Delhi District Court
Kawaljeet Kaur Gandhi Anr vs Satbir Singh Bindra on 19 September, 2023
IN THE COURT OF MS. PRAGATI, ARC-01, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
Eviction Petition No. 68/2014
RC ARC No. 479440/2016
CNR No. DLCT03-001618-2013
In the matter of:-
1. Mrs. Kawaljeet Kaur Gandhi
W/o Sh. S. Bhagat Singh Gandhi
R/o 3416, Third Floor, Gali No.1,
Regarpura, Karol Bagh, New Delhi -110051.
2. Sh. Kul Mohan Singh Gandhi @
Sh. Man Mohan Singh Gandhi (deceased).
Through his legal heirs
(a) Smt. Renu Gandhi (wife)
(b) Sh. Gursimran Gandhi (elder son)
(c) Sh. Harsimran Gandhi (younger son)
Residing at 3416, Third Floor, Gali No.1,
Regarpura, Karol Bagh, New Delhi -110051.
...Petitioners
Versus
Sh. Satbir Singh Bindra,
S/o Sh. Jit Singh Bindra,
Shop No. 3390-91, Desh Bandhu Gupta Road,
Karol Bagh, New Delhi - 110005 ...Respondent
E No.68/2014 (RC ARC no. 479440/2016) Kawaljeet Kaur Gandhi Vs. Satbir Singh Bindra Page of 1 of 24
Date of Institution of the case 19.03.2013
Under Section 14(1)(e), read with Section 25-B of
Delhi Rent Control Act (or in short
the "Act" or "DRCA").
Date of Judgment 19.09.2023
Decision Petition allowed
JUDGMENT
Present is an eviction petition for bonafide requirement of the petitioners u/s 14 (1)(e) of the Delhi Rent Control Act of 1958 (hereinafter referred to as the DRC Act).
Petition
1. Briefly stating, petitioners' case is that petitioner no.2 is the son of petitioner no.1. That both the petitioners are co-owner of the suit premises i.e. property bearing no. 3388-3389, 3390-3391, 3392-1/2 and 3416 consisting of ground floor, first floor, second floor and third floor, situated at Gali no. 1, Deshbandhu Road, Regarpura, Karol Bagh, New Delhi.
2. That the respondent is a tenant in the tenanted premises i.e. one shop bearing no. 3390-91, admeasuring 32'x8' and 14'x8' with one almirah which forms part and parcel of the aforesaid suit premises and the same is shown with red colour in the site plan annexed with the petition. That the respondent is using the tenanted premises as a godown and the rate of rent thereof is Rs. 1090/- per month excluding electricity charges. That the portion shown with E No.68/2014 (RC ARC no. 479440/2016) Kawaljeet Kaur Gandhi Vs. Satbir Singh Bindra Page of 2 of 24 yellow colour in the site plan i.e. at the ground floor and third floor is in the occupation of petitioners; the portion shown with orange colour i.e. first floor, second floor and part of ground floor is in the occupation of another tenant namely New India Assurance Co. Ltd. and other tenants. That the third floor is being used as residence by the petitioners.
3. It is further stated that the petitioner no.1 and her husband are senior citizens aged about 74 years old and 78 years old, respectively, whereas petitioner no.2 is their only son who is aged about 50 years old and is an American Citizen. That petitioner no.1 had met with an accident resulting in breaking of her leg and inserting of a rod. That husband of petitioner no.1 had also suffered a heart attack and had undergone an open heart surgery in the year 2010 in Delhi and a pacemaker installed in the year 2011 in Canada. That petitioner no.1 and her husband had gone to Canada in the year 2006 as permanent residents with her daughter namely Ms. Kuldip Kaur Chattwal who is a Canadian Citizen and Resident. That the petitioner no.1 and her husband desire to live in India due to their ailments and climatic conditions of Canada. Further, they find difficulty in climbing stairs due to their old age and so they intend to live in the ground floor portion i.e. the tenanted premises.
4. That petitioner no.2 has come to stay in India to look after his old aged parents and also he intends to start his business in the tenanted premises to keep him engaged during his stay with the parents. Thus, the petitioners bonafidely require the tenanted premises E No.68/2014 (RC ARC no. 479440/2016) Kawaljeet Kaur Gandhi Vs. Satbir Singh Bindra Page of 3 of 24 partly for residence of petitioner no.1 and her husband and partly for running business by petitioner no.2. That neither petitioner no.1 nor her husband have any other property in Delhi. Hence, the present petition.
Written Statement
5. Summons under Third Schedule of DRC Act of this petition were served upon the respondent whereupon the respondent appeared and filed his leave to defend application which was allowed vide order dated 07.11.2015. Consequently, the respondent filed his written statement, to which, the petitioners filed their replication. Thereafter, an application under Section 151 Code of Civil Procedure for bringing on record subsequent events was filed by the respondent which was dismissed by the ld. predecessor judge vide order dated 07.05.2018. However, in an appeal preferred against the said order by the respondent, the said application was allowed by ld. RCT, Delhi , vide order dated 21.11.2019. Thereafter, an amended written statement was filed by the respondent.
6. It is stated in the amended written statement that the petitioner no.1 and her husband are permanent residents of Canada whereas petitioner no.2 is the US citizen and his family is well settled there. Thus, the petitioners are not residing in India and they have no intention of coming back to India.
7. That petitioner no.2 has cordial relations with his wife and the averments of petitioners in their reply to leave to defend E No.68/2014 (RC ARC no. 479440/2016) Kawaljeet Kaur Gandhi Vs. Satbir Singh Bindra Page of 4 of 24 application that petitioner no.2 has strained relations with his wife, is a false averment. That the first floor and second floor of the suit premises has been let out time and again at exorbitant rates of rent and on 30.11.2011, the petitioners had renewed the lease agreement with respect to entire first floor and second floor with New India Assurance Co. Ltd. for a further period of 09 years on exorbitant increase in monthly rent. Further, the said New India Assurance Co. Ltd. has vacated the first floor and second floor on or about 06.01.2018 i.e. during the pendency of the present petition, therefore, the alleged bonafide requirement of petitioners stands effaced as now they have surplus vacant accommodation available with them.
8. Further, it is stated that as per the site plan filed by the respondent alongwith leave to defend application, the portion shown with green colour, forming part of property no. 3392, admeasuring 8'x30' was sold by the petitioners. Whereas, the portion shown with blue colour, forming part of property no. 3392 was vacant at the time of filing of the present eviction petition which was later on let out to one Guru Nanak Ji Glass and Plywood Store, proprietor whereof is Sh. Sardar Bhupinder Singh who is running his business therein. That similarly, another shop adjacent to shop no. 3388 is lying vacant and is available to the petitioners, but they have concealed the same. That the petitioners had also sold the shop bearing no. 1357, Pan Mandi, Sadar Bazar, Delhi. That the entire ground floor of the suit premises is commercial and it cannot be used for residential purpose. That the petitioners had also filed a suit for possession in respect of premises bearing no. 3388A and B wherein they claimed that they are entitled E No.68/2014 (RC ARC no. 479440/2016) Kawaljeet Kaur Gandhi Vs. Satbir Singh Bindra Page of 5 of 24 to the market rate of rent. The said suit was adjourned sine die by the Hon'ble High Court of Delhi vide order dated 24.05.2007 considering that the Hon'ble Supreme Court in SLP No. 6860 of 2002, vide order dated 23.09.2002, had held that pending the disposal of the said SLP, the petitions pending before the Rent Controller shall be kept pending awaiting decision in the said SLP. That this shows that the intention of the petitioners is to let out different portions of the suit premises at exorbitant rates. That they had also been requesting the respondent to pay market rate of rent of Rs. 5250/- per month in place of Rs. 22/- per month. Hence, it is prayed that the on the aforesaid grounds, the petition in hand may be dismissed.
Replication
9. In amended replication filed by the petitioners, it is stated that during the pendency of the present petition, the petitioner no.2 and the husband of petitioner no.1 have expired. That petitioner no.2 was in India since the year 2011 and he had not gone abroad for more than 45 days at a time. That due to a restraint order against him, in a domestic violence case, the petitioner no.2 was staying in India to look after his ailing parents and he was not residing with his wife and children. Whereas petitioner no.1 and her husband are /were frequently visiting India for 4 to 6 times every year. That although the New India Assurance Co. Ltd. has vacated the first floor and second floor of the suit premises but the requirement of the petitioner no.1 is for the ground floor which is in the use and occupation of the respondent. That the actual measurement of portion shown as 3392 is 5x30'' out of which area admeasuring 5'x15'' was sold on 12.05.1999 E No.68/2014 (RC ARC no. 479440/2016) Kawaljeet Kaur Gandhi Vs. Satbir Singh Bindra Page of 6 of 24 and not recently as alleged by the respondent. That the shop no. 3390- 3391 is admeasuring 6'x3' below the stairs and it cannot be used for residential and commercial purposes. That the shop no. 1357, Pan Mandi, Sadar Bazar, Delhi was sold out much earlier and the same is not relevant. That the one shop at ground floor admeasuring 5'x15' and another shop below stairs admeasuring 3'x6' being separated by the tenanted premises is less than 100 sq. ft. and cannot be used by the petitioners for their bonafide requirement. Further, the petitioner has denied the contents of the amended written statement and have re- affirmed the content of the petition.
10. Pertinently, during the pendency of the present petition, the petitioner no.2 had died and accordingly, his wife and two sons were impleaded as his legal representatives vide order dated 23.07.2019.
TRIAL
11. In order to prove their case, petitioners got examined only one witness i.e. petitioner no.1 as PW1.
12. PW1 Smt. Kanwaljeet Kaur Gandhi tendered her evidence by way of affidavit as Ex.PW1/A wherein she stated that the mother of petitioner no.1 and maternal grandmother of petitioner no.2 namely Smt. Ishar Kaur had purchased the suit premises by virtue of a registered sale deed dated 30.08.1974. That Smt. Ishar Kaur had bequeathed the suit premises in favour of both the petitioners by virtue of a registered Will dated 13.09.1985. That after the death of Smt. Ishar Kaur on 19.04.1992, both the petitioners have become co-
E No.68/2014 (RC ARC no. 479440/2016) Kawaljeet Kaur Gandhi Vs. Satbir Singh Bindra Page of 7 of 24 owners in respect of the suit premises. That a probate was also granted in this regard by the court in favour of both the petitioners vide order dated 03.05.1994 in case bearing no. 194/1992 titled as Smt. Kanwaljeet Kaur and Anr. Vs. State. She further reiterated the contents of her petition and amended replication. She also led into evidence the following documents:-
1. Mark P1 i.e. copy of registered Will dated
13.09.1985.
2. Ex. PW-1/2 (OSR) i.e. copy of sale deed dated 30.08.1974.
3. Ex. PW-1/3 (OSR) i.e. copy of death certificate of Smt. Ishwar Kaur (mother of the petitioner no.1).
4. Ex. PW-1/4 (OSR) i.e. copy of Letter Administration dated 03.05.1994.
5. Ex. PW-1/5 (OSR) i.e. copy of Mutation Letter dated 13.07.1993.
6.. Mark A i.e. copy of death certificate of Bhagat Singh Gandhi (husband of petitioner no.1).
7. Mark B i.e. the photocopy of death certificate of Manmohan Gandhi (son of the petitioner no.1).
8. Mark C i.e. photocopy of passport of petitioner no.1.
9. Mark D i.e. copy of site plan.
10. Mark E i.e. copy of rent receipt dated 16.07.2013.
11. Ex. PW-1/9 (colly) i.e. medical record of E No.68/2014 (RC ARC no. 479440/2016) Kawaljeet Kaur Gandhi Vs. Satbir Singh Bindra Page of 8 of 24 petitioner no.1 and husband of petitioner no.1.
13. In her cross examination, she stated that she has seen the site plan which is correct to site and the same Ex. PW-1/R1 (this is the site plan filed by the respondent alongwith his leave to defend application). She denied that shop no. 3392 was sold by the petitioners a few months prior to filing of present eviction petition. She again stated that half portion adjoining to tenanted premises shown shaded green in site plan Ex. PW-1/R1 was in fact sold but she did not remember the number of the said portion/shop due to her old age. She denied that the back portion shown shaded blue in site plan Ex. PW- 1/R1 was let out to Guru Nanak Ji Glass after filing the eviction petition. Further, she admitted that one shop bearing no. 3388 in the said property itself is under her possession and vacant. She admitted that the entire portion of ground floor is commercial in nature. She further admitted that the entire area in the vicinity of the suit premises is also commercial and the tenanted premises is a hall and does not have any washroom and bathroom.
14. She further admitted that she has a daughter who is settled and living in Canada as a Canadian Citizen. She denied that she alongwith her husband were permanent residents of Canada since 2006 and are staying with the said daughter in Canada. She stated that she is not a permanent resident of Canada. She denied that she is intentionally and falsely deposing in contradiction to what is stated in the petition. She volunteered that she visits Canada frequently at her daughter's residence. She admitted that her husband's open heart E No.68/2014 (RC ARC no. 479440/2016) Kawaljeet Kaur Gandhi Vs. Satbir Singh Bindra Page of 9 of 24 surgery as well as installation of pace maker was also carried out in Canada in 2010 and 2011, respectively. She admitted that LIC was a tenant in the entire first floor and second floor of the suit premises. She admitted that LIC has vacated the said portions in the year 2018 but she could not recall as to whether in 2011, while they are claiming in the petition that they wanted to shift India at that time, they had renewed the lease of LIC. She further stated that the first and second floor portions are in her possession and the same are lying vacant.
15. She admitted that her son was a citizen of USA. She admitted that his family comprising of his wife and son are also citizens of USA and they all live in USA only. That the relations between his son and his family including his wife and son were cordial. She denied that there is no such requirement nor there is any medical requirement as is claimed in the eviction petition. She denied that the eviction petition is merely a pretense to get tenant evicted.
16. On the other hand, the respondent also got examined only one witness i.e. himself as RW1. He tendered his evidence by way of affidavit as Ex. RW1/A wherein he reiterated the contents of his amended written statement. He also led into evidence the following documents:-
1. Ex.RW1/1 (colly) i.e. the two photographs of the banner.
2. Ex. RW-1/2 i.e. site plan already exhibited as Ex. PW-1/R-1.
3. Ex. RW-1/3 i.e. the photograph of shop bearing E No.68/2014 (RC ARC no. 479440/2016) Kawaljeet Kaur Gandhi Vs. Satbir Singh Bindra Page of 10 of 24 no. 3388.
4. Ex. RW-1/4 i.e. the newspaper Hindustan Times dated 05.04.2023.
5. Ex. RW-1/5 i.e. the photograph of shop bearing no. 1357, Pon Mandi, Sadar Bazar, Delhi.
6. Mark A (colly) i.e. the copy of the petition and the orders dated 24.05.2007 as passed by Hon'ble High Court of Delhi in suit no. 1/2007.
17. In his cross examination, he stated that he is 12 th pass and he has been carrying on business of footwear under the name and style of M/s Bindra Shoes and Jasmine Impex. That M/s Bindra Shoes is a proprietorship firm whereas Jasmine Impex is a partnership firm of which, he is one of the partner alongwith his son namely Sh. Jasjit Singh. That M/s Bindra Shoes has been doing the business at 3420/1, Regur Pura, Delhi and M/s Jasmine Impex has it place of business at 3390-91, D. B. G. Road, New Delhi which is the tenanted premises and the size of the tenanted premises and is admeasuring 10x30 and 10x15 ft. That at the time of letting out of the tenanted premises to him by the then owner, there was one almirah with shutter at the front side of the tenanted premises. That he has been residing at 15/62, Second Floor, Subhash Nagar, New Delhi, which is a rented accommodation. That the tenanted premises is being used as a godown where he is putting his goods and selling the same to the suppliers. He denied that the tenanted premises has been lying closed since long and he has not been carrying out any activity from there. That in para nos. 2, 3,4 & 5 of his evidence affidavit Ex. RW-1/A he E No.68/2014 (RC ARC no. 479440/2016) Kawaljeet Kaur Gandhi Vs. Satbir Singh Bindra Page of 11 of 24 has stated that the petition in hand is malafide and vague and there is no ground for his eviction from the tenanted premises. He denied that the eviction petition filed by the petitioners is absolutely genuine and liable to be allowed. He expressed his ignorance about the age of Smt. Kawaljeet Kaur Gandhi/petitioner no.1. He denied that the age of petitioner no.1 is more than 85 years. He stated that he is not aware that petitioner no.1 is suffering from old aged diseases.
18. Further, he admitted that the first floor and the second floor of property bearing no. 3416, Gali No.1, Regur Pura, Karol Bagh is lying vacant as on today but he expressed his ignorance as to whethter two shops on the ground floor in respect of which eviction order has been passed by the court, has been lying closed since from the date of eviction order. He also expressed his ignorance as to whether the said tenants have preferred rent revision before Hon'ble High Court of Delhi. He admitted that the portion shown in green colour in the site plan Ex. PW-1/R-1 has been sold by the petitioners long back and he again stated that he is not aware as to when it was sold. That he has seen late son of the petitioner no.1 carrying on property business at shop no. 3388. He again stated that the husband of the petitioner no.1 was carrying on this property business at the said shop but he is not aware about the date, month and year as to when he saw late Sh. Bhagat Singh Gandhi /petitioner's husband carrying on his property business. He stated that he has not stated this in his evidence affidavit or in his written statement. He denied that he is deposing falsely as he has seen late Sh. Bhagat Singh Gandhi carrying on property business at shop no. 3388. He expressed his ignorance E No.68/2014 (RC ARC no. 479440/2016) Kawaljeet Kaur Gandhi Vs. Satbir Singh Bindra Page of 12 of 24 about the size of the said shop bearing no. 3388. He admitted that in photograph Ex. RW-1/3, no shop number is mentioned. He expressed his ignorance as to when shop bearing no. 1357, Pan Mandi, Sadar Bazar was sold. He denied that shop bearing no. 1357 has been sold by the petitioners since long before filing of the present petition. He further stated that the entire ground floor of property bearing no. 3416, Regur Pura, Delhi is being used for commercial purpose. He denied that the site plan Ex. PW-1/R-1 is not as per site and stated that the same has been prepared by him which bears his signature at Point A. He stated that the photographs Ex. RW-1/1 (colly), Ex. RW-1/3 and Ex. RW-1/5 have been taken by him. He admitted that he has not filed certificate of 65 B of Indian Evidence Act in support of the said photographs. He denied that the petitioner is a permanent resident of India and volunteered that she is a permanent resident of Canada. However, he does not have any proof that petitioner is residing at Canada. He denied that the need of the petitioners is honest and genuine and voluntereed that the petitioners want to sell the entire property. He stated that the rate of rent of the tenanted premises is Rs. 1,098/- per month excluding electricity and water charges. That he used to pay upto date rent to the petitioner no.1 but she refused to accept the rent. That after the refusal of the acceptance of rent of petitioner no.1, he did not deposit the same before the court. That since from the date of filing of the eviction petition, he has been in the arrears of rent. That there is no water connection in the tenanted premises and there is no due of electricity in respect of the tenanted premises. That he has not filed any payment proof of electricity bill in respect of the tenanted premises and the electricity connection of the E No.68/2014 (RC ARC no. 479440/2016) Kawaljeet Kaur Gandhi Vs. Satbir Singh Bindra Page of 13 of 24 tenanted premises is temporarily disconnected however he expressed his ignorace regarding the date of disconnection of the electricity from the tenanted premises. He stated that he had approached to the electricity department for the restoration of electricity connection and had made verbal requests before the electricity department. He denied that he never approached the electricity department for the restoration of the electricity connection. He denied that there is no electricity connection as he has not been using the tenanted premises since long and the same is lying closed.
19. On being confronted with the site plan Mark D, he admitted that the portion shown in red colour in the said site plan is the tenanted premises bearing shop nos. 3390 and 3391 and accordingly, the same was exhibited as Ex. RW-1/PX. He denied that the petitioner no.1 being old aged besides suffering from old ailments requires the tenanted premises on the bonafide grounds.
20. Final arguments advanced by ld. counsels for both the parties heard. Case file perused.
21. Ld. Counsel for petitioner has relied upon following decisions:
(i) Shree Ram Sharma Vs. Mohd. Sabir, 178 (2011) DLT 1.
(ii) Krishan Kumar Gupta Vs. Swadesh Bhushan Gupta, 152 (2008) DLT 556.
(iii) Tagore Education Society Regd. Vs. Kamla Tandon & Anr. 161
(2009) DLT 232
E No.68/2014 (RC ARC no. 479440/2016) Kawaljeet Kaur Gandhi Vs. Satbir Singh Bindra Page of 14 of 24
(iv) Kamla Thukral & Ors. Vs. Tarlok Singh 200 (2013) DLT 27.
(v) Uday Shankar Upadhyay & Ors. Vs. Naveen Maheshwari 2009
Law Suit (SC) 1929.
(vi) Dhannalal Vs. Kalawati Bai, 2002 Law Suit (SC) 614.
(vii) A.K. Woolen Industries & Ors. Vs. Narain Gupta, 2017 Law Suit (Del) 5217.
(viii) Punjab Stainless Steel House & Anr. Vs. Sangeeta Kedia, 2014 Law Suit (Del) 3285.
(ix) Dr. Jain Clinic Pvt. Ltd. Vs. Sudesh Kumar Jassal, RC. Rev. No. 136/2012 decided by Hon'ble Delhi High Court on 22.08.2013.
Findings
22. At the outset, it is stated here that there is no doubt regarding the case laws filed on behalf of ld. counsel for petitioner where the Hon'ble Supreme Court and Hon'ble High Court of Delhi have laid down the principles with respect to provisions of the DRC Act, 1958 in different factual scenarios.
23. In a petition u/s 14(1)(e) of DRC Act in order to get an eviction order the petitioner/landlord is required to establish the following :-
(i) That he/she is the owner/landlord of the property;
(ii) That he/she requires the premises bonafide and
(iii) That he/she does not have any other alternative suitable accommodation for this purpose.
E No.68/2014 (RC ARC no. 479440/2016) Kawaljeet Kaur Gandhi Vs. Satbir Singh Bindra Page of 15 of 24 Landlord-tenant relationship
24. As far as the relationship of landlord and tenant between peitioners and respondent is concerned then the same is not disputed by the respondent, thus the same stands admitted by him. Even otherwise the petitioner no.1/PW-1 has led into evidence the copy of sale deed dated 38.08.1974 (Ex. PW-1/2) executed in favour of petitioner no.1's mother namely Smt. Ishar Kaur. Further, she has also led into evidence the copy of Will dated 13.09.1985 Mark P1 executed by Smt. Ishar Kaur in favour of both the petitioners as well copy of letter of administration dated 03.05.1994 (Ex. PW-1/4) obtained by the petitioners in respect of Will (Mark P1). She has also led into evidence the copy of mutation letter dated 13.07.1993 (Ex. PW-1/5) vide which the suit premises has been mutated by the MCD in the names of both the petitioners. These documents have gone entirely unrebutted, therefore, on the basis thereof and considering that no dispute has been raised by the respondent regarding the ownership and landlordship of petitioners, this court is of the view that the fact of ownership and landlordship of petitioners over the tenanted premises and the existence of relationship of landlord-tenant between both the petitioners and the respondent stands duly established in the present petition.
Bonafide requirement and alternate accommodation
25. In respect of the bonafide requirement of a landlord, it is a settled position that it is not the wish or word of the landlord that shall prevail. It is also equally well settled that the word 'requires' means something more than an element of need but short of necessity.
E No.68/2014 (RC ARC no. 479440/2016) Kawaljeet Kaur Gandhi Vs. Satbir Singh Bindra Page of 16 of 24 In the case of Rup Lal Mehra Vs. Kamla Soni, 1966 (2) DLT 205, it has been observed by the Hon'ble High Court of Delhi as under:-
"6. .......So long as the landlord is able to estbalish that he in good faith and genuinely wishes to occupy the pemises in possession of the tenant and that good faith or genuiness is of a reasonable man, it would not be open to the Controller to weigh the claim of the landlord in a fine scale. Similarly, the suitablility of the other accommodation will also have to be decided from standpoint of a reasonable landlord."
26. In the present petition, since the petitioner no.2 has already expired, therefore, only the bonafide requirement of petitioner no.1 is to be looked into as to whether the same is made out or not. It is also pertinent to note here that even the husband of petitioner no.1 also expired during the pendency of the present petition. It is the case of petitioners that petitioner no.1 is a senior citizen approx. 74 years old (at the time of filing of the present petition), who is a permanent resident of Canada, but now she intends to shift to the tenanted premises because of her ailments and climatic conditions of Canada.
27. In respect of her medical condition, petitioner no.1/PW-1 has led into evidence the documents pertaining to her medical record (Ex. PW-1/9). Perusal of these medical documents reveal that the same are dated 07.12.2014 and 13.11.2014 and it has been stated therein that petitioner no.1 has had a history of having suffered a road traffic accident in the year 1993 resulting in fracture in her left leg and E No.68/2014 (RC ARC no. 479440/2016) Kawaljeet Kaur Gandhi Vs. Satbir Singh Bindra Page of 17 of 24 left knee damage due to which plates were inserted in her left leg and further, her left knee joint was repaired. Further, it is mentioned that the petitioner no.1 had been advised to avoid using stairs (without aid/attendant) or walk/long travel and preferably shift to ground floor on medical ground due to prevailing medical problems.
28. Although the present petition was filed in the year 2013 whereas the medical documents (Ex. PW-1/9) pertain to the year 2014, which is after filing of this petition, however, nothing has come in the evidence to suggest that these documents are false and manipulated or that petitioner no.1 had not suffered such injury in her left leg and knee. Even no such suggestion has been put to petitioner no.1/PW-1 during her cross examination by ld. counsel for respondent to the effect that the medical record (Ex. PW-1/9) is false and fabricated or that PW-1 is not suffering from such problem. Even otherwise, the fact that petitioner no.1/PW-1 was about 74 years old at the time of filing of the present petition is not disputed by the respondent. Petitioner no.1/PW-1 had also been appearing in person before the court during pendency of the proceedings of the present petition and it is evident that petitioner no.1 is a senior citizen. This court is of the view that the fact that petitioner no.1 is a senior citizen is in itself a genuine ground for her to shift to the ground floor for residence purpose. It is well known that old age brings old age ailments with it and knee/joint problems is the most common old age ailment which restricts the movement of old aged persons more specifically of climbing the stairs and in such circumstances the petitioner no. 1 cannot be expected to climb up the stairs upto third floor when she can E No.68/2014 (RC ARC no. 479440/2016) Kawaljeet Kaur Gandhi Vs. Satbir Singh Bindra Page of 18 of 24 have an accommodation at the ground floor.
29. Ld. Counsel for respondent has raised the contention that during pendency of the present petition, first floor and second floor of the suit premises were vacated and thus the requirement of petitioner no.1 got effaced. It is further contended that at least for the time being till the present petition was pending, the petitioner could have shifted to first floor or second floor in order to reduce her suffering/pain to some extent instead of climbing upto the third floor. That this shows that the requirement of petitioner no.1 is not bonafide. To this, it is contended by ld. Counsel for petitioners that the petitioners have already filed the present petition in respect of ground floor portion with all the hopes of succeeding therein and that petitioner no.1 would shift directly to the protion of tenanted premises instead of shifting again and again and because of this reason she did not shift during pendency of present petition either to the first floor or second floor. This court is of the view that in the present petition, the petitioner no.1 has specifically claimed her requirement for the ground floor premises for her residence and not for any other floor. Moreover, in this old age, petitioner no.1 cannot be expected of shifting again and again i.e. first at the first floor/second floor till the time the petition is pending and then on the ground floor if the petition is allowed. Further, this court is of the view that it is the tenant who is under the expectation that he may have to shift from the rented premises on one day or the other but the same is not the expectation of the owner of such a premises when he is residing in a property owned by him especially when he/she is old aged/senior citizen. Therefore, this court is of the view that even if E No.68/2014 (RC ARC no. 479440/2016) Kawaljeet Kaur Gandhi Vs. Satbir Singh Bindra Page of 19 of 24 the first floor and second floor of suit premises got vacated during pendency of this petition even then the same does not wipe out the bonafide requirement of the petitioner no.1 for the tenaned premises. Further, admittedly, presently, the petitioner no.1 is in occupation of only two shops on the ground floor of the suit premises which are shown with orange colour in the site plan Ex. PW-1/R-1. Evidently, the said area is not enough/sufficient for the residence purpose of any person.
30. Another contention raised by ld. counsel for respondent is that as per the petition itself, the petitioner is a permanent resident of Canada since the year 2006 and therefore, she does not have any intention of shifting back to Delhi and she has filed the present petition only to re-let the same at a higher rate of rent. In this regard, this court is of the view that it is not that petitioner no.1 has expressed her mere desire for shifting to Delhi rather she has explained that due to her medical condition and climatic weather of Canada, she wants to shift here. As already discussed hereinabove, the petitioner no.1/PW-1 has duly proved her medical condition and as far as the climatic condition in Canada is concerned then she has duly deposed in this regard in her affidavit of evidence Ex. PW-1/A but she has not been cross-examined in this regard by ld. counsel for respondent. Thus, it is not that the petitioner no.1 has made claims in the air or that it is a mere wish that she has expressed rather she has shown the basis for the same. It is not the case of the respondent that except the suit premises any other property is also owned by the petitioner no.1 in Delhi. Therefore, this court is of the view that if she intends to shift to E No.68/2014 (RC ARC no. 479440/2016) Kawaljeet Kaur Gandhi Vs. Satbir Singh Bindra Page of 20 of 24 Delhi in the suit premises on a ground floor premises then the respondent being a tenant cannot dictate that she has no intention of shifting to Delhi and further he cannot ask her to live at the first floor or second floor of the suit premises. Since a landlord is the best judge of his own requirements, therefore, it is for him to decide as to which premises is to be used by him for what purpose and a tenant cannot dictate terms in this regard to the landlord. In this regard, this court draws support from the decision of Hon'ble Supreme Court in case titled as Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta, (1999)6 SCC 222 wherein it has been held as under:-
14. "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 bonafide. 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 bonafides 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 E No.68/2014 (RC ARC no. 479440/2016) Kawaljeet Kaur Gandhi Vs. Satbir Singh Bindra Page of 21 of 24 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 bonafide 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."
31. This court further places reliance upon the decision in the case of "Sarla Ahuja Vs. United India Insurance Co Ltd.", AIR 1999 SC 100, wherein it was held by the Hon'ble Supreme Court as under:-
8. "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 bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the E No.68/2014 (RC ARC no. 479440/2016) Kawaljeet Kaur Gandhi Vs. Satbir Singh Bindra Page of 22 of 24 landlord could have adjusted himself."
32. Similarly, in the case of Atma S. Berar Vs. Mukhtiar Singh, Appeal (civil) no. 2898 of 2000 decided on 12.12.2002, it is held by the Hon'ble Supreme Court that if the landlord living in Canada for a number of years and having several kith and kin there wanted to shift with his wife in their old age to their own house in India to spend the last years peacefully in his motherland, his need is bonafide, genuine and reasonable. Merely because he had negotiated for sale of house to the tenant at some time, which fact he admitted and explained, does not show to the contrary.
33. Thus, placing reliance upon the aforecited decisions of Hon'ble Supreme Court, this court is of the view that in the given facts and circumstances of the present case, petitioner no.1 being the co-owner/co-landlord of the tenanted premises cannot be put to incovenience in her old age by asking her to reside/continue to reside either in Canada or on the upper floors of the suit premises.
34. As far as the apprehension of respondent that the petitioner no.1 wants to re-let the tenanted premises at a higher rate of rent is concerned, then he has the remedy available u/s 19 (2) of DRC Act in this regard whereunder he can apply for re-possession after eviction, under section 19 (2) of the Delhi Rent Control Act, if he finds that the petitioner no.1 is not using the tenanted premises for self-use.
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35. Thus, in view of the foregoing discussion, this court is of the view that the petitioners have fulfilled all the requirements of Section 14 (1) (e) of DRC Act and thus, have duly established their case. Therefore, in view of the aforesiad discussion, the present eviction petition u/s 14 (1) (e) of DRC Act is alowed and an eviction order is passed against the respondent with respect to the tenanted premises i. e. one shop bearing no. 3390-91, admeasuring 32'x8' and 14'x8' with one almirah which forms part and parcel of the suit premises more specifically shown in red color in the site plan annexed with the petition. However, in light of Section 14(7) DRCA, the eviction order shall not be executable for a period of six months from today.
No order as to costs.
File be consigned to record room after due compliance.
(Announced in an open Court).
On 19.09.2023 (PRAGATI) ARC-01, Central District, Tis Hazari Courts, Delhi E No.68/2014 (RC ARC no. 479440/2016) Kawaljeet Kaur Gandhi Vs. Satbir Singh Bindra Page of 24 of 24