Delhi District Court
Shri. Ram Kumar Gupta vs S. Nirmal Singh; on 7 June, 2013
IN THE COURT OF SHRI SANJEEV KUMAR SINGH :
ADMINISTRATIVE CIVIL JUDGE CUM ADDITIONAL RENT
CONTROLLER (CENTRAL) : DELHI
E11/2010
Unique ID No : 02401C0278982010
In the matter of:
Shri. Ram Kumar Gupta, Advocate
(Karta R.K. Gupta, HUF),
S/o Late Shri Ganga Sharan,
R/o A2, Preet Vihar, Delhi110092.
....Petitioner
Versus
1. S. Nirmal Singh;
2. S. Swinder Singh
Both sons of Late S. Teja Singh,
Shop No. 1141, Ground Floor,
Chah Rahat, Bazar Guliyan,
Near Jama Masjid,
Delhi110006.
Residential Address:
14/28, Subhash Nagar,
New Delhi110027.
.....Respondents
Date of Institution : 07.07.2010
Date of order when announced
: 07.06.2013
J U D G M E N T:
1. Vide this judgment, I shall dispose of the present eviction petition E11/2010 Page 1/24 filed by the petitioner U/S 14 (1) (e) of the Delhi Rent Control Act, 1958 (hereinafter referred to as DRC Act, 1958).
2. The version of the petitioner is that the petitioner is owner/landlord of the property no. 114142, situated at Chah Rahat, Bazar Guliyan, Jama Masjid, Delhi110006. The property was originally purchased in the name of mother of the petitioner namely Premo Devi w/o Late Sh. Ganga Sharma r/o A2, Preet Vihar, Delhi110092, vide registered sale deed dated 02.01.1987 duly registered with the SubRegistrar, Delhi as document no. 27, addl. book no.1, volume no. 4680 on pages 124 to 128 registered on 02.01.1987. The mother of the petitioner died on 07.03.2002 and the property was got mutated in the name of petitioner, who is son and mutation certificate was duly issued in the name of the petitioner by the Asstt. Assessor & Collector, city zone. The petitioner is paying housetax in respect of the whole property and has lastly paid property tax vide property tax challan dated 07.05.2010 for the year 201011. It is further submitted that the respondents are in possession of one shop with a small toilet on the ground floor bearing municipal no. 1141, situated at Chah Rahat, Bazar Guliyan, Jama Masjid, Delhi110006 as shown in red colour in the site plan attached with the petition. Both the respondents are tenants. However, only respondent no.1 sits at the shop and carries on the business. The rate of rent is Rs. 400/ excluding all charges. The petitioner has been issuing rent receipts in the name of the respondents and receiving rent and last rent receipts were issued on 15.03.2006 as rent from 01.04.2002 to 31.03.2006. The respondents were tenants even prior to purchase of the property by the mother of the petitioner. It is further submitted on behalf of the E11/2010 Page 2/24 petitioner that the tenanted premises is bonafidely required by the petitioner for himself and for his son Sh. Devesh Gupta and the petitioner has no other reasonably suitable accommodation for his professional activities. The petitioner is an Advocate since 1976 dealing in taxation and tax consultants including income tax, sales tax, wealth tax etc. The petitioner started his professional work from the upper floors bearing property no. 1142, situated at Chah Rahat, Bazar Guliyan, Jama Masjid, Delhi110006 which is just above the premises in dispute since June, 1985. The petitioner has staff of five persons and have about 14001500 clients. The petitioner feels most inconvenience while dealing with clients on account of paucity of accommodation available with him. The son of the petitioner is also pursuing Chartered Accountancy and even at present is attending office for learning. The accommodation with the petitioner for his professional work consists of small office, small staff room and a room for attending clients on the first floor and a Librarycumfile store room with a small toilet and pantry on the second floor of on the property no. 1142, Bazar Guliyan, Delhi110006. The accommodation with the petitioner available to him for his professional work has been shown in yellow colour in the site plan. The premises in dispute which is situated at the ground floor is most reasonably suitable for the petitioner for his professional work as the same is situated in same building from where the petitioner is doing his professional work. The petitioner has no other reasonably suitable accommodation to carry on the said professional work anywhere in Delhi. Petitioner has prayed that the eviction order mays be passed in favour of the petitioner and against the respondents in respect of shop bearing no. 1141, ground floor, situated at Chah Rahat, Bazar Guliyan, Jama Masjid, Delhi as shown in red colour in the site E11/2010 Page 3/24 plan.
3. Summons in the prescribed form under schedule III of DRC Act were served upon the respondents and they have filed their application for leave to defend within prescribed time which was allowed vide order dated 05.11.2012.
4. Written statement was filed on behalf of the respondents. It is the version of the respondents that the petitioner's petition is based on totally false averments and allegations bonafide requirement without any just and lawful cause of action. Petition is liable to be dismissed as petitioner has asked for additional accommodation, hence ingredients of 'no other reasonably suitable accommodation' laid down in clause 'e' of proviso to section 14 (1) of DRC Act is not fulfilled. The need of the petitioner is not a genuine one and is attempt to evict the tenants from the premises on baseless and frivolous grounds. Firstly petitioner has filed the photocopy of site plan which was drawn way back in 1987 and supplied the copy of the same to the respondents whereas infact one original site plan which is also on record depicting altogether different picture of tenanted premises.
5. It is further submitted on behalf of the respondents that the petitioner is not sure as to who is or are the tenants. The petitioner's requirement is not bonafide as the petitioner has enough and more than reasonable accommodation to carry out his and his other's relatives professional activities. The petitioner has concealed the material facts that petitioner is E11/2010 Page 4/24 having his own residential house at A2, Preet Vihar, Delhi and the two floors at the suit premises fully occupied for commercial/professional purposes.
6. It is further submitted on behalf of the respondents that the petitioner is not the lawful owner of the suit property. The documents filed by the petitioner alleging to be the documents of ownership i.e. photocopy of mutation certificate are no documents for the ownership in the eyes of law. The said documents do not in any manner confer the ownership rights on the petitioner. The son of the petitioner is still undergoing the course of Chartered Accountancy and is, therefore, not in a position to join the petitioner in his activities and there is no surety whether son of the petitioner would become a Chartered Accountant. Even if it is assumed (though wrong and denied) that petitioner has 14001500 clients, it does not entitle the petitioner to claim the tenanted premises occupied by the respondent no.1. Under no imagination all the clients of the petitioner visit the premises of the petitioner at one point of time. It is further submitted that the petitioner has been practicing since 1976 and has not felt any convenience for performing professional activities from occupied premises at the first and second floor till date, since respondent no.1 has attained seniority in his age, petitioner is compelling the respondent no.1 to vacate the tenanted premises on extraneous and frivolous grounds. The petitioner has failed to disclose how much space is required to perform his professional activities apart from the space/accommodation already occupied by the petitioner. It is further prayed that petition may be dismissed.
7. Replication to the written statement was filed by the petitioner and E11/2010 Page 5/24 petitioner has denied the allegations of the respondents and has reiterated the same facts as alleged in the petition.
8. After completion of the pleadings, the petitioner has got examined himself as PW1, his son Mr. Devesh Gupta as PW2 and Mr. Pravin Kumar, as PW3.
9. Respondents have got examined respondent no.1 as RW1 and Sh. Vasu Dev Singh as RW2.
10. PW1 i.e. the petitioner has deposed by way of his affidavit as per averments made in the petition. As per his statement copy of sale deed is Ex. PW1/1 (OSR), mutation certificate is Ex. PW1/2 (OSR), house tax receipt is Ex. PW1/3 (OSR), the rent receipts are Ex. PW1/4 & Ex. PW1/5 (OSR), site plan is Ex. PW1/6 (OSR), application form of professional activities is Ex. PW1/7 (OSR), invitation card of opening of his office is Ex. PW1/8 (OSR), attendance register of his staff is Ex. PW1/9 (OSR), file index register containing the names of his clients is collectively Ex. PW1/10 (OSR) and statement of marks of his son is Ex. PW1/11 (OSR). In crossexamination he deposed that requirement to become C.A. is first to appear in an entrance test and his son has cleared that test. He has denied the suggestion that the statement of marks (Ex. PW1/11) does not specify that his son is pursuing Chartered Accountancy Course but it is the Accounting Technician Course. He deposed that after closing of office of C.A., his son comes to his office at 5:00pm and also on holidays. He further deposed that during a day around E11/2010 Page 6/24 1015 clients come to his office but it increases when there are last dates of filing monthly, quarterly sales tax returns and yearly income tax returns and also T.D.S. return filing. He denied the suggestion that not more than two clients comes to his office daily. He deposed that sometimes it takes one hour and sometimes it takes three hour to complete assignment of a client. He denied the suggestion that clients do not visit generally with the income tax lawyers. His office open at 10:30am in the morning and closes at 7:30pm or 8:00pm and he is daily available in his office from 1:00pm to 8:00pm. He deposed that there is no requirement of any document from labour department or ESIC as he has only five employees. He deposed that second floor of the property is full with the books and files.
11. PW2 Devesh Gupta deposed that he is pursuing C.A. and has completed three years out of the four years course. He attends the office of his father regularly from 5:00pm to 8:00pm except holidays or when office is closed. He deposed that his father feels great inconvenience as the accommodation available on the first floor and second floor are quite insufficient even for his father and he also intends to start his independent practice as C.A. in the office of his father. The accommodation in possession of the respondents is most suitable as it is situated in the same building. In crossexamination he has denied the suggestion that he visits the office of his father only once or twice in a month. He deposed that he is attending articleship with a Chartered Accountant namely Pawan Gupta. He has admitted that there is no document on record to suggest that he has completed three years Chartered Accountancy Course and has not filed any document to show that he E11/2010 Page 7/24 has been enrolled for final examination of C.A. Course (Vol. He has received the marksheet of second group of IPCC and final examination registration yesterday that is why he has not filed these documents at the time of filing of the petition and he has brought the same today). He deposed that he helps his father in preparation of ITR Returns, submission of documents for scrutiny cases alongwith research, relevant laws and judgments.
12. PW3 Pravin Kumar deposed by way of his affidavit that he is one of the client of the petitioner since 199192. His father, mother, wife, younger brother, younger brother's wife, his sister, his brotherinlaw, his several other friends and there wives are also clients of the petitioner. The accommodation with the petitioner is entirely insufficient and the clients feel great difficulties whenever they attend the office of the petitioner for their work. Son of the petitioner also attends the office of his father. The accommodation on the ground floor is most suitable for the petitioner. In crossexamination he deposed that he did not know how much additional accommodation is required to the petitioner (Vol. but the accommodation with the petitioner is insufficient in his opinion). He deposed that he visit the office of the petitioner 1215 times in a year and he himself feel difficulty in sitting in the office of the petitioner.
13. RW1 (respondent no.1, Nirmal Singh) has deposed by way of his affidavit and he deposed as per averments made in the written statement filed by the respondents. In crossexamination he deposed that the petitioner is landlord of the property and no other person except the petitioner claim the ownership qua the suit premises. He does not know/understand the site plan E11/2010 Page 8/24 (Ex. PW1/6). He has admitted that in the portion of first floor, there is an office of the petitioner and in the other portion of the first floor, the staff members sit. He has admitted that the clients of the petitioner also sit in a portion on the first floor. He has also admitted that the second floor is used by the petitioner as Library and there is a toilet in a portion of the second floor. He deposed that he does not note down the names of the clients. He does not note down the dates when the son of the petitioner visits the office of the petitioner.
14. RW2 has deposed by way of his affidavit. He deposed that he is the employee of the respondent no.1 and has been working with the respondent no.1 for past 17 years. He deposed that he keeps the tab on the number of peoples visit the suit premises daily as he always sits near the stairs of the suit premises. Only one or two clients visit the office of the petitioner daily. Further, he deposed on the same line as averred in the written statement of the respondents. In crossexamination he deposed that there is only one room on the first floor. He could not tell the measurement of the said room. There is only one room on the second floor and he could not tell the measurement of the said room. He knows the names of the employees of the petitioner i.e. Manoj, Vinay and Raju. He deposed that he does not know Rajinder and Bharat. He denied the suggestion that there are five employees of the petitioner. He deposed that he did not note down as to how many persons visit the office of the petitioner everyday. He denied the suggestion that about 1015 clients of the petitioner come to the office of the petitioner. He admitted that office of the petitioner opens in the morning at 10:30am and closes about 7:30pm. He deposed that petitioner attends the office everyday and petitioner comes at about 2:00 or E11/2010 Page 9/24 2:30pm and leaves the office at about 5:30pm. He deposed that he could not say that the petitioner is having 1500 clients. He admitted that on the second floor there are books, files/shelves of the petitioner. He deposed that there is no open area in the office of the petitioner and entire first and second floors are covered. The son of the petitioner attends the office only once or twice in a month for half and hour only. He does not maintain any record in writing about the visits of the petitioner or his son. There are one computers, 1012 chairs and two tables in the office of the petitioner. All the said items are kept on the first floor of the property. He denied the suggestion that there are three computers and two printers in the office of the petitioner.
15. I have heard the counsels for the parties and perused the record carefully.
16. Ld. Counsel for the petitioner has relied upon 190 (2012) DLT 769 Delhi High Court, 72 (1998) DLT 761 Delhi High Court, AIR 1988 Delhi 321, (2001) 7 SCC 69, (2000) 1 SCC 679, 2007 RLR 76 Delhi High Court, 191 (2012) DLT 539 Delhi High Court, 1996 RLR 106 Delhi High Court, 2008 (106) DRJ 471 Delhi High Court and 174 (2010) DLT 328 Delhi High Court.
17. Ld. Counsel for the respondents has relied upon (1982) 3 SCC 270, AIR 2001 SC 2176, JT 2001 (1) SC 308, 1995 RLR 286, titled as "Sudhir Engg. Co. Vs. Nitco Roadways", (2000) 6 SCC 120, titled as "Rajappa E11/2010 Page 10/24 Hanamantha Ranoji Vs. Mahadev Channa Basappa & Ors.", (2000) 3 SCC 312, titled as "Subhra Mukherjee & Anr. Vs. Bharat Coking Coal & Ors.", "Shalimar Chemical Works Ltd. Vs. Surendra Oil & Dal Meals", decided by Hon'ble Supreme Court of India on 27.08.2010, (1972) 4 SCC 562, titled as "Sait Tarajee Khimchand & Ors. Vs. Yelamarti Satyam & Ors." and AIR 2004 Supreme Court 175, titled as "Narbada Devi Gupta Vs. Birendra Kumar Jaiswal"
18. I shall first deal with the requirement under Section 14 (1) (e) DRC Act to seek eviction of a tenant. In order to evict a tenant under Section 14 (1)
(e) DRC Act, petitioner has to satisfy following ingredients.
i) Petitioner has to be landlord as well as owner of the
tenanted property.
ii) The premises should be required bonafide by the
landlord for his occupation or for occupation of any
member of his family dependent upon him.
iii) Landlord or such person dependent upon landlord
should not have other reasonable or suitable
accommodation in Delhi.
The purpose of letting has become redundant as in Satyawati Sharma Vs. Union of India 148 (2008) DLT 705 Supreme Court, it has been held that the premises let out either for residential or for commercial purposes can be got vacated by the landlord for bonafide requirements. E11/2010 Page 11/24 Ownership:
19. The petitioner's case is that he is onwer/landlord of the tenanted premises. The property was originally purchased in the name of his mother namely Smt. Premo Devi vide registered sale deed dated 02.01.1987 duly registered with the SubRegistrar, Delhi as document no. 27 addl. book no.1 volume no.4680 on pages 124 to 128. The mother of the petitioner died on 07.03.2002 and the property was got mutated in the name of the petitioner who is her son. The mutation certificate was duly issued in the name of the petitioner by the Assistant Assessor & Collector City Zone.
20. The respondents have challenged the ownership of the petitioner qua the tenanted premises. The respondents version in this regard is that the petitioner is not the lawful owner of the tenanted premises. The mutation certificate in favour of the petitioner does not in any manner confer the ownership rights on the petitioner as the Mutation Certificate categorically states that "This mutation does not confer any legalities of ownership."
21. In Rajender Kumar Sharma & Ors. Vs. Leelawati & Ors. 155 (2008) DLT 383, it has been held by Hon'ble High Court of Delhi that "landlord is not supposed to prove absolute ownership as required under Transfer of Property Act. He is required to show only that he is more than tenant."
22. In 157 (2009) DLT 450, Delhi High Court titled as Ramesh Chand Vs. Uganti Devi, it has been observed by Hon'ble High Court of Delhi vide para E11/2010 Page 12/24 No. 7 that "It is settled proposition of law that in order to consider the concept of ownership under Delhi Rent Control Act, the Court has to see the title and right of the landlord qua the tenant. The only thing to be seen by the court is that the landlord had been receiving rent for his own benefit and not for and on behalf of someone else. If the landlord was receiving rent for himself and not on behalf of someone else, he is to be considered as the owner, howsoever, imperfect his title over the premises may be. The imperfectness of the title of the premises can not stand in the way of an eviction petition under Section 14 (1) (e) of the DRC Act, neither the tenant can be allowed to raise the plea of imperfect title or title not vesting in the landlord and that too when the tenant has been paying rent to the landlord. Section 116 of the Evidence Act creates a estoppels against such a tenant. A tenant can challenge the title of landlord only after vacating the premises and not when he is occupying the premises. In fact, such a tenant who denies the title of the landlord, qua the tenanted premises, to whom he is paying rent, acts dishonestly."
23. In Shanti Sharma Vs. Ved Prabha AJR 1987 SC 2028, it has been held by Hon'ble Supreme Court that for the purpose of Section 14 (1) (e) of DRC Act, "Ownership is not to be understood as absolute ownership but only as a title better than the tenant".
24. The petitioner has filed copy of sale deed (Ex. PW1/1) dated 02.01.1987 in favour of mother of the petitioner regarding her ownership qua the tenanted premises, copy of mutation certificate (Ex. PW1/2) issued in the name of the petitioner, copy of property tax challan (Ex. PW1/3) dated E11/2010 Page 13/24 07.05.2010 for the year 20102011. In crossexamination, PW1 has stated that his father had also died and he is the only legal heir of his mother.
25. Under Section 116 of the Indian Evidence Act, the tenant during the continancy of the tenancy is estopped from disputing the ownership of his landlord. In the present case the respondent no.1 has admitted that they are the tenants. However it is disputed that respondent no.2 is the tenant of the petitioner. The petitioner has filed copy of rent receipts (Ex. PW1/4 & Ex. PW1/5) to show that these were issued in the name of respondent no.1 & 2. In crossexamination respondent no.1 has admitted that rent receipts were always being issued in the name of both the respondents. Neither he nor respondent no. 2 ever informed the petitioner that the respondent no.2 had no concurred with the tenancy and respondent no.2 had surrendered his tenancy rights in respect of suit property. Accordingly, the petitioner has established that the respondents are his tenants qua the tenanted premises. The respondents have not stated that who is the owner of the tenanted premises, if petitioner is not the owner. Therefore, keeping in view sale deed dated 02.01.1987 in favour of mother of the petitioner, mutation certificate in the name of the petitioner, the relationship of landlord and tenant between the petitioner and the respondents, the aspect of ownership qua the tenanted premises goes in favour of the petitioner. Nonavailability of reasonably suitable alternative accommodation in Delhi.
26. The petitioner's version is that he has no other reasonably suitable accommodation with him for carrying out his professional work in Delhi and E11/2010 Page 14/24 the premises in dispute is more than suitable accommodation for the petitioner. The premises in dispute is situated at Ground Floor and is most reasonably suitable for his professional work as the same is situated in the same building and at present from the first and second floor, the petitioner is doing his professional work. On the other hand, the respondent's version is that petitioner has enough and more than reasonable accommodation with him to carry out his and other relatives's professional activities. The petitioner has concealed the material facts that he is having his own residential house at A2, Preet Vihar, Delhi and two floors at the suit premises fully occupied with commercial/professional purposes. The petitioner has enough space at Preet Vihar premises including two floors occupied by the petitioner in the tenanted premises to accommodate his son for any future purposes, if any for performing his and his sons professional activities.
27. Ld. Counsel for the petitioner argued that respondents have himself admitted that A2, Preet Vihar, Delhi is a residential house and the petitioner is claiming accommodation for commercial/professional purposes. I find force in the contention of the petitioner that the petitioner cannot be compelled to perform his professional activities from his residential house because admittedly he has been performing his professional activities for last more than 25 years from the first floor and second floor where tenanted premises is situated. The petitioner's case is based on paucity of accommodation. It is settled law that the landlord is master of his choice and tenant or the court cannot compel a landlord to choose a particular place against his choice as in "Ragavendra Kumar Vs. Firm Prem Machinery & Company", AIR 2000 SC E11/2010 Page 15/24 534, it was observed by Hon'be Supreme Court that 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 (reliance placed upon "Prativa Devi Vs. T.V. Krishnan, (1996) 5 SCC 353). In 1996 RLR 106 titled as "Tejbir Kaur Vs. Devinder Gupta", it was observed by Hon'ble High of Delhi that "when a landlord sues for additional accommodation in the same building, then question of landlord owning another property is not relevant if need of the landlord is genuine and honest." Therefore, I am of the considered opinion that the petitioner has been able to establish that he does not have any reasonably suitable alternative accommodation in Delhi for carrying on his professional activities except the tenanted premises. Bonafide Requirement
28. It would be useful to quote what the Hon'ble Supreme Court has observed on a genuine and bonafide requirement, which is prerequisite for a landlord to succeed in an eviction petition under Section 14 (1) (e) of the DRC Act, 1958 : "12. A perusal of Section 14 of the Act shows that the law has imposed restrictions on the recovery of possession, of any premises by landlord from a tenant notwithstanding any law or contract to the contrary. However, an order for recovery of possession is permissible on one or more of the specified ground. One such ground is the premises let for residential purposes being required bonafide by the landlord for occupation as residence for himself or for any member of his family dependent on him. What is a bonafide E11/2010 Page 16/24 requirement is not defined in the Act. The words 'need' and 'require' both denote a certain degree of want with a thrust within demanding fulfilment. 'Need' or 'requirement' qualified by word 'bonafide' or 'genuine' preceding as an adjectiveis an expression often used in Rent Control Laws. 'Bonafide or genuine need' of the landlord or that the landlord 'genuinely requires' or "requires bonafide" an accommodation for occupation by or use for himself is an accepted ground for eviction and such expression is often employed by Rent Control legislation draftsman. The two expressions are interchangeable in practice and carry the same meaning."
13. Chambers 20th Century Dictionary defines bonafide to mean "in good faith: genuine". The word 'genuine' means 'natural; not spurious; real" pure: sincere'. In Law Dictionary, Mozley and Whitley defines bonafide to mean 'good faith, without fraud or deceit'. Thus the term bonafide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by 'requires' is much more higher than in mere desire. The phrase 'required bonafide' is suggestive of legislative intent that a mere desire which is outcome of whim or fancy is not taken note of by the Rent Control Legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family E11/2010 Page 17/24 would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of the landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the Court. The judge of the facts should place himself in the armchair of the landlord and then ask the question to himself - whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. The failure on the part of the landlord to substantiate the pleaded need, or in a given case, positive material brought on record by the tenant enabling the Court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant would be enough to persuade the Court certainly to deny its judicial assistance to the landlord. Once the Court is satisfied of the bona fides of the need of the landlord for the premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord, his subjective choice shall be respected by the Court. The Court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be more suited for the purpose ; the Court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such E11/2010 Page 18/24 need. In short, the concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. An approach either too liberal or too conservative or pedantic must be guarded against."
29. The petitioner's case is that he bonafidely requires the tenanted premises for himself and for his son. The petitioner is an advocate since 1976 dealing with in taxation and tax consultant including income tax, sales tax, wealth tax etc. and started his professional work from the upper floors of the tenanted premises since June, 1985. He has staff of five persons and has about 14001500 clients. The petitioner feels most inconvenience while dealing with clients on account of paucity of accommodation available with him. The son of the petitioner is also pursuing Chartered Accountancy and at present attending his office regularly for learning and has filed statement of marks of his son vide Ex. PW1/11. As per statement of the petitioner he uses the portion as shown in yellow colour at second floor as librarycumfile store room and one portion of room as shown in yellow colour as his office at first floor and other portion as staff/client siting space as per site plan (Ex. PW1/6).
30. It is the stand of the respondents that the petitioner has enough space to perform his professional activities including his son on the first and second floors of the suit premises and he does not require the tenanted premises bonafidely. Only one or two clients visit the office daily and for the most part of the day the office of the petitioner remains empty. About 80% of the space on the second floor of the suit property is unoccupied. The petitioner has a E11/2010 Page 19/24 room on a first floor for attending clients and all the rooms occupied by the petitioner are big enough to accommodate the staff or employees or son of the petitioner. There are only three employees with the petitioner. The first floor of the suit premises is enough for sitting of 15 persons at one point of time.
31. Let us consider the aspect whether petitioner is having paucity of accommodation while dealing with his clients. The petitioner has filed the site plan (Ex. PW1/6) of the whole building. The respondents have not filed any site plan. In "R.K. Bhatnagar Vs. Sushila Bhargava", 1986 RLR 232, it was observed by Hon'ble High of Delhi that "if a tenant does not file a site plan showing that site plan filed by the owner is incorrect, then the owner's plan would be assumed to be correct". Placing reliance upon aforesaid authority, I assume that the site plan filed by the petitioner is correct. As per site plan of the petitioner the area of the first floor is 32.15 sq. mtr. and there is one portion for office and one portion is sitting space for employees of the petitioner. As per petitioner there are five employees. The respondents have denied that there are five employees. As per statement of RW1 and RW2, there are only three employees. In support of the number of the employees, the petitioner has filed employees attendance register (Ex. PW1/9) which shows that five employees are working with the petitioner. Ld. Counsel for the respondents argued that the petitioner has not proved employees attendance register as per law and in this context relied upon 1995, RLR 286, titled as "Sudhir Engg. Co. Vs. Nitco Roadways", (2000) 6 SCC 120, titled as "Rajappa Hanamantha Ranoji Vs. Mahadev Channa Basappa & Ors.", (2000) 3 SCC 312, titled as "Subhra Mukherjee & Anr. Vs. Bharat Coking Coal & Ors.", "Shalimar Chemical E11/2010 Page 20/24 Works Ltd. Vs. Surendra Oil & Dal Meals", decided by Hon'ble Supreme Court of India on 27.08.2010, (1972) 4 SCC 562, titled as "Sait Tarajee Khimchand & Ors. Vs. Yelamarti Satyam & Ors." and AIR 2004 Supreme Court 175, titled as "Narbada Devi Gupta Vs. Birendra Kumar Jaiswal". In this context Ld. Counsel for the petitioner has relied upon 190 (2012) DLT 769, 72 (1998) DLT 761 Delhi High Court, AIR 1988 Delhi 321 and (2001) 7 SCC
69. Here, I am not convinced with the arguments/logic of Ld. Counsel for the respondents because Ex. PW1/9 bears the signatures and stamp of the petitioner who is employer and as such, he is the best person to prove employees attendance register, number of employees working under him.
32. As per petitioner, there are 14001500 clients. In support of this contention he has filed file index register (Ex. PW1/10). Ld. Counsel for the respondents argued that only documents filed by the petitioner in support of such number of clients is file index register (Ex. PW1/10). This document cannot be relied upon as this is nothing but a sham document as there is no proof as to who has made/drawn the said file index register and the said document is not certified by any authority concerned as no key witness has been produced who has drawn the said file index register, hence cannot be relied upon as the same has not been proved as per law of evidence. He further argued that it is settled law that mere marking of an exhibit does not dispense with the proof of documents, and if the key witness has not been produced by the party concerned, adverse inference is to be drawn against him. Here, also I am not convinced with the arguments of Ld. Counsel for the respondents that E11/2010 Page 21/24 Ex. PW1/10 has not been proved as per law as in AIR 2004 SCC 175 (Supra) relied upon by Ld. Counsel for the respondents, it was observed by Hon'ble Supreme Court that "the legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence that is 'by the evidence of those persons who can vouchsafe for the truth of the facts in issue'." In the present case, the petitioner has proved employee attendance register (Ex. PW1/10) as per law because he is the best person who has best knowledge about his clients than the person who has made/drawn file index register keeping in view the aforesaid authorities.
33. In view of file index register (Ex. PW1/10), the petitioner has established that he has 14001500 clients. He has also established that he has five employees as per employees attendance register (Ex. PW1/9). RW2 has stated in his examination in chief that he keeps the tab on the number of people visit the suit premises daily as he always sits near the stairs of the suit premises and only one or two clients visit the office of the petitioner daily. In cross examination he deposed that he did not note down the number of persons visit the office of the petitioner. Therefore, his deposition that only one or two clients visit the office of the petitioner cannot be believed as he did not note down the number of persons visit the office of the petitioner daily. In cross examination PW1 has deposed that 1015 clients come to his office daily but it increases when there are last dates of filing of returns etc. He deposed that sometimes it takes one hour and sometimes it take three hours to complete assignment of a client. RW1 has admitted that second floor is used by the E11/2010 Page 22/24 petitioner as Library and as such his clients cannot be accommodated at second floor of the suit property. RW1 has also admitted that one portion of the room at first floor is office of the petitioner and in other portion of that room, staff of the petitioner sits. The size of office of the petitioner is 13'3'' X 9'8''. If at one point of time 1015 clients come to the office of the petitioner, keeping in view the size of office, there is certainly paucity of space. Here, it is also pertinent to mention that each client wants to deal with his lawyer in isolation in order to maintain confidentiality. From this angle, the size of the office of the petitioner is not sufficient. The other portion of the room at first floor where staff of the petitioner sits is not enough to accommodate clients of the petitioner keeping in view size of this portion (11'2'' X 12'10''). Therefore, additional requirement of the petitioner regarding tenanted premises is genuine and real.
34. Now, let us come to the aspect of requirement of son of the petitioner. As per petitioner, his son his pursuing C.A. Course and he comes to the office for learning. Ld. Counsel for the respondents argued that son of the petitioner has not completed C.A. Course, therefore, requirement for the son is premature.
35. In today's context, the practical knowledge has become more significant. Professions like Chartered Accountancy, Advocacy etc. require more and more practical knowledge. In the present case petitioner is himself an experienced taxation lawyer and in his practical guidance his son would learn practically for his benefit in the field of accountancy before completion of C.A. Course and on this score, the additional requirement of the petitioner for his son E11/2010 Page 23/24 is also genuine and bonafide and the contention of the respondents that the son of the petitioner visits his office once or twice in a month is not relevant.
36. In view of the aforesaid discussion, this court is of the considered opinion that the petitioner has proved all the necessary ingredients of Section 14 (1) (e) of Delhi Rent Control Act, 1958.
37. Accordingly, an eviction order is passed U/S 14 (1) (e) of DRC Act in favour of the petitioner and against the respondents in respect of shop no. 1141, ground floor, situated at Chah Rahat, Bazar Guliyan, Jama Masjid, Delhi110006 as shown in red colour in the site plan (Ex. PW1/6). However, this order shall not be executable before the expiry of six months from the date of this order as provided U/S 14 (7) of DRC Act. Parties to bear their own costs.
File be consigned to Record Room.
Announced in the open court (SANJEEV KUMAR SINGH )
on 07.06.2013 Administrative Civil JudgeCum
Additional Rent Controller (Central)
Delhi
E11/2010 Page 24/24
E11/2010
07.06.2013
Pr: None for the petitioner.
Respondents alongwith Ld. Counsel.
Vide separate order, eviction petition of the petitioner is allowed. Accordingly, eviction order is passed in favour of the petitioner and against the respondents in respect of shop no. 1141, ground floor, situated at Chah Rahat, Bazar Guliyan, Jama Masjid, Delhi110006 as shown in red colour in the site plan (Ex. PW1/6). However, this order shall not be executable before the expiry of six months from the date of this order as provided U/S 14 (7) of DRC Act. Parties to bear their own costs.
File be consigned to Record Room.
(Sanjeev Kumar Singh) ACJ/ARC (Central)/Delhi 07.06.2013 E11/2010 Page 25/24