Delhi District Court
Smt. Santosh Kumari Bhatt vs Sh. Surinder Kumar Chopra on 1 February, 2019
IN THE COURT OF SH. AJAY NAGAR, COMMERCIAL CIVIL
JUDGE-CUM-ADDITIONAL RENT CONTROLLER (WEST),
TIS HAZARI COURTS, DELHI.
ARC No- 191/2017
Smt. Santosh Kumari Bhatt
Wd/o Late Sh. Om Prakash Bhatt
R/o A-6, Hari Nagar,
New Delhi-110064.
....Petitioner
VERSUS
Sh. Surinder Kumar Chopra
Shop in Property No.A-6,
Shop No. 1 & 2, Hari Nagar,
New Delhi-110064.
.... respondent
Date of filing : 12.12.2017
Date of order : 01.02.2019
ORDER ON LEAVE TO DEFEND
1. The present petition U/Sec. 14 (1) (e) of Delhi Rent Control Act, 1958 (hereinafter referred to as 'DRC Act') has been filed by the petitioner against the respondent in respect of shop measuring 16 ft x 13 ft in property bearing no. A-6, Hari Nagar, New Delhi-110064, more conspicuously shown within red lines in the site plan attached with the petition on the ground of bonafide requirement.
2. That property bearing No. A-6, Hari Nagar, New Delhi-110064 is a single story property measuring 220 sq. yds. which was purchased by Late ARC No. 191/17 Santosh Kumari Bhatt Vs Surinder Kumar Chopra Page 1 /17 Om Prakash Bhatt from Shri Diwan Swroop Mal vide registered sale deed dated 06.01.1951. Thereafter, Late Sh. Om Prakash Bhatt constructed a single storey house having shops and residence.
That Late Sh. Om Prakash Bhatt died on 23.06.2012 at Delhi leaving behind his widow, i.e., the petitioner and three sons Sh. Raj Kamal Bhatt, Shri Ashok Kumar Bhatt and Sh. Mukesh Kamal Bhatt and one daughter Smt. Kamlesh Khanna. After the demise of Late Sh. Om Prakash Bhatt all the sons and daughter executed a relinquishment deed dated 25.09.2014 and thus petitioner became absolute owner thereof.
That the petitioner requires the premises bonafidely for her son Sh. Ashok Kumar Bhatt who has retired from BSNL, MTNL. That the son of the petitioner has no vocation and he wants to open his own shop in the field of telephone for which he has great experience.
That there are six shops in the entire building and the rest of the portion is a residential. One shop is being used by grandson of the petitioner measuring 8 ft. x 11 ft. as a garment shop and one of the shops measuring 13 ft. x 11 ft. is also being used as a boutique cum garment shop by the daughter in law of the petitioner Smt. Kiran Bhatt and one shop measuring 8 ft. x 11 ft. is being used by Sh. Raj Kumar Bhatt for his small office and the other three shops are in occupation of the tenants. The petitioner has sought vacation of all the three tenants for his three sons who are retired. One of the sons Sh. Raj Kamal Bhatt requires one shop for regular office who has retired as an Engineer and the other son Sh. Ashok Kumar Bhatt has retired from MTNL and Sh. Mukesh Kumar Bhatt has retired as Photo Journalist. That it is also submitted that the petitioner and her son have no other alternative accommodation available other than the tenanted premises.
ARC No. 191/17 Santosh Kumari Bhatt Vs Surinder Kumar Chopra Page 2 /17Lastly, it is prayed by the petitioner to pass an eviction order in respect of tenanted premises.
3. Notice of this eviction petition was sent to the respondent in the prescribed format which was duly served on the respondent. In response to which the respondent/tenant filed leave to defend application accompanied by affidavit.
4. Respondent in his leave to defend application has inter-alia raised many various pleas which will be discussed exhaustively later on.
5. Reply to leave to defend filed by the petitioner inter-alia stating that the affidavit of the respondent does not disclose any defence or triable issue which entitle him to contest the eviction petition and dis-entitle the petitioner to obtain an order for eviction.
6. Thereafter, rejoinder was filed by the respondent to the reply filed by the petitioner wherein respondent reiterated his earlier stand as mentioned in leave to defend application and also made clarification in respect of reply filed by the petitioner.
7. I have heard Ld. Counsels for the parties at length and gone through the record very carefully.
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 ARC No. 191/17 Santosh Kumari Bhatt Vs Surinder Kumar Chopra Page 3 /17 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 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.ARC No. 191/17 Santosh Kumari Bhatt Vs Surinder Kumar Chopra Page 4 /17
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 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. I have carefully and minutely gone through petition, leave to defend application accompanied by affidavit, reply, rejoinder, documents and material on record as well as the written submissions and case law relied upon.
9. It is expedient to reproduce the Section 14 (1)(e) of DRC Act which is as under:
"Section-14. Protection of tenant against eviction- (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any ARC No. 191/17 Santosh Kumari Bhatt Vs Surinder Kumar Chopra Page 5 /17 premises shall be made by court or any controller in favour of the landlord against a tenant:
Provided that the controller may, on an application made to him in the prescribed manner, make an order for recovery of possession of the premises on one or more of the following grounds only, namely:-
"That the premises are required bonafide by the landlord for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation."
10. Perusal of record shows that the respondent has sought the leave to defend on several grounds.
It is contended by the respondent that there is no bonafide requirement of petitioner or her son and the petitioner just want to get the tenanted premises vacated. It is submitted by the petitioner that there is no bonafide requirement of petitioner and her son and the petitioner get the premises vacated. It is further contended by the respondent that about four months back, the petitioner tried to increase the rent of the tenanted premises to Rs. 6,000/- per month but the terms and conditions were not agreed and he was asked to vacate the premises. Petitioner denied the allegations as mentioned above. Respondent further pleaded that the petitioner is already having a vacant corner shop measuring 8ft X11 ft. and the same is not being used by petitioner or her son. That after filing of present petition, the son of the petitioner Sh. Raj Kr. Bhatt put some articles in the shop to show that shop is being utilized for office by Sh. Raj ARC No. 191/17 Santosh Kumari Bhatt Vs Surinder Kumar Chopra Page 6 /17 Kr. Bhatt. The petitioner has also denied the above stated allegations and has submitted that the petitioner has categorically mentioned that space of 8ft X 11ft insufficient to run the office and the petitioner would be adjoining the portion with the said space to use it as regular office. It is also pleaded that if the shop is vacated, respondent would suffer acute injury and harassment. It is replied that there is no provision under the law to look into the need of respondent/ tenant. It is claimed by the respondent that whenever there is a case of additional accommodation by the petitioner, leave to defend should be granted. Petitioner has denied that it is a case of additional accommodation. It is also claimed by the respondent that the petitioner has filed a wrong site plan. It is contended that the petitioner has filed correct site plan. Respondent further claims that the petitioner is not entitled to get the tenanted premises within five years from the alleged relinquishment deed. It is replied by the petitioner that even if there is no relinquishment deed, the petitioner is the co-owner as the building was owned by her husband and there is no bar that the co-owner cannot file the eviction petition and the relinquishment deed is not a document of transfer. It is alleged by the respondent that the motive of the petitioner is only to dispossess the respondent from the tenanted premises and to let out the tenanted premises on higher rent.
11. Perusal of record shows that the petitioner has claimed that she is the landlady as well as owner of the tenanted premises by way of relinquishment deed which has been placed on record which shows that the aforesaid relinquishment deed was made by her children in her favour on 25.03.2014. On the other hand, the respondent has not challenged the landlordship as well as ownership of the petitioner.
ARC No. 191/17 Santosh Kumari Bhatt Vs Surinder Kumar Chopra Page 7 /17As such, there is no triable issue in respect of landlord/ownership.
12. The respondent has pleaded that the petitioner has concealed the fact that on the first floor of the property bearing A-6, Hari Nagar there are two shops/ offices and one room. That the first floor of the said premises is also constructed whereas petitioner has stated that property consists only of the ground floor.
On the other hand, the petitioner has replied that there are only six shops in the entire building which are duly explained and it is claimed by the petitioner that rest of the portion is residential. It is denied by the petitioner that two shops on the first floor exist.
It is inter-alia stated by the petitioner that on the first floor there are two bed rooms measuring 10X12 ft. each and one store room of 9X10 ft. and there is no shop on the first floor and there is no independent staircase to go to the first floor for the customers and there are two staircases going to the first floor, one from back portion i.e. from inside the house and one from inside the shop, now occupied by Smt. Kiran Bhatt. It is further averred that petitioner has now filed an elaborated site plan with dimensions to clarify the same and the petitioner is also filing the photographs and property tax returns showing that property tax for commercial use is paid on account of the ground floor only and in as much as conversion charges of ground floor also paid and nothing was paid for first floor.
On the other hand, the rejoinder has been filed by the respondent denying the contentions of the petitioner.
I have carefully and minutely gone through the leave to petition, leave to defend, reply and material on record.
ARC No. 191/17 Santosh Kumari Bhatt Vs Surinder Kumar Chopra Page 8 /17Perusal of record shows that the petitioner has sought the tenanted premises for bonafide commercial requirement of her son, who has already got retired from the services.
As such, this court is required to determine whether the petitioner or her family members are having alternative reasonably suitable commercial accommodation or not and even if the petitioner or her family members are having residential accommodation, it cannot be said that the petitioner or her family members are having the alternative reasonably suitable commercial accommodation.
Perusal of record shows that the respondent has pleaded that the petitioner has concealed the existence of two shops on the first floor and she has also enclosed the site plan to support this plea.
I have perused all the site plans filed by both the parties on record. First site plan filed by the petitioner shows only the ground floor and not the first floor. However, later on the site plan of the first floor has also been filed by her stating two rooms and one store on the first floor.
On the other hand, the respondent has also filed the site plan stating that there are two office/ shops and one store room on the first floor.
Perusal of record shows that in the reply to leave to defend, petitioner has claimed to have filed photographs and property tax returns showing the factum of using the first floor for residential purpose and not for commercial purpose. On the other hand, in rejoinder to the reply, the respondent has contended that simply because the petitioner has not paid the property tax for the first floor shops, it does not mean that there is no shop on the first floor.
13. As such, the respondent has admitted the fact that the property tax is ARC No. 191/17 Santosh Kumari Bhatt Vs Surinder Kumar Chopra Page 9 /17 not paid for commercial use of the premises on the first floor.
14. One of the contentions of the respondent is that the petitioner has not filed the site plan of the first floor of the property also.
In my view, this contention does not have any merit as the first floor, as per the claim of the petitioner is being used for residential purpose only and this eviction petition has been filed for commercial requirement.
As such, it was not mandatory for the petitioner to file the site plan of the first floor also. However, it was filed later on by the petitioner claiming that only rooms exist on the first floor and not the shops.
Perusal of the record shows that the respondent has although claimed that there are two shops on the first floor of the suit property but respondent has not stated what kind of business activity is run in those two shops. Even name of the persons who are in occupation of these shops have not been mentioned by the respondent. Moreover, it is also not mentioned in her leave to defend or rejoinder that these two shops on the first floor are lying vacant. Even if it is assumed for the sake of arguments that, these shops exist on the first floor, as alleged by the respondent, I am of the considered view that this argument/ plea of the respondent does not have merit as the respondent has nowhere mentioned that these shops are lying vacant or unoccupied by any person such as, tenant or family members. No document has been placed on record by the respondent to show that the first floor is having two shops excepting the site plan and averments in the leave to defend.
15. As such in my view, the plea of the respondent that there exists two shops is a vague plea unsupported by any document. Furthermore, it is ARC No. 191/17 Santosh Kumari Bhatt Vs Surinder Kumar Chopra Page 10 /17 well settled proposition of law that to rule out the benefit of Sec. 14(1)(e) of D.R.C. Act, the petitioner/ landlord should have the alternative reasonably suitable accommodation. It is not sufficient for the respondent to prove that the petitioner is having the alternative accommodation. It should also be reasonably suitable accommodation and if the petitioner is having the alternative accommodation with her but that is not suitable for the petitioner, it cannot be said that the petitioner is having alternative reasonably suitable accommodation and the fact whether the alternative accommodation is suitable and convenient 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.
16. In the present case the respondent has impliedly admitted that the petitioner is not having the alternative commercial accommodation on the ground floor. The only contention of the respondent is that the petitioner is having two shops on the first floor, which is denied by the petitioner inter- alia stating that those shops do not exist. It is matter of common knowledge that commercial activities are generally conducted on the ground floor of the property as it is more beneficial and profitable for the landlord/ shop keeper and the upper floors are less profitable in comparison to ground floor. Even it is assumed for the sake of arguments that those shops exist on the first floor, in my view, those shops will not be suitable and convenient for the commercial activities by the landlord/ petitioner.
17. As such, this plea of the respondent is not a triable issue which could dis-entitle the petitioner to obtain an eviction order against the respondent.
ARC No. 191/17 Santosh Kumari Bhatt Vs Surinder Kumar Chopra Page 11 /1718. It is also contended by the respondent that Sh. Ashok Kr. Bhatt retired seven years ago from his services and he relinquished his share in the property bearing No. A-6, Hari Nagar in favour of petitioner on 25.09.2014. Had there been any requirement by the son of the petitioner, he would not have relinquished his share in the said property having 08 shops (02 on the first floor) in favour of petitioner immediately before his retirement. That the petitioner has filed the present petition after many years of retirement of her son and this shows malafide. That the petitioner has filed the petition for sons who have been retired long back and there is no bonafide.
The petitioner has denied this paragraph also of the respondent submitting that relinquishment of the share of the ownership by the son of the petitioner in no way obstruct the vacation of the respondent. The petitioner has contended that no doubt her son Sh. Ashok Kumar Bhatt and other sons have retired many years ago but there is no time limit prescribed for starting the work.
19. In my considered view, these contentions of the respondent also do not have any force in view of settled proposition of law.
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, ARC No. 191/17 Santosh Kumari Bhatt Vs Surinder Kumar Chopra Page 12 /17 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".
20. In view of observations made by Hon'ble Supreme Court; it is well settled that a person is not supposed to remain unemployed till the disposal of the eviction petition. Furthermore, this Court is of the opinion that there is nothing malafide if the son of the petitioner wants to open his own shop after retirement. Rather, the said requirement seems to be bonafide as he wants to earn his livelihood and the tenant cannot stop the landlord/family member of landlord from carrying out his profession for livelihood. The bonafide requirement of a landlord does not become malafide just because he wants to earn his livelihood. The consequent hardship to tenant from eviction order could also not convert otherwise bonafide requirement into malafide requirement. Furthermore, even it is assumed for the sake of arguments that son of the petitioner is already retired a long time ago, it does not show the malafide on the part of petitioner or her son as it is a right of every person to excel in his/her life at ARC No. 191/17 Santosh Kumari Bhatt Vs Surinder Kumar Chopra Page 13 /17 any age and a person is not supposed to be remained unemployed or in the same position.
21. As such, it is not a triable issue which could dis-entitle the petitioner to get an eviction order against the respondent.
22. It is contended that son of the petitioner Sh. Ashok Kr. Bhatt is not dependent upon the petitioner for the purpose of residence or commercial accommodation.
The petitioner has replied that children are dependent on the parents for accommodation whether it is residential or commercial.
In "Labhu Lal Vs. Sandhya Gupta" [2011(1) RCR,(Rent) 231 (Delhi)], it has been held by this Court that the children are very much dependent on the landlord for the purpose of setting up their business and such a requirement is a bonafide one.
The moral duty of a father to help establish his son was also recognized by the 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 ARC No. 191/17 Santosh Kumari Bhatt Vs Surinder Kumar Chopra Page 14 /17 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 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."
23. The another contention of the respondent is that he is the tenant in the tenanted premises for the last many years and carrying on his business therein which is only source of his livelihood.
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 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."
24. In my view this plea of the respondent certainly attracts the sympathy of this court but it is well settled that in deciding the present eviction proceeding, this kind of plea need not be weighed by the court.
ARC No. 191/17 Santosh Kumari Bhatt Vs Surinder Kumar Chopra Page 15 /1725. It is further alleged that the petitioner has malafide intention to get tenanted premises vacated.
"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 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."
26. 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 ARC No. 191/17 Santosh Kumari Bhatt Vs Surinder Kumar Chopra Page 16 /17 to put the tenant in possession of the premises. As such, this contention of the respondent does not have any force and cannot be treated as triable issue.
CONCLUSION:
27. 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/landlady to obtain an eviction order in her favour. The application for leave to defend filed by the respondent is thus, dismissed.
28. 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 respondent in respect of shop measuring 16 ft x 13 ft in property bearing no. A-6, Hari Nagar, New Delhi-110064, more conspicuously shown within red lines in the site plan attached with the petition which is marked as Mark- P1 (Put by the court for the purpose of identification).
29. 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.
File be consigned to the Record Room after due compliance.
Digitally signedAnnounced in the open Court AJAY by AJAY NAGAR Date: on 1st February, 2019. NAGAR 2019.02.01 17:01:52 +0530 (This order contains 17 pages) (AJAY NAGAR) Commercial Civil Judge-Cum Additional Rent Controller, West District, THC, Delhi. ARC No. 191/17 Santosh Kumari Bhatt Vs Surinder Kumar Chopra Page 17 /17