Delhi District Court
Sh. O.P. Sachdeva vs Sh. Baldev Raj Kapoor on 11 April, 2013
IN THE COURT OF MS. CHARU AGGARWAL, CCJ-CUM-ARC (WEST),
TIS HAZARI COURTS, DELHI.
E-121/12
Sh. O.P. Sachdeva
S/o Late Sh. H. R. Sachdeva
R/o House No. 1, Road No. 81,
Punjabi Bagh West,
New Delhi-110 026.
.......... Petitioner
VERSUS
Sh. Baldev Raj Kapoor
M/s Kapoor Corner
House No. 1, Road No. 81,
Punjabi Bagh West
New Delhi-110 026.
.......... Respondent
AND E-120 /12 Sh. O.P. Sachdeva S/o Late Sh. H. R. Sachdeva R/o House No. 1, Road No. 81, Punjabi Bagh West, New Delhi -110 026.
.......... Petitioner VERSUS Sh. R. K. Gandhi S/o Late Sh. R. R. Gandhi R/o H. No. 3, Road No. 69, Punjabi Bagh, New Delhi.
Also at - Gandhi Medicine House House No. 1, Road No. 81, Punjabi Bagh West, New Delhi -110 026.
.......... Respondent
Date of institution : 26/10/2012
Date of decision : 11/04/2013
E-121/12 & E-120/12 O. P. Sachdeva Vs. Baldev Raj Kapoor AND O. P. Sachdeva Vs. R. K. Gandhi 1/11
ORDER ON LEAVE TO DEFEND APPLICATIONS
These are two eviction petitions filed by the petitioner against his two tenants namely Mr. Balraj Kapoor and Mr. R.K. Gandhi for their eviction from the suit shops in their respective occupation in the suit building bearing House No. 1, Road Number 81, Punjabi Bagh West, New Delhi. Their eviction is sought u/s 14 (1) (e) read with section 25 B of DRC Act, 1958 on the ground of bona fide need stating medical reasons.
2. Notice of these eviction petitions was sent to the tenants, respondents herein, in the prescribed format which was duly served on them. Both the respondents / tenants have filed their separate leave to defend applications along with their detailed affidavit setting out various grounds in their defence, which according to them raise number of triable issues. Both these leave to defend applications are within limitation and there is no dispute about the same. They are taken up together for decision by this Composite order as questions of facts and law involved for their decision are identical.
3. The petitioner has stated in the eviction petitions that he is the owner and landlord of the suit building. There are six shops in the suit building, two of them which are in possession of the respondents open on 100' wide road and the remaining four shops are stated to be in the lane and are stated to be in possession of other tenants doing petty business of selling juice and pan etc. The petitioner has reserved his right to take proceedings for eviction of his other tenants occupying shops in the lane. The present petitions have been filed against two tenants whose shops open on 10' wide road. The shop in possession of the respondent Baldev Raj Kapoor in (E-121/12) was let out for commercial purpose from where he is dealing in the business of grocery under the name and style of 'Kapoor Corner'. The present rent of the shop in his possession is stated to be Rs. 2000/- per month. The other shop in respect of which eviction petition has been filed is an adjoining shop and was let out by the E-121/12 & E-120/12 O. P. Sachdeva Vs. Baldev Raj Kapoor AND O. P. Sachdeva Vs. R. K. Gandhi 2/11 petitioner to the respondent of eviction case no. E-120/12 namely R.K.Gandhi in the year 1990 from where he is running a chemist shop under the name and style of 'Gandhi Medical House'. The present rent of the said shop is stated to be Rs. 2660/- per month.
4. It is stated by the petitioner that he is a 75 years old man and is doing business under the name and style of M/S Capital Map Company from premises bearing No.11-A, Prehlad Market, Ground Floor, Desh Bandhu Gupta Road, Karol Bagh, New Delhi. He is suffering from chronic diabetes and hypertension and had suffered a paralytic attack and had also undergone angioplasty in 2011. It is stated by him that because of these ailments he cannot undertake the stress of travelling a long distance of 11 Kms. every day between his residence at Punjabi Bagh and the business premises of Capital Map Company at Karol Bagh which takes minimum one hour in the morning and about one and a half hour in the evening for commuting. He wants to do his business of the firm Capital Map Company from his residence at Punjabi Bagh so that he remains in the continuous medical care and attention of his immediate family members including his only son Sandeep Sachdeva who is also looking after other business interests. The petitioner has further stated that his grandson is presently pursuing his studies and intends to join him for learning and assisting him in business so that in future he establish himself in his business. After eviction of the respondents from the suit shops, the petitioner shall combine both these shops and start using the same for the business of Capital Map Company. Hence, the petitioner has prayed for the summary eviction of the respondents from the suit shops.
5. The respondents in their separate leave to defend applications filed through two different advocates have questioned the alleged bonafide need of the petitioner. They have filed their detailed affidavits in support of grounds taken by them on which they seek to contest the present proceedings instituted against them. They both have taken a plea that although the petitioner had E-121/12 & E-120/12 O. P. Sachdeva Vs. Baldev Raj Kapoor AND O. P. Sachdeva Vs. R. K. Gandhi 3/11 suffered a paralytic attack in 2011but according to them he has come out of that paralytic problem and is quite mobile. According to the respondents the decease of diabetes and hypertension from which petitioner is allegedly suffering are common ailments almost most of the people suffer and these ailments by no means could impair or affect the mobility of the petitioner. It is further stated that even the angioplasty undertaken by the petitioner could not have any impact on his movements particularly for short distance between Punjabi Bagh and Karol Bagh. According to the respondents the distance between Punjabi Bagh and Karol Bagh is not more than 8 Kms. which hardly takes about 20 minutes in commuting.
The respondents have further stated in their leave to defend applications that the respondent is only a sleeping partner in the firm ' Capital Map Company' and has stopped going to its business premises at Karol Bagh for last more than five years. According to the respondents the business of "Capital Map Company' at Karol Bagh is being looked after by the petitioner's nephew Rakesh Sachdeva and the petitioner visit Karol Bagh only off and on to monitor the activities of his nephew. The respondents have further stated that the petitioner's son Sandeep Sachdeva is doing his independent business of printing and lamination from Naraina. He is also a dormant partner in the firm 'Capital Map Company' and run its office from the second floor of his factory at Naraina. As per the respondents, the petitioner has deliberately concealed from the court that the firm 'Capital Maps Company' owns in its name an industrial plot of 300 sq. Yds bearing No. B-62/6, Naraina Industrial Area, Phase-II, New Delhi. The said property is a built up property up to second floor. The ground floor of the said property is stated to be on rent and the first and second floorin the occupation of the petitioner's son Sandeep Sachdeva who is running his own business of printing and lamination in the name and style of PRINTECH INDIA along with the business of Capital Map Company. The firm Capital Map Company is stated to have its own well furnished office at Naraina from where the son of the petitioner operates the business of the said firm. It is contended E-121/12 & E-120/12 O. P. Sachdeva Vs. Baldev Raj Kapoor AND O. P. Sachdeva Vs. R. K. Gandhi 4/11 that the petitioner's son Sandeep Sacdeva cannot be around and attend in case of any medical emergency to the petitioner. The respondents have further disputed the alleged bona fide requirement of the petitioner for his grandson Ansh. It is stated that the petitioner's grandson Ansh is studying in 12th class and remains busy in tuitions/coaching and as such he cannot make any help to his father or grandfather. According to the respondents, the firm Capital Map Company has no intention to shift its office from Naraina and Karol Bagh to the residence of the petitioner. The respondents have prayed for grant of unconditional leave to them to contest the present proceedings and give them an opportunity to establish the mala fide on the part of the petitioner in filing of these petitions against them.
6. The petitioner has filed two separate replies to the leave to defend applications of the respondents and has disputed the assertions made by them in their leave to defend applications. In his reply, he has reasserted his bonafide requirement of the suit premises for himself and for his grand-son. Thereafter, both the respondents filed their rejoinder to the reply of the petitioner and reiterated, reasserted and reaffirmed their pleas taken by them in their leave to defend applications. According to the respondents the alleged bonafide need of the petitioner is whimsical and malafide. They have reasserted their prayer for grant of unconditional leave to them to contest the present eviction proceedings.
7. I have heard the arguments advanced by the learned counsels for all the parties and have also gone through their pleadings and the documents filed by them on record.
8.. The ld. Counsel appearing on behalf of the petitioner has referred to and relied upon the pleadings of the petitioner in the eviction petition as also in his reply to the leave to defend application to contend that the petitioner has made out a clear case for the bonafide need of the suit shops required by him for doing his business of Capital Map Company for medical reasons from his residence at Punjabi Bagh and also for training his grandson in the family E-121/12 & E-120/12 O. P. Sachdeva Vs. Baldev Raj Kapoor AND O. P. Sachdeva Vs. R. K. Gandhi 5/11 business.. The ld Counsel for the petitioner has argued that it is not for a tenant to dictate the terms to the landlord as to how and in what manner he should adjust himself. According to the Ld. Counsel, the landlord is the best judge of his requirement for residential or business purpose and he has got complete freedom in the matter and even the courts cannot dictate or prescribe for the landlord as to how and which particular premises he should use for his or her need. The judgments in support of the said contention on which reliance is placed by the petitioner's ld. Counsel are (i) Prativa Devi Vs Krishnan, (1996) 5 SCC 353; (ii) Sarla Ahuja Vs United India Insurance Company Ltd., AIR 1999 SC 100; (iii) K.K.Ohri Vs Dr. Balraj Seth & Ors, 82 (1999) DLT 906; (iv) Raghvendra Kumar Vs Firm Prem Machinay & Co., (2001) 1 SCR 77; (v) Deep Chandra Juneja Vs Smt Lajwanti Kathuria (Dead) through LRs, AIR 2008 SC 3095 and (vI) Smt. Sudesh Kumari Soni Vs Smt Prabha Khanna & Anr., 153 (2008) DLT 652.
9. On the other hand, the Ld Counsels appearing on behalf of the respondents have submitted that their respective leave to defend applications raise several disputed questions of facts which according to them necessarily need a trial. It was argued that the petitioner has deliberately concealed from the court that the firm Capital Map Company for whose need is projected in these petitions owns an industrial plot of 300 sq. Yds in its name at Naraina which is built up to second storey and the firm Capital Map Company has its own well furnished office in the said building at Naraina. It was further argued that the petitioner also did not disclose the constitution of the afore mentioned firm or the nature of business carried on by the said firm so as to assess the alleged bona fide need of the petitioner. According to the Ld. Counsels appearing on behalf of the respondents the petitioner is not suffering from any such ailment which might restrict his movements or prevent him from attending to his business either at Karol Bagh or at Naraina. It was urged that the petitioner is only a sleeping partner in the firm and hardly goes once in a while at Karol Bagh in connection with his business. The petitioner has also not E-121/12 & E-120/12 O. P. Sachdeva Vs. Baldev Raj Kapoor AND O. P. Sachdeva Vs. R. K. Gandhi 6/11 disclosed the plot area or constructed area in his property either at Punjabi Bagh or at Karol Bagh to have a fair estimate of his requirement, if any. As far as need projected by the petitioner for joining and training his grandson is concerned, the argument was that the grandson is still pursuing his studies of 12th class and remains busy in tuitions/coaching and he cannot afford to sacrifice his studies and join the business during his minority. It was urged that even otherwise the responsibility of grandson is that of his father and if at all he is to be trained in family business, he can do it from Naraina office where his father has a well furnished office. The Ld. Counsels have argued that there are several disputed facts on material aspects for the proving of which the respondents are entitled to unconditional leave to contest the present proceedings and a prayer was accordingly made by them. The submission was that in case an opportunity is granted to the respondents to lead evidence, they would prove their contentions and the same will non suit the petitioner.
10. This court has given its anxious thought to the above rival contentions urged by the counsels for the parties. In my considered opinion the respondent has made out a strong prima facie case for grant of unconditional leave to them for defending the present eviction proceedings. The law is well settled that each case depend on its own facts. The precedents are helpful and lay down broad proposition of law in a given factual matrix of a particular case. There can hardly be any dispute with the proposition of law urged on behalf of the petitioner that it is not for the tenant to suggest or dictate to his landlord as to how and in what manner he should use his property. Therefore, this court does not consider it necessary to discuss the judgments on the point referred hereto above on which reliance is placed by the petitioner's Ld. Counsel. However, for a landlord to succeed on the ground of bonafide need, he has to prove not only his requirement of the suit premises but also the fact that he does not have any other suitable alternative accommodation for such need. It is only on proof of this twin condition his requirement may qualify as 'bonafide'. In the present case the petitioner along with his family is residing in the suit E-121/12 & E-120/12 O. P. Sachdeva Vs. Baldev Raj Kapoor AND O. P. Sachdeva Vs. R. K. Gandhi 7/11 property. Neither the details of the petitioner's family living with him nor the extent of accommodation available in the suit property at Punjabi Bagh is not disclosed by the petitioner. The nature and volume of business carried on by the firm Capital Map Company is also not disclosed. Admittedly, the firm Capital Map Company is doing its business from Desh Bandhu Gupta Road, Karol Bagh, New Delhi. The extent of accommodation available with the firm at Karol Bagh is also not disclosed. The petitioner has concealed from the court that the firm M/S Capital Map Company also owns an industrial plot of 300 sq. Yds. at Naraina which is built up to second floor and that son of the petitioner namely Sandeep Sachdeva is doing his independent business of Printing and lamination from its first floor and that he also has a well furnished office of the firm Capital Map Company at Naraina. The case of the petitioner is that because of his old age ailments he cannot bear the stress of commuting long distance between his residence at Punjabi Bagh and office of the firm at Karol Bagh and now wants to do his business from his residence so that in case af any emergency he may get the immediate care and attention of his family members. The petitioner has not given the details of his family members on whom he is allegedly looking for to take care for him. Moreover, the case of the respondents in their leave to defend applications is that the petitioner is only a sleeping partner in the firm and has stopped going to Karol Bagh for attending the business of the said firm for the last five years and therefore his alleged bona fide need is only imaginary, make belief, vexatious and not a genuine one. A perusal to the copies of statement of accounts/income tax returns of the firm placed on record would show that the firm Capital Map Company is a partnership firm comprising of three partners namely the petitioner with 30% share, his son Sandeep Sachdeva with 20% share and nephew with 50% share. The plea of the respondents taken by them in their leave to defend applications that the day to day affairs of the business Capital Map Company are being looked after by the petitioner's nephew Rakesh Sachdeva who has 50% share in the partnership business and that the petitioner has stopped attending to the business of the said firm at Karol Bagh for last about five years E-121/12 & E-120/12 O. P. Sachdeva Vs. Baldev Raj Kapoor AND O. P. Sachdeva Vs. R. K. Gandhi 8/11 cannot be said to be without substance at this stage. Furthermore, this court is of the view that as the petitioner has not placed any prescription or certificate from any doctor to prima facie show that his alleged ailments have in any manner impaired his mobility that completely prevent him from commuting even short distances between Punjabi Bagh and Karol Bagh or Naraina. It is not the case of the petitioner that he wants to close down his business run in the name of Capital Map Company from Karol Bagh and Naraina and shift it to his residence at Punjabi Bagh. At best the petitioner wants additional accommodation to have an additional office of the firm at his residence and this additional need of the petitioner cannot be assessed in the absence of disclosure of extent of accommodation available with him at Punjabi Bagh.
11. In Sukhdev Raj Sharma Vs. Kuldeep Singh Jass, reported in RCR March 2013 part on page 341, it was held by the Hon'ble Delhi High Court as under:
"........... The plea of bonafide requirement, which is a state of mind, needs to be determined in the sense as to whether the same is genuine or authentic. I may not be taken as saying that a landlord cannot require tenanted premises for expansion of his business or even for additional accommodation for residence or business, or that he is not the master of his decisions and choices, and further that the tenant and the Court can dictate terms upon him. This all needs to be satisfied by examining, evaluating and adjudicating that his projected requirements are not only his wishes and desires to evict the tenant ands to deprive him of the statutory protection at the threshold. Wherever the tenant is able to make out a prima facie triable issue, he is required to be protected at least till the time the landlord is able to prove his bonafide requirement, after opportunity is afforded to the tenant to test the same."
12. Applying the ratio of law laid down in the above noted judgment to the facts of the present case, it may be noted that the petitioner claims that he is actively involved in the business being carried out by Capital Map Company.
E-121/12 & E-120/12 O. P. Sachdeva Vs. Baldev Raj Kapoor AND O. P. Sachdeva Vs. R. K. Gandhi 9/11 The office of the Capital Map is at Karol Bagh and petitioner has to travel from his house at Punjabi Bagh to his office at Karol Bagh. Petitioner is suffering from various ailment, therefore he is not in position to travel such a long distance from Punjabi Bagh to Karol Bagh. This fact is disputed by the respondents. Both the respondents stated that firstly the petitioner is not suffering from such a decease that he cannot move, secondly they have stated that the petitioner is not actively involved in business but he off and on go to his office at Karol Bagh. They have also stated that the business of Capital Map is looked by petitioner's nephew namely Rakesh Sachdeva. It is also pointed out by the respondents that son of the petitioner has his independent office of Capital Map at Naraina. Petitioner has no where disputed this fact that his son has independent office of Capital Map at Naraina and also had not disputed that property of Naraina is owned by them. In my view, the fact whether the petitioner is actively involved in the business of Capital Map or not can be decided by the Court only after evidence. In the same manner even the effect of availability of alternative accommodation at Naraina which the petitioner has not disclosed in the petition and having been disclosed by the respondents in their leave to defend application can be decided only on the basis of evidence for which opportunity need to be given to the parties. Respondent Sh. R. K. Gandhi has also disclosed that grand-son of the petitioner for whom petitioner is seeking eviction is minor and studying in class 12th. In reply to leave to defend application, petitioner has no where disputed this fact that his grand-son is minor and in class 12th.
13. The case of the petitioner before me is one of additional accommodation for setting up an additional office from the suit property. In Santosh Devi Soni Vs. Chand Kiran, reported in 2000 (2) RCJ 579 (SC), it was held that the tenant should ordinarily be granted leave to defend in the cases of requirement of tenanted premises as additional accommodation.
E-121/12 & E-120/12 O. P. Sachdeva Vs. Baldev Raj Kapoor AND O. P. Sachdeva Vs. R. K. Gandhi 10/11
14. In the facts and circumstances of the case noted herein above, this court is of the considered opinion that if an eviction order in respect of the suit premises is passed straightway ignoring the pleas taken by the respondents / tenants in their leave to defend applications, then it may amount to travesty of justice with the respondents who are in possession of the suit shops doing business there for a long time.
15. For the foregoing reasons, the leave to defend application filed by both the respondents are allowed and they are hereby granted unconditional leave to contest the present petition on all such grounds as may be available to them in law. It is made clear that nothing observed herein shall influence the trial and final decision of the case on merits.
Dated:-11/04/2013 (Charu Aggarwal)
Announced in the open Court. CCJ-cum-ARC (West)
Room No. 139, Tis Hazari Courts
Delhi.
E-121/12 & E-120/12 O. P. Sachdeva Vs. Baldev Raj Kapoor AND O. P. Sachdeva Vs. R. K. Gandhi
11/11