Delhi District Court
Sh. Yashpal vs Sh. Vijay on 11 February, 2020
IN THE COURT OF SHRI AJAY NAGAR,
ADDITIONAL RENT CONTROLLER (WEST), TIS HAZARI
COURTS, DELHI.
ARC No: 25342/2016
Sh. Yashpal,
S/o Late Sh. Ramanand,
R/o H. No. WZ-1,
Village Tatar Pur,
New Delhi-110027. ......Petitioner
VERSUS
1. Sh. Vijay,
S/o Not Known,
Shop No. WZ-1-A/20 and 21,
Village Tatarpur,
New Delhi-110027.
Also at:-
H. No. 272 in Block No. 4,
Subhash Nagar, New Delhi-110027.
2. Sh. Bohat Ram
S/o Late Sh. Tej Ram
R/o WZ-5, Village Tatar Pur,
New Delhi-110027. .......Respondents
Date of filing : 07.10.2013 Date of Order : 11.02.2020 ORDER ON LEAVE TO DEFEND
1. Brief facts of the case are that the petitioner is seeking eviction of respondents namely Sh. Vijay and Sh. Bohat Ram (hereinafter referred to as "respondents") from two shops bearing No. WZ-1-A/20, measuring 11'X9' and a tin shed of 10'X9' in front thereof and shop bearing No. WZ-1-A/21 in quadrant shape measuring 11'X4'X15'X7.2' and a tin shed ARC No. 25342/16 Yashpal Vs. Vijay & Anr. Page 1 /26 of 10'X7.2'X10'X10' in front thereof fully shown in red dotted lines in the site plan (hereinafter referred to as "Tenanted Premises") attached with the petition Under Section 14(1)(e) of the Delhi Rent Control Act, 1958 (hereinafter referred to as "DRC Act").
2. Briefly stated the case of the petitioner is that the petitioner is the owner/landlord of the tenanted premises No. WZ-1A/20 and 21 which is under the tenancy of the respondent no. 1 at a monthly rent of Rs. 585/- and for both the shops a single receipt is being issued to respondent no. 1. That initially the number of property in which the tenanted premises is situated was WZ-1 which is the ancestral property of the petitioner. That on the front of the said property, there were 11 shops and later on, the front portion of the said property in which the tenanted premises were situated was given WZ-1A for the purpose of identification. That besides property bearing No. WZ-1, property bearing No. WZ-8 in village Tatarpur, New Delhi is also the ancestral property of the petitioner and both the said properties were mutually and orally divided between the father of the petitioner and his four brothers namely Sh. Bohat Ram, Sh. Charan Singh, Sh. Om Prakash and Sh. Inder Singh. That out of the said four brothers, Sh. Bohat Ram is alive and three brothers have already died including the father of the petitioner. That in the said partition WZ-8 had fallen to the share of Sh. Ramanand, father of the petitioner. That the property bearing No. WZ-8 is situated inside the village in a galli and wholly occupied by the tenants of the petitioner and is being used for residential purposes only.
ARC No. 25342/16 Yashpal Vs. Vijay & Anr. Page 2 /26It is further averred by the petitioner that two shops bearing No. WZ-1A/20 and WZ-1A/21 and the said rear portion in property No. WZ-1-A and WZ-1, Village Tatar Pur, New Delhi as shown in red colour in the site plan had fallen to the share of father of the petitioner in the said mutual partition in the year 1997. That Sh. Ramanand, father of the petitioner had died on 28.10.2012 and after his death, the respondent no. 1 has attorned the petitioner as owner/landlord of the tenanted premises and started paying rent to him. That the tenanted premises were let out to respondent no. 1 by the father of the petitioner Sh. Ramanand about 30-35 years back. That as per the knowledge of the petitioner, there is no rent agreement. That previously, in both the shops, the respondent no. 1 was doing welding work and the tin shed portion of both the shops was one and not partitioned. That about 05 years back the respondent No. 1 started work in shop no. WZ-1-A/20 and the tin shed portion was also divided by an iron sheet. That the tenanted premises are required bonafide by the petitioner/landlord/owner for starting his own work in one shop and settling down his only son Sh. Ashwani Tanwar, who is at present is doing private job, in another shop. That the petitioner is not doing any work and is unemployed and besides rental income of about Rs. 25,000/-, he has got no other income.
Lastly, it is prayed by the petitioner that eviction order may be passed in favour of the petitioner and against the respondents.
3. Notice of this eviction petition was sent to the respondents in the prescribed format which was duly served on ARC No. 25342/16 Yashpal Vs. Vijay & Anr. Page 3 /26 the respondents. In response to which the respondents filed their leave to defend application accompanied by affidavits.
4. Reply to leave to defend filed by the petitioner refuting the pleas taken by respondent in the leave to defend.
5. I have carefully and minutely gone through the petition, leave to defend application accompanied by affidavit, reply, documents, material on record and case law relied upon.
6. Perusal of record shows that the respondent has sought leave to defend on several grounds which will be discussed exhaustively later on.
7. Reply to leave to defend was also filed by the petitioner which will also be discussed exhaustively later on.
THE LAW:
It is well settled that burden placed on a tenant is light and limited in that if the affidavit filed by him discloses such facts as would disentitle the landlord from obtaining an order for the recovery of the possession of the premises on the ground specified in clause (e) are good enough to grant leave to defend.
It is further well settled that at a stage when the tenant seeks leave to defend, it is enough if he prima-facie makes out a case by disclosing such facts as would disentitle the landlord from obtaining an order of eviction. Unless the tenant at that stage itself establishes a strong case as would non-suit the ARC No. 25342/16 Yashpal Vs. Vijay & Anr. Page 4 /26 landlord leave to defend should not be granted when it is not the requirement of Section 25 B(5). A leave to defend sought for cannot also be granted for mere asking or in a routine manner which will defeat the very object of the special provisions contained in Chapter IIIA of the Act, leave to defend cannot be refused where an eviction petition is filed on a mere design or desire of landlord to recover possession of the premises from a tenant. Refusing to grant leave in such a case leads to eviction of a tenant summarily resulting in great hardship to her and her family members, if any, although he could establish if only leave is granted that a landlord would be disentitled for an order of eviction.
It is also well settled at the stage of granting leave to defend, parties rely on affidavits in support of the rival contentions. Assertions and counter assertions made in affidavits may not afford safe and acceptable evidence so as to arrive at an affirmative conclusion one way or the other unless there is a strong and acceptable evidence available to show that the facts disclosed in the application filed by the tenant seeking leave to defend where either frivolous, untenable or most unreasonable.
It is also well settled that when a possession is sought on the ground of personal requirement, a landlord has to establish his need and not his mere desire.
In short and substance wholly frivolous and totally untenable defence may not entitle a tenant to leave to defend but when a triable issue is raised a duty is placed on the rent controller by the statute itself to grant leave. It would expeditious disposal of eviction petition so that a landlord need ARC No. 25342/16 Yashpal Vs. Vijay & Anr. Page 5 /26 not wait and suffer for long time. On the other hand, when a tenant is denied leave to defend although he had fair chance to prove his defence, will suffer great hardship. In this view a balanced view is to be taken having regard to competing claims.
There appears to be a mistaken belief that unless the tenant at that stage makes out such a strong case as would non-suit the landlord, leave to defend cannot be granted. This approach is wholly improper. When leave to defend is sought for, the tenant must make out such a prima facie case raising such pleas that a triable issue would emerge and that in our opinion should be sufficient to grant leave. The test is the test of a triable issue and not the final success in the action.
8. Perusal of record shows that vide order dated 09.01.2020, the point whether the additional affidavit filed on 28.09.2016 by the respondent can be considered while deciding the present leave to defend was decided and consequently, subsequent events were taken on record.
9. I have carefully and minutely gone through petition, leave to defend application accompanied by affidavit, reply, documents and material on record and case law relied upon.
10. It is expedient to discuss some relevant relevant case law which is as under:-
In the case titled as Sarla Ahuja Vs United India Insurance Co. Ltd. AIR 1999 SC 100, the Hon'ble Supreme Court has held that:-
"The crux of the ground envisaged in clause (e) ARC No. 25342/16 Yashpal Vs. Vijay & Anr. Page 6 /26 of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord in bona fide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself."
In Shiv Sarup Gupta Vs Dr. Mahesh Chand Gupta AIR 1999 SC 2507, at pg-2512 in para 14 & 15, Hon'ble Supreme Court held that:-
"14. The availability of an alternate accommodation with the landlord i.e. an accommodation other than the one in occupation of the tenant wherefrom he is sought to be evicted has a dual relevancy. Firstly, the availability of another accommodation, suitable and convenient in all respects as the suit accommodation, may have an adverse bearing on the finding as to bonafides of the landlord if he unreasonably refuses to occupy the available premises to satisfy his alleged need. Availability of such circumstance would enable the Court drawing an inference that the need of the landlord was not a felt need or the state of mind of the landlord was not honest, sincere, and natural. Secondly, another principal ingredient of Clause (e) of Sub-section (1) of Section 14 which speaks of non- availability of any other reasonably suitable residential accommodation to the landlord, would not be satisfied. Wherever another residential accommodation is shown to exist as available than the court has to ask the landlord why he is not occupying such other available accommodation to satisfy his need. The landlord may convince the court that the alternate residential accommodation though available is still of no consequence as the same is not reasonably suitable to satisfy the felt need which the landlord has succeeded in ARC No. 25342/16 Yashpal Vs. Vijay & Anr. Page 7 /26 demonstrating objectively to exist. Needless to say that an alternate accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction. Convenience and safety of the landlord and his family members would be relevant fact Ors. While considering the totality of the circumstances, the court may keep in view the profession or vocation of the landlord and his family members, their style of living, their habits and the background wherefrom they come."
In the case titled as Ragavendra Kumar Vs Firm Prem Machinery AIR 2000 SC 534, it was observed as under:-
"It is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter, (See: Prativa Devi (Smt.) v. T.K Krishnan, [1996] 5 SCC 353. In the case in hand the plaintiff-landlord wanted eviction of the tenant from the suit premises for starting his business as it was suitable and it cannot be faulted."
The moral duty of a father/mother to help establish his/her son/daughter was also recognized by the Hon'ble Apex Court in "Joginder Pal Singh Vs. Naval Kishore Behal" [AIR 2002 SC 2256] in the following words:
"24........Keeping in view the social or socio-religious milieu and practices prevalent in a particular section of society or a particular region, to which the landlord belongs, it may be obligation of the landlord to settle a person closely connected with him to make him economically independent so as to support himself and/or the landlord. To discharge such obligation the landlord may require the tenancy premises and such requirement would be the requirement of the landlord. If the requirement is of actual user of the premises by a person other than the landlord himself the Court shall with circumspection inquire :
(i) whether the requirement of such person can be considered to be the requirement of the landlord, and (ii) whether there is a close inter-relation or identify nexus between such person and the ARC No. 25342/16 Yashpal Vs. Vijay & Anr. Page 8 /26 landlord so as to satisfy the requirement of the first query. Applying the overlaid tests to the facts of the present case it is clear that the tenancy premises are required for the office of the landlord's son who is a chartered accountant. It is the moral obligation of the landlord to settle his son well in his life and to contribute his best to see him economically independent."
11. One of the pleas taken by the respondent is that the petitioner alleges himself to be the owner of the property bearing No. WZ-1-A/20 and 21 in which two shops are there and the same are in occupation of the respondent but has not placed on record any document of ownership in his favour for the tenanted premises. Thus, the petitioner has no right to file the eviction petition on the ground of personal bonafide need for commercial premises in the absence of ownership documents.
One of the pleas of the respondent is that the petitioner has falsely stated in his eviction petition that the tenanted premises was let out by his father i.e. Sh. Parmanand but in fact the said shops were actually let out by one Mr. Inder Singh and the respondent has got receipts issued by Mr. Inder Singh to this effect.
That the petitioner has not filed any document with regard to partition if at all taken place between his father and uncle along with eviction petition. That the petitioner has himself mentioned in para 18A that the property bearing No. WZ-1 and WZ-8 are the ancestral properties but has not filed any document that the same were partitioned in the year 1997 by metes and bound. That merely filing of the plan showing the portion fallen to the share of a particular uncle of petitioner and his father can neither be accepted nor it gives any right, title or ARC No. 25342/16 Yashpal Vs. Vijay & Anr. Page 9 /26 interest in respect of one set of shop or other which has fallen to the share of the petitioner or it has gone to another set of uncle of the petitioner.
Reply thereto has been filed by the petitioner along with the counter affidavit denying all the contentions and pleas of the respondent and he has further inter-alia made the submissions in this regard.
In case titled as Jiwan Lal Vs. Gurdial Kaur & Ors. 1995 RLR 162 a Bench of Hon'ble High Court of Delhi while dealing with the concept of ownership in a pending eviction petition under Section 14(1)(e) of the DRC Act had noted as follows:
"There is a tendency on the part of tenants to deny ownership in cases under Section 14(1)(e). To test the substance of such a plea on the part of the tenants the Courts have insisted that they should state who else is the owner of the premises if not the petitioner. In the present case it is not said as to who else is the owner. Further these cases under Section 14(1)(e) are not title cases involving disputes of title to the property. Ownership is not to be proved in absolute terms. The respondent does not claim the owner of the premises."
Further, in the case titled as Smt. Shanti Sharma & Ors. Vs Smt Ved Prabha & ors 1987 AIR 2028, the Hon'ble Supreme Court observed :-
"That the meaning of term 'owner' is vis a vis the tenant i.e. the owner should be something more than the tenant."
12. As such, perusal of record clearly shows that the petitioner has been able to prove that he is something more than the tenant.
ARC No. 25342/16 Yashpal Vs. Vijay & Anr. Page 10 /26In the case titled as Sri Ram Pasricha Vs. Jagan Nath & Ors 1976 AIR 2335, the Hon'ble Apex Court observed :-
"the relationship between the parties being that of landlord and tenant,only the landlord could terminate the tenancy and institute the suit for eviction. The tenant in such a suit is estopped from questioning the title of the landlord Under section 116 of the Indian Evidence Act. The tenant can not deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law, in a suit between the landlord and tenant question of title to the leased property is irrelevant."
Furthermore, in the case titled as Subhash Jain vs. Ravi Sehgal in RC Rev. No. 292/2013, the Hon'ble High Court of Delhi observed as under :-
"The other objection of the petitioner is also without any force that the sale deed dated 29th March, 1993 is a sham document. The petitioner cannot object the history of ownership of the suit property in view of the provisions of Section 116 of the Indian Evidence Act, as the tenant has no right to challenge the ownership of the landlord as he has not a contender to the suit property."
In the case of Ramesh Chand vs. Uganti Devi, 157 (2009) DLT 450 and Shanti Sharma vs. Ved Prabha , 1987 RLR 526 SC, wherein it was held that it is not the concern of the tenant as to how the landlord acquired the property.
In the case of Bharat Bhushan Vij vs. Arti Techchandani, 2008 (153) DLT 247 in paras 4 and 5 it was held as under :
ARC No. 25342/16 Yashpal Vs. Vijay & Anr. Page 11 /26"4. The concept of ownership in a landlord- tenant litigation governed by the Delhi Rent Control Act, has to be distinguished from the one in a title suit. If the premises was let out by a person and after his death, the premises has come in the hands of beneficiary under a Will, the tenant has no right to challenge the title of such a beneficiary. If on the death of the original owner the tenant has any doubt as to who was the owner of the premises, he is supposed to file an interpleader suit impleading all the legal heirs of the deceased and ask the Court to decide as to who shall be the landlord/owner after the death of the original owner. Where no interpleader suit is filed by the tenant and the tenant continues in possession after death of the original owner without demur and without raising an objection against the person, who claims to have inherited the property under the Will, he later on cannot challenge the ownership of such a person. It is not the domain of the tenant to challenge the Will of the deceased landlord. If a landlord is able to show that there is a testament in his/her favour, he/she is deemed to have discharged his/her burden of proving the ownership under the Act. If the tenant takes a frivolous objection about ownership, such an objection cannot be entertained unless the tenant comes forward as to who was the landlord/owner of the premises and to whom he has been paying rent after the death of the original owner."
13. In view of the law laid down by the Hon'ble Apex Court and Hon'ble High Court of Delhi, the respondent has no right to dispute the title or ownership of the landlord.
Record manifestly shows that these are not triable issue which could dis-entitle the petitioner to obtain the order of eviction against the respondent.
ARC No. 25342/16 Yashpal Vs. Vijay & Anr. Page 12 /2614. One of the pleas of the respondent is that in the building where the tenanted premises is situated, there are 12 shops and the petitioner alleges that only two shops have come to the share i.e. which are in occupation of the respondent. That most of the shops out of 12 shops are occupied by Band Walas and in one of these shops, the respondent is also doing Band business and there is a lot of competition in this trade as there are about 26 Bandwalas and the petitioner has allowed the top most Band of Delhi i.e. Jia Band who has put his Board above the rented shop and the petitioner has been getting Rs. 36,000/- per year from that Jia Band.
Reply thereto has been filed by the petitioner along with the counter affidavit denying all the contentions and pleas of the respondent.
It is well settled proposition of law that it is not sufficient that any kind of the property should be available to the petitioner/landlord to rule out the benefit of 14(1)(e) of D.R.C. Act. The property available with the petitioner/landlord should also be reasonably suitable property. If the petitioner/landlord has filed the eviction petition for commercial bonafide requirement but the property available with the petitioner is residential one, it cannot be said that the petitioner is having the alternative reasonably suitable commercial accommodation.
It is well settled whether the property available with the petitioner is convenient and suitable or not is to be determined from the point of view of the petitioner/landlord and not from the point of view of the tenant/respondent. The respondent/tenant cannot dictate the terms to the petitioner to use the property in the particular manner. The petitioner/landlord is the best judge ARC No. 25342/16 Yashpal Vs. Vijay & Anr. Page 13 /26 of his requirement.
15. The contents of the leave to defend itself show that respondent himself has stated that these shops are already occupied by the other tenants and this is not the case of the respondent that these shops are lying vacant and are in possession of petitioner. Moreover, he has made the vague statement in respect of number of shops. Although, he has stated that 12 shops are in possession of the petitioner, he has not stated the number and details of these shops which are lying vacant and owned by the petitioner. Moreover, earning of money by the petitioner from Jia Band as alleged by him is not a triable issue which could dis-entitle the petitioners to obtain the order of eviction against the respondent.
16. Next plea taken by the respondent is that the petitioner has two shops in property No. WZ-1, Tatarpur, New Delhi; out of two shops, in one shop the petitioner has been carrying on the business of Atta Chakki and in another shop, he is selling vegetable like onion and potato from the said shop. Besides, the petitioner is also having a shop in Keshopur Vegetable Market from where he is doing the business of commission agent/Aarti but the petitioner has stated that he has given the shop to his servant on the said platform and his servant works there for 2-3 hours a day, which is wrong. That the petitioner himself goes to that shop at Keshopur and drives the scooter from his residence everyday and Keshopur Mandi is more than 04 kms away from the residence of petitioner. That the petitioner has not got any knee problem as stated by him and ARC No. 25342/16 Yashpal Vs. Vijay & Anr. Page 14 /26 for which he has not filed any medical documents on record.
Reply thereto has been filed by the petitioner along with the counter affidavit denying the contentions and pleas of the respondent and he has further inter-alia made the submissions in this regard.
17. As such, the respondent himself has contended and admitted that both the shops in property No. WZ-1, Tatarpur are already occupied by the petitioner, who is carrying on the business of Atta Chakki and selling of vegetables. As such, these shops are also not available to the petitioner for satisfying the bonafide requirement of his son Sh. Ashwani Tanwar, who is doing private job in another shop.
In my considered view, even if it is assumed for the sake of arguments that petitioner is doing work at both of these shops as claimed by the respondent and he is not unemployed as stated by him in the eviction petition, the petitioner is not supposed to vacate those two shops in WZ-1, Tatar Pur to accommodate his son in settling him and this is not the case of the respondent that these two shops are lying vacant and owned by the petitioner.
18. The next plea of the respondent is in respect of shop owned by the petitioner in Keshopur Vegetable market wherein he claims that petitioner is doing the business of agent/ Aarti but he has falsely stated that he has given it to his servant. The contention of the respondent is that the petitioner himself goes to his shop from his residence and he does not have any knee problem.
ARC No. 25342/16 Yashpal Vs. Vijay & Anr. Page 15 /26In my considered view, the petitioner is not supposed to be medically or physically to unfit to show or to prove his bonafide in respect of his own suit property. Even, a fit person can start his own business from his own premises. Moreover, the respondent has not stated that this shop in the Keshopur Vegetable market is lying vacant and unutilized. As such, this accommodation also cannot be treated as available to the petitioner for satisfying the bonafide need.
19. One of the pleas of the respondent is that the petitioner's wife is a housewife who normally resides at the first, second and third floors and each floor is comprising three rooms, lobbies, kitchen and bathroom. That this means the petitioner has nine rooms at his disposal in the property bearing No. WZ- 1, Tatarpur, New Delhi on all the three floors along with two shops on the ground floor and from one of the shops, he has been selling onion and potato and from the other shop, a Atta Chakki is being run.
In response to which, the petitioner has denied the allegations and inter-alia made the submissions. Pleas taken by the respondent itself shows that these accommodations are available on the first, second and third floors and not on the ground floor.
Moreover, footfall of the customers on the ground floor is always on the higher side in comparison to the upper floors and the Landlord of the suit property is not supposed to face the financial loss merely to save the tenancy of a tenant.
As far as two other shops on the ground floor are concerned, respondent himself has stated that these are ARC No. 25342/16 Yashpal Vs. Vijay & Anr. Page 16 /26 occupied by the petitioner.
20. As such, it cannot be treated as alternative reasonably suitable commercial accommodation for satisfying the bonafide need.
21. Another plea taken by the respondent is that the petitioner has so many shops at his disposal from where he is earning more than Rs. 1.50 lakh per month and has not been issuing any rent receipt in favour of the respective tenants. That there is no bonafide requirement rather there is a greed of the petitioner so that he can let out the premises to someone else at higher rent.
It is expedient to reproduce Sec. 19 of the D.R.C. Act, which is as under:-
"19. Recovery of possession for occupation and re-entry.
(1) Where a landlord recovers possession of any premises from the tenant in pursuance of an order made under clause (c) of the proviso to sub-section (1) of section 14 [or under sections 14A, 14B, 14C, 148 and 21], the landlord shall not, except with the permission of the Controller, obtained in the prescribed manner, re-let the whole or any part of the premises within three years from the date of obtaining such possession, and in granting such permission, the Controller may direct the landlord to put such evicted tenant in possession of the premises.
(2) Where a landlord recovers possession of any premises as aforesaid and the premises are not occupied by the landlord or by the person for whose benefit the premises are held, within two months of obtaining such possession, or the premises having been so occupied are, at any time within three years from the date of obtaining ARC No. 25342/16 Yashpal Vs. Vijay & Anr. Page 17 /26 possession, re-let to any person other than the evicted tenant without obtaining the permission of the Controller under sub-section (1) or the possession of such premises is transferred to another person for reasons which do not appear to the Controller to be bona fide, the Controller may, on an application made on him in this behalf by such evicted tenant within such time as may be prescribed, direct the landlord to put the tenant in possession of the premises or to pay him such compensation as the Controller thinks fit."
22. As such, statute clearly lays down that the petitioner/ landlord has to occupy the vacated tenanted premises within two months and the landlord cannot re-let to any person other than the evicted tenant within three years from the date of obtaining possession and in case he does so, the evicted tenant may approach the Rent Controller seeking direction to the landlord to put the tenant in possession of the premises. As such, the fear of the respondent is without any substance.
23. Next plea of the respondent is that the petitioner is having another property at his disposal and the number of the said property is WZ-1, Tatarpur, New Delhi measuring 200 sq. yards which is a separate building from the tenanted premises occupied by the respondent. That on the said property on ground floor two shops are there with two shutters though the petitioner has removed the shutter and there is a wall in between two shops. That the petitioner has mentioned wrong facts with regard to property No. WZ-8, Titar Pur, New Delhi measuring 200 square yards that is occupied by different tenants who are carrying commercial activities. That they are ten in numbers and they are carrying out commercial activities in the said building. That besides the ten shops, there is one ARC No. 25342/16 Yashpal Vs. Vijay & Anr. Page 18 /26 hall which is lying vacant on the ground floor and as such, the tenanted premises is not required by the petitioner's son.
In response to which, the petitioner has denied the allegations and inter-alia made the submissions.
As discussed earlier that to rule out the benefit U/Sec. 14(1)(e) D.R.C. Act, the petitioner should have altenative reasonably suitable accommodation. If any accommodate is available but it is not the suitable one, it cannot be said to be altenative reasonably suitable accommodation. Moreover, it should be available to the petitioner for satisfying the bonafide requirement as raised by him in his eviction petition.
24. Perusal of pleas raised by the respondent clearly shows that he himself has stated that these accommodation is already occupied and commercial activities are being carried on. Moreover, although the respondent has stated that one hall is lying vacant on the ground floor but nothing concrete has been placed on record by the respondent to substantiate this plea.
Record manifestly shows that these are not triable issue which could dis-entitle the petitioners to obtain the order of eviction against the respondent.
25. Next plea of the respondent is that the petitioner has not placed on record any slip showing that his son is employed with some firm. In fact, his son has been doing independent business but his whereabouts i.e. the place of business has not been intentionally mentioned just to show and prove that the tenanted premises are required bonafide by the petitioner's son.
Another plea taken by the respondent is that besides the ARC No. 25342/16 Yashpal Vs. Vijay & Anr. Page 19 /26 other business, the petitioner is also employed as part time employee with one Sh. Om Prakash Asnani and Aadti (Broker) in the firm. It is denied that the petitioner has left the firm six months back because of the knee problem. That the petitioner has not mentioned uptil what date he was a sales manager with Sh. Om Prakash Asnani, who is a Aarti (Broker) and when he left. In fact petitioner has also been doing Aarti (Broker) business with Sh. Om Prakash Asnani and when he left the job of the said firm, no certificate or document to this effect has been filed by the petitioner which also requires consideration of this court.
Next plea of the respondent is that petitioner's son has been earning independently though residing in one of the floors at WZ-1, Tatarpur, New Delhi but is not dependent upon the petitioner for commercial purposes. However, the petitioner has not filed salary certificate of his son or any other certificate from the employer of the son of the petitioner intentionally.
It is pertinent to mention that one application for subsequent events was filed by the respondent in respect of employment of petitioner with Sh. Om Prakash Asrani/Arti (Vegetable broker) which was ultimately allowed by this court with the observations that these subsequent events shall be considered by the court while deciding the leave to defend by the respondent.
In response to which, the petitioner has denied the allegations and inter-alia made the submissions.
In case titled as "Labhu Lal Vs. Sandhya Gupta"
[2011(1) RCR,(Rent) 231 (Delhi)], it has been held that the children are very much dependent on the landlord for the ARC No. 25342/16 Yashpal Vs. Vijay & Anr. Page 20 /26 purpose of setting up their business and such a requirement is a bonafide one.
In the judgment of Hon'ble Supreme Court in case titled as Raghunath G. Panhale (dead) through L.Rs. Vs. Chagan Lal Sundarji & Co. (1999) 8 SCC 1 wherein it was held that:-
"It will be seen that the trial court and the appellate court had clearly erred in law. They practically equated the test of "need or requirement" to be equivalent to "dire or absolute or compelling necessity". According to them, if the plaintiff had not permanently lost his job on account of the lockout or if he had not resigned his job, he could not be treated as a person without any means of livelihood, as contended by him and hence not entitled to an order for possession of the shop. This test, in our view, is not the proper test. A landlord need not lose his existing job nor resign it nor reach a level of starvation to contemplate that he must get possession of his premises for establishing a business. The manner in which the courts have gone into the meaning of "lockout" in the Industrial Disputes Act, 1947 appears to us to be nothing but a perverse approach to the problem. One cannot imagine that a landlord who is in service should first resign his job and wait for the unknown and uncertain result of a long-drawn litigation. If he resigned his job, he might indeed end up in utter poverty. Joblessness is not a condition precedent for seeking to get back one's premises. For that matter assuming the landlord was in a job and had not resigned it or assuming that pending the long-drawn litigation he started some other temporary water business to sustain himself, that would not be an indication that the need for establishing a grocery shop was not a bona fide or a reasonable requirement or that it was motivated or was a mere design to evict the tenant".
In the case titled as Ram Babu Agarwal vs. Jay Kishan Das 2009(2) RCR 455, the Hon'ble Apex Court observed as ARC No. 25342/16 Yashpal Vs. Vijay & Anr. Page 21 /26 under:-
"However, as regards the question of bonafide need, we find that the main ground for rejecting the landlord's petition for eviction was that in the petition the landlord had alleged that he required the premises for his son Giriraj who wanted to do footwear business in the premises in question. The High Court has held that since Giriraj has no experience in the footwear business and was only helping his father in the cloth business, hence there was no bonafide need. We are of the opinion that a person can start a new business even if he has no experience in the new business. That does not mean that his claim for starting the new business must be rejected on the ground that it is a false claim.
Many people start new businesses even if they do not have experience in the new business, and sometimes they are successful in the new business also."
In the case titled as Lajpat Rai Vs Raman Jain 2012 Law suit (Del) 1439, it was observed by Hon'ble High Court as under:-
"The facts have been disclosed by the petitioners himself in the eviction petition; the petitioners also being a commerce graduate from the Shri Ram College of Commerce seeks an independent business of his own; thus this need to set up a business of his own cannot be in any manner be said to be imaginative or a need which is moonshine; it is a genuine need; the present petitioners having inherited this shop from his grandmother by virtue of the aforenoted Will wishes to set up his own business of rubber and latex which he was earlier carrying on with his father and in which he has gained expertise and knowledge. Thus in no manner can it be said that this need of the landlord is not a bonafide need. The landlord is the best judge of his requirement; it is not for the tenant to dictate terms to him; neither the Court tell him the manner he wishes to set up his business."
26. As far as, employment of son of petitioner is concerned, it is well settled that a person is not supposed to remain ARC No. 25342/16 Yashpal Vs. Vijay & Anr. Page 22 /26 unemployed till the disposal of the eviction petition. Furthermore, this Court is of the opinion that there is nothing malafide if the petitioner wants to have the tenanted premises for himself and for the purpose of settling his son in the business. Rather, the said requirement seems to be bonafide as he wants to settle himself and his son for their livelihood and the tenant cannot stop the landlord/family member of landlord from starting any business for livelihood. The bonafide requirement of a landlord does not become malafide just because the petitioner and the son of petitioner want to run businesses for their livelihood from their own property. The consequent hardship to tenant from eviction order could also not convert otherwise bonafide requirement into malafide requirement. Even if it is assumed for the sake of arguments that the petitioner is already doing a job or employed with Sh. Om Prakash Asrani as claimed by the respondent in subsequent event application, in my view, it is a right of every person to excel in his/her life and a person is not supposed to be remained in same position. Even if it is assumed for the sake of arguments that the son of the petitioner and petitioner are already doing some work as alleged by the respondent, in my view, he cannot be expected to remain idle till the disposal of the eviction petition to show his bonafide and the paucity of alternative commercial accommodation. In my considered view, every citizen in the country has not only the right but also the duty to work and to enhance the economic growth of Nation. As such, it is not a triable issue which could dis-entitle the petitioner to obtain the order of eviction against the respondent.
As such, record manifestly shows that these are not ARC No. 25342/16 Yashpal Vs. Vijay & Anr. Page 23 /26 triable issue which could dis-entitle the petitioner to obtain the order of eviction against the respondent.
27. Another plea taken by the respondent is that the respondent has paid pagri of Rs. 11,000/- and 22,000/- for two shops/tenanted premises to the predecessor-in-interest of the petitioner.
In response to which, the petitioner has denied the allegations and inter-alia and made submissions.
Section 5 of the D.R.C. Act clearly prohibit such kind of transaction like Pagri. As such, in view of the aforesaid provision, these are not triable issue which could dis-entitle the petitioner to obtain the order of eviction against the respondent.
28. Another plea of the respondent is that he has been carrying out the work in his two shops for last more than 30 years and the petitioner who has a lot of business earning from different shops to the tune of Rs. 1.50 lakh can deprive of the livelihood of the respondent which is his fundamental right to earn to live and survive.
In response to which, the petitioner has denied the allegations and inter-alia and made submissions.
In the case titled as Raj Kumar Khanna vs. Parduman Singh passed in RC Rev. No. 548/2012 and C.M. No. 18936/2012 on 04.10.2013; the Hon'ble High court of Delhi observed as under:-
"17. In the case of Mohd. Ayub vs. Mukesh Chand (2012) 2 SCC 155 it was observed that the hardship appellants would suffer by not occupying their own ARC No. 25342/16 Yashpal Vs. Vijay & Anr. Page 24 /26 premises would be far greater than the hardship the respondent would suffer by having moved out to another place. We are mindful of the fact that whenever the tenant is asked to move out of the premises some hardship is inherent. We have noted that respondent is in occupation of the premises for a long time. But in our opinion, in the facts of this case that circumstance cannot be sole determinative factor."
29. In my considered view, this plea of the respondent certainly draws the sympathy of this court towards the respondent but it is also well settled that this kind of pleas are not to be weighed while deciding the leave to defend application filed U/S 14(1)(e) of DRC Act.
CONCLUSION:
30. In view of the above discussion, I find no triable issue in the leave to defend application of the respondent which could dis-entitle the petitioner to obtain an eviction order in his favour. As such, the application for leave to defend filed by the respondents is thus, dismissed.
31. Hence, as a consequence thereof, an eviction order is passed U/s. 14 (1) (e) of DRC Act in favour of petitioner and against the respondents in respect of the tenanted premises i.e. two shops bearing No. WZ-1-A/20, measuring 11'X9' and a tin shed of 10'X9' in front thereof and shop bearing No. WZ- 1-A/21 in quadrant shape measuring 11'X4'X15'X7.2' and a tin shed of 10'X7.2'X10'X10' in front thereof fully shown in red dotted lines in the site plan which is marked as Mark- P1 (Put by the court for the purpose of identification).
ARC No. 25342/16 Yashpal Vs. Vijay & Anr. Page 25 /2632. However, this order shall not be operative before the expiry of six months from today keeping in view Sec. 14(7) of D.R.C. Act.
33. File be consigned to the Record Room after due compliance.
Digitally signed Announced in the open court on 11th February, 2020 AJAY by AJAY NAGAR Date: (This order contains 26 pages) NAGAR 2020.02.11 16:58:34 +0530 (AJAY NAGAR) Additional Rent Controller, West District, THC/Delhi. ARC No. 25342/16 Yashpal Vs. Vijay & Anr. Page 26 /26