Delhi District Court
Sushila Devi Jain vs Rajinder Kumar Gupta on 6 July, 2020
IN THE COURT OF SH. SUSHANT CHANGOTRA
RENT CONTROLLER (SOUTH)
SAKET COURTS, NEW DELHI
RC ARC 6037/16
Sushila Devi Jain
W/o Late Om Prakash Jain
Through her Power of Attorney Holder
Sh. Devendra Kumar Jain
R/o 12B, Yusuf Sarai, New Delhi16
.......... Petitioners
Versus.
Rajinder Kumar Gupta
Proprietor: M/s Kishan Lal & Sons
S/o Late Sh. Kishan Lal Gupta
R/o N18, Green Park Extension,
New Delhi16
..........Respondent
PETITION UNDER SECTION 14(1) (E) READ WITH SECTION 25
B OF DELHI RENT CONTROL ACT, 1958
Date of Institution of the petition : 19.08.2013
Date of Pronouncement of Judgment : 06.07.2020
JUDGMENT
1. The petitioner Smt. Sushila Devi Jain has filed the present petition RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 1 of 44 for eviction of respondent on the ground that she is 87 years of age and she requires the demised premises for the bonafide need of starting a new business of her grandson namely Sh. Shubham Jain.
2. The petitioner has pleaded that her husband Sh. Om Prakash Jain was the landlord/owner of the rented premises i.e. shop bearing private no. 2 of premises bearing no. 12/3, Yusuf Sarai, Main Market, New Delhi measuring 10 x 45 feet. After his death, petitioner became the owner of the same and the present petition has been filed by her through her attorney. The demised premises was let out to the father of respondent namely late Sh. Kishan Lal Gupta and after his death, the respondent became the occupant of the premises in question.
3. The petitioner further pleaded that she is suffering from various ailments like hypertension and heart disease, therefore, it is difficult for her to come from Kolkata to take care of her properties situated in Delhi. Hence, she has executed special power of attorney in favour of her son namely Sh. Devinder Kumar Jain to file the present case. Now, she wants to settle her grandson before her last breath.
4. The grandson of petitioner namely Sh. Shubham Jain is 26 years old and has completed his BBA and CA. He is finding it difficult to get a job and has decided to start his own office as he has articleship experience and has also undergone the mandatory computer course to start his own RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 2 of 44 practice. He needs office space to establish practice as it will be very difficult for him to pay the rent at the initial stages of his career. The area around the shop in question is surrounded by commercial establishments, hence it will be easy for him to fetch some clients from the area. The said grandson of the petitioner is dependent upon the petitioner for the purpose of starting his business as the son of petitioner are also not having alternative shop in order to establish him in the business.
5. The petitioner as well as her sons do not have any other commercial property in Delhi in their name except the demised premises. Therefore, the petitioner wishes to settle her grandson during her lifetime who is unemployed. Hence, the prese eviction petition.
6. In response to the aforesaid petition, respondent filed application u/s 25B (4) of DRC Act for grant of leave to defend, which was allowed by the Ld. predecessor of this Court vide order dated 26.08.2015.
7. Subsequently, respondent filed his written statement and took preliminary objections. He pleaded that the present petition has been filed in view of the judgment of Hon'ble Appex Court in Satyawati Sharma Vs. Union of India which has been referred to a larger bench. The respondent has also pleaded that petition has not been signed and verified in accordance with mandatory provision of law. The site plan annexed alongwith petition is false. The petitioner is guilty of concealment of RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 3 of 44 relevant facts. The grandson for whose need the present petition has been filed, is not the member of family of petitioner nor he is dependent upon the petitioner. The said grandson namely Sh. Shubham Jain is still not qualified as Chartered Accountant and is therefore not in position to set up his independent practice. The intention for filing the present eviction petition is malafide and the petitioner is intending to extort money from the tenant in one form or another. The petitioner intends to rebuild the premises so as to convert it into mini market for renting it out at escalated rent. The first floor of the demised premises is lying unused and unoccupied for the last 4 years. There are disputes and differences amongst the progeny of the petitioner, therefore, petitioner cannot earmark any specific portion for anybody till the estate of petitioner and / or her late husband is not amicably partitioned or the family disputes are resolved by the competent court.
8. On merits, the respondent pleaded that petitioner i.e. landlady Smt. Sushila Devi Jain had been acknowledging receipt of rentals paid to her by the respondent by mentioning the address of premises as 12/3, Main Market, Yusuf Sarai Aurbindo Marg. Therefore, it is wrong to say that the shop bears private number 2. The respondent further pleaded that husband of the landlady namely Sh. Om Prakash Jain was the landlord qua the premises in suit. He died more than a decade ago and left a large family including landlady Smt. Sushila Devi Jain. After his death, the respondent RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 4 of 44 out of sheer precaution had started paying rent to landlord's wife/ widow Smt. Sushila Devi Jain. The respondent is not aware of the names of the natural heirs and legal representative of deceased Sh. Om Prakash Jain.
9. The respondent also admitted that his father Sh. Kishan Lal Gupta was the tenant in the ground floor of the building i.e. bearing no. 12/3 and 12/4, Main Market, Yusuf Sarai as single tenancy. After the death of Sh. Kishan Lal Gupta, the tenanted premises were split up into two parts namely 12/3 and 12/4, Main Market, Yusuf Sarai, Delhi. The respondent also pleaded that the landlady i.e. petitioner kept avoiding receiving of rent due to which the respondent was constrained to deposit the rent in court by way of proceeding under section 27 of DRC Act. The rent was deposited for the last time vide DR no. 125/12 which was decided vide order dated 08.02.2013. The respondent also tendered rent for the last time alongwith letter dated 01.09.2015.
10. The respondent further pleaded that the contents of petition to the extent that petitioner is owner/ landlady is belied by the contents of para no. 12 A and 12 B of the petition as the petitioner is not aware of the details of the property and she has not been paying the house tax.
11. The respondent denied that petitioner is 87 years of age as well as the fact that she is unable to come to Delhi. He also denied the execution of attorney by her. The respondent also denied that petitioner wants to RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 5 of 44 settle her grandson in the demised premises. The respondent pleaded that the entire first floor of the property measuring 900 sq. ft. is lying vacant and unoccupied. As per master plan of Delhi, 2021, the main road on which the demised premises is situated has been declared commercial and there is no prohibition for carrying out any commercial work from any portion of the premises.
12. The respondent also denied that grandson of petitioner is unemployed and pleaded that he is still a student and the plea setup is false. The respondent also denied that Sh. Shubham Jain is dependent upon the petitioner. He pleaded that the father of Sh. Shubham Jain namely Sh. Rajinder Kumar Jain owns half of the undivided interest in the immovable property bearing no. 4891/IX (old) plot no. 103, Bharat Ram Road, Daryaganj, which is a prime accommodation for professional and residential purpose. Sh. Rajinder Kumar Jain is actually and voluntarily living and working from there. The remaining half portion of said plot is owned and possessed by Smt. Shalini Jain, who the respondent believes to be either a close relative or business associate of Sh. Rajinder Kumar Jain. The said property is constructed on land measuring 200 sq. yards. It is a prime commercial accommodation meant for professional purposes which is just few meters away from commercial markets of Daryaganj.
13. The respondent pleaded that petitioner is settled in Kolkata and her RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 6 of 44 two sons namely Sh. Rajinder Kumar Jain and Devinder Kumar Jain are carrying on their separate businesses in Delhi. They are not dependent upon petitioner and they possess more than reasonable suitable accommodation in Delhi. Sh. Devinder Kumar Jain is living on 2 nd Floor of the building and he is carrying on business with name and style of M/s Jyoti Enterprises at 1892/6, Hari Ram Electrical Market, Bhagirath Palace, Chandni Chowk, Delhi and his son namely Sh. Vaibhav Jain is his business partner. Moreover, Sh. Rajinder Kumar Jain i.e. son of petitioner also owns immovable property bearing no. 1056, Gali Hira Nand, Marliwara, Chandni Chowk, Delhi. He also came in possession of a palatial building at F7/1, Arjun Market, DLF, Phase1, Gurgaon which is a double story building on land measuring 225 sq. meters. The said property is lying vacant and can be used for himself/ his wife and children. The sons and grandsons of petitioner own and possess suitable alternative accommodation for their own use and occupation.
14. The respondent also pleaded that a few years ago, the respondent had seen Sh. Rajinder Kumar Jain discussing structural matter qua the tenanted premises with Sh. Bhram Singh who is a leading builder and estate agent of Yusuf Sarai and adjoining areas for the development of building in reference. The respondent has confirmed from the Institute of Chartered Account at New Delhi that Sh. Shubham Jain is not a CA. As per records of the institute, he is now undergoing his studies for completing his RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 7 of 44 Chartered Accountancy and is presently employed as Senior Associate with M/s Accenture an Information Technology company. Thus, he prayed that petition may be dismissed.
15. The petitioner filed rejoinder to the written statement and thereby denied the averments of written statement and reasserted the contents of petition. The petitioner pleaded that the tenancy was split after the death of original tenant late Sh. Kishan Lal Gupta. The other upper floors of the building are used for residential purpose and the electricity bills are also of domestic category. The petitioner also pleaded that she became the owner of suit property by virtue of registered relinquishment deed executed by other legal heirs of late Sh. Om Prakash Jain. The petitioner pleaded that the respondent has no right to remain in the demised premises as per Section 2 of Delhi Rent Control Act, 1958 as after the death of late Smt. Sarbati Gupta W/o Late Sh. Kishan Lal Gupta the respondent is illegal occupant in the suit shop.The upper floors of the suit premises including the first floor are occupied by the petitioner/ her son and his family members. She denied that she wants to reconstruct a commercial complex on the plot.
16. After completion of pleadings, matter was fixed for petitioner's evidence. Petitioner Smt. Sushila Devi Jain stepped into the witness box as PW1. She tendered her affidavit Ex. PW1 and relied upon documents RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 8 of 44 Ex. PW1/A to PW1/E. She was partly crossexamined by the ld. Counsel for respondent on 15.02.2017. Thereafter, on the next date, she did not turn up. The ld. Counsel for petitioner stated that she was 93 years of age and due to her old age she was unable to recollect the facts, therefore he dropped her as witness. Thereafter, the attorney of petitioner i.e. sh. Devinder Kumar Jain appeared as PW2. He tendered his affidavit Ex. PW2/1 and relied upon documents Ex PW1/A to PW1/D and Ex. PW1/F. He was crossexamined at length by the ld. Counsel for respondent. Thereafter, attorney of petitioner closed PE on 08.11.2017.
17. The respondent appeared as RW1. He tendered his affidavits Ex.RW1/X and RW1/Y. He was also crossexamined by the ld. Counsel for petitioner. Then, respondent closed RE on 09.10.2019.
18. I have heard the arguments of ld. counsel for petitioners and also of the counsel for respondent. I have also gone through the written submissions, judgments relied upon by both the parties and evidence on record very carefully.
19. The present petition has been filed under section 14 (1) (e) DRC. It is reproduced below: "Section 14 (1) (e): Notwithstanding anything to the contrary contained in any other law or contract, no order of decree for the recovery of possession of any premises shall be made by any court or Controller in RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 9 of 44 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 let for residential purposes are required bona fide by the landlord for occupation as a residence 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 reasonable suitable residential accommodation."
20. In order to succeed in the case u/s 14 (1) (e) of DRC Act, the petitioner is required to prove the following ingredients:
(a) Ownership in respect of tenanted premises;
(b) Relationship of landlord and tenant between the parties;
(c) Petitioner requires the tenanted premises for his bonafide need and necessity or necessity of her family members;
(d) Petitioner does not have any other alternative accommodation with him/her.
21. Before adverting to the aforementioned aspects, it is necessary to deal with the submissions of ld. Counsel for respondent with respect to RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 10 of 44 technical aspects relating to maintainability of suit. They are discussed as follows:
(I) Power of attorney being invalid:
22. The present petition has been filed by Smt. Sushila Devi Jain through her son and attorney Sh. Devinder Kumar Jain. The attorney holder of the petitioner i.e. PW2 Devinder Kumar Jain tendered the aforementioned special power of attorney as Ex. PW1/A. The contention of the ld. Counsel for respondent is to the effect that the date mentioned in the body of the attorney is 04.06.2013, whereas it bears the date of attestation as 05.06.2013 and PW2 in his crossexamination failed to tell whether it was executed on 04.06.2013 or 05.06.2013.Therefore, the power of attorney has not been executed as per law.
23. In 'Texmaco Limited Vs. Union of India', CS (OS) No. 1439/1991, decided on 28.01.2013, the Hon'ble High Court of Delhi held that, "The power of attorney is authenticated by a Notary Public under Section 85 of the Indian Evidence Act, 1872 which reads as under:
85. Presumption as to powersofattorney.The Court shall presume that every document purporting to be a powerofattorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, [Indian] Consul or ViceConsul, or representative of RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 11 of 44 the [Central Government], was so executed and authenticated.
Under the above provision of law, it is clear that the Court is bound to presume that the power of attorney executed and authenticated by a Notary Public was duly executed and authenticated. In other words, there is a presumption of valid execution and authentication of the power of attorney. The burden immediately shifts to the party, who is objecting, to prove that the power of attorney was not duly executed and authenticated."
24. In light of the aforementioned proposition of law, a strong presumption is raised in favour of power of attorney Ex. PW1/A. Therefore the onus shifted upon the respondent to establish that the document is fraudulent.The said onus could not have been discharged merely on the basis that there is difference in date in the content of the body and the date when the notary had attested it. The aforementioned fact in no way leads to inference that the executor and the attesting witnesses had not signed in the presence of the notary.
25. Hence, I do not find any force in the aforementioned contention of ld. Counsel for respondent.
(II) Defect in Verification of the Petition:
26. The ld. Counsel for respondent argued that the verification does not bear the date on which it was done, therefore, the petition is liable to be RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 12 of 44 dismissed.
27. The perusal of petition shows that date on which the petition was verified and signed has not been mentioned in it. In 'Kailash Singh vs Hiralal Dey', Civil Revision No. 17/1987 decided on 30.03.1993, it has been held by the Hon'ble High Court of Gauhati that, " I am of the opinion that the expression "any error, defect or irregularity in any proceeding in the suit" will also include signing and verification of the plaint as laid down in Rules 14 and 15 of Order 6, C.P.C. In this connection attention of this court has been drawn by Mr. Sarma to a decision of the Punjab and Haryana High Court in Smt. Mukhtiar Kaurv. Smt. Ghulab Kaur, AIR 1977 Punj & Har 257. In that case, the plaint and the verification was not signed by the plaintiff, but by his lawyer. But the plaintiff in the witness box supported all the averments made in the plaint. The court observed that the counsel for the plaintiff was presumed to be acquainted with the facts of the case. So, the verification of the plaint made by him can be accepted. Moreover, it is a defect which only amount to an irregularity and can be ignored for rejecting the plaint. It was also held that legal position is that want of verification has not the effect of making the plaint void and it merely amounts to an irregularity. Regarding signing of the pleadings although the High Court recorded that decisions are not uniform, the prominent view is that irregularity in signature of a plaint is a mere defect of procedure and does not affect the jurisdiction of the Court."
RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 13 of 4428. The error in the verification is only w.r.t fact that date of verification is missing. The aforementioned error is only a clerical error which does not go to the root of the controversy. Now, no purpose will be served by giving the petitioner the opportunity to mention the date on the petition. In view of the aforementioned proposition of law, it is clear that on the basis of such error which the petition cannot be nonsuited, specially when the accompanying affidavit has been annexed alongwith petition.
29. Therefore, I do not find force in the argument of ld. Counsel for respondent that petition must be dismissed on this ground.
(III) The Present Petition is for Partial Eviction:
30. It is the admitted case that the demised premises bearing no. 12/3, Yusuf Sarai Main Market, Aurbindo Marg, New Delhi was originally a part of larger shop. It was rented out to Sh. Kishan Lal Gupta and after his death, the respondent and his brother bifurcate the said shop into two portion i.e. shop bearing no. 12/3 and shop bearing no. 12/4 respectively.
31. The ld. Counsel for respondent has argued that the site plans filed by the petitioner i.e. Ex. PW1/B and Ex. PW1/C are erroneous. The measurements of the demised premises have not been clearly mentioned therein and site plan Ex. PW2/R1 depicts the actual structure of the demised premises.
RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 14 of 4432. I have considered the submissions and gone through the record. Though PW1 had tendered the site plans Ex. PW1/B and Ex. PW1/C by specifying the measurements of shop in dispute as 10 x 45 feet, but in his crossexamination, PW2 also deposed that he was never allowed to enter in the demised premises and he was not sure about the existing structure of the premises. The site plan filed by respondent was put to PW2 Sh. Devinder Jain and it was also exhibited as Ex. PW2/R1. However, PW2 Devinder Jain had only deposed that since the shop in dispute is adjacent to the staircase, therefore, the site plan is correct. Since, PW2 did not have any occasion to enter inside the shop in question, therefore, he could not have known about the exact measurement of the same.
33. On the contrary, the respondent in his crossexamination conducted on 07.08.2019 deposed that shutters of his shop and his adjoining shop i.e. shop bearing no. 12/4 open towards the Aurbindo Marg and the backside walls of both the shops are towards the Mandir Wali Gali. He also deposed that the demised premises is identifiable by property bearing no. 12/3, Yusuf Sarai Main Market and that of adjoining shop in possession of his brother by shop bearing no. 12/4, Yusuf Sarai, Main Market. In the written statement as well it has been pleaded that shop of the respondent is 12/3 and the adjacent shop is bearing no.12/4 and both the said shops were part of one shop originally.
RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 15 of 4434. To my mind, the statement of respondent in crossexamination not just casts doubt qua the authenticity of the site plan of respondent i.e. Ex. PW2/R1, but it also categorically establishes that the demised premises is clearly identifiable by its property number. In such circumstances, it cannot be said that the petitioner is seeking partial eviction of the tenanted premises because the petition is for eviction of tenant from shop no. 12/3, Yusuf Sarai Main Market, Aurbindo Marg, Delhi.
35. Hence, I also do not find force in the aforesaid argument of the ld. Counsel for respondent.
36. Now, I will come to the main ingredients which were required to be established and have been mentioned as above.
RELATIONSHIP OF LANDLORD AND TENANT BETWEEN THE PARTIES.
37. In the present case, the petitioner has pleaded that after the death of original tenant Sh. Kishan Lal Gupta, the respondent became occupant of the demised premises. Thereafter, the respondent admitted the petitioner to be landlady and categorically pleaded that Smt. Sushila Devi Jain i.e. petitioner had been issuing receipts with respect to demised premises. He also went on to plead that he had filed petition under Section 27 of DRC Act against the petitioner for depositing of rent because she was ignoring RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 16 of 44 to receive the same. Interestingly, thereafter in para 5 of rejoinder, the petitioner pleaded that after the death of original tenant Sh. Kishan Lal Gupta, his wife namely late Sh. Sarbati survived him and after her death the respondent does not have right to remain in the demised premises as per section 2 of DRC Act. Therefore, in the rejoinder, the petitioner has infact pleaded that the respondent is not the tenant in the demised premises.
38. It is an interesting case where on the one hand petitioner asserts the respondent to be the tenant, but at the same pleads that he does not have any right of tenancy. On the other hand, the respondent though admitted relationship of landlord and tenant in the written statement, but has argued that petition is not maintainable.
39. It is settled proposition of law that the pleadings have to be read in totality. The existence of tenancy is a mixed question of fact and law. In the light of given facts and circumstances, it is imperative to go through the definition of tenant given in Section 2 (l) of the DRC Act. It is reproduced below: "tenant" means any person by whom or on whose account or behalf the rent of any premises is, or, but for a special contract, would be, payable, and includes
(i) a subtenant;
RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 17 of 44(ii) any person continuing in possession after the termination of his tenancy; and
(iii) in the event of the death of the person continuing in possession after the termination of his tenancy, subject to the order of succession and conditions specified, respectively, in Explanation I and Explanation II to this clause, such of the aforesaid person's
(a) spouse,
(b) son or daughter, or, where there are both son and daughter, both of them,
(c) parents,
(d) daughterinlaw, being the widow of his predeceased son, as had been ordinarily living in the premises with such person as a member or members of his family up to the date of his death, but does not include. ...
40. The complete perusal of pleading and evidence show that the petitioner had filed the petition on the assertion that respondent is a tenant in the demised premises and he has been paying the rent to the petitioner after the death of his father. The respondent in the pleadings as well as in the evidence also admitted that he is paying the rent to the petitioner after the death of original landlord namely Sh. Om Prakash Jain. Therefore, it is RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 18 of 44 an admitted case of both the parties that the respondent is paying the rent to the petitioner as landlady and not in any other capacity.
41. Moreover, the plea taken in the rejoinder is that after the death of the original tenant Sh. Kishan Lal Gupta, his wife survived him and therefore, the tenancy got terminated with her death. However, it is neither the case of petitioner nor of the respondent that the tenancy of Sh. Kishan Lal Gupta was terminated during his lifetime. Section 2 (l) of D.R.C.Act, would have come into operation only if the tenancy of Sh. Kishan Lal Gupta had been terminated during his lifetime. Since it is not the case of either of the parties that the tenancy of Sh. Kishan Lal Gupta had been terminated during his lifetime, therefore, even as per averments in the rejoinder the respondent is not covered in the definition of Section 2 (l) (iii) of DRC Act and as such the widow of Sh. Kishan Lal Gupta did not inherited exclusive tenancy as per DRC Act.
42. In Suresh Kumar Kohli Vs. Rakesh Jain (2018) 6 SCC 708, it has been held that, "The situation is very clear that when original tenant dies, the legal heirs inherit the tenancy as joint tenants and occupation of one of the tenant is occupation of all the joint tenants. It is not necessary for landlord to implead all legal heirs of the deceased tenant, whether they are occupying the property or not. It is sufficient for the landlord to implead either of those persons who are occupying the property, as party. There RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 19 of 44 may be a case where landlord is not aware of all the legal heirs of deceased tenant and impleading only those heirs who are in occupation of the property is sufficient for the purpose of filing of eviction petition. An eviction petition against one of the joint tenant is sufficient against all the joint tenants and all joint tenants are bound by the order of the Rent Controller as joint tenancy is one tenancy and is not a tenancy split into different legal heirs."
43. Thus, as per operation of law even the respondent is a tenant of the petitioner. Further, it is also settled proposition of law that there is no estoppal against law. In Dr. H.S. Rikhy etc. Vs. The New Delhi Municipal Committee, AIR 1962 SC 554; M.I. Builders Pvt. Ltd. Vs. Radhey Shyam Sahu & Ors., (1999) 6 SCC 464; Shish Ram & Ors. Vs. State of Haryana & Ors., (2000) 6 SCC 84; Chandra Prakash Tiwari & Ors. Vs. Shakuntala Shukla & Ors., (2002) 6 SCC 127; I.T.C. Ltd. Vs. Person Incharge, AMC, Kakinada & Ors., AIR 2004 SC 1796; State of U.P. & Anr. Vs. Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti & Ors., (2008) 12 SCC 675; and Sneh Gupta Vs. Devi Sarup & Ors., (2009) 6 SCC 194), it has been held that promissory estoppel does not apply against the Statute. It has been held that, "(The Adminstration) only corrected a patent mistake which could not be permitted to subsist.......... A contract in violation of the mandatory provisions of law RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 20 of 44 can only be read and enforced in terms of the law and in no other way. The question of equitable estoppel does not arise in this case because there can be no estoppel against a statute.
There can be no estoppel/promissory estoppel against the Legislature in the exercise of the legislative function nor can the Government or public authority be debarred from enforcing a statutory prohibition. Promissory estoppel being an equitable doctrine, must yield when the equity so requires."
44. Since, the factum of existence of tenancy in favour of respondent governed as per law, therefore, incorrect averment of petitioner also cannot operate as estoppel against herself.
45. In Sarva Shramik Sangh Vs. Indian Oil Corporation Ltd. (2009) 11 SCC 609, the Hon'ble Supreme Court held that, "The assumption that there is an absolute bar on inconsistent pleas being taken by a party, is also not sound. What is impermissible is taking of an inconsistent plea by way of amendment thereby denying the other side, the benefit of an admission contained in the earlier pleading. Mutually repugnant and contradictory pleas, destructive of each other may also not be permitted to be urged simultaneously by a plaintiff/petitioner. But when there is no inconsistency in the facts alleged, a party is not prohibited from taking alternative pleas available in law."
RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 21 of 4446. In light of the aforementioned proposition of law, the perusal of the aforementioned facts in totality clearly show that the pleadings in this respect are inconsistent but not contradictory to the case of petitioner.
47. Thus, in view of the aforementioned discussion, it has to be concluded that as per pleadings and evidence on record it has been proved that there exists relationship of landlord and tenant between the petitioner and respondent.
OWNERSHIP IN RESPECT OF TENANTED PREMISES
48. At first, it will be worthwhile to have a look at the settled proposition of law with regard to proof of ownership in the petition under section 14 (1) (e) of DRC Act. In Dr. Jain Clinic Pvt. Ltd. Vs. Sudesh Kumar Dass in RCR No. 136/12, it has been held that, "It is settled law that in the context of Delhi Rent Control Act, what appears to be the meaning of the term 'owner' is that visavis the tenant i.e. the owner should be something more than the tenant." The position in law is that "The ownership" of the landlord for the purpose of maintaining a petition U/Sec. 14(1)(e) of the D.R.C. Act is not required to be a absolute ownership of the property and it is sufficient if the landlord is a person who is collecting the rent on his own behalf. The imperfectness of the title of the premises can neither stand in the way of an eviction petition U/Sec. 14(1)(e) of the Act, nor can the tenant be allowed to raise the plea of RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 22 of 44 imperfect title or title not vesting in the landlord and that too when the tenant has been paying rent to the landlord."
49. Further, in Meenakshi vs. Ramesh Khanna & Anr., 60 (1995) DLT 524, it has been held that, "Mere denial of ownership is no denial at all. It has to be something more. For this, first and foremost thing which has always been considered as a good guide is does that tenant say who else is the owner of the premises if not the petitioner? In the present case, the tenant does not say anything except denying petitioner's ownership. The tenant is completely silent on this aspect. Merely by saying that the petitioner is not the owner, the tenant is trying to ensure that the case drags on for years for trial. If leave is granted on the basis of such vague pleas, it will encourage the tenants to deny ownership of the petitioners in every case." Similarly, in Rajender Kr. Sharma & Ors. Vs. Leela Wati & Ors. 155 (2008) DLT 383; it was held "For the purpose of Sec. 14(1)(e) of the D.R.C. Act, the landlord is not supposed to prove absolute ownership as required under Transfer of Property Act. He is required to show only that he is more than a tenant." It has been further held by the Hon'ble Supreme Court in Smt. Shanti Sharma & Ors. Vs. Smt. Ved Prabha & Ors. AIR 1987 SC 2028; "For the purpose of Sec. 14(1)(e) of the Act, ownership is not to be understood as absolute ownership but only a title better than the tenant. So, what is to be seen is whether on the basis of aforesaid facts it can be said that the petitioner has any title to the RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 23 of 44 property better than the respondent."
50. The case of petitioner is that her husband Sh. Om Prakash Jain was the owner of the demised premises and he had inducted the father of respondent namely Sh. Kishan Lal Gupta in the demised premises. The respondent has admitted that his father was inducted as tenant by Sh. Om Prakash Jain. The respondent did not deny the title of Sh. Om Prakash Jain and rather took a plea that there is dispute interse the legal heirs of Sh. Om Prakash Jain. Since the defendant has not denied the title of Sh. Om Prakash Jain, therefore, it is deemed to have been admitted.
51. In the rejoinder, the petitioner has pleaded that she became the owner of demised premises by virtue of relinquishment deed executed by the other legal heirs of late Sh. Om Prakash Jain in her favour. PW2 Sh. Devinder Jain did not produce the aforementioned relinquishment deed, however, in his crossexamination conducted on 09.10.2019, the respondent while appearing as RW1 categorically admitted that petitioner became owner of the suit property after the death of Sh. Om Prakash Jain.
52. The respondent also admits the petitioner to be her landlady. In Ramesh Chand vs. Uganti Devi, 157 (2009) DLT 450, it has been specifically held that, "In order to consider the concept of ownership under Delhi Rent Control Act, the Court has to see the title and right of the landlord qua the tenant. The only thing to be seen by the Court is that the RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 24 of 44 landlord had been receiving rent for his own benefit and not for and on behalf of someone else. If the landlord was receiving rent for himself and not on behalf of someone else, he is to be considered as the owner, howsoever imperfect his title over the premises may be. The imperfectness of the title of the premises cannot stand in the way of an eviction petition under Section 14 (1) (e) of the D.R.C. Act, neither the tenant can be allowed to raise the plea of imperfect title or title not vesting in the landlord and that too when the tenant has been paying rent to the landlord. Section 116 of the Evidence Act creates estoppel against such tenant. A tenant can challenge the title of landlord only after vacating the premises and not when he is occupying the premises".
53. Thus, in view of the aforementioned discussion, it has to be concluded that petitioner has proved to the preponderance of probability that she is the owner of the suit premises.
PETITIONER REQUIRES THE TENANTED PREMISES FOR HIS BONAFIDE NEED AND NECESSITY OR NECESSITY OF HER FAMILY MEMBERS
54. The petitioner has set up a case of bonafide need on the ground that she requires the tenanted premises for settling her grandson who is unemployed.
RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 25 of 44Argument: Mental element of bonafide need not established
55. The first and foremost argument advanced by the ld. Counsel for respondent is to the effect that the petitioner had only appeared for part crossexamination and since she did not appear subsequently, therefore her examination in chief cannot be read in evidence. He further argued that the question of bonafide need is a fact about existence of mental condition of the petitioner. Since the petitioner has not stepped into the witness box, therefore, her attorney cannot depose on her behalf to prove the bonafide need.
56. In 'Man Kaur (Dead) by LRs v. Hartar Singh Sangha' 2011(1) RCR (Civil) 189, dealt with the question as to who can depose on behalf of the petitioner in her absence for proving the bonafie need. The Hon'ble Apex Court has held as under:
"(a) An attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.
(b) If the attorney holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 26 of 44 attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved.
(c) The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.
(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney holder, necessarily the attorney holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney holders or persons residing abroad managing their affairs through their attorney holders.
(e) Where the entire transaction has been conducted through a particular attorney holder, the principal has to examine that attorney holder to prove the transaction, and not a different or subsequent attorney holder.
(f) Where different attorney holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney holders will have to be RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 27 of 44 examined.
(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his 'state of mind' or 'conduct', normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his 'bona fide' need and a purchaser seeking specific performance who has to show his 'readiness and willingness' fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or 'readiness and willingness'. Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad."
57. Admittedly, PW2 Sh. Devinder Kumar Jain is the son of petitioner. It is also admitted that petitioner is more than 90 years of age and is residing in Kolkata. Therefore, PW2 Sh. Devinder Kumar Jain being her RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 28 of 44 son who is residing in Delhi is a closely related person to the petitioner and can depose about her intention to settle her grandson. Therefore, in view of the aforementioned law, PW2 Sh. Devinder Jain is competent to depose about the intention of petitioner to settle her grandson in demised premises.
58. The ld. Counsel for respondent had laid much emphasis on the argument that in his crossexamination, PW2 Sh. Devinder Jain failed to tell the time and place where such intention was formed by the petitioner. In my considered opinion, merely because the intention to settle her grandson was not formed in presence of PW2 Sh. Devinder Jain does not in any manner imply that the petitioner had not conveyed her wish to settle her grandson in the presence of PW2 Sh. Devinder Jain. Even otherwise, at best only the other children and relatives of petitioner could have raise objection that the petitioner did not intend to settle her grandson as alleged in this case and the respondent under no circumstance could have had the opportunity to know that the petitioner did not harbor any such intention. Thus, I do not find force in this argument as well.
Argument: The grandson for whom petition has been filed is not the part of family of petitioner
59. The ld. Counsel for respondent also argued that there is no pleading that the grandson of petitioner namely Sh. Shubham Jain is residing with her and therefore he cannot be considered as a family member or RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 29 of 44 dependent upon the petitioner.
60. The hon'ble Supreme Court in Joginder Pal v. Naval Kishore Behal (20022) Vo.CXXXI PLR 625, dealt with the above noted aspect and held that, "Our conclusions are crystalized as under:
The expression landlord requires for 'his own use', is not confined in its meaning to actual physical user by the landlord personally. The requirement not only of the landlord himself but also of the normal 'emanations' of the landlord is included therein. All the cases and circumstances in which actual physical occupation or user by someone else, would amount to occupation or user by the landlord himself, cannot be exhaustively enumerated. It will depend on a variety of factors such as interrelationship and interdependence economic or otherwise, between the landlord and such person in the background of social, socioreligious and local customs and obligations of the society or region to which they belong.
The tests to be applied are: (i) Whether the requirement pleaded and proved may properly be regarded as the landlord's own requirement? and, (ii) Whether on the facts and in the circumstances of a given case actual occupation and user by a person other than the landlord would be deemed by the landlord as 'his own' occupation or user ? The answer would, in its turn, depend on (i) the nature and degree RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 30 of 44 of relationship and/or dependence between the landlord pleading the requirement as 'his own' and the person who would actually use the premises, (ii) the circumstances in which the claim arises and is put forward, and (iii) the intrinsic tenability of the claim. The Court on being satisfied of the reasonability and genuineness of claim as distinguished from a mere ruse to get rid of the tenant, will uphold the landlord's claim."
In Manju Devi Vs. Partap Singh 2015 (219) DLT 260, the Hon'ble Delhi High Court has held that, "Merely by living with the maternal grandparents after the death of his mother would Vivek loose the status of being dependent on his father and stepmother for settling him in a vocation is the question which arises for consideration. Testing the facts of the case on the touchstone of law laid down by the Supreme Court i.e. "whether there is a close interrelation or identity nexus between the landlord and such person so that the requirement of the said person has to be treated as the requirement of the landlord, it can be safely held that a father/mother including a step father or a step mother will not be absolved of the responsibility to settle their son to earn his livelihood even if he has been staying with his maternal grandparents."
61. Moreover, the facts of the present case are almost identical to the facts before the Hon'ble Punjab and Haryana High Court in M/s Sant Footwear Pvt. Ltd. & Anr. Vs. Daya Bindra', Civil Revision No. RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 31 of 44 3516/2013 decided on 19.09.2013, wherein it has been held that, "It is well settled that landlord can seek eviction of a tenant from the tenanted premises not only for his or her need but even for the need of a closely related person."(which happened to be grandson in that case who was living in another city.) Further in 'Roop Chand vs. Karneesh Kumar' Civil Revision No.4480 of 2006, decided on May 11, 2010, it has been held by the Hon'ble Punjab and Haryana High Court that, "There is no warrant for the proposition that a grandson has necessarily to be averred and proved to be financial dependent upon the paternal grandfather before the latter can raise a claim for ejectment of tenant from the tenanted premises for use by the latter. In fact, the question of financial dependence of a grandson upon the paternal grandfather would appear to be completely foreign to the issue. What, to my mind, would be relevant for purpose of consideration in such like eventuality would be whether the projected need is bonafide or a mere wish of the landlord aimed at obtaining vacation of the tenanted premises. Being from the same line of generation otherwise, a grandson can validly raise a claim of the indicated category and there is nothing whatsoever wrong in a grandfather raising a plea that he requires the tenanted premises for occupation by his grandson."
62. Therefore, in view of the aforementioned proposition of law, it is RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 32 of 44 clear that the petition for eviction of tenant on the ground of bonafide need of a grandson who is not living with his grandparent is also maintainable because he is deemed to be part of the family of the landlord.
Argument: Lack of Bonafide need
63. The ld. Counsel for respondent had also argued that in the petition it has been pleaded that Sh. Shubham Jain is CA and he wants to start his business of professional accountancy, but the respondent categorically pleaded that Sh. Shubham Jain has not completed CA and he had only done CA intermediate and he was employed as Sr. Associate in M/s Accenture. He has further argued that in the replication the petitioner admitted that Sh. Shubham Jain was only BBA graduate and the petitioner conveniently did not even deny the fact that he was serving in M/s Accenture.
64. In this context, it is necessary to note that in Anant Construction (P) Ltd. vs Ram Niwas 1994 IVAD Delhi 185, decided on 03.10.1994, the Hon'ble Supreme Court dealt with the object and purpose of filing the replication in detail. It is also held by Hon'ble Supreme Court that," A mere denial of defendant's case by plaintiff needs no replication. The plaintiff can rely on rule of implied or assumed traverse and joinder of issue."
RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 33 of 4465. Since, as per aforementioned law the petitioner is not duty bound to deny the averments of written statement, therefore, the lack of denial qua certain aspect cannot be deemed as admission against the petitioner.
66. Moreover, it is necessary to note that in the evidence, the respondent completely abandoned the aforementioned plea that Sh. Shubham Jain was employed in M/s Accenture. In the crossexamination of PW2 Sh. Devinder Jain, a case was set up by the respondent by putting a suggestion that Sh. Shubham Jain is having ample space and he is already running a business. Thereafter, in his evidence by way of affidavit, the respondent categorically deposed that Sh. Shubham Jain was carrying on business from JE1160, Bharat Diamond Building, Bandra, Mumbai. The respondent did not plead or depose that earlier Sh. Shubham Jain was working in M/s Accenture and subsequently he started his own business in Mumbai. Infact in the evidence, the respondent introduced completely new plea which is contradictory to the earlier plea that he was employed in M/s Accenture. The said plea cannot be accepted because firstly it is beyond pleadings and secondly besides making bald assertion, the respondent did not bring forth any cogent evidence to substantiate the same.
67. It is settled proposition of law that the petitioner who conceals material facts has to be nonsuited. In the present case, the petitioner had made assertion in the petition that Sh. Shubham Jain has done CA, but RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 34 of 44 subsequently it was pleaded that he has done BBA. Though, his certificates etc were not produced in evidence to show that he has done BBA, but the averments in written statement to the effect that he has done CA intermediate serve as an admission. Therefore, in light of such admission the nonproduction of certificates of Sh. Shubham Jain become insignificant.
68. Further, I find that there is no embargo on a graduate who has done CA intermediate to start his own office of accountancy. Though, he may not be able to audit the accounts, but accountancy includes maintenance of accounts for which no specific qualification is necessary.
69. Moreover, in S.Kesar Singh vs Paramjeet Singh & Anr in RC. REV. NO427/2017 vide judgment dated 15/09/2017, the Hon'ble Delhi High Court held that, "Till a business is commenced, the intending businessman is always entitled to change his plans from time to time. I have in fact enquired from the counsel for the petitioner, whether not in law college, most of the students' desire to practice corporate law and join law firms and thereafter change their mind and even shift to litigation or to the other areas requiring acumen in law. The counsel for the petitioner is unable to rebut the same.
Once that is so, the requirement for the shop cannot be said to be malafide merely because the landlord, during the time for which the RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 35 of 44 petition for eviction remained pending, though it more prudent to commence furniture business therefrom instead of expanding his existing business."
Argument: The petitioner wants to let out the property at her higher rent to others
70. It has been argued that the need is sham and actually the petitioner intends to construct shopping complex in the plot and wants to let out the property at higher rent. Besides making a bald averment to this effect no cogent evidence has been lead by the respondent to prove this fact.
71. In 'Baldev Singh Bajwa Vs. Monish Saini', (2005) 12 SCC 778, it has been held that, "If there is any breach by the landlord, the tenant is given a right of restoration of possession. It was held that these restrictions and conditions inculcate in built strong presumption that the need of the landlord is genuine; the conditions and restrictions imposed on the landlord make it virtually improbable for the landlord to approach the Court for ejectment of tenant unless his need is bona fide no unscrupulous landlord in all probability, under this Section, would approach the Court for ejectment of the tenant considering the onerous conditions imposed on him. It was further held that this inbuilt protection in the Act for the tenants implies that whenever the landlord would approach the court his requirement shall be presumed to be genuine and RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 36 of 44 bona fide. It was further held that a heavy burden lies on the tenant to prove that the requirement is not genuine."
72. Therefore, I do not find any merit in this argument. Thus, in view of the aforementioned discussion, it has to be concluded that petitioner has proved to the preponderance of probability that demised premises is required for bonafide need of settling her grandson namely Sh. Shubham Jain. Since, the averments that Sh. Shubham Jain had passed CA and not just CA intermediate is not material for the facts of the present case, therefore, the petitioner cannot be nonsuited on the equitable grounds.
PETITIONER DOES NOT HAVE ANY OTHER ALTERNATIVE ACCOMMODATION WITH HER.
73. In Deena Nath Vs. Pooran Lal', (2001) 5 SCC 705, the Hon'ble Supreme Court has held as under:
"The Legislature in enacting the provision has taken ample care to avoid any arbitrary or whimsical action of a landlord to evict his tenant. The statutory mandate is that there must be first a requirement by the landlord which means that it is not a mere whim or a fanciful desire by him; further, such requirement must be bonafide which is intended to avoid the mere whim or desire. The 'bonafide requirement' must be in praesenti and must be manifested in actual need which would evidence the RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 37 of 44 Court that it is not a mere fanciful or whimsical desire. The legislative intent is made further clear by making the provision that the landlord has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. This requirement lays stress that the need is pressing and there is no reasonably suitable alternative for the landlord but to get the tenant evicted from the accommodation. Similar statutory provision is made in subsection (e) of Section 12(1) of the Act in respect of accommodation let for residential purposes. Thus, the legislative mandate being clear and unambiguous, the Court is dutybound to examine not merely the requirement of the landlord as pleaded in the eviction petition but also whether any other reasonably suitable non residential accommodation in his occupation in the city/town is available. The judgment/order of the court/authority for eviction of a tenant which does not show that the court/authority has applied its mind to these statutory requirements cannot be sustained and the superior court will be justified in upsetting such judgment/order in appeal/second appeal/revision. Bonafide requirement, on a first look, appears to be a question of fact. But in recording a finding on the question the court has to bear in mind the statutory mandate incorporated in Section 12(1)(f). If it is found that the court has not applied the statutory provisions to the evidence on record in its proper perspective then the finding regarding bonafide requirement would cease to be a mere finding of fact, for such RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 38 of 44 erroneous finding illegally arrived at would vitiate the entire judgment.
The wordings "reasonably suitable accommodation" are to be examined by the Courts from the eyes of common person's prudence. It should be seen as to whether in the particular case a person has a reasonably suitable accommodation or not to reside or to carry on business. If the answer comes in affirmative, then no matter what the landlord says in order to evict the tenant that the provisions of Section 14 (1) (e) of the Act does not get attracted. In other types of cases where the answer is negative, then no matter what the tenant states to refute the reasonableness and suitability of the accommodation, the eviction has to follow. These factors are merely inclusive and not exhaustive which may enable to court to arrive at the finding as to what can constitute the reasonably suitable accommodation.
There is no straight jacket formula to determine what can be reasonably suitable accommodation available with the landlord and it cannot be certainly only depends upon the demands of the landlord. Thus, one cannot really say that one proposition, which may hold good in one case can be equally applied to another case with equal strength without seeing the difference in the facts of the case. ...
It is not the thumb rule that in every case the landlord always is the RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 39 of 44 best judge and the court is helpless by not scrutinizing the stand of the tenant while testing the reasonableness and suitability of the alternative accommodation. Actually it depends upon case to case basis. The Courts in many cases have held that even though the landlord is the best judge to decide his needs and he cannot be compelled by the tenant to accommodate at the place which is lesser in any way than the place which is sought to be evicted, still the court would examine the reasonableness and suitability of the existing accommodation by weighing what is available with the landlord visàvis the plea of the tenant."
74. The petitioner has pleaded that neither she herself nor her son i.e father of Sh. Shubham Jain has any alternative accommodation for starting a business of professional accountancy except from the demised premises.
75. The respondent has taken a plea that first floor of the tenanted premises is lying vacant and the petitioner and her son namely Sh. Rajinder Jain also have the following additional alternative accommodations:
Plot no. 103, Bharat Ram Road, Daryaganj, Delhi;
House no. 1056, 1056, Gali Hira Nand, Marliwara, Chandni Chowk, Delhi; & FC/1, Arjun Market, DLF Phase1, Gurgaon.
76. Much emphasizes was laid by the ld. Counsel for respondent on the RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 40 of 44 availability of space on the first floor of the property in question i.e. property bearing no. 12B, Yusuf Sarai, Main Market, Aurbindo Marg, Delhi. On the contrary, the case of petitioner is that her other son namely Sh. Devinder Jain is occupying the first, second and third floor of the property bearing no. 12B for his residential accommodation.
77. In his crossexamination, the respondent stated that he had visited the first floor and second floor on marriage function. On the other hand, Sh. Devinder Jain while appearing as PW2 categorically deposed that he has been living in the aforementioned first floor as well as second floor alongwith his family members.
78. PW2 also filed the site plan of entire floor including the first floor and second floor as Ex. PW1/B. The perusal of said site plan shows that the first floor and second floor consist of rooms, toilet, bathroom, kitchen etc. No contrary site plan was filed by the respondent to show that the said site plan is false.
79. In addition, PW2 Sh. Devinder Jain also filed the electricity bills of the first floor of the aforementioned premises i.e. bearing no. 12B, Yusuf Sarai, Main Market as Ex. PW1/D (colly). The said electricity bills have been issued for domestic connection in the name of original owner/ landlord Sh. Om Prakash Jain. The said bills also show regular consumption of electricity which disproves that the said floor is lying RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 41 of 44 vacant. In such circumstances, in absence of cogent evidence by respondent, his averments that the first floor is vacant is merely a bald averment which has been duly rebutted by the petitioner
80. Moreover, in Parveen Kumar Arora vs Akshay 2019 (256) DLT 662, it has been held that, "The requirement of the shop on the ground floor need to be viewed from a different perspective then the availability of business spaces on upper floors. In Neelam Sharma vs Ekjant Rekhan 2019 (70) DLT 750 the requirement of 1800 square feet on the ground floor for the purposes of showroom as also the additional area for bill counter, office cabin, waiting area was termed as genuine." Further, in Uday Shankar Upadhyay Vs. Naveen Maheshwari (2010) 1 SCC 503, the Hon'ble Supreme Court also held that, "The court cannot dictate to the landlord which floor he should use for his business; this is for the landlord himself to decide." Also in Gauri Shankar Vs. Laxmi Chand 262 (2019) DLT 566, the Hon'ble Delhi High Court has held that, "It is well settled that the landlord is the best judge of his own needs and cannot be mandated and dictated by the tenant as to in which portion of the property, he needs to run his own business."
81. Therefore, from all the aspects, it cannot be said that the first floor is the suitable alternate accommodation available to the petitioner.
82. As regards the other property bearing no. Plot no. 103, Bharat Ram RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 42 of 44 Road, Daryaganj, Delhi is concerned, it is admitted that Sh. Rajinder Kumar Jain is coowner in the said property. The respondent had alleged that it is being used for the office of Sh. Rajinder Kumar Jain as well as for his residence. However, once again, the respondent did not bring on record any document or evidence to establish that it has sufficient vacant space which can be used as suitable alternative accommodation for setting up a business.
83. As far as the other properties of petitioner and her sons i.e. property bearing house no. 1056, 1056, Gali Hira Nand, Marliwara, Chandni Chowk, Delhi and property no. FC/1, Arjun Market, DLF Phase1, Gurgaon are concerned, the respondent has not produced any evidence to establish that aforementioned properties are owned by the petitioner or her son namely Sh. Rajinder Jain and can be used as suitable alternative accommodation.
84. Thus, in view of the aforementioned discussion, it has to be concluded that the bald assertions of respondent that petitioner and her son namely Sh. Rajinder Jain is in possession of alternative accommodations is not sufficient to discharge onus to establish the aforementioned fact.
85. Hence, it has to be concluded that the respondent has failed to prove to the preponderance of probability on record that petitioner and her son namely Sh. Rajinder Jain has reasonable, suitable alternative RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 43 of 44 accommodation.
CONCLUSION:
86. Thus, in view of the aforementioned discussion, it has to be concluded that the petitioner has proved all the ingredients of section 14 (1) (e) of the D.R.C. Act and she is entitled for an eviction order. An eviction order is passed in favour of petitioner and against the respondent in respect of tenanted premises i.e. Shop bearing private no. 2 of premises bearing no. 12/3, Yusuf Sarai, Main Market, New Delhi. This order shall not become operative before the passage of six months from today. File be consigned to record room after due compliance.
(Announced in the open (Sushant Changotra)
Court on 6th July, 2020) Rent Controller (South),
Saket Courts, New Delhi.
RC ARC NO. 6037/16 Sushila Devi Jain Vs. Rajinder Kumar Gupta Page 44 of 44