Delhi District Court
Bansi Lal vs Manisha Chauhan on 29 August, 2023
IN THE COURT OF SH. PRANAV JOSHI, CCJ-CUM-ARC,
CENTRAL, TIS HAZARI COURTS
RC ARC-682/2017
Bansi Lal Vs Manisha Chauhan
CNR No. DLCT03-005153-2017
In the matter of :
Sh. Bansi Lal,
S/o Late Sh. Sita Ram,
R/o 1718, Outram Line,
G.T.B Nagar,
Delhi. ...Petitioner
Versus
Smt. Manisha Chauhan,
W/o Sh. Jawahar Singh,
R/o Private Shop No. 4,
First Floor, Property No. 2439/2011,
Beadon Pura, Karol Bagh,
Delhi.
Also at:
House No. 166,
Gali No. 6,
Than Singh Nagar, Anand Parbat,
Delhi. ...Respondent
Eviction Petition under Section 14 (1)(e) of Delhi Rent Control
Act, 1958
Date of Institution : 29.07.2017
Date on which judgment was reserved : 09.06.2023
Date of Decision : 29.08.2023
Decision : Petition Dismissed
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JUDGMENT
1. There are two eviction petitions instituted by the petitioner i.e. one against the present respondent in respect of shop No. 4, situated on the first floor, property bearing No. 2439, Beadon Pura, Karol Bagh and another against Sh. Jawahar Singh Chauhan (husband of respondent Ms. Manisha Chauhan in the present petition) in respect of shop No. 25, second floor in the same property as aforesaid.
2. This is an eviction petition for recovery of the premises i.e. private shop No. 4, first floor, property bearing No. 2439/11, Beadon Pura, Karol Bagh, Delhi, measuring 4'.9'' x 3' (hereinafter referred to as tenanted premises) against the respondent u/s 14(1)(e) of Delhi Rent Control Act 1958 (hereinafter referred to as DRC Act).
3. The case of the petitioner is that he had purchased the said tenanted property from its previous owner Smt. Ram Sawari Grover w/o Late Shri Hakam Singh Grover through a registered sale deed dated 31.03.2004. That the respondent is a tenant in respect of private shop No. 4, first floor in property bearing No. 2439/11, Beadon Pura, Karol Bagh, New Delhi-110005, measuring 4'.9" x 3' and the said shop was let out to the respondent by the previous owner at a monthly rent of Rs.80/- per month exclusive of electricity and other charges. That the respondent is in arrears of rent since February, 2011 and they have caused substantial damage to the property and a notice dated 11.03.2014 was issued to the respondent for demanding RC ARC-682/2017 Bansi Lal Vs Manisha Chauhan Page no.2/38 the arrears of rent and for which a separate eviction petition under section 14(1) (a) (b)(f)(g)(j) is pending in the court of Ms. Ekta Gauba, ARC, District Central, Tis Hazari Courts, Delhi, against the respondent. That the petitioner requires the present property as well as the property rented to Sh. Jawahar Singh for starting business of diamond jewellery as on the ground floor proper space is not available, therefore the petitioner is not able to show variety of designs of diamond jewellery to the customers and on the second floor, the petitioner wants to start ready made business relating to ladies exclusively. That property in question consists three storey building i.e. ground floor, first floor and second floor. The ground floor portion is in the possession of petitioner, who is carrying on his business of gold jewellery and the same is shown in green colour in the site plan and the portion which is sold or belonging to other person, is shown in blue colour. That Shri Amarjeet Singh & Ors., the other tenant, is doing the business of opticals which is shown in yellow colour whereas on the first floor the other tenants has been shown in yellow colour and whereas the workshop of the gold smith is shown in green colour. It is stated that that on the second floor, tenanted portion is shown with red colour and other portion which is in the possession of the tenant is shown in yellow colour and from the above, it is clear and categorical that petitioner have no other alternate accommodation suitable for diamond smith. It is stated that the petitioner also requires portion of another tenant, Jawahar Singh, for which the petitioner has filed a separate eviction petition since petitioner does not have any alternate accommodation suitable for RC ARC-682/2017 Bansi Lal Vs Manisha Chauhan Page no.3/38 starting workshop to accommodate diamond smith as well as to further create workshop for gold smith. Hence, the present petition.
4. Upon receipt of the petition, the respondent appeared and file leave to defend application along with affidavit. Vide order dated 30.11.2018, the leave to defend application filed by the respondent was allowed and the respondent was granted leave to contest the present petition. As a consequence of granting leave to defend, the respondent filed written statement stating the following:
(a) That petitioner has already filed the petition against the other tenants specially Amarjeet Singh who is occupation of another shop on the ground floor in the same building. In the petition filed by the petitioner against Amarjeet Singh, the petitioner categorically admitted that at least eighteen shops are available to the petitioner and more than ten to twelve shops are available at the first and the second floor, which are lying vacant. That the petition filed by petitioner against Shri Amarjeet Singh titled as Bansi Lal Vs. Amarjeet Singh bearing eviction petition No.18/2012 was been dismissed by the Court of Ld. ARC Shri Prashant Sharma wherein the Hon'ble Court petitioner has observed that the petitioner has misused the process of bona fide requirement as prescribed by DRC Act. In the aforesaid matter the petitioner admitted during the cross examination that he has at least five to six shop in the first and second floor which are lying vacant and same are available to him for fulfilling his bona fide requirement.
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(b) That the petitioner is guilty of concealing the material fact from this Court. That the petitioner has already filed an eviction suit against the respondent, wherein he has no where pleaded that he requires the premises for any alleged requirement. That the petitioner has file many eviction petitions, against the respondent and other tenants on false and frivolous ground and he has not able to any relief.
That the petitioner is more than 82 years of age and is not in a position to walk. He has executed special power of attorney due ill health in favour of his son Shri Balkishan, who is pursuing the matter in all court for and on behalf of the petitioner. It stated that the petitioner filed petitions for personal bona fide necessary of his grandson, for personal bona fide for a sons as well as for his own personal bona fide necessity as the present case. The petitioner only intents to get the possession of all the tenanted shops by hook or by crook.
(c) That the petitioner is guilty of concealing the material fact from this Hon'ble Court. That the case of the petitioner is of case of additional accommodation instead of bonafide requirement. That the petitioner is guilty of filing a frivolous petition and the same has been proved in the case titled as Bansi Lal Vs. Amarjeet Singh. That the site plan of the premises in question is not correct as per the site.
(d) That the petition of the petitioner is liable to be dismissed and rejected under Order 7 Rule 11 CPC as no circumstances arises of bona fide requirement in favour of the petitioner and against the respondent. It is submitted that the petitioner is a man of means and has number of properties in his name. That the petition is not RC ARC-682/2017 Bansi Lal Vs Manisha Chauhan Page no.5/38 maintainable as the premises in question situated in slum area and no permission is obtained by the petitioner.
(e) That the petitioner has failed to disclose the details of the sub-tenant because no such sub letting has happened. That respondent did not make any additions or alterations in the shop in question and/or has caused any damage to the adjoining wall as well as to the roof of the suit premises. That in the earlier petition, the petitioner had taken similar ground and the same was dismissed. That respondent was not in arrears of any rent and has caused any damage to the property. That rent up to date has been deposited in the Court as per law.
(f) That in other eviction petition filed by the petitioner against other tenant Jawahar Singh, the petitioner himself has alleged that the tenanted premises on the second floor are unsafe for doing commercial activities. The petitioner is very old more than 82 years of age and is leading a retired life.
(g) That there are twenty one shops in the property No. 2439, Grover Building, 11, Beadon Pura, Karol Bagh, New Delhi, three on the ground floor, ten on the first floor and eight on the second floor. That on the ground floor, one shop in suit is in the tenancy of the respondent and one shop on the ground floor is with Om sons Optician since 2009 and third shop on the ground floor is with the petitioner where he is carrying on the business under the name and style of M/s Bansi Lal & Sons Jewellers having an area of about 11'x24'. That out RC ARC-682/2017 Bansi Lal Vs Manisha Chauhan Page no.6/38 of the ten shop on the first floor, one shop is in possession of Shri Anil Kumar and Nine shops are in possession of the petitioner out of which two shops on the first floor are in occupation of two persons who are carrying on their business in the same since long and rest seven shops are in occupation of the petitioner. That on the second floor, out of eight shops, one is in possession of Shri Anil Kumar and one is occupation of one person who is doing business therein since long and remaining six shops are in the occupation of the petitioner. Thus, the petitioner has got in his possession thirteen shops which are lying vacant, seven on the first floor and six on the second floor and all the said thirteen shops are vacant under the possession and control of the petitioner.
(h) That claim of the petitioner that there are eight tenants on the first floor and eight tenants on the second floor, is a camouflage plea just to give colour to this eviction petition. There is no tenant on the first and second floor in these thirteen shops. The petitioner did not mention the name of any of the tenant on the first and second floor in the petition or their rate of rent nor has filed any rent deed of any tenant or the house tax assessment record showing the name of any tenant. The petitioner has not mentioned the amount of rent paid by any of the tenant nor produced his bank passbook to show any entry of any rent, if received from any tenant. The petitioner himself has filed on the record his income tax return dated 30.09.2011 which states income from house property, income from other sources as 'nil' and has nowhere showed in the said income tax return any rental income RC ARC-682/2017 Bansi Lal Vs Manisha Chauhan Page no.7/38 from any shop of this property No.2439, Grover Building, Beadon Pura, Karol Bagh, Delhi. That the petitioner off and on gives some of his shops on daily license basis to different people but in fact the overall possession and control of all the thirteen shops is with the petitioner as well as his sons.
5. Replication was filed by the petitioner to the written statement of the respondent, wherein petitioner re-affirmed and re- iterated the facts mentioned in the petition and denied the defences taken by the respondents.
6. Initially, when the petition was filed, the site plans filed by the petitioner were defective in as much as they did not depict any portion of the property in a coloured scheme, as pleaded in the petition. The petitioner filed an application under order VII Rule 14 CPC for bringing on record fresh site plans along-with other documents. The said application was dismissed by Ld. Predecessor vide order dated 27.01.2018. The petitioner challenged the said order before Hon'ble Delhi High Court and Hon'ble Delhi High Court, vide its order dated 09.08.2018, set aside the order dated 27.01.2018 and permitted the petitioner to file fresh site plans.
7. In support of case of the petitioner, the petitioner examined his son and attorney Sh. Bal Kishan Chauhan as PW1 who tendered his evidence by way of affidavit Ex. PW1/A relied upon following documents :
(i) Original Special Power of Attorney dated
RC ARC-682/2017 Bansi Lal Vs Manisha Chauhan Page no.8/38
24.07.2017 Ex. PW1/1.
(ii) Copy of Sale Deed (OSR) dated 31.03.2004
Ex. PW1/2.
(iii) Copy of Notice dated 11.03.2004 Ex. PW1/3.
(iv) Copy of eviction petition Bansi Lal Vs Jawahar
Singh & Ors Ex. PW1/4.
(vi) Site Plan of the second floor Ex. PW1/7.
(vii) Site Plan of the tenanted premises Ex. PW1/8.
(viii) Five original counter foils Ex. PW1/9 (colly.).
(ix) Audit report of M/s Bansi Lal & Sons Ex. PW1/10 (OSR).
PW1 was cross-examined by Ld. Counsel for the respondent.
8. Petitioner examined Sh. Bal Kishan Chauhan as PW2 who prepared site plan Ex. PW2/1, Ex. PW2/2, Ex. PW1/6 and Ex. PW1/7. He deposed that he was a draftsman by profession having his office at Chamber No. 57, Typist Block, Civil Side, Tis Hazari. He further deposed that the site plan Ex. PW2/1, PW2/2, PW1/6 and PW1/7 are prepared by him and that the site plans were correct as per the site. PW 2 was cross-examined by Ld. Counsel for the respondent.
9. Petitioner examined Sh. Hitesh Ambani as PW3 who brought audit report of M/s Bansi Lal & Sons Jewellers for the period 2015-16 Ex. PW1/10 (colly). He deposed that he was a CA by profession. He brought the summoned record i.e. the audit report of the assessment year 2015-16 in the name of M/s Bansi Lal & Sons RC ARC-682/2017 Bansi Lal Vs Manisha Chauhan Page no.9/38 Jewellers, 2439, Beadon Pura, Karol Bagh, Delhi PW1/10 (colly). The admission of documents Ex. PW1/10 (Colly) was objected to as some of the photocopies are not as per the original. PW 3 was cross- examined by Ld. Counsel for the respondent. Thereafter, vide order dated 06.07.2019, petitioner's evidence was closed and the case was fixed for respondent's evidence.
10. Respondent Manisha Chauhan examined himself as RW1 who tendered her evidence by way of affidavit Ex. RW1/A and relied upon certified copy of judgment titled as Bansi Lal Vs. Amarjit Singh & Ors. Ex. PW1/R1 (colly). RW1 was cross-examined by Ld. Counsel for the petitioner.
11. Respondent examined Sh. Amarjit Singh as RW2 who tendered his evidence by way of affidavit Ex. RW2/A and relied upon following documents:
(i) Copy of cross examination Ex. PW1/R1 (colly).
(ii)Copy of order dated 31.10.2018 Mark Y.
12. RW2 deposed that he is a tenant in a shop at Ground Floor in building No.2439 and Shri Bansi Lal i.e. the petitioner, is his landlord. He deposed that Shri Bansi Lal had earlier filed a eviction petition against him on the ground floor for personal bona fide necessity, which was dismissed vide order dated 31.10.2018, in case E. No.77566/2016 Ex. RW-1/1(colly). He further deposed that Sh. Bansi Lal is a habitual litigant and keeps on filing false and frivolous eviction petitions and civil suits against tenants only for the purpose to RC ARC-682/2017 Bansi Lal Vs Manisha Chauhan Page no.10/38 harass them, so that they leave the tenanted premises with his sole purposes to demolish the entire building and construct it as a multi storey commercial complex.
13. He further deposed that there are twenty one shops in the property bearing No. 2439, Grover Building, Karol Bagh, New Delhi and there are three shops on the ground floor, ten on the first floor and eight of the second floor. He deposed that one shop is under his tenancy, one is with Om Sons Opticians and the third shop is with the Bansi Lal. He further deposed that out of ten shops on the first floor, one is in possession with his son Shri Anil Kumar and Jawar Singh i.e. the contesting respondent, jointly. He deposed that two shops are rented, similarly on the second floor out of six shops are lying with Shri Bansi Lal. He deposed that all thirteen shops are lying vacant and under control of Bansi Lal and his sons which he can utilize for his alleged bonafidely.
14. He further deposed that in a statement in case E. No.18/2012 titled Bansi Lal Vs. Amarjit Singh, in his cross examination dated 06.05.2016 Ex.PW1/R-1 (Colly), Sh. Bansi Lal has admitted, "when he was put that there are no tenants in sixteen shops"
and he has further admitted that "the shops are given to Patri wala/hawkers for keeping their goods in night and they take out their goods in the morning. I do not remember the exact but most likely five-six shops are given for the said purpose. However, I do not know the details of the said persons or amount being charged to them"
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15. He further deposed that Sh. Bansi Lal is an old and sick person and is mostly confined to bed because of many old age ailments. He deposed that he does not come to the shop, where his son Balkishan carries on jewellery business under the name and style M/s Bansi Lal & Sons (Jewellers) on the ground floor of the property bearing No.2539, Beadon Pura, Karol Bagh, Delhi and that his son Balkishan has admitted in a statement given on 07.12.2019 in C.S. No.1612/2018 in case titled Bansi Lal Vs. Amarjeet Singh that his father is old about 85 years and sick and due to this reason, he has given SPA to file the case and give evidence.
16. He further deposed that Sh. Bansi Lal is not doing any business. He does not come to the shop and that his business is being managed by his son Shri Balkishan, who is his partner also. He deposed that the eviction petition against Bansi Lal and his wife on the grounds of his personal bonafide necessity is false and frivolous.
17. Vide order dated 10.02.2020, respondent evidence was closed and case was fixed for final arguments.
18. I have heard arguments heard from both the sides. Both parties have filed written submissions along with judgments in support of their arguments. I have also perused the record.
19. In brief, it was submitted by Ld. Counsel for the RC ARC-682/2017 Bansi Lal Vs Manisha Chauhan Page no.12/38 petitioner Ms. Komal Chhiber that evidence led by the parties to the present petition shows that the petitioner is the owner/landlord of the tenanted premises and petitioner through his attorney i.e. his elder son as PW-1, who is also partner in M/s Bansi Lal & Sons, for which they want to start a diamond jewellery showroom and also relating to ladies garments and therefore, petitioner requires the tenanted premises i.e. one with Sh. Jawahar Singh on the first floor and another with his wife i.e. the respondent on the second floor. It was further submitted that the petitioner has placed on record the income tax return of the firm as well as his personal return. It was submitted that both RW-1 and RW-2 has admitted that the petitioner is maintaining a good health and is doing work and further the firm M/s Bansi Lal and Sons is partnership firm.
20. It was submitted that in the cross examination of PW-1, written statement and leave to defend application, respondent has taken a contrary stand regarding number of shops available on first and second floor of the suit property which are vacant. The respondent has neither filed any site plan in order to show that vacant shops nor he was able to pint out from the site plan Ex. PW2/1 and Ex. PW2/2 which shops are vacant. It was further submitted that even in cross examination of both RW1 and RW-2, they either admitted the name of tenants or stated that they were not aware about the tenants. It was submitted that the cross examination of PW-1 regarding these vacant shops is also vague. It is submitted that mere assertion of a fact about the availability of vacant shops is not sufficient to disprove the case of RC ARC-682/2017 Bansi Lal Vs Manisha Chauhan Page no.13/38 the petitioner unless a positive evidence is led by the parties, to show the availability.
21. It was also submitted that the petitioner has given specific evidence regarding his requirement and availability whereas respondent has taken a shady stand which is neither supported by any document nor by oral evidence of RW-2. It was submitted that the petitioner has led best evidence to show or to prove aforesaid ingredients of section 14 (1) (e) of DRC Act. It was further submitted that non filing of a site plan by the party who is disputing the site plan of the other party cannot be relied upon by way of oral testimony only. It was also submitted that expansion of business does not cease to be a bona fide requirement for that business. It submitted that it is settled law that a person can do business at any age. Therefore, the requirement of the petitioner is a genuine one and respondent no.1 has miserably failed to point out any relevant fact or evidence regarding need of the petitioner being non genuine and availability of alternative suitable accommodation. She relied upon following judgments:
(i) Om Prakash Vs. Inder Kaur (2009 107 DRJ 263),
(ii) Hoor Chaman Begum Vs. Hurriyat Khanam &
Ors. (2017 SCC OnLine Del 6726),
(iii) Dhanna Lal Vs. Kalawati Bai & Ors. (2002 6 SCC 16),
(iv) Anil Bajaj Vs. Vinod Ahuja (2015 15 SCC 610)
(v) Pravesh Jain Vs. Oswal Woolen Mills (2017 SCC OnLine Del 10882),
(vi) Mukesh Kumar Vs. Rishi Prakash (2010 174 DLT RC ARC-682/2017 Bansi Lal Vs Manisha Chauhan Page no.14/38
64)
(vii) Vishwanath Kakkar & Anr. Vs. Sarla Sharma (2012 SCC OnLine Del 1434),
(viii) Harminder Singh Koghar Vs. Bimla Devi & Ors.
(2015 222 DLT 589),
(ix) Sait Nagjee Purshotham & Co. Ltd. Vs. Vimlabai Prabhulal & Ors. (2005 8 SCC 252),
(x) Chander Kanta Singhal Vs. Kapadai Exports (1997 65 DLT 926) and
(xi) Uday Shankar Upadhaya Vs. Naveen Maheshwari (2009 Law Suit SC 1929).
22. On the other hand, Sh. Rajender Gulati, Ld counsel for respondent contended that the petitioner, despite being named as witness in the list of witnesses, has never appeared to depose in support of his petition. It is submitted that the testimony of PW1 shows that he had no personal knowledge of the facts stated in the petition. It is submitted that an attorney holder cannot become witness on behalf of the petitioner and he can only depose in his personal capacity. It is submitted that it was obligatory for the petitioner to enter in the witness box and prove his bona fide need and that PW1 could not have deposed on behalf of the petitioner to prove bona fide need of the petitioner. Hence, adverse inference is to be drawn against the petitioner for not entering the witness box as witness.
23. It is further submitted that the shop under the tenancy of RC ARC-682/2017 Bansi Lal Vs Manisha Chauhan Page no.15/38 Jawahar SIngh is about 42 sq ft in size whereas the shop under the tenancy of respondent is about 14.7 sq ft in size. It is submitted that shops in question are too small for the work of diamond jewellery and a show room of ladies garments.
24. It is submitted that out of five rent receipts Ex. PW1/9 (colly), two were not signed by the parties concerned. It is submitted that these rent receipts pertains to the period prior to the period 2017. It is submitted that in the earlier petition filed by the petitioner against RW2, it was admitted by the petitioner in his cross-examination Ex. PW1/R1 (colly) that about five to six shops pertaining to the petitioner in the same building are vacant which the petitioner has been letting out to hawkers for keeping their goods over night.
25. It is submitted that in the personal ITR of the petitioner, the income from house property has been shown as Rs. 5,97,912/- but the rent in rent receipts Ex. PW1/9 (colly) is mentioned only Rs. 500/-, Rs. 200/-, Rs. 300/- and Rs. 40/- per month, respectively. It is submitted that the petitioner has also not mentioned the details of the tenants occupying the different shops on the property. It is also submitted that the petitioner did not produce any rent agreement of any of the tenants which are occupying the other shops of the same property. It is further submitted that PW1 could not give details of rent received from various tenants of the petitioner in the property No. 2439, Beadon Pura, Karol Bagh. It is also submitted that petitioner has not produced house tax record to show tenancy of other shops.
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26. It is submitted that in the petition filed by the petitioner u/s 14 (1) (a) & (b), the petitioner has stated that the entire building is unfit for commercial activity and he wanted to demolished the same. However, in the present petition, the petitioner has stated that he wants to start a show room which shows his mala fide. He relied upon following judgments:
(i) Janki Vashdeo Bhojwani & Anr. Vs. IndusInd
Bank Ltd. & Ors. (2004 VII SLT 441)
(ii) Chinta Narayanamma Vs. Kholli Sahu & Ors. (AIR
1982 Ori 183),
(iii) Nanalal Goverdhandas & Co. & Ors. Vs. Smt.
Smarat Bai Lilachand Shah (AIR 1981 Bom 1)
(iv) Iqbal Basith & Ors. Vs. M. Subba Lakshmi & Ors.
(Civil Appeal No. 1725/2010, dated 14.12.2020),
(v) Vidhyadhar Vs. Mankikrao & Anr. (AIR 1999 SC 1441),
(vi) Habeeb Khan & Ors. Vs. Valasula Devi & Ors. (AIR 1997 AP 53),
(vii) Brij Mohan Vs. Sripal Jain (1993 49 DLT 543),
(viii) Ziaullah Vs. Reghu Vansh Mani Sharma (2019 264 DLT 302),
(ix) Nirakar Das Vs. Gourhari Das & Ors. (AIR 1995 ORI 270),
(x) Ram Bhajan & Anr. Vs. Abdul Rehman & Ors.
(AIR 1997 ALL 17), RC ARC-682/2017 Bansi Lal Vs Manisha Chauhan Page no.17/38
(xi) Jernail Singh Vs. Kanhaiyalal (AIR 1986 MP 53),
(xii) Chander Kishore Sharma & Anr. Vs. Smt. Kampa Wati (AIR 1984 Del 14),
(xiii) Bishan Dass Vs. State of Punjab (AIR 1975 SC 573),
(xiv) Harbhajan Singh Vs. Kuldeep Singh & Ors. (2017 1 CLJ 392 Del) and
(xv) TRL Krosaki Refractories Ltd. Vs. SMS Asia Pvt.
Ltd. & Anr. (2022 1 TVT 178 SC).
27. In order to bring a case within the purview of section 14(1)(e) of DRC Act, the followings are the essential ingredients :
i. Petitioner is the owners/landlords in respect of the tenanted premises;
ii. The tenanted premises are required bona fidely by the petitioner for himself or for family members dependent upon him;
iii. The petitioner does not have any other reasonable suitable accommodation.
Ownership of petitioner and Landlord-tenant Relationship between the parties
28. In the present case, the respondent has not disputed the ownership of petitioner over the tenanted premises as well as existence of landlord-tenant relationship between the parties. Moreover, PW1 has proved sale deed dated 31.03.2004 Ex. PW1/2 (OSR) executed by Smt. Ram Sawari Grover in favour of the RC ARC-682/2017 Bansi Lal Vs Manisha Chauhan Page no.18/38 petitioner. There is no dispute that Smt. Ram Sawari Grover was the erstwhile owner of the property and that the property was sold by the erstwhile owner to the petitioner. Respondent has admitted this fact in his cross-examination dated 13.12.2019 that petitioner purchased this property in the year 2004. Further, the respondent has also admitted that the tenanted premises were let out to the respondent by the erstwhile owner Smt. Ram Sawari Grover. Thus, the ownership of the petitioner over the premises in question as well as existence of landlord-tenant relationship between the parties for the purpose of section 14 (1) (e) of DRC Act stands proved.
Bona fide requirement and availability of alternative accommodation.
29. It is necessary to deal with the foremost contention of Ld. Counsel for respondent that bona fide need of the petitioner cannot be proved by SPA holder i.e. PW1 since bona fide need was something personal to the petitioner and therefore, adverse inference should be drawn against the petitioner for not stepping into the witness box. It is pertinent to mention that this aspect whether the bona fide requirement can be established by a landlord even without stepping into the witness box is no more res-integra. It is now well settled that it cannot be held as inflexible preposition of law that bona fide requirement could be established by the evidence of landlord only and non else. It was observed by Hon'ble Bombay High Court in Nathu Lal Gangabaks Khandelwal & Ors. Vs. Smt. Nandubai & Ors. (AIR 1984 Bom. 340 DB) :
"...12. With respect we do not find ourselves in agreement with the proposition which has been adumbrated by the learned single RC ARC-682/2017 Bansi Lal Vs Manisha Chauhan Page no.19/38 Judgeing possession under Section 13(1)(g) 0f the Bombay Act or under Clause 13 (3) (vi) of the Rent control Order for permission to determine the tenancy is to establish that he needs or requires the premises bona fide for his own use and occupation. The question whether the landlord so requires or needs the premises or the house and whether such need or requirement is bona fide or not would be a question of fact which of course the landlord would have to establish for success in the case. Neither the provisions of the Bombay Act nor the Rent control Order make any provision as to how and in what way the landlord has to establish these two facts. Under Section 13(3)(vi) he has to satisfy the Rent Controller. It would appear that the evidence which the landlord would be sufficient to satisfy the Court or the Rent Controllers as the case may be. In the absence of any specific provision as to be established. These facts could be proved by the landlord by adducing any evidence which satisfies the Court or the Rent Controller. It may be that certain facts which are needed to establish theses requirements are in the personal knowledge of the landlord alone and could not be proved unless he is examined. In such a case it may be necessary for the landlord to step in the witness-box and the authority concerned may not accept any other evidence. But if these two factors can be established by any other evidence, than that of the landlord requires the premises bone fide for his use and occupation, we fail to see why it should be necessary as a matter of law that the landlord must examine himself with fatal consequence if he omits to do so. It may be as has been said by the learned single Judge in Nanalal's case that bona fide requirement is state of mine though it may be something more. But it what is required to be done only by the should be necessary to be done only by the evidence of the landlord and none else if such requirement can be established to the entire satisfaction of the authorities concerned by any other evidence. In our view, the learned single Judge has laid down the proposition in a very wide, absolute and bona fide requirement of the landlord should or should not be accepted in a given case in the absence of the evidence of the landlord himself, would depend upon the facts and evidence in that particular case and any absolute proposition as has been done by the learned single Judge cannot be laid down in this behalf. It is for these reasons that we, with great respect to the learned single Judge, do not agree with what he has said and in our view Nanalal's case does not lay down the correct law in this respect."
30. The above view is also supported by the judgment of Hon'ble Supreme Court in Smt. Ramkubai Vs. Hajarimal Dhokalchand Chandak ( AIR 1999 SC 3089). Further, it was held by Hon'ble Delhi High Court in Om Parkash Vs Inder Kaur ( 2009 156 DLT 292) that there is nothing in the DRC Act which suggests that the RC ARC-682/2017 Bansi Lal Vs Manisha Chauhan Page no.20/38 landlord must step into the witness box to prove his bona fide need for the premises in question and that it is open to the landlord to lead any evidence which he chooses in order to substantiate his case of bona fide requirement. Similar view was taken in Capt. Praveen Davar Vs. Harvansh Kumari (2010) 119 DRJ 560, wherein it was held that it is not essential for the landlord to enter into witness-box and depose in favour of his case and even an attorney holder can depose on behalf of the landlord who has personal knowledge of the facts of the case.
31. In a recent judgment, Hon'ble Delhi High Court in Anil Bhasin Vs Imarti Devi (RC Rev No. 266/2017 dated 06.11.2017), held that it is not essential in a proceeding for eviction of a tenant for the landlord himself to step into the witness box and any other witness who has personal knowledge of the facts can depose as a witness. It was further held that the landlord can prove his case without stepping into the witness box and no adverse inference can be drawn against him on the ground that he did not appear his own witness in the case. It is relevant to reproduce the observation made by the Court :
"...21. As far as the second contention, of the respondent having herself not stepped into the witness box, is concerned, it has been held by the Supreme Court in Ramkubai Vs. Hajarimal Dhokalchand Chandak (1999) 6 SCC 540 that it is not essential in a proceeding for eviction of a tenant for the landlord to himself/herself step into the witness box. This Court in Om Parkash Vs. Inder Kaur 2009 (107) DRJ 263, in the context of a petition filed under Section 14D of the Act held that any person is a good witness if he deposes about the facts which are in his personal knowledge, whether he is a father or an attorney or a son or a neighbour; what law requires is that the deposition must be of the facts to which he is a privy; the evidence given by a witness cannot be rejected on the ground that he is a father or a relative, nor any adverse inference can be drawn against the plaintiff on the ground that he had not appeared his own witness in the case; the plaintiff is master of his case; he can prove his case without appearing in the witness box. Mention may also be made of Capt. RC ARC-682/2017 Bansi Lal Vs Manisha Chauhan Page no.21/38 Praveen Davar (Retd.) Vs. Harvansh Kumari (2010) 119 DRJ 560, (SLP (C) No.26449/2010 preferred whereagainst was dismissed on 27th September, 2010). In the present case, it is the son of the respondent who has appeared as a witness and who is admittedly residing in one of the two properties aforesaid which are stated to be situated in close proximity of each other, according to the petitioner also at a distance of 1 Km only. It cannot be said that the said son of the respondent was not conversant with the facts, so as to be not able to depose about the same. A perusal of the cross-examination by the counsel for the petitioner of the said son of the respondent also shows the same to be comprising of nothing except suggestions that each of the deposition of the said son in the affidavit by way of examination- in-chief was wrong."
In view of the above preposition of law, the contention of Ld. Counsel for the respondent that PW1 being an attorney holder cannot depose on behalf of the petitioner and that testimony of PW1 cannot be considered for bona fide requirement of the petitioner, is unsustainable. PW1 being son of the petitioner, who is also engaged in the business with the petitioner, was competent to depose to prove the bona fide requirement of the petitioner. Further, since PW1, in his individual capacity, was competent to depose in support of the facts pleaded in the petition, the argument of Ld. Counsel for the respondent that PW1 did not depose as an attorney and deposed in his own capacity and thus his testimony cannot be considered, also does not hold any ground.
32. Coming to the bona fide requirement of the petitioner, it is pleaded in the petition that the petitioner requires the tenanted premises i.e. shop No. 4 on the first floor as well as shop No. 25 situated at second floor floor (with respect to which a separate petition has been filed against Sh. Jawahar Singh) as the space available with the petitioner at ground floor is not sufficient to display variety of RC ARC-682/2017 Bansi Lal Vs Manisha Chauhan Page no.22/38 diamond jewellery to customers and the petitioner intends to do it at the tenanted premises. Whereas, the petitioner intends to start business of ladies ready-made garments at shop No. 25 on the second floor. It is specifically pleaded by the petitioner that he does not have any other suitable accommodation available for carrying out the business of diamond jewellery as well as for ready-made garments.
33. On the other hand, respondent has pleaded in his written statement that petitioner owns twenty one shops in the property No. 2439, Beadon Pura, Karol Bagh i.e. the property in which the tenanted premises are situated but the petitioner neither mentioned this fact in the petition nor has he disclosed the name and details of the tenants occupying the different shops in the property. It is contended by the respondent that the petitioner, in the earlier eviction petition filed by him against tenant Amarjeet Singh (RW2 in the present case), admitted in his cross-examination that he owns as many as eighteen shops in the entire property No. 2439, Beadon Pura, Karol Bagh and that there were at least five to six shops which are lying vacant. It is therefore, contented that petitioner has got sufficient alternative accommodation available on the same property. It is submitted that the petitioner has filed multiple eviction petition against the tenants but the same were dismissed. It is contended that the petitioner does not have any bona fide need and the petitioner is only bent upon to obtain the possession of the tenanted premises. It is also contended that size of the tenanted shop is small and is not suitable for carrying out business of diamond jewellery. It is further contended that the petitioner is more than eighty years old and due to his medical RC ARC-682/2017 Bansi Lal Vs Manisha Chauhan Page no.23/38 condition, is unable to walk therefore, the need of the petitioner to possess the tenanted premises is bogus and not genuine. It is also contended by the respondent that as per the income tax return of the petitioner, his income from house property is shown as 'nil' which is not possible. It is also contended that in the site plan filed along with the petition, none of the portions of the property are depicted in colours contrary to the averments in the petition.
34. It is relevant to reproduce sub-paras (d) and (e) of para 18
(a) of the petition in which the petitioner has set out his bona fide need to possess the tenanted premises in question :
"...d) That the petitioner requires the present property as well as the property rented to Shri Jawahar Singh & Anil Kumar for starting business of Diamond Jewellery as on the ground floor proper space is not available, therefore the petitioner is not able to show variety of designs of diamond jewellery to his customers and on the second floor, the petitioner wants to start Readymade Business relating to ladies exclusively.
e) That property in question consists 3 storey building i.e. Ground Floor, First Floor & Second Floor. The The ground floor portion is in the possession of petitioner, who is carrying on his business of Gold Jewellery and the same is shown in Green Colour and the portion which is sold or belonging to other person, is shown in Blue Colour.
The tenant, Shri Amarjeet Singh & Ors. the other tenant who is doing the business of Opticals is shown in Yellow Colour whereas on the first floor the other tenants has been shown in Yellow Colour and whereas the workshop of the Gold Smit is shown in Green Colour. Likewise, on the second floor, tenanted portion is shown with red colour and other portion which is in the possession of the tenant is shown in yellow colour) and from the above, it is clear & categorical that (petitioner have alternate no other accommodation suitable for Diamond Smith The petitioner is also requiring portion of another tenant, Ms. Manisha Chauhan, for which the petitioner is filing separate eviction petition as petitioner does not have any alternate accommodation suitable for starting workshop to accommodate Diamond Smith as well as to further create workshop for Gold Smit."
Perusal of the above pleadings show that the need of the RC ARC-682/2017 Bansi Lal Vs Manisha Chauhan Page no.24/38 petitioner is not clear. The pleadings start with the petitioner stating that the petitioner requires shop No.4 on the first floor and tenanted premises i.e. shop No. 25 on the second floor, to start business of diamond jewellery on the first floor and business of ready-made garments at the second floor. However, in subsequent paras, the need to start business of diamond jewellery is substituted with workshop of diamond smith and goldsmith. The petitioner himself has stated in the petition that he is occupying space on the first floor which is being utilized for the work of goldsmith. It is not explained that when the petitioner is already occupying space on the first floor for the purpose of goldsmiths and the intention of the petitioner is to start the business of diamond jewelry, then suddenly, how the need of the petitioner is substituted with that of a workshop for goldsmiths. It is relevant to mention that the same averments are deposed by PW1 in his evidence affidavit, Ex. PW1/A, but there are no supporting pleadings that lay the foundation of the bona fide need of the petitioner for a goldsmith's workshop. It is true that while deciding whether the need of the petitioner/landlord is bona fide or not, the Rent Controller cannot proceed with the presumption that the need put forth by the petitioner is not genuine and bona fide, and further that it is not mandatory for the petitioner/landlord to specify the details of the business which he intends to carry on in the tenanted premises. However, at the same time, the pleadings with respect to the bona fide need cannot be confusing and contradictory.
35. It is also relevant to note that during his cross- examination dated 07.05.2019, PW1 deposed that 'he' was running a RC ARC-682/2017 Bansi Lal Vs Manisha Chauhan Page no.25/38 business of gold jewellery and small scale diamond jewelley and that 'he' wanted to start business of diamond jewellery on the second floor as 'he' was not able to show variety of designs to the customers. The relevant excerpt of the cross-examination of PW1 is reproduced as under :
"...I am running a business of Gold Jewellery and small scale diamond jewellery. It is correct that I want to start diamond business on II floor and I am not able to show variety of designs to the customers, that's why I have filed this eviction petition and the area of another shop i.e 8'x12' approximately in which Pritam Singh is a tenant and Amarjeet Singh is one of his Legal heirs. Vol. The said petition has been filed for the bonafide need of the grand son of Sh. Bansi Lal. The case titled Bansi Lal V/s Amarjeet Singh is disposed off in favour of the defendant and it is the matter of record. Vol. I have challenged the same order and the same is pending in the Hon'ble High Court. I have not filed any case against Om Sai(tenant) which is just adjacent to my shop. It is correct that I have no option left than to expand my shop which is on the ground floor, to the upper floors..."
Further, this testimony of PW1 has to be seen in light of his cross-examination dated 12.04.2019 where he has deposed as under :
"...Q. I put to you that your father in abovesaid cross-examination Ex. PW1/RI (Colly.) had admitted that there are three shops on the ground floor, 10 shops: on the first floor and eight shops on the second floor of the suit property, is it correct?
Ans. There are three shops on the ground floor, eleven shops on the first floor and seven shops on the second floor, of which we are the owners in the suit property. Vol. My father is 80 plus of age and that is why he might not be correct. I am doing the entire liaison work including issuing of rent receipts, paying of house tax, etc."
The above testimony of PW1 does not in any manner lend support to the case of the petitioner that he requires the shop No. 25 on the second floor and shop No. 4 on the first floor for his own commercial need. The above testimony of PW1 creates a prima facie doubt as to whether it is actually PW1, who is the son of the petitioner RC ARC-682/2017 Bansi Lal Vs Manisha Chauhan Page no.26/38 and who is actually managing all the business of M/s Bansi Lal & Sons, who requires these shops, and not the petitioner.
36. Further, it is the case of respondent that as per the admission of the petitioner in an earlier petition filed against another tenant, Amarjeet Singh, titled as Bansi Lal vs. Amarjeet Singh & Ors, bearing Eviction Petition No. 18/2012, the petitioner owns about eighteen shops in the entire property No. 2439, and that he admitted having about five to six shops that were vacant. The cross- examination of the petitioner in the said petition has been put to PW1 and exhibited as Ex. PW1/R1 (colly.). The relevant excerpt of cross- examination of petitioner in Ex. PW1/R1 (colly.) is reproduced as under :
"...I have three sons namely Sh. Bal Kishen, Sh. Anil Kumar and Sh. Ashwani Kumar and two daughters. Sh. Manu Chauhan is my grand son being son of Sh. Anil Kumar. In the firm M/s Bansi Lal & Sons, there are two partners I.e the petitioner and Sh. Bal Kishen. The firm is in the business of Jewelery and is doing business from property bearing no.2439/11, Beadon Pura, Karol Bagh, New Delhi since 1993. The property comprises of three floors in which there are three shops on the ground floor, ten shops on the first floor and eight shops on the second floor and the plot size is 220 Sq. yards. Vol. I am not the owner of entire property.
All the shops on the ground floor, first floor and second floor of property are not own property. Vol. Except three shops on the first and second floor, I am the owner of remaining 18 shops on the ground, first and second floor. Other than the shop occupied by M/s-Bansi Lal and Sons, remaining 17 shops are occupied by the tenants. It is correct that no particulars of tenants in remaining 16 shops or rents of those 16 shops has been mentioned in the petition or in my affidavit. It is correct that no rent agreement qua those 16 tenants as stated during my cross examination has been filed on record...
...It is correct that the premises owned by my grandson Manu Chauhan being first floor of property no.2528, Hudson Line, Kingsway Camp, Delhi has been let out by my grandson and that restaurant has been opened on 01.05.2016. However, I am not sure whether the name of the restaurant is "Friends Restaurant" or any RC ARC-682/2017 Bansi Lal Vs Manisha Chauhan Page no.27/38 other name. I am also not aware about the rental details. It is incorrect to suggest that there are no tenants in the 16 shops on the first and second floor in the sult premises. Vol. There are tenants in above said shops except 1 or 2 shops but I do not know the details of any of them...
...Q. I put to you that there are no tenants in the above said 16 shops and that of and on you give the said shops on licence on daily basis?
A: These shops are given to Patri wala/hawkers for keeping their goods in the night and they take out their goods in the morning. I do not remember the exact number but most likely 5-6 shops are given for the said purpose. However, I do not know the details of the said persons or amount being charged to them. The same is looked after by my other son namely Sh. Bal Krishan."
The above testimony of the petitioner clearly shows that the petitioner is the owner of at least eighteen shops in property No. 2439, Beadon Pura and that there were at least five to six shops which were not let out to any tenant and were given to street hawkers for keeping their goods at night. However, it is pertinent to mention that the petitioner has nowhere pleaded in the petition as to how many shops in the property bearing No. 2439, Beadon Pura, are owned by the petitioner, name and details of other tenants and the date on which they were inducted. It is pertinent to mention that respondent has specifically pleaded this admission of the petitioner in the earlier eviction petition filed against the tenant, Amarjeet Singh, in his written statement. However, in the replication also, the petitioner denied having any other alternative accommodation as alleged by the respondent. The petitioner denied any admission on the part of the petitioner in the earlier petition against Amarjeet Singh and stated that he has preferred revision petition against the judgment passed in the said petition. But the petitioner except pleading that details of the tenant have been mentioned in the site plan, did not state anything RC ARC-682/2017 Bansi Lal Vs Manisha Chauhan Page no.28/38 else. In the opinion of the undersigned, the petitioner, after a specific defence was taken by the respondent about the admission of the petitioner as aforesaid, was required not only to disclose the name and details of the tenants occupying the various shops owned by the petitioner including the date of their induction but also required to support the assertion by documentary proof thereof.
37. It is also relevant to mention the cross-examination of PW1 in this regard. The relevant excerpt of cross-examination of PW1 in this regard is reproduced as follows:
"...Q. I put to you that your father in abovesaid cross- examination Ex. PWI/RI (Colly.) had admitted that there are three shops on the ground floor, 10 shops on the first floor and eight shops on the second floor of the suit property, is it correct?
Ans. There are three shops on the ground floor, eleven shops on the first floor and seven shops on the second floor, of which we are the owners in the suit property. Vol. My father is 80 plus of age and that is why he might not be correct. I am doing the entire liaison work including issuing of rent receipts. paying of house tax, etc. ...Is it correct that you have not mentioned in your affidavit, how many shops are vacant till date?
A. No shop has been vacant, that is why I have not mentioned the same in my affidavit.
It is wrong to suggest that you have no shop vacant in the suit premises.It is wrong to suggest that the shop from where the business of M/s Om Sai Optician is being carried out is in my possession. It is wrong to suggest that I have not placed on record any document to show that M/s Om Sai Optician is my tenant. Vol. It is mentioned in my site plan. Rent receipt, rent agreement, of Om Sai is not placed on record. Vol. House tax paid by the owner. House tax paid by the owner since 2004.
...It is wrong to suggest that Sh. Bansi Lal never shown rental income in his personal ITR. It is correct that in the document, i.e., ITR for the year 2014- 15 of Bansi Lal & Sons Jewellers already Mark 'A', income for house property and income from other sources is shown as "0". It is correct that in the document Mark 'X', i.e., Profit & Loss RC ARC-682/2017 Bansi Lal Vs Manisha Chauhan Page no.29/38 Account of M/s Bansi Lal & Sons Jewellers, rental income is not shown. Vol. As the firm is not having any rental income. The income from House property in the ITR verification form of Bansi Lal for the year 2016-17 is shown at point 'A'. The said document is now Ex. PW1/RI. It is correct that the income from house property of Sh. Bansi Lal is Rs. 5.97,912/- as shown at point 'A' in Ex. PW1/RI. It is correct that in the rent receipts already exhibited as Ex. PW1/9 (colly.) the rate of rent with respect to premises occupied by tenants are mentioned as Rs. 500/- per month, Rs. 200/- per month, Rs. 300/- per month and Rs. 40/- per month. It is correct that the income from house property is correctly shown in document Ex. PW1/R1. Vol. There are some other rent agreements as well, which are not placed on record. The income from house property comprises of only rental income.
...Q. Is it correct that in the site plans filed by you alongwith the petition and in the petition and also in the affidavit of evidence you have not mentioned the details of the tenants nor in Ans. It is correct that in the initial site plans, the names and other details of tenants were not mentioned but in the site plans which have been allowed by the Hon'ble Delhi High Court, the details of tenants have been mentioned. It is correct that in the petition as well in my affidavit of evidence, I have not mentioned the details/names of the tenants.
...Q. Have you placed all your rent agreements regarding all the premises given on rent by you or the previous owners of property bearing no. 2439 from whom you purchased the building in the year 2004?
Ans. I do not remember.
Q. Do you have all the abovesaid rent agreements?
Ans. I have some rent agreements and some rent receipts. I can produce the rent agreements available with me.
It is wrong to suggest that I do not require the tenanted premises bonafidely for starting business of diamond jewellery as on the ground floor proper space is not available and I am not able to show variety of diamond jewellery to the customers. It is further wrong to suggest that I do not require the tenanted premises to start readymade business relating to ladies exclusively. It is further wrong to suggest that I do not have any other reasonable, suitable accommodation for my bonafide need.
It is wrong to suggest that I do not have any rent agreements or rent receipts regarding all the premises given on rent by me or the previous owners of property bearing no. 2439 from whom you purchased the building in the year 2004 and that is why I have not RC ARC-682/2017 Bansi Lal Vs Manisha Chauhan Page no.30/38 placed on record. It is wrong to suggest that 5-6 shops are lying vacant in the premises bearing no. 2439."
The testimony of PW1 shows that he has denied the fact that there were shops lying vacant in property No. 2439, Beadon Pura, Karol Bagh and he relied upon the site plans Ex. PW2/2, Ex. PW1/6, and Ex. PW1/7 to show that all the shops are occupied by the tenants that are mentioned in the site plan. Further, PW1 admitted that no rent agreements have been filed by the petitioner to show that other shops are occupied by tenants, even though he has denied the suggestion that he did not have all the rent agreements and rent receipts of all the premises given on rent in property No. 2439, Beadon Pura. If the petitioner was in possession of all the rent agreements and rent receipts then he was obligated to file the same on record.
38. In the opinion of the undersigned, when the petitioner has been confronted with a specific defence that previously the petitioner has admitted having shops in the same property which are not in possession of any tenants rather they were given to street hawker for keeping their goods on daily basis, which was also put to PW1 in his cross-examination, then it was not sufficient for the petitioner to rely only on the site plan to positively prove that petitioner does not have any other shop vacant in the property No. 2439, Beadon Pura. In these circumstances, the petitioner ought to have filed rent agreements or rent receipts of all the shops rented out by the petitioner in the property No. 2439 Beadon Pura since onus to prove the non- availability of alternative accommodation has shifted on to the petitioner in terms of section 102 Indian Evidence Act, 1872. The RC ARC-682/2017 Bansi Lal Vs Manisha Chauhan Page no.31/38 petitioner ought to have led positive evidence in form of documentary evidence such as rent agreements or rent receipts to discharge his burden. It is also important to note that despite owning up to eighteen shops in the aforementioned property, the petitioner has only filed five rent receipts Ex. PW1/9 (Colly) as evidence that additional shops in the property have been occupied by tenants. It was rightly pointed out by Ld. Counsel for the respondent No. 1 that only three of these rent receipts bear the signature of the tenant. Additionally, these receipts are of the year 2014. The petitioner has not brought any recent rent receipt on record to clarify the admission of the petitioner in the earlier eviction petition.
39. It is also important to note that while the petitioner has shown shops Nos. 16 and 17 as 'self' in Ex. PW1/6, it is no where stated whether the petitioner occupies these spaces and, if so, for what purposes. The petitioner must have explained why his bona fide need cannot be met by shops Nos. 16 and 17, if the petitioner is occupying these shops.
40. It is the contention of Ld. Counsel for the petitioner that respondent during his cross-examination admitted the site plans Ex. PW2/2, Ex. PW1/6 and Ex. PW1/7 as correct. It is further argued that during his cross-examination, respondent admitted that shops have been occupied by tenants in response to specific queries put to him. It is therefore argued that the petitioner has been able to prove not only that all the other shops in property No. 2439, Beadon Pura, are occupied by tenants but also that there is no alternative RC ARC-682/2017 Bansi Lal Vs Manisha Chauhan Page no.32/38 accommodation available to the petitioner. Reproducing the relevant portion of respondent/RW1's testimony is pertinent in this context:
"...At this stage, the witness is shown the site plan Ex. PW1/6 and is asked to show the shop i.e. suit shop and the witness stated that the suit shop is at point A, B, C and D respectively.
There is three shops at the ground floor. The 1" shop is in the possession of the petitioner and second shop is under the tenancy of Om Sai Optical and the third shop is under the tenancy of Pritam Singh.
At this stage, the witness is shown the site plan Ex. PW2/2 and is asked to show the shop of Pritam Singh and the witness stated that the same is at point E, F. G and H respectively.
At this stage, the witness is shown the site plan Ex. PW2/2 and is asked to show the shop of Bansi Lal and Sons jewellery and the witness stated that the same is at point J, K, B, A, D and L respectively.
At this stage, the witness is shown the site plan Ex. PW2/2 and is asked to show the shop of Om Sai Optical and the witness stated that the same is at point A, B, C and D respectively.
It is correct that the site plan Ex. PW2/2 is correct as per site.
Q. Is it correct that there is a tenant in the shop No. 12 and 13 on the 1" floor with the name of the Amit Sethi?
Ans. It is correct.
The shop bearing no. 12 and 13 that is with the son of R. K. Sethi namely Amit Sethi is shown at point E, F, G, H and I in the site plan Ex. PW1/6. I do not know that whether any Harmohan Singh tenant is there in the shop no. 9, the same is at point M, N, O and P in the site plan Ex. PW1/6. Vol. The same is vacant. It is correct that the shop no. 10 is under the tenancy of Sh. Satbir Singh, the same is at point F, Q. N and M in the site plan Ex. PW1/6. I do not know that whether any Ajay Kumar tenant is there in the shop no. 14, the same is at point J, E, I and K in the site plan Ex. PW1/6. I do not know that whether any Inderpal Singh tenant is there in the shop no. 15, the same is at point L, B, R and K in the site plan Ex. PW1/6. It is correct that there is a tenant who is working in that shop with the name of Sardar Mansoor in the shop no. 18, the same is at point W. X. Y and Z in the site plan Ex. PW1/6. It is incorrect that one person with the name of Hiralal was working in the shop no. 28, I am not aware of the fact that whether I have mentioned about the above said tenant in my WS and leave to defend application.
RC ARC-682/2017 Bansi Lal Vs Manisha Chauhan Page no.33/38 Q. Is it correct that there is a workshop in the shop no. 17 and the shop no. 16 is used for storage purpose?
Ans. I cannot tell as to in which shop the workshop is there but it might be in one of the shops among shop no. 16 & 17.
I am not aware whether the petitioner is using the shop no. 17 for the workshop and shop no. 16 for storage purposes.
It is correct that in the shop no. 21 one Sh. Inderjeet Singh is the tenant. That shop is shown in the site plan Ex. PW1/7 at point ABCD. It is correct that the shop no. 23 and shop no. 23A is under the tenancy of Sh. Gurbachan Singh. The said shops are shown at point EFGH respectively in the site plan Ex. PW1/7. I am not aware as to whether the shop no. 24 is under the tenancy of Sh. Jamna Prasad. (Vol. The same is under the possession of the petitioner himself.) It is wrong to suggest that one Sh. Varun Gola is working in the shop no. 26 and Sh. Kokhan is working as a tenant in the shop no. 27 respectively. (Vol. Both the said shops are under the possession of the petitioner.) It is correct that the shop no. 25 shown at point JKLM in the site plan Ex. PW1/7 is under the tenancy of one Sh. Jawahar Singh and Anil Kumar.
It is correct that the site plan Ex. PW1/7 is correct as per site.
The testimony of RW1 clearly shows that respondent/RW1 did not admit the suggestion of Ld. Counsel for the petitioner that shops No. 9, 14, 15, 16, 17, 24, 26 and 27 are occupied by tenants. While he was unable to confirm if tenants are present in shops 9, 14, 15, and 16, he categorically asserted that the petitioner is in possession of shops No. 24, 26 and 27. Thus, a meaning reading of the testimony of respondent /RW1 shows that he did not admit the site plans Ex. PW2/2, Ex. PW1/6 and Ex. PW1/7 in toto. As discussed above, the onus to prove non-availability of alternative accommodation had shifted to the petitioner after the respondent was able to prima facie show from Ex. PW1/R1 (colly) that some shops are available to the petitioner in the same property which are not let out to the tenants and which are under the control of the petitioner.
RC ARC-682/2017 Bansi Lal Vs Manisha Chauhan Page no.34/38 Therefore, mere because respondent/RW1 during his cross- examination could not specify whether certain shops were under any tenancy or not, cannot be accepted as proof that those shops were occupied by tenants. Moreover, as observed above, respondent/RW1 in his testimony on being specifically asked in this regard, stated that shops No. 24, 26, and 27 are in the possession of the petitioner, and the petitioner, thereafter, has not been able to prove by leading any evidence that these shops are not available to the petitioner because they are occupied by tenants. The onus on the petitioner to prove non- availability of alternative accommodation, therefore, cannot be said to be discharged.
41. It is also noteworthy to mention that respondent has brought on record income tax return of the petitioner for the assessment year 2016-17 Ex. PW1/R1 which is an admitted document. In this document, the income of the petitioner from house property is disclosed as Rs. 5,97,912/-. When specifically asked, PW1 stated in his testimony that the petitioner's income has been correctly described in the said document and that the petitioner's income from house property comprises only of rental income. However, the rent receipts Ex. PW1/9 (colly) show that rent collected from those premises were only in the sum of Rs. 500/-, Rs. 300/-, Rs. 200/- and Rs. 40/-. PW1, on being specifically asked in this regard, stated that there were other rent agreements which were not placed on record. The relevant excerpt of PW1's testimony is reproduced as under:
"...The income from House property in the ITR verification form of Bansi Lal for the year 2016-17 is shown at point 'A'. The said document is now Ex. PW1/RI. It is correct that the income from house RC ARC-682/2017 Bansi Lal Vs Manisha Chauhan Page no.35/38 property of Sh. Bansi Lal is Rs. 5.97,912/- as shown at point 'A' in Ex. PW1/RI. It is correct that in the rent receipts already exhibited as Ex. PW1/9 (colly.) the rate of rent with respect to premises occupied by tenants are mentioned as Rs. 500/- per month, Rs. 200/- per month, Rs. 300/- per month and Rs. 40/- per month. It is correct that the income from house property is correctly shown in document Ex. PW1/R1. Vol. There are some other rent agreements as well, which are not placed on record. The income from house property comprises of only rental income..."
The testimony of PW1 clearly shows that petitioner has not been able to explain how the income of the petitioner from the house property in the assessment year 2016-17 was Rs. 5,97,912/- when the rent mentioned in the rent receipts Ex. PW1/9 (colly) was not more than Rs. 500/-. The irresistible conclusion is that there are other properties owned and let out by the petitioner which have been concealed by the petitioner in the present petition and a reasonable presumption can be raised in regard to the petitioner's need to possess shop No. 25 and shop No.4 of the property bearing No. 2439, Beadon Pura, Karol Bagh that the same is not genuine and bona fide.
42. Lastly, it has come on record in the testimony of PW2 that the stairs from first to second floor in Ex. PW1/7 are made up of iron as opposed to any permanent concrete structure. It is admitted position that the building is not equipped with lifts to climb the upper floors. Thus, a doubt arises as to whether the petitioner, being more than eighty years of age, would be able to himself use the shops in question, which are situated on the upper floors of the property.
43. It is settled preposition of law that the requirement of the petitioner to possess the tenanted premises must be bona fide and not RC ARC-682/2017 Bansi Lal Vs Manisha Chauhan Page no.36/38 a mere wish or desire i.e. something whimsical or fanciful. In this regard, the Hon'ble Supreme Court in Deena Nath Vs Pooran Lal (2001 3 SCR 925) has observed:
"...The Legislature in enacting the provision has taken ample care to avoid any arbitrary or whimsical action of a landlord to evict his tenant. The statutory mandate is that there must be first a requirement by the landlord which means that it is not a mere whim or a fanciful desire by him; further, such requirement must be bonafide which is intended to avoid the mere whim or desire. The 'bonafide requirement' must be in presenti and must be manifested in actual need which would evidence the Court that it is not a mere fanciful or whimsical desire. The legislative intent is made further clear by making the provision that the landlord has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. This requirement lays stress that the need is pressing and there is no reasonably suitable alternative for the landlord but to get the tenant evicted from the accommodation. Similar statutory provision is made in sub-section (e) of Section 12( 1) of the Act in respect of 1ccommodation let for residential purposes. Thus, the legislative mandate being clear and unambiguous, the Court is duty- bound 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 iliecourt/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 erroneous finding illegally arrived at would vitiate the entire judgment. In such case the High Court cannot be faulted for interfering with the finding in exercise of its second appellate jurisdiction under Section 100 of the Code of Civil Procedure."
44. On the basis of the above appreciation, it is clear that the petitioner has not been able to prove that he requires the shop No. 25, situated on the second floor, and shop No. 4, situated on the first floor, in the property bearing No. 2439/11, Beadon Pura, Karol Bagh, Delhi, RC ARC-682/2017 Bansi Lal Vs Manisha Chauhan Page no.37/38 for his bona fide need to start business of ready-made ladies garments and diamond jewellery, respectively. The above discussion also reveals that the possibility of the petitioner having other properties in his possession and control, cannot be ruled out.
45. In regard to the authorities relied upon by Ld. Counsel for the respondent is concerned, it is suffice to say that they are not applicable to the facts of the present case. The Hon'ble Supreme Court in the judgment of Padma Sundara Rao & Ors. Vs. State of Tamil Nadu & Ors. (2002) 3 SCC 533 held:
"...9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington v. British Railways Board [(1972) 2 WLR 537 : 1972 AC 877 (HL) [Subnom British Railways Board v. Herrington, (1972) 1 All ER 749 (HL)]]. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases."
46. In view of the above findings, it is therefore, held that petitioner has not been able to prove the necessary ingredients of section 14(1) (e) of DRC Act and the present eviction petition is accordingly,dismissed.
Digitally signed by PRANAVAnnounced in open Court PRANAV JOSHI
on 29th Day of August, 2023 JOSHI Date:
2023.08.29
17:00:19 +0530
(Pranav Joshi)
CCJ-cum-ARC (Central)
THC/Delhi/29.08.2023
RC ARC-682/2017 Bansi Lal Vs Manisha Chauhan Page no.38/38