Delhi District Court
Sh. Davinder Singh vs Sh. Amrik Singh (Deceased Through Lrs) on 16 September, 2020
IN THE COURT OF SHRI AJAY NAGAR,
ADDITIONAL RENT CONTROLLER (WEST), TIS HAZARI
COURTS, DELHI.
ARC No: 26160/2016
1. Sh. Davinder Singh
S/o Late Sh. Puran Singh
2. Sh. Jaswant Singh
S/o Late Sh. Joginder Singh
Both R/o 1-C/66, Namdhari Colony,
New Delhi-110015.
......Petitioners
VERSUS
Sh. Amrik Singh (Deceased through LRs)
a) Smt. Harbhajan Kaur (Wife)
b) Sh. Jatinder Singh (son)
c) Sh. Kanwaljit Singh (son)
All C/o 4/28, Kirti Nagar Industrial Area,
New Delhi-110015.
.....Respondent
Date of filing : 10.07.2014 Date of Order : 16.09.2020 ORDER ON LEAVE TO DEFEND
1. By way of present petition, the petitioners are seeking eviction of respondent in respect of one workshop measuring approximately 12 square yards as shown in red colour in the site plan annexed with the petition on the ground floor of the property bearing No. 4/28, Kirti Nagar Industrial Area, New Delhi-110015 (hereinafter referred to as "Tenanted Premises"), Under Section 14(1)(e) of the Delhi Rent Control Act, 1958 (hereinafter referred to as "DRC Act").
ARC No. 26160/16 Sh. Davinder Singh Vs. Sh. Amrik Singh THR. LRs Page 1 /242. The case of the petitioner is that the petitioners are the co- owners and landlords of the property Bearing No. 4/28, Kirti Nagar Industrial Area, New Delhi-110015, measuring about 100 square yards. That the tenanted premises was allotted by the L & D.O. to Sh. Puran Singh, father of the petitioner No. 1 and grandfather of the petitioner No. 2. That during the lifetime Sh. Puran Singh had entered into family settlement with the wife and children of his brother Sh. Wasakha Singh and shared ownership of the property with them. Sh. Puran Singh, Sh. Wasakha Singh and his wife Smt. Prakash Kaur have died and the suit property is now owned by legal heirs of the original owners.
It is also averred that the respondent is a tenant of one room/workshop measuring around 12 square yards on the left hand side on the ground floor at a monthly rent of Rs. 260/- per month. That the petitioners do not have any space/portion in their occupation in the suit property. That the total area of the suit property is approximately 100 square yards.
It is further averred that other than the respondent, there are two more tenants in the suit property, namely Sh. Chanchal Singh and Sh. Balbir Singh. That the tenant Sh. Chanchal Singh is in occupation of around 29 square in the portion shown as 'A' in the site plan. That the tenant Sh. Balbir Singh is in occupation of portion shown as 'B' in the site plan.
It is also averred that besides this, Sh. Gurmukh Singh son of Sh. Wasakha Singh, the cousin of the petitioner No. 1 is in occupation of an area of around 22 square yards in the suit property shown as 'C' in the site plan. He is running his workshop for job work of repair and manufacturing of mechanical parts of various machines. That Sh. Mohan Singh son of late Sh. Puran Singh and ARC No. 26160/16 Sh. Davinder Singh Vs. Sh. Amrik Singh THR. LRs Page 2 /24 real brother of the petitioner No. 1 is in occupation of the portion shown as 'D' in the site plan. He is running his business of motor winding from the said portion. That similarly, Sh. Surinder Singh son of Late Sh. Puran Singh and real brother of the petitioner No. 1 is in occupation of the portion shown as 'E' in the site plan. He is having workshop of wood carpentry and store.
It is also averred that petitioner no. 1 is the son of Sh. Puran Singh and petitioner no. 2 is the grandson of Sh. Puran Singh. That the petitioner no.1 and 2 and their dependent members of family have no place to have their own business or engage them in any vocation due to paucity of space. That members of families of petitioner no. 1 and 2 who are dependent on the petitioners for the purpose of accommodation are, petitioner no. 1, aged 58 years and his family consists of his wife and two sons, namely Sh. Navjot Singh aged 23 years and Sh. Navdeep Singh aged 22 years. Petitioner no. 2 aged 19 year has family consisting of his mother and a married sister.
It is also averred that petitioner no. 1 wants to have a store and workshop of wood carpentry to store the stock and have a small work workshop where he could manufacture wooden doors, windows and other fittings which he provides to his customers. That at present under compulsion he has to carry all his machines and tools to the place of work as he has no place of his own to carry out said work.
It is further averred that elder son of the petitioner no. 1, namely Sh. Navjot Singh, aged 23 years, is a trained Dye-maker but he has no place to establish his workshop of dye-making and under compulsion he has to carry out the job of dye-making by utilizing the workshops of other people for which he has to unnecessarily share good part of profit with them. That the younger son of the petitioner no. 1, Sh. Navdeep Singh, aged 22 years is an expert car mechanic ARC No. 26160/16 Sh. Davinder Singh Vs. Sh. Amrik Singh THR. LRs Page 3 /24 and he has done apprenticeship in cars showroom of Galaxy Toyota, Moti Nagar, New Delhi. He desperately wants to start his own car repair workshop. That petitioner no. 1 has no commercial/industrial or other place in which he can adjust his sons for their respective trades.
It is further averred that petitioner No. 2 has already completed his training in computers and he wants to start and set up his own office/shop for undertaking computer job work which is normally outsourced by the office and industrial houses and that includes maintaining sales tax, income tax and filling forms etc. That Sh. Joginder Singh son of Late Sh. Puran Singh has died four years back. That the mother of petitioner no. 2 has taken up the job of helper in a school to raise children. That the petitioner no. 2 has now decided to earn his own livelihood to support his mother and settle himself in life.
That the petitioners have already requested the other tenants also to vacate the property as the petitioners and their dependent family members need the entire premises to accommodate them for their business and professional needs. That the petitioners have no space to fulfill their requirements. The petitioners thus require the entire property under the tenants of all the three tenants.
Lastly, it is prayed by the petitioners that an eviction order may be passed in favour of the petitioners and against the respondent.
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 filed his leave to defend application accompanied by affidavit.
4. Reply to leave to defend filed by the petitioners refuting the ARC No. 26160/16 Sh. Davinder Singh Vs. Sh. Amrik Singh THR. LRs Page 4 /24 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 accompanied by counter affidavit, documents, written submissions, material on record and case law relied upon.
6. Perusal of record shows that the respondent has sought the leave to defend on several grounds which will be discussed exhaustively later on.
7. Reply to leave to defend was also filed by the petitioners 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 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 ARC No. 26160/16 Sh. Davinder Singh Vs. Sh. Amrik Singh THR. LRs Page 5 /24 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 not to 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 ARC No. 26160/16 Sh. Davinder Singh Vs. Sh. Amrik Singh THR. LRs Page 6 /24 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 eviction petition, leave to defend application accompanied by affidavit, reply/counter affidavit, documents and material on record as well as the written submissions and case law relied upon.
9. Some of the pleas taken by the respondent are that the present petition has been filed to harass the respondent so as to increase the monthly rent 10-15 times from the present rent which is Rs. 260/- per month. Next plea of the respondent is that the present eviction petition is not maintainable and is illegal, incorrect as the same has been filed with an evil intentions for getting eviction of a commercial premises in order to re-let it at higher rent. That the petitioners are the builders and therefore, they want to get it vacated from the respondent by hook or crook and sell it thereafter as their routine business On the other hand, it is denied by the petitioner and has inter- alia submitted that the rent has been received by one of the legal heirs of both Late Sh. Puran Singh and Sh. Wasakha Singh but the ownership right have been inherited by all the legal heirs of late Sh. Puran Singh and all of them have acquired the status of co-owners of the property in dispute. It is not denied by the petitioners that the rent of the tenanted premises has been increased from time to time and the current rent of the premises is Rs. 260/- per month.
ARC No. 26160/16 Sh. Davinder Singh Vs. Sh. Amrik Singh THR. LRs Page 7 /2410. 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 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."
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.
ARC No. 26160/16 Sh. Davinder Singh Vs. Sh. Amrik Singh THR. LRs Page 8 /2411. Other pleas of the respondent are that the petitioners are neither the owners nor the landlord of the tenanted premises nor the respondent ever paid rent to the petitioners as such, there is no relationship of tenant and landlord between the petitioners and respondent. That the tenanted premises had been let out by Sh. Puran Singh, who was registered owner/lessee/allottee of the tenanted premises to the respondent in the year 1963 at the monthly rent of Rs. 70/- p.m. for commercial purposes. That during the year 1987, Smt. Prakash Kaur, Sh.Solakhan Singh, Sh. Gurmukh Singh, Smt. Rajinder Kaur, Smt. Satpal Kaur, all legal heirs of Sh. Wasakha Singh sent a legal notice dated 20.01.1987 through which they claimed themselves as co-owners of the property and also claimed half of the rent paid towards the tenanted premises. Thereafter, Sh. Puran Singh and Smt. Prakash Kaur started taking rent jointly and used to issue rent receipt under the name of Sh. Puran Singh and Smt. Prakash Kaur. That after the demise of S. Puran Sigh, Sh. Mohan Singh son of Sh. Puran Singh represented himself as the owner/landlord being his legal heirs and started receiving rent along with Smt. Prakash Kaur. That after the demise of Smt. Prakash Kaur her legal heir/son Sh. Sulakhan Singh started receiving rent along with Sh. Mohan Singh from the respondent. That after demise of Sh. Sulakhan Singh, his legal heir/son Sh. Lakhbir Singh and Sh. Mohan Singh started receiving rent. As such, the respondent attorned Sh. Mohan Singh and Sh. Lakhbir Singh as landlord of the tenanted premises. As such, there is no relationship of landlord/owner and tenant between the parties as the respondent never attorned the petitioners as his landlord.
It is further contended by the respondent that without prejudice to the rights and contentions of the respondent, even otherwise as per the pleadings of the petitioners, the petitioners alleged that the ARC No. 26160/16 Sh. Davinder Singh Vs. Sh. Amrik Singh THR. LRs Page 9 /24 petitioners are co-owners and landlords of property bearing No. 4/28, Kirti Nagar Industrial Area, New Delhi, which was allotted by the L & D.O. to Sh. Puran Singh father of the petitioner no. 1 and grandfather of the petitioner No. 2. The petitioners further alleged that during his lifetime S. Puran Singh entered into a family settlement with the wife and children of S. Wasakha Singh (brother of S. Puran Singh) and shared the tenanted premises with them. That the petitioners failed to file the said family settlement on records. That in the absence of family settlement, it cannot be said that the petitioners are co-owners and landlord of tenanted premises. That the present petition is bad for non joinder of the necessary parties and concealment of facts.
On the other hand, the petitioners in their reply has inter-alia submitted that it is not denied that as per the family settlement Smt. Prakash Kaur, Sh. Sulakhan Singh, Sh. Gurmukh Singh, Smt Rajinder Kaur, Smt. Satpal kaur have also become co-owners of undivided property in question along with Sh. Puran Singh. It is further not denied that Smt. Prakash Kaur and Sh. Puran Singh used to issue rent receipt being co-owners of the tenanted premises. That the receipt of rent by Sh. Mohan Singh and Sh. Lakhbir Singh has not taken away the ownership rights of the petitioners and this fact hardly have any bearing on the case of the petitioners and the petitioners being co-owners have unhindered rights to claim eviction of the disputed property for their bonafide need and necessity. That he has admitted the co-ownership of the petitioners by placing on record the list of legal heirs of Late Sh. Puran Singh. That since the petitioners have not claimed or alleged any partition and the property is undivided till date hence, the petitioners can file eviction petition against any of the tenant of the tenanted premises irrespective of the portion. That it is submitted the user of the premises is the decision ARC No. 26160/16 Sh. Davinder Singh Vs. Sh. Amrik Singh THR. LRs Page 10 /24 of the petitioners/co-owners and the tenant has no prerogatives to lay frivolous conditions. However, it is for the petitioners to see if any conversion is needed for use of the same after eviction. The car workshop is industrial use and not a commercial use.
12. It is expedient to discuss some relevant relevant case law which is as under:-
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."
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) 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 ARC No. 26160/16 Sh. Davinder Singh Vs. Sh. Amrik Singh THR. LRs Page 11 /24 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 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 ARC No. 26160/16 Sh. Davinder Singh Vs. Sh. Amrik Singh THR. LRs Page 12 /24 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 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."
In 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 ARC No. 26160/16 Sh. Davinder Singh Vs. Sh. Amrik Singh THR. LRs Page 13 /24 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 :
"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 ARC No. 26160/16 Sh. Davinder Singh Vs. Sh. Amrik Singh THR. LRs Page 14 /24 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."
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. Moreover, it is well settled that the petitioner/landlord should be something more than the tenant and he is not required to prove his ownership in the absolute terms. It is sufficient for him to show that he is something more than the tenant.
It is well settled law that the respondent/tenant has no right to challenge the partition, family settlement or Will in favour of petitioner. It is the prerogative of the legal heirs to challenge the partition, Will etc. or to raise objections in filing such eviction petition. The respondent/tenant has no right to raise objection in this regard. Nothing has been placed on record to substantiate the plea that the other legal heirs have objected to filing of such eviction petition before the court. It is also well settled that even a co-owner can file the eviction petition U/S 14(1)(e) of DRC Act even without impleading the other co-owners and the eviction petition can not be ARC No. 26160/16 Sh. Davinder Singh Vs. Sh. Amrik Singh THR. LRs Page 15 /24 non-maintainable unless and until the objections are filed by the other co-owners in the eviction petition.
As such, these pleas raised by the respondent are not triable issues which could disentitle the petitioners from obtaining an order of eviction against him.
13. Other pleas of the respondent are that the petitioners do not want the tenanted premises bonafide as the petitioners failed to ex- plain how the tenanted premises is required by them and for which purpose. That petitioner has also failed to plead their nature of busi- ness and how only the tenanted premises is suitable for the same. That the petitioners also failed to plead their present place of work/business and the reason for shifting from that place. That the petitioners with malafide intention and ulterior motive have deliber- ately failed to mention that neither they nor their family members own any other reasonable and suitable accommodation with them in and around Delhi. That the petitioners have not given the entire de- tails of the properties owned by them and their family members. That the petitioners are having various residential and commercial properties in Delhi.. That the petitioners are having Industrial prop- erty at Bawana at Sector-3, Plot No. G-51 as well as at F-98, Bali Nagar besides residential accommodation at 1-C/66, Namdhari Colony, New Delhi. It is also submitted that the petitioners deliber- ately did not disclose the address of said place/premises and the name of the person whose premises used by Sh. Navjot, son of the petitioner to carry out the job of dye-making. That the petitioner no. 2 is gainfully employed in a multi-national company/Newspaper Agency and he does not require any commercial shop or office for computer as alleged in the petition. That the tenanted premises is only 12 square yards area and not suitable for workshop of the car ARC No. 26160/16 Sh. Davinder Singh Vs. Sh. Amrik Singh THR. LRs Page 16 /24 repairing or carpentry trade or shop/office for computer typing and printing or work shop of dye-making as these professions required larger space.
14. In reply, it is inter-alia submitted by the petitioners that the petitioners have no other commercial property except the tenanted premises and have, in addition to the same a residential house, the address of which is given in the head note of the petition, which is being used by the petitioners and their other brothers as their residence. That the respondent has not stated any other address or details of property allegedly owned by the petitioners. That the contents of the petition regarding the profession of the sons of the petitioner no. 1 and the profession of petitioner no. 2 are reiterated to be correct. That the petitioners have given complete details of the decision to start the car repair workshop and space for establishing the workshop for his second son etc., in details. That the respondent has made a baseless and frivolous objection without even giving the name or address of the alleged multinational company or agency. That the petitioners have nothing to do with the plot No. G-51, Sector-3, Bawana, Delhi nor have they ever acquired any plot at Bawana or at any other place in Delhi or outside Delhi. That the property bearing No. F-98, Bali Nagar, New Delhi is not owned by the petitioners and the said property is owned by legal heirs of Late Sh Sulakhan Singh and Late Sh. Amrik Singh cousin of petitioner no. 1 relatives of petitioners, and petitioners have no right, title or interest in the same. That Late Sh. Puran Singh has sold his share in property bearing No. F-98, Bali Nagar to his brother Sh. Swarn Singh on 5th March, 1988, during his life time. That the residential property bearing No. 1-C/66, namdhari Colony, New Delhi is the family property measuring 100 square yards which is being used by ARC No. 26160/16 Sh. Davinder Singh Vs. Sh. Amrik Singh THR. LRs Page 17 /24 the petitioners and their other brothers, cousins etc. along with their families as their residence. That the same is not available to them for using it for commercial purposes. The said property is occupied by five families with extreme difficulty. That the petitioners are adjusting themselves in the space available to them and they shall file eviction petition against the other tenant as well to acquire more space to accommodate themselves.
15. 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.
16. 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 of his requirement.
17. Moreover, as far as other properties as alleged are concerned, those are not available with the petitioners. And no reliable documents have been placed on record to show that these properties are owned by the petitioners only and available with them for satisfying the bonafide requirement as raised in the present ARC No. 26160/16 Sh. Davinder Singh Vs. Sh. Amrik Singh THR. LRs Page 18 /24 petition. Even if it is assumed for the sake of arguments other properties are available in the streets and on the upper floors and can be used commercially, it is commonly known that footfall of the customers on the ground floor and main road is always on the higher side in comparison to the upper floors and streets and the Landlord of the suit property is not supposed to face the financial loss merely to save the tenancy of a tenant. Record manifestly shows that issues raised by respondent are not triable issue which could dis-entitle the petitioner to obtain the order of eviction against the respondent.
18. Moreover, in the present leave to defend, the respondent has given the details of the properties in possession of the petitioner but in their reply, the petitioners have given the reasons that the properties, details of which given by the respondent are not available with them. As such, it is not available with the petitioners. Besides, it is not the case of the respondent that alternative reasonably suitable commercial accommodation is available with the petitioners which can be used to satisfy the bonafide need as raised by the petitioners in the present eviction petition.
19. As such in my considered view, the petitioners are not having the alternative reasonably suitable commercial accommodation with them to satisfy the bonafide requirement as raised in the present petition. Moreover, the respondent has not been able to prove on record that the petitioners are having malafide and alternative reasonably suitable commercial accommodation to satisfy the bondfide need as raised in the present eviction petition.
20. As far as, employment of petitioners and their family members is concerned, it is well settled that a person is not supposed to ARC No. 26160/16 Sh. Davinder Singh Vs. Sh. Amrik Singh THR. LRs Page 19 /24 remain unemployed till the disposal of the eviction petition. Furthermore, this Court is of the opinion that there is nothing malafide if the petitioners want to have the tenanted premises for the purpose of settling the business for themselves and their family members. Rather, the said requirement seems to be bonafide as they want to settle themselves and their family members for earning their livelihood and the tenant cannot stop the landlord/family members of landlord from starting or properly settling any business for livelihood. The bonafide requirement of a landlord does not become malafide just because petitioners want to run business properly 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. 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 petitioners ad family members are already doing some work as alleged by the respondent, in my view, they cannot be expected to remain idle till the disposal of the eviction petition to show their 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, these are not triable issues which could dis-entitle the petitioners to obtain the order of eviction against the respondent.
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 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 ARC No. 26160/16 Sh. Davinder Singh Vs. Sh. Amrik Singh THR. LRs Page 20 /24 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 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 ARC No. 26160/16 Sh. Davinder Singh Vs. Sh. Amrik Singh THR. LRs Page 21 /24 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."
21. The next plea of the respondent is that the site plan filed by the petitioners is incorrect and does not depict the true nature and extent of the tenanted premises as well as accommodation available with the petitioners. That the correct site plan is enclosed with the leave to defend.
22. In reply, it is submitted by the petitioners that the site plan filed by the respondent is maneuvered one. Otherwise, there is no difference in the site plan of the petitioners and the one filed by the respondent. That objection has been taken with the malafide and illegal intention.
23. Perusal of the record and admission of the respondent shows that the site plan has been filed by the respondent in the present ARC No. 26160/16 Sh. Davinder Singh Vs. Sh. Amrik Singh THR. LRs Page 22 /24 eviction petition against the site plan filed by petitioners.
24. Perusal of record and well settled proposition of law manifestly show that these pleas raised by the respondent are not triable issues which could disentitle the petitioners from obtaining an order of eviction against him.
25. Perusal of record shows that some case law have been relied upon by the parties. I have gone through the case law relied upon by Ld. Counsel for the parties. The case law relied upon the respondent do not assist the respondent in view of the exhaustive discussion as earlier, peculiar facts of the case, settled law and material on record.
CONCLUSION:-
26. In view of the above discussion, I find no triable issue in the leave to defend application of the respondents which could dis-entitle the petitioners to obtain an eviction order in their favour. The application for leave to defend filed by the respondent is thus, dismissed.
27. Hence, as a consequence thereof, an eviction order is passed U/s. 14 (1) (e) of DRC Act in favour of petitioners and against the respondent in respect of the tenanted premises i.e. one workshop measuring approximately 12 square yards as shown in red colour in the site plan annexed with the petition on the ground floor of the property bearing No. 4/28, Kirti Nagar Industrial Area, New Delhi-110015 which is marked as Mark- P1 (Put by the court for the purpose of identification).
ARC No. 26160/16 Sh. Davinder Singh Vs. Sh. Amrik Singh THR. LRs Page 23 /2428. 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.
29. File be consigned to the Record Room after due compliance.
Digitally signedAnnounced AJAY by AJAY NAGAR
on 16th September, 2020
(This order contains 24pages) NAGAR Date: 2020.09.17
13:04:40 +0530
(AJAY NAGAR)
Additional Rent Controller,
West District, THC/Delhi.
ARC No. 26160/16 Sh. Davinder Singh Vs. Sh. Amrik Singh THR. LRs Page 24 /24