Delhi District Court
Sh. Rao Tej Pal vs Sh. Uma Kant on 4 November, 2011
IN THE COURT OF SH BALWANT RAI BANSAL
ADDITIONAL RENT CONTROLLER (SOUTH),
SAKET COURTS, NEW DELHI
Eviction Petition No. 29/09
Sh. Rao Tej Pal
S/o Sh. Late Sh. Tota Singh
R/o E16, Hauz Khas, New Delhi 110016
.........Petitioner.
Versus
1. Sh. Uma Kant
S/o Late Sh. Budhi Ram
R/o F619,Lado Sarai, Mehrauli, New Delhi
2. Smt. Lalita Sundriyal
W/o Sh. Sudhir Sundriyal
D/o Late Sh. Budhi Ram Dhaundriyal
R/o 4/18, Windsor, Palm Road,
Shipra Suncity, Ghaziabad, UP
3. Smt. Saroj Jayal
W/o Sh. Birender Jayal
D/o Late Sh. Budhi Ram Dhaundriyal
R/o Jawahar Park, Khanpur, New Delhi
4. Smt. Kanti Devi
W/o Late Sh. Budhi Ram Dhaundriyal
R/o F169, Mirza Wali Gali,
Lado Sarai, New Delhi - 110030
Eviction Petition No. E29/09 Page 1 of 31
5. Smt. Gayatri Raturi
W/o Sh. Sanjay Raturi
D/o Late Sh. Budhi Ram Dhaundriyal
R/o 79G, Pocket4
Mayur Vihar, Phase I, Delhi
6. Sh. Sri Ram Dhaundriyal
S/o Late Sh. Budhi Ram Dhaundriyal
R/o F169, Mirza Wali Gali,
Lado Sarai, New Delhi - 110030
7. Smt. Laxmi Ghildyal
W/o Sh. Durga Prasad
D/o Late Sh. Budhi Ram Dhaundriyal
R/o Village Mizi Mafi,
P.O. Mohkapur, Dehradun
.........Respondents.
ORDER:
1. Vide this order I shall dispose of an application for leave to defend moved by the respondent no. 1 and respondent no. 7.
2. The brief facts necessary for disposal of application are that the petitioner has filed the present eviction petition u/s 14 (1) (e) r/w Section 25 B of DRC Act against the respondents on the ground of bonafide requirement in respect of one shop and one connected room on the rear side of the said shop in the property bearing No. E16, Hauz Khas, New Delhi. Eviction Petition No. E29/09 Page 2 of 31 The case of the petitioner is that he is the owner of the aforesaid property bearing No. E16, Hauz Khas, New Delhi which is consisting of ground floor to second floor above and also mezzanine and one Sh. Budhi Ram Dhaundriyal was the tenant in the said shop and connected room and after the death of Sh. Budhi Ram Dhaundriyal, the respondents are the tenants in the suit premises being his legal heirs. It is stated that there are three shops on the ground floor of the aforesaid property which are nonresidential being situated in main market of Hauz Khas, New Delhi and rest of the portion including mezzanine, first floor as well as above portions of the said property are residential. The family of the petitioner consists of himself, his wife and three married sons who are dependent upon the petitioner not only for the purposes of residence but also for nonresidential purposes. It is stated that the eldest son Sh. Krishan Vivek Yadav with his younger brother Bhuvnesh Yadav along with their respective family are residing with the petitioner on first and above floors along with use of mezzanine floor of the aforesaid property and running their business of Cyber Junction in two shops as well some portion behind the said shops on the ground floor. The third son namely Rakesh Yadav and his wife Dr. Tapasya Yadav are doctors by profession. It is stated that Dr. Rakesh Yadav is M.D. Physician from Odessa State Medical University, Ukrain since 1998 and presently doing Eviction Petition No. E29/09 Page 3 of 31 service with Max Hospital, Saket due to paucity of any accommodation. Similarly, Dr. Tapasya Yadav is MBBS since 1999 and M.D. (Obst. & Gyne) since 2003 and she was also doing service with Max Hospital, Saket, New Delhi but she has resigned since she wants to run her own independent clinic. It is further stated that the petitioner has already provided commercial accommodation to his two sons and wants to provide commercial accommodation to his third son and his wife who are doctors by profession, but the petitioner has no other accommodation to accommodate them where they can run their medical profession except the suit premises under the occupation of the respondents. Hence, the present petition. It has been prayed that an eviction order may be passed in favour of the petitioner and against the respondents in respect of the suit premises.
3. The respondents no. 1 and 7 have filed their respective leave to defend application along with their supporting affidavit contending that present petition has been filed for part of the tenanted premises which is not maintainable. It is stated that initially a shop in the property bearing No. E16, Hauz Khas, New Delhi 16 was taken on rent by late Sh. Budhi Ram from the previous owner Smt. Kapoori Devi in the year 1961 @ Rs. 75/ per month and after some time late Sh. Budhi Ram took the room behind the shop with common latrine, common covered verandah and open space @ Eviction Petition No. E29/09 Page 4 of 31 Rs. 35/ per month. It is further stated that the petitioner purchased the aforesaid property from Smt. Kapoori Devi sometime in the year 1963 and at that time late Sh. Budhi Ram was in possession of one shop, room behind the shop, common latrine, common covered verandah and common space on the ground floor of the said property. It is further stated that during the lifetime of late Sh. Budhi Ram, the petitioner filed a false suit for possession u/s 6 of Specific Relief Act and also on the basis of the title to the property and for mandatory and permanent injunction bearing suit No. 436/2002 against late Sh. Budhi Ram and in the said civil suit it was falsely stated by the petitioner inter alia that late Sh. Bhudi Ram dispossessed the petitioner from the room behind the shop and further that late Sh. Bhudi Ram was a tenant in respect of only front shop.
4. It is further averred that during the pendency of the said suit, Sh. Budhi Ram died in the year 1991 and his LRs were brought on record. However, during his life time, late Sh. Budhi Ram filed the written statement in the said suit taking the preliminary objection that he is a tenant in respect of a shop, room behind the shop, common latrine, covered verandah and open space. It is also stated that the petitioner failed to prove the allegations made by him in the aforesaid civil suit and same was dismissed by the Ld. Civil Judge, Delhi vide judgment dated 17.12.2005. Eviction Petition No. E29/09 Page 5 of 31
5. It is further stated that the petitioner with a view to get the premises vacated is not accepting the rent and the respondent has been depositing the rent in the court. It is further stated that when the petitioner could not succeed in his malafide designs to get the premises vacated, he started to compel the respondent either to vacate the premises or to pay the rent at his desire for the premises and withheld the user of latrine and covered verandah and open court yard by locking the door of the latrine and raising a partition wall thereby depriving the respondent the ingress and egress to covered verandah and open court yard and also user of latrine. It is further stated that when the petitioner refused to restore the user of the common latrine, common covered verandah and open space, the respondent no. 1 filed a petition u/s 45 of DRC Act against the petitioner for restoration of the aforesaid amenities, however interim application u/s 45 (3) of DRC Act in the said petition was dismissed by the Ld. ARC, Delhi vide order dated 24.09.2007 with the observations that matter requires trial. The respondent also preferred appeal against the said order which was disposed of vide order dated 29.11.2007. It is further stated that Late Sh. Budhi Ram had filed his written statement in the Suit filed by the petitioner for possession bearing no. 436/202 taking objections that he was a tenant in the Eviction Petition No. E29/09 Page 6 of 31 shop, one room behind the shop used as shop for tailoring work, common latrine and verandah. He also filed an application u/o 39 rule 4 for vacating the exparte stay which the petitioner succeeded to get by misleading the court of Ld. Sub Judge. It is stated that Sub Judge Sh. Prem Kumar while deciding the application u/o 39 rules 1 and 2 CPC of the petitioner and the application u/o 39 rule 4 CPC of the respondent vide order dated 05.01.1990 observed that whether such possession of the defendant in the rear room is illegal or whether he is tenant of the same is yet to be gone into. It was also observed that the defendant has number of tailor employees working with him in the said rear room and the common toilet in the rear portion is allegedly used by the defendant and his employees. The petitioner filed FAO against the said order dated 05.01.1990 in the Hon'ble High Court of Delhi which was dismissed and it clearly shows that the latrine and covered verandah are included in the tenancy of late Sh. Budhi Ram succeeded by the present respondents.
6. It is also contended by the respondents no. 1 and 7 that present petition is based on false and frivolous grounds and contention of the petitioner he requires the suit premises bonafide for his own use and occupation as well as for the use and occupation of his family members dependent upon him is an after thought, baseless and non existent. It is Eviction Petition No. E29/09 Page 7 of 31 stated that the petitioner himself admitted that he is leading a retired life and is residing at 207, Ashoka Enclave, Faridabad and, therefore, he himself does not need the premises. It is further stated that sons of the petitioner are already in possession of large portion of the property and a substantial portion is lying vacant at their disposal. The son of the petitioner namely Sh. Kishan Vivek Yadav is running his property business in the name and style of M/s Tej Estates at 207, Ashoka Enclave, Main Faridabad, Haryana. The doctor son of the petitioner namely Sh. Rakesh Yadav and his doctor wife are employed as doctors for the last more than 10 years and at present working with Max Hospital, Saket, New Delhi. It is further stated that the shop no. 1 and 2 and rooms behind both the shops and covered verandah remained vacant for more than 6 years and only about 4 years back, the sons of the petitioner opened their business in the said shops and rooms. It is further stated that Dr. Rakesh Yadav and his wife are residing separately having independent kitchen and they are not in any manner dependent upon the petitioner for accommodation. It is also stated that sons of the petitioner namely K.V. Yadav and Bhuvnesh Yadav have no cordial relations with Dr. Rakesh Yadav and his wife and, therefore, the wife of Dr. Rakesh Yadav is on leave from the service to look after their children as they have no family support from other family members.
Eviction Petition No. E29/09 Page 8 of 31
7. The respondents no. 1 and 7 have also contended in their leave to defend application that petitioner filed an incorrect site plan and has not shown the actual accommodation in the premises bearing No. E16, Hauz Khas, Main market, New Delhi. It is stated that petitioner has falsely shown two rooms in the mezzanine floor, whereas the said mezzanine floor is having 5 big rooms and 4 small rooms and the said mezzanine rooms having entrance from the front side and from the back side and can be used for any purpose. It is further stated that the said mezzanine floor was earlier let out to different tenants for commercial purposes and if there was any bonafide need for commercial purposes, the said mezzanine floor would not have been let out and same at present is lying vacant and can very well be used for running the clinic. It is further stated that the petitioner has shown only 3 bed rooms/living rooms besides other accommodation in the first floor, whereas the first floor comprises of 8 rooms, 1 WC, kitchen, bath etc and the portion shown as verandah and open terrace are the rooms fitted with AC and this clearly shows that the petitioner intentionally did not disclose actual accommodation in his use and occupation. It is further averred that the petitioner has again given incorrect accommodation by falsely stating the full fledged second floor as barsati. The alleged barsati floor is a second floor having same accommodation as on the first floor except one room and Eviction Petition No. E29/09 Page 9 of 31 as such the petitioner has at his disposal the mezzanine floor with front and back entrance, first floor and second floor wherein the commercial activities especially the clinic can be run. It is stated that there are several triable issue which require trial, and, therefore, the respondent no. 1 and 7 have prayed for grant of leave to contest the petition.
8. The petitioner has filed the reply to the leave to defend application filed by the respondent no. 1 and respondent no. 7 along with counter affidavit in which it has been denied that present petition has been filed for part of the tenanted premises. It is stated that respondents are tenants only in respect of one shop and one room and the said fact has also been adjudicated by the court of Ld. Civil Judge vide judgment dated 17.12.2005. It has been denied that the petitioner deprived the respondent from the use of verandah and open courtyard by locking the door of the latrine or withheld the essential supplies, user and premises under tenancy of the respondent. It is stated that the interim relief sought by the respondent with regard to the aforesaid amenities was declined by the Ld. ARC, Delhi in a petition u/s 45 of DRC Act filed by the respondent and the appeal against the said order was also dismissed by the Ld. ARCT, Delhi vide order dated 29.11.2007. It is further stated that the respondents have no right to use the latrine, common verandah and open courtyard as the same is not the part Eviction Petition No. E29/09 Page 10 of 31 and parcel of the tenanted premises. It is further averred that the respondent has made a false statement that petitioner is residing at 207, Ashoka Enclva, Faridaband which is simply a plot having a construction of chowkidar room and a garage and there is no question of petitioner to reside there. It has also been denied that son of the petitioner namely Krishan Vivek Yadav is running any business at Faridabad. It is stated that the petitioner has specially mentioned in the petition that he has already adjusted his two sons who are running their business in two adjoining shops and third shop in possession of the respondents is required bonafide by the petitioner for his third son and his wife who are not only doctor by profession but due to paucity of accommodation are not in a position to run their clinic. It is further stated that due to bad and poor working condition in the hospital including odd duty hours and burden of 24 hour night shift duties Dr. Tapasya Rao is compelled to leave the job and that is why she wants to start her independent medical practice. Similarly, Dr. Rakesh Yadav is unable to start his clinic because of paucity of accommodation and he is working in the Max hospital at present but wants to set up his own clinic. It is further stated that the petitioner has no reasonable suitable commercial accommodation to accommodate his doctor son and his doctor daughterin law.
Eviction Petition No. E29/09 Page 11 of 31
9. It has been denied that the petitioner wants to relet the property after getting the same vacated from the respondent and further that the mezzanine floor is suitable for running the clinic. It is stated that the mezzanine floor is neither suitable nor can be used for clinic purposes because mezzanine floor is purely residential and it has got entrance only from backside of the building which is residential lane and it has no entrance from the front side. It is further stated that the accommodation on first, second as well as barsati floor and existence of the rooms on the said floors are residential and is being used by the petitioner for his residence as well as for residence of his family members. It has been denied that mezzanine floor is having five big rooms and four small rooms or that the said mezzanine rooms have entrance from the front side and from the back side. It is stated that there are only two rooms and one drawing cum dining room on the said mezzanine floor which are used for residential purposes by the son of the petitioner Sh. Bhuvnesh since the very beginning. The first floor of the suit premises comprises of three rooms and one drawing room and one covered verandah and the second floor comprises of only three rooms which has been correctly shown with measurement in the site plan. It is stated that no triable issue has been raised by the respondent in his leave to defend application and the petitioner has prayed for dismissal of the Eviction Petition No. E29/09 Page 12 of 31 application and passing of eviction order in his favour in respect of the suit premises.
10. Rejoinder has been filed by the respondent no. 1 stating that petitioner along with his family members is permanently residing at Faridabad at plot No. 40, sector 21B measuring 1011.110 sq. yards. It is further stated that Dr. Rakesh Yadav and his wife Dr. Tapasya Yadav have permanently shifted from Delhi to the aforesaid house at Faridabad and similarly another son of the petitioner namely Bhuvnesh Yadav along with his wife and children have permanently shifted to the said house and only one son of the petitioner is residing at E16, Hauz Khas, New Delhi with his wife and children. The other averments made in leave to defend application have been reiterated and reaffirmed and those made in reply to leave to defend application have been controverted.
11. It is pertinent here to mention that respondent no. 1 also filed additional affidavit stating that the son of the petitioner namely Dr. Rakesh Kumar, his wife Dr. Tapasya Yadav along with their children have permanently shifted from Delhi and have settled at House No. 40, Sector 21A, Faridabad, Haryana and are practicing at Faridabad and similarly another son of the petitioner namely Bhuvnesh Yadav along with his wife and children have permanently shifted to the said house. It is further averred that the entire Eviction Petition No. E29/09 Page 13 of 31 house at Hauz Khas is almost vacant and only son of the petitioner namely Krishan Vivek Yadav is residing with his family on the part of first floor and the remaining house is vacant. It is further averred that mezzanine floor of house at Hauz Khas has entry from front and back side was already under commercial use and is still commercial unit and is lying vacant.
12. The petitioner has filed the reply to the additional affidavit of the respondent no. 1 along with counter affidavit denying the averments made in the additional affidavit.
13. I have heard the Ld. Counsel for the parties and perused the entire material available on record.
14. The present petition has been filed u/s 14 (1) (e) read with section 25B of DRC Act and in order to succeed in such a petition, petitioner has to prove (i) ownership over the suit premises; (ii) alternative accommodation and (iii) bonafide requirement.
15. There is no dispute that petitioner is owner of the property in question having purchased the same from Smt. Kapoori Devi, the previous owner/landlady and after purchase of the property in question by the petitioner, late Sh. Budhi Ram, predecessorininterest of the respondents became the tenant under the petitioner. It is also not in dispute that after the death of Sh. Budhi Ram, the respondents inherited the tenancy rights in Eviction Petition No. E29/09 Page 14 of 31 respect of the suit premises being the legal heirs of late Sh. Budhi Ram. As such, there exist relationship of landlord and tenant between the parties.
16. However, the main contention of the respondent no. 1 and respondent no. 7 in their respective leave to defend application is that the present petition has been filed for part of the tenanted premises. As per the respondents no. 1 and 7, late Sh. Budhi Ram was tenant in respect of one shop, room behind the shop with common latrine, common covered verandah and open space on the ground floor in property bearing No. E16, Hauz Khas, New Delhi, whereas the present petition has been filed by the petitioner in respect of one shop and connected room on the rear side which is the part of the tenanted premises and hence present petition is not maintainable.
17. The respondents no. 1 and 7 have heavily relied upon the previous litigations between the petitioner and late Sh. Budhi Ram in order to substantiate their claim that present petition has been filed for part of the tenanted premises and in fact they are tenants in respect of one shop, room behind the shop with common latrine, common covered verandah and open space in the aforesaid property. It is stated by the respondents no. 1 and 7 that petitioner filed a suit for possession u/s 6 of Specific Relief Act and also on the basis of the title to the property and for mandatory and permanent Eviction Petition No. E29/09 Page 15 of 31 injunction bearing suit No. 437/2002 against late Sh. Budhi Ram stating that late Sh. Bhudi Ram was a tenant in respect of only front shop and late Sh. Bhudi Ram dispossessed the petitioner from the room behind the shop which was not the part of the tenanted premises and the said civil suit was dismissed by the Ld. Civil Judge vide judgment dated 17.12.2005.
18. On the basis of dismissal of the aforesaid civil suit filed by the petitioner, the respondents no. 1 and 7 are claiming that Ld. Civil Judge has held vide judgment dated 17.12.2005 that late Sh. Budhi Ram was tenant in respect of one shop, room behind the shop with common latrine, common covered verandah and open space.
19. It is not in dispute that the petitioner had filed a civil suit for possession u/s 6 of the Specific Relief Act and for mandatory and permanent injunction against late Sh. Budhi Ram bearing suit No. 437/02 for recovery of possession of one room on the ground floor of the property bearing No. E16, Hauz Khas, New Delhi. The said civil suit was dismissed by Sh. Praveen Singh, the then Ld. Civil Judge vide judgment dated 17.12.2005.
20. The contention of the respondents no. 1 and 7 that in the said judgment, the Ld. Civil Judge had held the extent of premises under the tenancy of late Sh. Budhi Ram to be one shop, one room behind the shop with common latrine, common covered verandah and open space is without any merit. Perusal of Eviction Petition No. E29/09 Page 16 of 31 the said judgment dated 17.12.2005 reveals that late Sh. Budhi Ram, predecessorininterest of the respondents was held to be tenant in respect of one shop and one room behind the shop and there is no finding to the effect that late Sh. Budhi Ram was tenant in respect of one shop, one room behind the shop with common latrine, common covered verandah and open space on the ground floor of the property No. E16, Hauz Khas, New Delhi. The respondents have made extensive references in their leave to defend application to the observations of the Ld. Civil Judge in the said judgment to show the contradictory statement made by the petitioner but in my opinion the observations of the Ld. Civil Judge, in the said judgment dated 17.12.2005 regarding the contradictory statement of the petitioner has no bearing in the present case which has been filed u/s 14 (1) (e) r/w section 25B of DRC Act on the ground of bonafide requirement. In the present case, if the petitioner succeeds in proving that he requires the suit premises bonafide, he shall be entitled to get the relief as claimed and on the basis of the observations of the Ld. Civil Judge regarding the contradictory statement of the plaintiff in the said case, no malafide can be attributed in filing the present petition.
21. So far the contention of the respondent no. 1 and respondent no. 7 that the petitioner in order to get the premises vacated started to compel the Eviction Petition No. E29/09 Page 17 of 31 respondent either to vacate the premises or to pay the rent at his desire for the premises and withheld the user of latrine and covered verandah and open court yard by locking the door of the latrine and raising a partition wall thereby depriving the respondent the ingress and egress to covered verandah and open court yard and also user of latrine is concerned, perusal of the record reveals that respondent no. 1 has already filed a petition u/s 45 of DRC Act for restoration of user of latrine, common covered verandah and open courtyard against the petitioner contending that he is tenant in respect of one shop and one room behind the shop with common facility of latrine, open courtyard and common verandah, but same has been withheld by the petitioner. It was also contended by the respondent no. 1 that the Ld. Civil Judge vide judgment dated 17.12.2005 held the extent of premises under the tenancy of the respondent to be one shop, one room behind the shop with common latrine, common covered verandah and open space.
22. The court of Sh. Amit Kumar, the then Ld. ARC Delhi vide order dated 24.09.2007 dismissed the application u/s 45 (3) of DRC Act moved by the respondent no. 1 seeking interim relief in the aforesaid petition observing that Ld. Civil Court has decided the tenancy only in respect of a shop and a room behind the shop and it was never decided that any latrine, open space or covered verandah were also with the petitioner (respondent no. 1 herein). Eviction Petition No. E29/09 Page 18 of 31 The appeal against the said order dated 24.09.2007 preferred by respondent no. 1 was also dismissed by the Ld. ARCT, Delhi vide order dated 29.11.2007 holding that respondent no. 1 was required to lead evidence to the effect that he is tenant in respect of a shop, a room behind the shop with common latrine, covered verandah and open space.
23. In view of findings of the Ld. Civil Judge in the aforesaid litigation between the petitioner and late Sh. Budhi Ram and further in view of the findings of the Ld. ARC in a petition u/s 45 of DRC Act filed by the respondent no. 1 against the petitioner, it cannot be said that the respondents are the tenants in respect of a shop, room behind the shop with common latrine, covered verandah and open space as alleged by the respondent no. 1 and respondent no. 7 in their leave to defend application. Even otherwise, the respondents no. 1 and 7 are claiming to be tenancy in respect of common latrine, common covered verandah and open space apart from the one shop and a room behind the shop and if the said portion is common, the same cannot be said to be in exclusive tenancy of the respondents and it cannot be said that present petition has been filed for part of the tenanted premises. Furthermore, the respondents have not placed on record any single document to substantiate their claim that the common latrine, common varanda and open space forms the part of the tenanted premises. Eviction Petition No. E29/09 Page 19 of 31
24. Moreover, even for the sake of arguments, the plea of the respondent no. 1 and respondent no. 7 that they are tenants in respect of a shop, room behind the shop with common latrine, covered verandah and open space on the ground floor in the property in question is taken to be admitted, still it would not make any difference. The petitioner is seeking eviction of the respondents from one shop and one connected room behind the shop and even if the present petition has been filed for partial tenancy, the same would still be maintainable in view of law laid down in S.B. Khanna Vs. Trilok Nath, 1980 RLR 187 wherein it has been held that, "When tenant contends that landlord has not sued him in respect of whole of premises then it is not a case of splitting of tenancy. Tenant can be ousted from the portion which he claims in his tenancy."
25. In view of aforesaid discussions, there is no merit in the contention of the respondent no. 1 and respondent no. 7 that present petition has been filed for part of the tenanted premises and, therefore, present petition is not maintainable.
26. The next main contention of the respondents no. 1 and 7 is that the petitioner is leading a retired life and does not need the premises for himself. Similarly, both the sons of the petitioner namely Sh. Krishan Vivek Yadav and Bhuvenesh Yadav are well settled and are doing their respective Eviction Petition No. E29/09 Page 20 of 31 businesses. The third son of the petitioner namely Sh. Rakesh Yadav and his wife Tapasaya Yadav are doctors by profession and at present working with Max Hospital, Saket, New Delhi. It is also contended by the respondents no. 1 and 7 that Dr. Rakesh Yadav and his wife are residing separately having independent kitchen and they are not in any manner dependent upon the petitioner for accommodation and even they have no cordial relations with the other sons of the petitioner namely K.V. Yadav and Bhuvnesh Yadav and, therefore, the wife of Dr. Rakesh Yadav is on leave from the service to look after their children as they have no family support from other family members. The respondents no. 1 and 7 have also come up with a plea that if the petitioner requires the suit premises bonafide for running the clinic by his doctor son and his wife, the same can be run from the mezzanine floor, some portion of which are lying vacant at present and can be used for commercial purposes especially for running the clinic. It is also contended that the said mezzanine floor was earlier let out to different tenants for commercial purposes and if there was any bonafide need for commercial purposes, the said mezzanine floor would not have been let out and same at present is lying vacant and can very well be used for running the clinic.
27. On the other hand, the case of the petitioner is that there are three shops on the ground floor of the property bearing No. E16, Hauz Khas, New Eviction Petition No. E29/09 Page 21 of 31 Delhi which are nonresidential being situated in main market of Hauz Khas, New Delhi and he has already adjusted his two sons namely Sh. Krishan Vivek Yadav and Bhuvnesh Yadav who are running their respective business in two shops and the rooms behind the shops on the ground floor and the third shop in possession of the respondents is required bonafide by the petitioner for his third son namely Rakesh Yadav and his wife Tapasya Yadav who are doctors by profession and want to start their own medical practice by running their own clinic, but due to paucity of accommodation are not in a position to run their clinic and, therefore the petitioner requires the shop in possession of the respondent for his third son and his wife. It is further case of the petitioner that mezzanine, first floor as well as above portions of the aforesaid property are residential and are being used by him as well his family members for residential purposes.
28. It is not in dispute that two sons of the petitioner namely Krishan Vivek Yadav and Bhuvnesh Yadav are well settled and are running their respective business in two shops and the rooms behind the shops on the ground floor. This fact has also been categorically admitted by the respondents no. 1 and 7 in their leave to defend application when they stated that shop no. 1 and 2 and rooms behind both the shops and covered verandah remained vacant for more than 6 years and only about 4 years back, the sons of the petitioner Eviction Petition No. E29/09 Page 22 of 31 opened their business in the said shops and rooms. As such, there is no other shop available on the ground floor except the shop in possession of the respondents for running the clinic by the doctor son of the petitioner and his doctor wife. The respondents no. 1 and 7 have also not disputed the intention of the petitioner for opening a shop/clinic for his doctor son namely Dr. Rakesh Yadav and his wife Dr. Tapasya Yadav as they stated that the clinic can be run from the mezzanine floor which had been earlier let out to various tenants for commercial purposes and at present some portion of the mezzanine floor are lying vacant which can be used for running the clinic.
29. Though, the respondent no. 1 and respondent no. 7 have taken a plea that mezzanine floor can be used for commercial purposes and earlier the mezzanine floor was let out to various tenants by the petitioner for commercial purposes, but this plea of the respondents no. 1 and 7 is not substantiated. They have not placed on record any document to show that the mezzanine floor was ever let out by the petitioner for commercial purposes.
30. On the other hand, the petitioner in the counter affidavit has categorically denied that mezzanine floor is suitable for running the clinic. It is stated by the petitioner that mezzanine floor is purely residential and it has got entrance only from backside of the building which is residential lane Eviction Petition No. E29/09 Page 23 of 31 and it has no entrance from the front side. It is also stated by the petitioner that the eldest son Sh. Krishan Vivek Yadav with his younger brother Bhuvnesh Yadav along with their respective family are residing with the petitioner on first and above floors along with use of mezzanine floor of the aforesaid property. As such, when the upper floors of the property in question including the mezzanine floor are being used by the petitioner and his two sons with their respective family for residential purposes, it cannot be said that any accommodation is available with the petitioner at the upper floors including the mezzanine floor for running the clinic by his doctor son Rakesh Yadav and his daughterinlaw Dr. Tapasya Yadav. Moreover, it is a settled law that landlord is the master of his choice and tenant cannot suggest the landlord how he should use the space available with him. It has been held in Sait Nagjee Purushotham and Company Ltd. Vs. Vimalabai Prabhulal and others, 2005 8 SCC 252 by the Hon'ble Apex Court that, "It is not tenant who can dictate terms to landlord and advice him what he should do and what he should notIt is always the privilege of landlord to choose the nature and place of business." Similarly, it has been held by the Hon'ble Punjab & Haryana High Court in M/s Bajaj Associates & Ors. Vs. Vinod Kumar & Ors, 2008 (4) CCC 442 that, "It is not for the tenant to dictate to landlord as to how he has to run or adjust his business." Eviction Petition No. E29/09 Page 24 of 31
31. In view of law laid down in the aforesaid authorities, it is clear that it is not the business of the respondents no. 1 and 7 being the tenants to suggest the petitioner that if he requires the premises for running the clinic by his son and daughterinlaw, the same can be run from the mezzanine floor, more particularly when the suit premise being situated on the ground floor is the most suitable and convenient for the purpose of running the clinic by the son and daughterinlaw of the petitioner who are doctors by profession. It is a common knowledge that ground floor space is more suitable and convenient for running a clinic in attending the patients and providing the medical facilities in emergent and urgent situations. Moreover, the petitioner cannot be forced to disturb his private life by running the clinic at mezzanine floor, if some portion of said mezzanine floor is lying vacant as alleged by the respondents no. 1 and 7, which as per the petitioner is being used for residential purposes by him and his family members, just to accommodate the tenant in the suit premises. Therefore, the contention of the respondents no. 1 and 7 that clinic can be run by the son and daughter inlaw of the petitioner from the mezzanine and upper floors is not tenable.
32. So far the contention of the respondents no. 1 and 7 that the son of the petitioner namely Dr. Rakesh Yadav and his wife are living separately and are not dependent upon the petitioner in any manner for commercial Eviction Petition No. E29/09 Page 25 of 31 accommodation is concerned, the same is without any merit. It has been held in Joginder Pal Vs. Naval Kishore Behl, 2002 (1) RCR Rent 583 (SC) that "Landlord is entitled to evict tenant from nonresidential premises for use of his family member or a person who is dependent on landlord or on whom the landlord is dependentIt 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."
33. The respondents no. 1 and 7 have also disputed the extent of accommodation at the mezzanine floor, first floor and second floor contending that the petitioner filed an incorrect site plan and has not shown the actual accommodation in the premises bearing No. E16, Hauz Khas, Main market, New Delhi. It is contended that petitioner has falsely shown two rooms in the mezzanine floor, whereas the said mezzanine floor is having 5 big rooms and 4 small rooms and the said mezzanine rooms having entrance from the front side and from the back side. It is further contended that the petitioner has shown only 3 bed rooms/living rooms besides other accommodation in the first floor, whereas the first floor comprises of 8 rooms, 1 WC, kitchen, bath etc and similar accommodation is there on the second floor except one room, which the petitioner has wrongly shown as barsati floor. The respondent has also filed the site plan in support of his Eviction Petition No. E29/09 Page 26 of 31 contention showing the aforesaid accommodation.
34. On the other hand, the petitioner has denied the aforesaid extent of accommodation and has stated that there are only two rooms and one drawing cum dining room on the mezzanine floor and the first floor of the suit premises comprises of three rooms and one drawing room and one covered verandah and the second floor comprises of only three rooms which has been correctly shown with measurement in the site plan.
35. I have perused both the site plans filed by the parties. Perusal of the site plan filed by the respondent shows that though the respondent has shown the number of rooms on the mezzanine, first and second floor of the property in question, but no dimension or measurement of the rooms has been shown by the respondent. While, the petitioner has given the proper dimension and measurements of the rooms on the mezzanine, first and second floor of the property in question. Therefore, by merely showing the number of rooms in the site plan, it does not prove that the site plan filed by the petitioner is incorrect and in fact there are 5 big rooms and 4 small rooms on the mezzanine floor, 8 rooms, 1 WC, kitchen, bath etc on the first floor and similar accommodation is there on the second floor except one room as alleged by the respondent. More so, when admittedly the first floor area of the property in question is 200 sq. yards and it does not seem Eviction Petition No. E29/09 Page 27 of 31 believable that in an area of 200 sq. yds. the 8 bed rooms of sufficient size of about 100 sq. ft. can be constructed.
36. In view of above, the plea of the respondent that the petitioner has not correctly shown the extent of accommodation in the property in question is not tenable. Even otherwise, the said mezzanine and upper floors are being used by the petitioner and his family members for residential purposes and as such it has got no relevance.
37. Though, the respondent no. 1 has also come up with a plea by filing the additional affidavit that son of the petitioner namely Dr. Rakesh Kumar, his wife Dr. Tapasya Yadav along with their children have permanently shifted from Delhi and have settled at House No. 40, Sector 21A, Faridabad, Haryana and are practicing at Faridabad and similarly another son of the petitioner namely Bhuvnesh Yadav along with his wife and children have permanently shifted to the said house and only one son of the petitioner namely Krishan Vivek Yadav is residing with his family on the part of first floor of the property in question and the remaining house is vacant. In this regard, the respondent no. 1 has also contended in his leave to defend application that petitioner is leading a retired life and is residing at 207, Ashoka Enclave, Faridabad and one of his son namely Sh. Kishan Vivek Yadav is running his property business in the name and style of M/s Tej Eviction Petition No. E29/09 Page 28 of 31 Estates at 207, Ashoka Enclave, Main Faridabad, Haryana.
38. The petitioner in reply to the additional affidavit has denied that he is residing at Faridabad or any of his son is residing at Faridabad and further that Dr. Rakesh Yadav has left the job in Delhi and is practicing at Faridabad along with his wife. It has been stated by the petitioner that he along with his said sons is residing in property in question.
39. The respondent no. 1 though has raised a plea that the petitioner is residing at 207, Ashoka Enclave, Faridabad and one of his son namely Sh. Kishan Vivek Yadav is running his property business in the name and style of M/s Tej Estates at 207, Ashoka Enclave, Main Faridabad, Haryana and in support of his contention, the respondent no. 1 has also placed on record the visiting card of Tej Estate at 207, Ashoka Enclave, Main Faridabad, Haryana showing the name of K.V. Yadav, but even if the petitioner or his son K.V. Yadav is residing at Faridabad, the same does not dilute the bonafide requirement of the petitioner of the suit premises as the petitioner requires the suit premises for running the clinic by his third son namely Rakesh Yadav and daughterinlaw Tapasya Yadav who are doctors by profession.
40. Although, the respondent no. 1 has contended that Dr. Rakesh Yadav has left the job in Delhi and he and his wife are living at Faridabad and practicing at Faridabad, but the said contention of the respondents is again Eviction Petition No. E29/09 Page 29 of 31 without any substance. The petitioner has placed on record the experience certificate issued by Max Super Specialty Hospital through Dr. Tamorish Kole, Head of the Emergency Department Max Health Care, Saket, New Delhi by which it has been certified that Dr. Rakesh Yadav S/o Rao Tejpal Yadav R/o E16, Hauz Khas, New Delhi is a bonafide employee of Max Health Care, Press Enclave Road, Saket New Delhi who joined in March 2007 as Emergency Medical Officer and has been continuing till present date. The said experience certificate has been issued on 18.01.2011. Therefore, contention of the respondent no. 1 that Dr. Rakesh Yadav has left the job in Delhi and permanently shifted along with his wife Dr. Tapasya Yadav at Faridabad and they are practicing at Faridabad is without any basis.
41. In view of aforesaid discussions, the respondents no. 1 and 7 have miserably failed to raise any triable issue in their respective leave to defend applications. On the other hand, petitioner has established that he requires the suit premises bonafide for running medical clinic by his son namely Dr. Rakesh Yadav and his daughterinlaw Tapasya Rao. It is also established that petitioner has no other suitable alternative commercial accommodation except the suit premises for the said purpose.
42. Accordingly, an eviction order is passed u/s 14 (1) (e) r/w Section 25B of DRC Act in favour of the petitioner and against the respondents in respect Eviction Petition No. E29/09 Page 30 of 31 of one shop and one connected room on the rear side of the said shop in the property bearing No. E16, Hauz Khas, New Delhi, more specifically shown in red colour in site plan Ex. C1 (exhibited today while passing the order). However, it is made clear that the petitioner shall not be entitled to get the eviction order executed before expiry of 6 months running from today. No order as to cost.
File be consigned to Record Room.
Announced in the open court (Balwant Rai Bansal) on 4th November, 2011 ARC(South), New Delhi Eviction Petition No. E29/09 Page 31 of 31 E. No. 29/09 04.11.2011 Present: Counsel for the petitioner. Respondent no. 1 in person.
Vide my separate order dictated and announced in the open Court, the leave to defend applications filed by the respondents no. 1 and 7 are dismissed. It is also pertinent here to mention that except the respondents no. 1 and 7, the other respondents have not filed leave to defend application despite service of summons. Therefore, as per section 25B (4) of DRC Act, the statement made by the petitioner in his petition is deemed to be admitted by the respondents no. 2 to 6 as there is no leave to defend application on their behalf. Hence, an eviction order u/s 14 (1) (e) r/w section 25B of DRC Act is passed in favour of the petitioner and against the respondents in respect of the suit premises.
However, it is made clear that the petitioner shall not be entitled to get the eviction order executed before expiry of 6 months running from today. No order as to costs.
File be consigned to Record Room.
(B.R. Bansal) CCJ/ ARC/ ACJ(South), New Delhi 04.11.2011 Eviction Petition No. E29/09 Page 32 of 31