittedly in actual use and occupation of the petitioners. Certain other properties are lying locked. It is informed by other neighbours (on the condition of anonymity) that the keys of these premises are with the petitioners who are on the lock out for new tenants/ purchasers for these portions. It is further admitted by the petitioner that space measuring 750 Sq. Ft. is lying vacant and is in possession of the petitioner. That the project report filed by the petitioner has been prepared by the petitioner himself and the same cannot be considered by this Hon'ble Court as it needs to be made/verified by the chartered Accountant/ Professional and even the said alleged project report clearly reveals the malafide intention of the petitioner, where specifically approx 750 sq. ft. space is lying vacant in possession of the petitioner but the petitioner intentionally and E. No. 542/14/10 Page No. 11 of 26 deliberately chose not to disclose the same, so as to create false ground of eviction. That the malafide of the petitioner is further more apparent from the fact that even after knowingly well that no construction/alteration/reerection can be carried out in the suit property without having the prior permission from the competent authority, filed the present petition. It is an admitted position of fact that the project report clearly reveals that for fulfilling the alleged requirement of the petitioners of opening a restaurant, considerable alteration has to be done and in the instant case no such permission for alteration has been taken by the petitioner, therefore even if the shop get vacated they cannot use it according to their alleged requirement. That the petitioner No.1 has created a false story to get the suit property vacated which is further clear from the fact that even after finishing his graduation in 2004, he did not make any effort for execution of his plans for opening a restaurant in the suit property. That moreover, the petitioner No.1 partner in the Hotel Business of his father and remained busy working there so much. The premises in suit are jointly owned (as is now the common knowledge in the locality) by the petitioners along with other family members. The petitioners are therefore, not competent to invoke the jurisdiction of this Hon'ble Court propounding bonafide requirement. The alleged transactions through gift deed and sale deed are sham transactions E. No. 542/14/10 Page No. 12 of 26 and those are forged documents create just to oust the tenant and to create false ground for eviction. Petitioner is not at all entitled to any relief claimed. It is therefore most respectfully prayed that in the interest of justice and equity, this Hon'ble Court may graciously be pleased to dismiss the Eviction petition of the petitioner.
4. To the written statement of the respondent a replication is filed on behalf of the applicants wherein the averments made in the application are reiterated and the defence taken by the respondent are traversed.
5. In support of the case the applicants got examined Arjun Uppal as PW1 and during his examination in chief tendered his affidavit Ex.PW1/A alongwith documents which are Ex.PW1/1 to Ex.PW1/8. They also got examined PW2 Sh. B.P. Singh (B.E.) Civil, PW3 Anil Kumar Ahuja A.E. Civil, PW4 Raghuvir Singh MCD Department and PW5 Rajesh Kumar JJA, Record Room, Civil. All these witnesses were cross examined by counsel for the respondent. Thereafter, the Petitioner's Evidence was closed.
6. In support of the case, the respondent got examined himself as RW1 Virender Jain and during his examination in chief tendered his affidavit Ex.RW1/A. The witness was crossexamined on behalf of the applicants. The respondent also examined Sh. Surjiit Singh Sawhney as RW2, Rajesh Gawri as RW3, Sh. Jasvinder E. No. 542/14/10 Page No. 13 of 26 Singh Chug as RW4, Deepak Singla from Tamilanad Merchantile Bank as RW5 and Sh. Raj Kumar Gupta as RW6. All these witnesses were crossexamined on behalf of the applicants. Thereafter, evidence on behalf of the respondent was closed.
7. I have heard counsel for the parties and gone through the material on record.
8. Having drawn my attention on testimony of the PW1 and documents tendered by him and the law laid down in cases titled as Sarla Ahuja Vs. United India Insurance Company Limited 1998 (2) RCR 533 (SC), Dattatraya Laxman Kamble Vs. Adbul Rasul Moulali Kotkunde & Anr. 1999 4 SCC 1, Ram Babu Agarwal vs. Jay Kishan Das (2010) 1 SCC 164, Royal Nepal Airlines Corporation Vs. Shrishti Properties Pvt Ltd. 184(2011)DLT362, Kishore Kumar Vs. Bhoga Bhai & Ors. 2005 Law Suit (MP) 218, Mool Chand Vs. Shri Ram Gil & Anr. 2000 Law Suit (P & H) 1470, Arumugham Vs. Krishna Swami 1993 Law Suit (Mad.) 618, Tarsem Lal Vs Pritam Dass Khullar 2005 (2) RCR 215, Smt. Viran Wali Vs. Sh. Kuldeep Rai 2010 (2) RCR 87, S. Gopal & Anr. Vs. T.V. Parmasiwam 2008 (1) RCR 520, Onkar Singh Vs. Dilbagh Rai & Anr. 2011 Law Suit (P & H) 2573, Pawan Kumar Vs. Pushpa Rani 2003 Law Suit (P & H) 1155, Akhileshwar Kumar & Ors. Vs. Mustakim & Ors. (2003) 1 SCC 462, Madho Ram Garg Vs. Baldev Singh Bath & Anr. 2008 (1) E. No. 542/14/10 Page No. 14 of 26 RCR 620, Raghavindra Kumar Vs. Firm Prem Machinery & Company 2000 Law Suit SC 41, Sait Nagjee Purushotham & Co. Ltd. Vs. Vimalabai Prabhulal and others (2005) 8 SCC 252, Magan Lal Vs. Nana Sahib (2008) 13 SC SCC 758, N.R. Narayan Swamy B. Francis Jagan 2001 (2) RCR (RENT) 170, Sanjay Mehra Vs. Sunil Malhotra 170 (2010) DLT 797, State of Maharashtra & Anr. vs. M/s. Supermax Intentional Pvt. Ltd. & Ors. 2009 (2) RCR 246, Satyawati Sharma (Dead) by LRs. Vs. Union of India (UOI) and Anr. AIR 2002 Delhi 509, It is submitted by counsel for the applicants that the applicants are the owner and landlord of the premises which are required bona fide by petitioner no 1 for his business necessity. It is further submitted by counsel for the applicants that the applicant has no other reasonably suitable accommodation in Delhi. It is further submitted by counsel for the applicants that an eviction order be passed in favour of the applicants and against the respondent.
Per contra, having drawn my attention on contents of the application for eviction, written statement, replication, and the testimony of PWs and RWs, it is submitted by counsel for the respondent that the application for eviction filed by the applicant is frivolous and the same is liable to be dismissed as present application has not been made for bona fide reason and the premises are not required by the applicants. It is further submitted by counsel for the E. No. 542/14/10 Page No. 15 of 26 respondent that the application is motivated and has been made only to get vacated the premises. It is further submitted by counsel for the respondent that the application for eviction be dismissed.
9. I have given my thoughtful consideration to the submissions made on behalf of the parties.
10. The present application has been made under clause (e) of subsection (1) of section 14 of Act 59 of 1958, which after passing of judgment in Satyawati Sharma's case (supra) is to be read as follows:
14.(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant:
Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely: * * * * * *
(e) that the premises are required bona fide by the landlord for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation;
11. In the light of the provisions of clause (e) of subsection (1) of section 14 of Act 59 of 1958 and the pleadings of the parties following points fall for the determination of this court, namely: E. No. 542/14/10 Page No. 16 of 26
(i) Whether the applicants are the owner of the premises?
(ii) Whether there exists relationship of landlord and tenant between the parties?
(iii) Whether the premises are required bona fide by the applicant no.1 for himself ?
(iv) Whether the applicants have no other reasonably suitable accommodation?
12. In so far as first point and second point for determination are concerned, the same are not under dispute as per the pleadings of the parties. Therefore, in the light of the pleadings of the parties and other material placed before this court, in so far as clause (e) of subsection (1) of section 14 of Act 59 of 1958 is concerned, the applicants are the owner of the premises and there exists relationship of landlord and tenant between the applicants and the respondent.
13. The next question which falls for the determination is:
whether the premises are required bona fide by the applicant for himself?
14. In Shiv Sarup Gupta v. Dr. Mahesh Chand, AIR 1999 SC 2507 having discussed the provisions of s clause (e) of sub section (1) of section 14 of Act 59 of 1958 the Hon'ble Supreme Court has held as follows:
13. Chambers 20th Century Dictionary defines bona fide to mean 'in E. No. 542/14/10 Page No. 17 of 26 good faith : genuine'. The word 'genuine' means 'natural : not spurious : real : pure : sincere'. In Law Dictionary, Mozley and Whitley define bona fide to mean 'good faith, without fraud or deceit'. Thus the term bona fide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by 'requires' is much more higher than in mere desire.
The phrase 'required bona fide' is suggestive of legislative intent that a mere desire which is 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 a 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 landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the Court. The Judge of facts should place himself in the arm chair of the landlord and then ask the question to himself whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the Court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord. Once the Court is satisfied of the bona fides of the need of the landlord for premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the Court. 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 short, the concept of bona fide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or two conservative or pedantic must be guarded against. E. No. 542/14/10 Page No. 18 of 26
15. In the present case to judge whether the premises are required bona fide by the applicants the statements made by them in their application for eviction and replication and their testimonies are required to be noticed.
16. During his examination as PW1 it has been deposed by the applicant Arjun Uppal that his father petitioner no.2 is running hotel in the name and style of M/s. New Royal Hotel on the first floor and above of the property in question alongwith his mother. It is further stated that he has completed his MBA and want to open a posh restaurant in the name of Haveli in the area and in this regard a project report was prepared which is Ex.PW1/5. Therefore, petitioners as such require the premises in question bonafide for the purpose of accomplishing the project. It is further stated that petitioner no.1 who is an MBA has acquired sufficient knowledge and experience during all these years, which is required for running a restaurant. It is further stated that petitioners are already in possession of one shop in the entire building which is lying unoccupied and that the said shop will be a part of the contemplated project. It is further stated that petitioners can very easily muster the amount required towards the cost of completion of the projects as they have high status in the society. It is further stated that no sanctioning of building plan is required for making internal changes E. No. 542/14/10 Page No. 19 of 26 in the standing structure and no new structure are going to be erected as no permission from MCD is required. Relevant documents to this submission are Ex.PW1/6 & Ex.PW1/7. It is further stated that petitioners have also taken professional opinion from Structural Engineer. It is further stated that there is huge parking facility for general public in front of the shop in question and across the road for more than 1000 cars. Relevant documents to this effect is Ex.PW1/9.
During his crossexamination, PW1 admitted that there is no parking space in front of the building in question, however, it is stated that a railway parking is available opposite the suit premises. It is also admitted by PW1 that he has not disclosed the whereabouts or existence of company in the name and style of Adonis Developer which was started in the year 2010. It is further stated by PW1 that New Royal Hotel gives him rent of his coownership in the building. Except this, nothing adverse has been deposed by the PW1 against himself which could suggest that he did not require the premises for his bonafide requirement.
17. The plea of the respondent that the petitioners are having many other properties in their possession in the form of alternate accommodation is of no relevance as landlord sues for additional accommodation in the same building by seeking the eviction from the suit property being situated at ground floor for E. No. 542/14/10 Page No. 20 of 26 meeting out the requirement of additional accommodation for his restaurant, which he is planning to open in the suit property since last so many years, therefore, the requirement of the petitioner could not be met from one shop at ground floor which is under his occupation and the same is kept unused for opening of restaurant. Further owning other alleged properties by the petitioners elsewhere either in Delhi or outside are not material in the present case as the requirement of the petitioner is of a tenanted portion on the ground floor in the suit property. Further, nothing has been brought on record by the respondent about any ownership or existence of any commercial building / alternative accommodation with the petitioners in Delhi.
The other plea of the respondent that the petitioners have not taken any permission from the Civic authorities regarding starting of restaurant. This plea is also not tenable in view of the settled preposition of law that permissions can only be applied for and obtained after possession of the premises is taken over by the landlord. Therefore, obtaining civic permission prior to the filing of eviction petition is not an essential prerequisite. In the case in hand also, the petitioners are not required to obtain and file civic permissions and licences required for establishing a restaurant in the suit premises before obtaining possession.
E. No. 542/14/10 Page No. 21 of 26
The another plea of the respondent that for making structural changes, no permission from slum department or MCD are obtained by the petitioners. In this regard, it is observed on the basis of Ex.PW1/6 and Ex.PW1/7 as well as from the testimonies of PW3 & PW4 that no permission is required by the petitioners before obtaining the possession of the suit premises under the respective laws.
The another plea of the respondent is that project report Ex.PW1/5 filed by the petitioner no.1 is false and fabricated only to obtain the eviction is found to be of no relevance as in view of the law that landlord is not required to file a project report of the business that he intend to start. Reliance is placed on case law Ram Babu Aggarwal Vs. Jai Kishan Dass 2010 (1) SCC 164.
The another plea of the respondent that petitioner no.1 is having no experience to start and run the restaurant is also of no use as in view of the law that one can start a new business even if of no experience. Reliance is placed on case law Ram Babu Aggarwal Vs. Jai Kishan Dass 2010 (1) SCC 164. Further, it is no part of the Court to examine whether business to be set up would be useful or not.
E. No. 542/14/10 Page No. 22 of 26
The another plea of the respondent that the disclosure of Adonis Developers Pvt. Ltd. Company is nowhere in the pleading and the same is intentionally concealed by the petitioners. To this, it is observed that the petitioner no.1 formed this company in November, 2010 after the filing of present suit in August, 2010, therefore, it cannot be stated that its concealment on part of the petitioner. Further, engaging in other activities or business during pendency of proceedings for long time is irrelevant as the crucial date should be taken as on the date when the suit for eviction was filed, meaning thereby normal rule is that rights and obligations of the parties to be determined on the date of petition not subsequent.
The another plea of the respondent is that there is no parking space available in front of the suit property, therefore, in absence of the parking space, the restaurant would not run properly. To this, it is found from the pleadings of the parties that there are two huge parking lots, one of railway and other belonging to MCD within a radius of 200 sq. yards of the said premises. Therefore, this plea of the respondent is not tenable in view of the availability of two general parkings within the vicinity as well as in light of law that tenant cannot dictate the terms to the landlord.
E. No. 542/14/10 Page No. 23 of 26
The last plea of the respondent is that the suit is barred by resjudicata is not tenable, as the ground for bonafide requirement is a recurring cause and subsequent eviction petition even withdrawal of the earlier eviction petition on the same ground without permission of the Court cannot be barred by the principles of resjudicata.
18. From a reading of the application for eviction, replication and the testimony of the applicant no.1 Arjun Uppal, it is clear that as per the version of the applicant, he bonafidely require the tenanted premises. The petitioner no.1 has already pointed out in the application for eviction that he is a MBA by profession and want to start a plush restaurant business from the entire ground floor portion in the suit property and he require the property in question which is on the main road and at ground floor adjacent to his one portion i.e. shop which is lying vacant and unused. Therefore, the requirement of bonafide of the applicant no.1 stands established alongwith the factum that he and his father have no other suitable alternative accommodation with them in the suit property itself at the ground floor as well as in Delhi.
19. In the light of the material on record, especially the pleadings of the applicant no.1 and his testimony, if one attempts to peep into the mind of the applicant no.1 to ascertain his bona fide requirement, then it is found that the premises is bonafidely required E. No. 542/14/10 Page No. 24 of 26 as additional accommodation by the applicant no.1 for himself for starting his restaurant. Needless to say that the landlord is the best judge of his commercial requirement and there is no law which deprives the landlord of the beneficial enjoyment of his property and court cannot dictate to the landlord to shift its business / occupation on the other side of the suit property, as occupation and business are usually conducted on the ground floor because customer can reach there easily. Further, the need of the landlord, the extend or the nature thereof, is the sole and exclusive prerogative of a landlord as to how and in what manner, he runs his restaurant is best left to his sole discretion. In the case in hand, the requirement of the petitioner no.1 is established and found bonafide and he has full choice to take the benefit of his property as per his convenience.
20. In view of above discussion and the mandate of sub section (4) of section 25B of Act 59 of 1958, the present application for eviction is allowed. The applicant is found entitled to recover the possession of the premises, Shop Mpl. bearing no. 1647, Shayama Prasad Mukherjee Marg, Delhi110006 as shown in grey colour enclosed in red line in the site plan attached with the petition. In the facts and circumstances of the case there shall be no order as to costs. File be consigned to Records.
E. No. 542/14/10 Page No. 25 of 26
21. In view of the provisions of subsection (7) of section 14 of Act 59 of 1958 this order for recovery of possession of premises shall not be executed before the expiration of a period of six months from this date.
Announced in the open court (Sunil Kumar) on this 27st day of August, 2015. Additional Rent Controller E. No. 542/14/10 Page No. 26 of 26