Delhi District Court
Ms. Sushma vs Sh. Gurcharan Singh on 21 September, 2019
IN THE COURT OF SHRI AJAY NAGAR,
ADDITIONAL RENT CONTROLLER (WEST), TIS HAZARI
COURTS, DELHI.
ARC No: 01/2018
Ms. Sushma
Wd./o Late Ishwar Dass Arora
R/o 1 / 2, Ramesh Nagar,
New Delhi-110015. ......Petitioner
VERSUS
Sh. Gurcharan Singh
S/o Late Sh. Kuldeep Singh Bhatia
Shop in property No. 1/02,
Ramesh Nagar,
New Delhi-110015. ......Respondent
Date of filing : 02.01.2018 Date of Order : 21.09.2019 ORDER ON LEAVE TO DEFEND
1. Brief facts of the case are that the petitioner is seeking eviction of respondent Sh. Gurcharan Singh Bhatia in respect of Shop in property bearing No. 1/02, Ramesh Nagar, New Delhi-110015 more conspicuously shown within red lines in the attached site plan along with costs (hereinafter referred to as "Tenanted Premises"), Under Section 14(1)(e) of the Delhi Rent Control Act, 1958 (hereinafter referred to as "DRC Act").
2. The case of the petitioner is that the tenanted premises are now required by the petitioner for herself and for her dependent family members. That Ms. Manisha Arora, daughter of the petitioner is married to Sh. Gaurav Kr. Chitkara. That since the husband of the petitioner has expired, there is no other person to look after her and as such her daughter has shifted to the residential portion of the ARC No. 01/18 Smt. Sushma Vs. Gurcharan Singh Bhatia Page 1 of 22 premises i.e. 1/02, Ramesh Nagar, New Delhi on the ground floor and is living with the petitioner as a dependent family member.
It is further averred that there are two shops in the premises. That one small shop is already under occupation and tenancy of one Tailor Sh. Khursheed Mia. That the petitioner wants to run a boutique in the tenanted premises with the help and assistance of her daughter Ms. Manisha Arora. That the plot of land on which the premises are situated are of 100 sq. yards where there are two shops and back portion is residential consisting of ground floor upper floor. That ground floor is being occupied by the petitioner and her daughter and her family members for residential purpose and upper floor is under the tenancy of a tanant which is purely residential.
Lastly, it is prayed that eviction order may be passed in favour of the petitioner 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 petitioner refuting the pleas taken by respondent in the leave to defend.
5. I have carefully and minutely gone through the petition, leave to defend application accompanied by affidavit, reply accompanied by counter affidavit, documents, material on record and case law relied upon.
6. Perusal of record shows that the respondent has sought the ARC No. 01/18 Smt. Sushma Vs. Gurcharan Singh Bhatia Page 2 of 22 leave to defend on several grounds which will be discussed exhaustively later on.
7. Reply to leave to defend was also filed by the petitioner which will also be discussed exhaustively later on.
THE LAW:
It is well settled that burden placed on a tenant is light and limited in that if the affidavit filed by him discloses such facts as would disentitle the landlord from obtaining an order for the recovery of the possession of the premises on the ground specified in clause
(e) are good enough to grant leave to defend.
It is further well settled that at a stage when the tenant seeks leave to defend, it is enough if he prima-facie makes out a case by disclosing such facts as would disentitle the landlord from obtaining an order of eviction. Unless the tenant at that stage itself establishes a strong case as would non-suit the 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.
ARC No. 01/18 Smt. Sushma Vs. Gurcharan Singh Bhatia Page 3 of 22Assertions 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 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. One of the pleas taken by the respondent is that the tenanted premises is commercial premises and was let out for commercial purposes only. On the other hand, petitioner has categorically denied ARC No. 01/18 Smt. Sushma Vs. Gurcharan Singh Bhatia Page 4 of 22 the plea taken by the respondent.
It is pertinent to note here that the scope of the Section 14(1)
(e) D.R.C. Act has been enlarged in view of the judgment of the Hon'ble Supreme Court titled as "Satyawati Sharma v. Union of India" [AIR 2008 SC 3148] so as to include premises let out for commercial purposes also within the scope and ambit of a petition under section 14(1)(e) of DRC Act.
As such, record manifestly shows that this is not a triable issue which could dis-entitle the petitioner to obtain the order of eviction against the respondent.
9. Another plea of the respondent is that the petitioner has suppressed and concealed the material facts with fraudulent intentions. That petitioner has deliberately not disclosed that she is a retired government teacher and getting monthly pension of huge amount from the government and she is also getting the pension of her husband. Moreover, she is having rental income of the first floor of the property and she received huge terminal retirement benefits from the government at the retirement of herself as well as of her husband. In nut-shell, the claim of the respondent is that the petitioner is having strong financial position. On the other hand, petitioner has denied the allegations.
It is well settled that the petitioner/landlord is not required to become a poor person to be entitled for the benefit U/Sec. 14(1)(e) of the D.R.C. Act. It is the bonafide which matters and not the affluent of the landlord. Even an affluent person can file a petition U/sec. 14 (1)(e) of D.R.C. Act provided he/she fulfills the criteria as mentioned in the provision. The bonafide does not become malafide merely because the landlord or his family members are having ARC No. 01/18 Smt. Sushma Vs. Gurcharan Singh Bhatia Page 5 of 22 source of income. Even a well settled landlord can file the petition U/Sec. 14(1)(e) of the D.R.C. Act and there is no bar as such.
As such, record manifestly shows that these are not triable issue which could dis-entitle the petitioner to obtain the order of eviction against the respondent.
10. Another plea taken by the respondent is that the petitioner has concealed her present medical condition and she is not in position to walk or stand on her own without support for long time and she is on complete bed rest. In nut-shell, the plea of the respondent is that the petitioner is not in physical condition to start a business at this stage of life and there is malafide requirement to get the tenanted premises vacated.
In the case titled as Sudesh Kumar Soni & Ors. Vs. Prabha Khanna & Ors. 153 (2008) DLT 652 it was observed that:-
"24. 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.
25. Suitability has to be seen from the convenience of the landlord and his family members and on the basis of the circumstances including their profession, vocation, style of living, habits and background. Landlord is the best judge of his residential requirement".
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 ARC No. 01/18 Smt. Sushma Vs. Gurcharan Singh Bhatia Page 6 of 22 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."
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 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."
As such, record manifestly shows that this is not triable issue which could dis-entitle the petitioner to obtain the order of eviction against the respondent.
11. Another plea taken by the respondent is that the respondent that throughout her life, petitioner has never done any kind of business or commercial activity. Moreover, she has no experience or expertise to run any such business. That it is not the case of the petitioner that she wants to keep busy in her retired life. It is further contended that daughter of petitioner is a home maker having two children, one is four year old and the second is one month old. That ARC No. 01/18 Smt. Sushma Vs. Gurcharan Singh Bhatia Page 7 of 22 petitioner herself is not physically fit and the daughter of the petitioner also has to look after her children. Hence, as per respondent it is highly improbable for the daughter of the petitioner to assist the petitioner in running the boutique in the tenanted premises. Moreover, they are not having experience.
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 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 ARC No. 01/18 Smt. Sushma Vs. Gurcharan Singh Bhatia Page 8 of 22 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 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."
As such, record manifestly shows that these are not triable issue which could dis-entitle the petitioners to obtain the order of eviction against the respondent.
ARC No. 01/18 Smt. Sushma Vs. Gurcharan Singh Bhatia Page 9 of 2212. The next plea of the respondent is that the petitioner is not clear in her mind as to what to do and with whom. That in her legal notice dated 07.02.2017, the petitioner mentioned that she required the tenanted premises bonafide for herself for the purposes of commercial use whereas in the petition, the petitioner has claimed that tenanted premises now required by the petitioner for herself for running the boutique. On the other hand, petitioner has categorically denied the plea taken by the respondent.
It is well settled that the landlord is not bound to start exactly the same business for which the petition for bonafide requirement is filed before the court. The landlord can start the business as per his requirement and circumstances.
Record manifestly shows that this is not triable issue which could dis-entitle the petitioner to obtain the order of eviction against the respondent.
13. Another plea of the respondent is that petitioner and her daughter are the only legal heirs of her late husband and her daughter is married and she is not dependent family member of the petitioner and she is well settled in her family in her matrimonial home and looking after her family and children.
It was held by Hon'ble High Court of Delhi in Anil Kumar Gupta Vs Deepika Verma passed in RC Revision No. 138/2015 passed on 14.10.2015 that dependency is not restricted to financial or physical but it will also include emotional reliance on another person.
It is a matter of common knowledge that daughters are always dependent upon their parents even after marriage and are always emotionally attached with her parents and a relation of a mother/father and a daughter becomes even stronger after marriage.
ARC No. 01/18 Smt. Sushma Vs. Gurcharan Singh Bhatia Page 10 of 22It is well settled that daughter in law may be dependent on father in law or mother in law and father in law/mother in law can file the eviction petition U/S 14(1)(e) of DRC Act for the bonafide requirement of daughter in law.
In my considered view, when mother in law/father in law is entitled to file eviction petition for her or his daughter in law, an eviction petition can also be filed for bonafide requirement of daughter attached to their mother/father.
In the case titled as Anil Kumar Gupta Vs Deepika Verma passed in RC Revision No. 138/2015 on 14.10.2015 the Hon'ble High Court held that 'family' word should be interpreted liberally and common blanket approach can not be followed and the court must look at each case in the light of its own peculiar circumstances.
In Anil Kumar Gupta Vs Deepika Verma (supra) it is further observed as under:-
"12. Customarily or in common parlance a dependent would be defined as any person who is reliant on another either for financial or physical support for sustenance of life. It is pertinent to note that the word dependent or as to what constitutes a family has nowhere been defined in the Delhi Rent Control Act. Rather, the legislators consciously and deliberately have used the words "any member of family dependent on the landlord" instead of defining a clear degree of relations so as to construe a wider meaning to the aforesaid words as man is a social creature and part of a complex societal system involving myriad of relations from which he cannot be isolated. It is significant to understand that the dependency is not restricted to financial or physical but will also include emotional reliance on another person. Reliance in this regard is placed on the findings of this court." Further in M/S. Jhalani Tools (India) Pvt. Ltd. vs B.K. Soni; AIR 1994 Delhi 167, wherein the court observed "the social set up of our society is such where a married daughter continues to enjoy a place of pride in her maternal home and therefore while considering the requirement of the landlord her married daughter and her expected visits ARC No. 01/18 Smt. Sushma Vs. Gurcharan Singh Bhatia Page 11 of 22 cannot be lost sight of. Similarly in Sain Dass v.
Madan Lal; 1972 Ren CJ (SN) 8 (Delhi), this Court has acknowledged "the word "himself" has to be construed to mean "himself" as cohabiting with his family members with whom he is normally accustomed to live. Therefore, contrary to the submissions of the learned counsel for the petitioner financial or physical incapacitation cannot be the sole premises for determining dependency on another." The Hon'ble Delhi High Court Further observed "14. As it crystallizes from the aforesaid the word dependent cannot be constructed in a narrow and literal manner. The same have to be interpreted judiciously keeping in mind the intent of the legislators. As discussed above the words used under S.14 (1) (e), are "any member of family dependent on him" which would include the daughter in law who in the instant matter is dependent on her mother in law/landlady (respondent herein) and on account of sharing of residence both the daughter in law and the respondent are physically, emotionally and financially inter-dependent." The Hon'ble Delhi High Court Further observed "it is settled principle that no blanket approach can be followed and the court must look at each case in the light of its own peculiar circumstances."
In the case titled as Sunder Singh Talwar Vs Kamal Chand Dugar MANU Vs DE/1400/2018 decided on 11.04.2018 the Hon'ble High Court of Delhi inter-alia observed as under:-
"It is settled legal position in this regard that a landlord while filing an eviction petition for bona fide need, need not specify the exact business which is proposed to be carried out from the tenanted premises for which the eviction has been sought. In fact, even if in the eviction petition a particular purpose is stated, the landlord is not bound by the said purpose and after an eviction order, can change his mind and use the premises for a different kind of business. It is settled by a catena of judgments that the landlord has not to give an elaborate description of the business or the nature of business that he seeks to carry out in the premises. In this context reference may be had to the judgment of this court in Puran Chand Aggarwal v. Lekh Raj, 210 (2014) DLT 131, wherein the court held as follows: "26. As far as ARC No. 01/18 Smt. Sushma Vs. Gurcharan Singh Bhatia Page 12 of 22 business is concerned, it is not necessary that the landlord must show some evidence that he has experience of said business. That is not the requirement of law in order to file the eviction petition on the grounds of bonafide requirement."
The Hon'ble Delhi High Court further observed as under:-
"23. It has next been pleaded by the petitioner that a daughter once married cannot be considered dependent upon the father for the purpose of seeking eviction of a dependent family members under the DRC Act. The contention is misplaced."
The Hon'ble Delhi High Court further observed that:
"24. The Supreme Court in Joginder Pal v. Naval Kishore Behal, AIR 2002 SC 2256/ (MANU/SC/0453/2002), held as follows:
"24. We are of the opinion that the expression "for his own use" as occurring in Section 13(3)(a)(iii) of the Act cannot be narrowly construed. The expressions must be assigned a wider, liberal and practical meaning. The requirement is not the requirement of the landlord alone in the sense that the landlord must for himself require the accommodation and to fulfill the requirement he must himself physically occupy the premises. The requirement of a member of the family or of a person on whom the landlord is dependent or who is dependent on the landlord can be considered to be the requirement of the landlord for his own use."
The Hon'ble Delhi High Court Further observed that:-
"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........."ARC No. 01/18 Smt. Sushma Vs. Gurcharan Singh Bhatia Page 13 of 22
The Hon'ble Delhi High Court further observed that:-
"Hence, it is not a universal rule that married daughter cannot be dependent upon her father. Even otherwise in my opinion, in the present day and age it would be futile to argue that once the daughter is married she ceases to be responsibility of her father. A daughter has equal rights in the estate of the parents in case of intestate death. There can be no reason as to why the father would not like to settle his daughter in business or profession in the same way as he would like to settle his son. The plea to the contrary in the present facts is completely misplaced. It may also be noted that in the present case there is a clear and categorical averment that the daughter does not own any other property in Delhi and is dependent on the father to be settled."
The Hon'ble Delhi High Court further observed that:-
"10. The second question which arises is that even if she is a member of the family of the petitioner, the next question would arises whether she could be treated as a dependent on the petitioner for the purpose of her accommodation. Certainly, to this question also the answer prima facie should be in negative. The reason being that once the daughter of the petitioner has got married for purposes of any accommodation, she would be dependent on her husband rather on her father."
As such, Record manifestly shows that these are not triable issue which could dis-entitle the petitioners to obtain the order of eviction against the respondent.
14. Another plea raised by the respondent is that the petitioner has concealed the fact that her son in law is a Textile Engineer and well settled in a big company at Gurgaon and having a monthly salary of more than one lakh. Moreover, son in law is having other ARC No. 01/18 Smt. Sushma Vs. Gurcharan Singh Bhatia Page 14 of 22 properties in Delhi and NCR. On the other hand, petitioner has categorically denied the plea taken by the respondent.
Perusal of the record clearly shows that for the purposes of petition U/Sec. 14(1)(e) of the D.R.C. Act that it is the property of the petitioner/ landlord which are to be taken into consideration for deciding whether the petitioner is having alternative reasonably suitable accommodation or not. There is no role of property of son in law of the landlord.
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 petitioner wants to start her business. Rather, the said requirement seems to be bonafide as she wants to earn her livelihood after her retirement and the tenant cannot stop the landlord/family member of landlord from starting any business for livelihood. The bonafide requirement of a landlord does not become malafide just because she wants to run business for her livelihood from her 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.
Record manifestly shows that these are not triable issues which could dis-entitle the petitioner to obtain the order of eviction against the respondent.
15. Another plea of the respondent is that petitioner is describing her daughter as dependent upon her but it is the daughter who allegedly relinquished her half share in the entire property in favour of the petitioner and this fact shows the lack of bonafide qua ARC No. 01/18 Smt. Sushma Vs. Gurcharan Singh Bhatia Page 15 of 22 tenanted premises.
On the other hand, petitioner has categorically denied the plea taken by the respondent.
Record manifestly shows that these are not triable issue which could dis-entitle the petitioners to obtain the order of eviction against the respondent as the law does not restrict the daughter to relinquish her property rights in favour of her parents.
16. Some of the please taken by the respondent is that petitioner has concealed that late Sh. Ishwar Dass, husband of petitioner was running an electrical shop in the name and style of Mannu Electricals adjacent to tenanted premises. Moreover, a room is lying vacant in possession of the petitioner just before the shop which can be added to the said shop to run even a big boutique. That since 18.05.2016 after the death of husband of petitioner, the said shop is lying vacant and the same can be used to satisfy the bonafide requirement. On the other hand petitioner has denied all these facts.
Record manifestly shows that these are not triable issue which could dis-entitle the petitioners to obtain the order of eviction against the respondent.
It is well settled that the tenant cannot dictate the terms to the landlord to use the tenanted premises in a particular manner. It is the prerogative of the landlord. Whether the property is suitable or not is to be decided by the petitioner/landlord and not by the tenant. Landlord is the best judge of his requirement and tenant cannot dictate terms to the landlord.
As such, record manifestly shows that these are not triable issue which could dis-entitle the petitioners to obtain the order of eviction against the respondent.
ARC No. 01/18 Smt. Sushma Vs. Gurcharan Singh Bhatia Page 16 of 2217. Another plea of the respondent is that the objective of the petitioner is to pressurize the respondent to evict the tenanted premises.
On the other hand, petitioner has categorically denied the plea taken by the respondent.
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 ARC No. 01/18 Smt. Sushma Vs. Gurcharan Singh Bhatia Page 17 of 22 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.
18. One of the pleas of the respondent is that the petitioner has knowingly and intentionally stated that another shop adjacent to the shop of the respondent is under the tenancy of one Tailor Sh. Khurshid Mia. Whereas the aforementioned tailor is sitting outside the said shop on the pavement. That the said shop is still lying vacant and in the possession of the petitioner and the shop still carries the signboard of Mannu Electrical and photographs have also been placed on record. On the other hand, petitioner has categorically denied the plea taken by the respondent.
Perusal of record shows that no cogent and trustworthy document has been placed on record by the respondent to show that the tailor Sh. Khurshia Mia is working from pavement and not from the shop. Showing the board of Mannu Electricals does not prove the fact that the aforementioned shop is vacant. Even otherwise, the photographs placed on record by the respondent shows that the said shop is occupied by tailor.
As such, Record manifestly shows that these are not triable issue which could dis-entitle the petitioners to obtain the order of eviction against the respondent.
19. Another plea taken by the respondent is that the petitioner has suppressed the material facts regarding build up area, number of rooms in property No. 1/ 2, Ramesh Nagar, number of family members and dependents and the petitioner has not given the details of unsuitability of aforesaid rooms. On the other hand, ARC No. 01/18 Smt. Sushma Vs. Gurcharan Singh Bhatia Page 18 of 22 petitioner has categorically denied the plea taken by the respondent. In my considered view, it is not mandatory to give the exhaustive details as claimed by the respondent. Moreover, in the present case the bonafide need is for commercial use and of herself. As far as rooms are concerned, these are not shops and it is not the claim of the respondent that these are the shops on the ground floor of the same building. It is an undisputed fact that there are only two shops on the ground floor of the property, one of which is occupied by respondent himself.
As such, Record manifestly shows that these are not triable issue which could dis-entitle the petitioners to obtain the order of eviction against the respondent.
20. Next plea is that the petitioner has not disclosed the names of the alleged tenant with details who is on the upper floor. On the other hand, petitioner has categorically denied the plea taken by the respondent.
Record shows that the present petition has been filed for commercial use and not for residential use and even if it is assumed for the sake of arguments that the upper floor is available to the petitioner, it will not rule out the bonafide of the petitioner as the upper floor are generally not suitable for commercial activities and Moreover, footfall of the customers on the ground floor is always on the higher side in comparison to the upper floors and the Landlord of the suit property is not supposed to face the financial loss merely to save the tenancy of a tenant. As such, Record manifestly shows that these are not triable issue which could dis-entitle the petitioners to obtain the order of eviction against the respondent.
21. Next plea of the respondent is that the petitioner has not filed ARC No. 01/18 Smt. Sushma Vs. Gurcharan Singh Bhatia Page 19 of 22 proper site plan. On the other hand, petitioner has categorically denied the plea taken by the respondent.
In the case titled as R.K. Bhatnagar vs. Sushila Bhargava AIR 1987 Delhi 363; the Hon'ble High Court of Delhi observed as under:-
"He has not filed any site plan wither to show that the site plan filed by the respondent- landlady is incorrect in any way. Hence, I see no reasons to doubt the veracity of the facts stated by the respondent in her affidavit. Likewise, I assume that the site plan filed by her showing the entire accommodation in her occupation is correct."
In my view, it is not a triable issue as the respondent had the ample opportunity to file his own site plan in case he found that the site plan filed by the petitioner was wrong.
22. Some other pleas taken by the respondent are that the petitioner does not have any bonafide and it is the wish and whim of the petitioner to occupy the tenanted premises. That in her prior notice, petitioner falsely stated that respondent defaulted in payment of rent. But the fact is that the respondent has duly paid the rent of the tenanted premises. That conversion charges, electricity charges, mis-use charges are being paid by the respondent and not by the petitioner. On the other hand, petitioner has categorically denied the plea taken by the respondent.
Record manifestly shows that these are not triable issue which could dis-entitle the petitioners to obtain the order of eviction against the respondent as these are the irrelevant pleas and while dealing with the petition U/Sec. 14(1)(e) D.R.C. Act, the court is not supposed to deal with these issues.
23. Next plea of the respondent is that respondent is diabetic ARC No. 01/18 Smt. Sushma Vs. Gurcharan Singh Bhatia Page 20 of 22 patient and a senior citizen at the age of 62 years and running a very small shop which is his only source of living and the respondent is having no other source of income. Whereas the petitioner and her family is financially in a strong position.
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."
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.
CONCLUSION:
24. In view of the above discussion, I find no triable issue in the leave to defend application of the respondent which could dis-entitle the petitioner to obtain an eviction order in his favour. The application for leave to defend filed by the respondent is thus, dismissed.
25. 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 the tenanted premises in respect of Shop ARC No. 01/18 Smt. Sushma Vs. Gurcharan Singh Bhatia Page 21 of 22 in property bearing No. 1/02, Ramesh Nagar, New Delhi-110015 more conspicuously shown within red lines in the attached site plan which is marked as Mark- P1 (Put by the court for the purpose of identification).
26. 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.
27. File be consigned to the Record Room after due compliance.
Announced in the open court AJAY Digitally signed by AJAY NAGAR on 21st September, 2019 NAGAR Date: 2019.09.21 16:53:59 +0530 (This order contains 22 pages) (AJAY NAGAR) Additional Rent Controller, West District, THC/Delhi.
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