Delhi District Court
Aman Deep Singh Gandhi vs Joginder Pal Narang on 7 February, 2024
E-84/20 New no.263/20 Aman Deep Singh Gandhi Vs Shri Joginder Pal Narang & Anr.
In the Court of Ms. Neetu Nagar, JSCC cum Additional SCJ cum
Guardian Judge, South East District, Saket District Court, Delhi
(the then Additional Rent Controller-02, Central District, Tis
Hazari Courts, Delhi)
E-84/20
New no.263/20
In the matter of:
Aman Deep Singh Gandhi
Son of late S. Nirmal Singh Gandhi
Resident of 5/5202, First Floor,
Krishan Nagar, Karol Bagh,
New Delhi-110005 ......Petitioner
Versus
1. Shri Joginder Pal Narang
2. Smt. Indu Narang
Wife of Shri Harish Narang
C/o Welcome Enterprises
at 4/5205, Ground Floor,
Krishan Nagar, Karol Bagh,
New Delhi-110005 ......Respondents
(NEETU NAGAR) Page No.1/32
JSCC-ASCJ-GJ, South East District, Saket Courts
(the then ARC-02, Central District, THC)
Digitally signed
07.02.2024 by NEETU
NEETU NAGAR
Date:
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******
Date of institution : 24.08.2020
Date of order : 07.02.2024
Decision of order : Leave to defend dismissed
and eviction petition allowed
******
ORDER
1. This order of mine shall decide the question whether the respondents be granted leave to contest the present eviction filed by the petitioner against the respondents under section 14 (1) (e) read with Section 25-B of Delhi Rent Control Act, 1958 (hereinafter referred to as 'DRC Act') in respect of one shop bearing no.4/5205, Ground Floor, Krishan Nagar, Karol Bagh, New Delhi-110005 admeasuring 13.9 feet x 11.9 feet as shown in red colour in site plan attached with the petition(hereinafter referred as tenanted premises).
2. The brief facts necessary for disposal of leave to defend application can be enunciated as follows:-
2.1 It is the case of the petitioner that the tenanted premises was let out to the respondents by the erstwhile owner of the subject property namely Smt. Shahni Devi wife of late S Harbans Singh, who was the grandmother of the petitioner. The petitioner purchased the entire subject property including the tenanted (NEETU NAGAR) Page No.2/32 JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally signed 07.02.2024 by NEETU NEETU NAGAR Date:
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premises (except two shops in the building bearing municipal no. 5204), from her grandmother i.e. Smt. Shahni Devi vide duly registered Sale Deed dated 31.10.2006. Thereafter, the respondents acknowledged the petitioner as their landlord and started paying rent to him. The monthly rent is Rs.500/-
excluding other charges.
2.2 It is submitted that the family of the petitioner consists of his wife Smt. Sukhmeet Kaur Gandhi and two minor school going children. The petitioner's wife was taking care of mother of the petitioner namely Smt. Jogender Kaur who expired on 26.02.2018. Thereafter, the wife of the petitioner started business of trading and selling of Handlooms products under the name and style of "Nirmal Handlooms", from the front room of her residential house situated on the first floor of the property bearing no. 5/5202, Krishan Nagar, Karol Bagh, New Delhi- 110005 which is not only inconvenient but is impermissible. 2.3 It is asserted that the tenanted premises is most suited for running of the said business by the wife of the petitioner. It is further stated that neither the petitioner nor his wife has got any other commercial space available with them for running the said business except the tenanted premises. 2.4 It is averred that the the wife of the petitioner is dependent upon the petitioner for her abovesaid bonafide need and requirement.
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2.5 It is submitted that the petitioner has been running his
business of trading/sale purchase of foam goods & materials, mattress, sofa materials, foam sheets, under the name & style of Gandhi Foam Centre from the shop in the same building bearing no. 4/5203-A, Ground Floor, Krishan Nagar, Karol Bagh, New Delhi. The petitioner is using the back side halls, one of which is at the backside basement bearing nos. 5201 and 5202 and another hall being at upper level/height i.e. upper ground floor bearing no. 5202 for storage of his goods and materials and both of which are behind the said shop and their entry is from inside the said shop of the petitioner bearing no. 4/5203-A, Ground Floor. 2.6 It is submitted further that the petitioner, for running his said business of Gandhi Foam Centre, was facing paucity of space, inter alia, for displaying the goods. The petitioner filed eviction petition as he bonafidely required the adjacent shop bearing no. 4/5203-B, Ground Floor,Krishan Nagar, Karol Bagh, New Delhi-11005, from tenants namely Sh. Vinod Kohli and Sh. Punit Kohli, for making the same as showroom and eviction order dated 30.07.2018 was passed in the said petition. It is submitted that the petitioner after getting possession of the said premises bearing no. 4/5203-B, Ground Floor, Krishan Nagar, Karol Bagh, New Delhi-11005 on 31.03.2021 shall use and utilize the same for his said bonafide needs and requirements as stated in the said petition. Further, the upper floors of the (NEETU NAGAR) Page No.4/32 JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally signed by NEETU 07.02.2024 NEETU NAGAR Date:
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building i.e. first and second floor, are only residential in nature, having municipal no. 5202 and are being used only for the residential purposes.
2.7 It is submitted that the two shops in the said building having municipal no. 5204 do not belong to the petitioner as they were never owned by the petitioner.
2.8 It is asserted that the respondents are already having various commercial properties of their own in prime locations of Delhi, more particularly the Shop bearing no. 4/5876, Krishan Nagar (Dev Nagar), Karol Bagh, New Delhi (which is situated near to the tenanted premises), from where the respondents are carrying on the business of leather products under the name and style of Welcome Leathers. Hence, the instant petition.
3. Summons were served upon the respondents who filed leave to defend application with document(s) alongwith separate detailed affidavit, by taking following grounds inter alia which can be outlined as follows:
3.1. It is stated that Smt. Shahni Devi was the absolute owner of the property including the tenanted premises which she had let out to respondents nos. 1 and 2 on 01.04.1995 by receiving the pagree to the extent of the then prevailing market value of the tenanted premises from the respondent no.1 and for that reason the rent was reserved at Rs.500/- per month and no increase of rental was claimed either by Smt. Shahni Devi or the (NEETU NAGAR) Page No.5/32 JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally signed by NEETU 07.02.2024 NEETU NAGAR Date:
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petitioner. Smt. Indu Narang, respondent no.2, as per the family arrangement had given up her rights of joint tenancy in favour of respondent no. 1 who alone is in the occupation of the tenanted premises and has been carrying on the business in the name and style of "Welcome Enterprises" and has been paying rental to Smt. Shahni Devi and/or the petitioner. 3.2. It is averred that the wife of petitioner namely Smt. Sukhmeet Kaur Gandhi is a housewife and has never carried on any business nor she has any intention to carry the same. Even otherwise the petitioner is gainfully carrying on roaring trading business in the name and style of "Gandhi Foam Center" and earning in crores and as such, there is no financial need or requirement to start new business by the wife of the petitioner. 3.3. It is asserted that the petitioner himself got created the fictitious business entity "Nirmal Handlooms" in the name of his wife and obtained the GST registration certificate as well. It is averred that "Nirmal Handlooms" is a contrivance, subterfuge and a camouflage of the petitioner to achieve the ulterior motives of getting vacated the tenanted premises from respondent no. 1. 3.4. It is alleged that the petitioner has concealed the material facts and alternative commercial accommodation available to him. The petitioner is in possession of alternative commercial accommodation bearing No.5878 Gali No.4, Block-
4, Dev Nagar, Karol Bagh, New Delhi, which has been (NEETU NAGAR) Page No.6/32 JSCC-ASCJ-GJ, South East District, Saket Courts Digitally (the then ARC-02, Central District, THC) signed by NEETU 07.02.2024 NEETU NAGAR NAGAR Date:
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deliberately concealed by the petitioner and the said property is more than sufficient for the alleged need and requirement of the petitioner.
3.5. It is asserted that the first floor and even the second floor in the Karol Bagh Market are being used for commercial purposes of Showroom and trading centers. It is averred that the first floor of the aforesaid property is readily available for the alleged projected need of the petitioner. 3.6. It is submitted further that the petitioner obtained the eviction order of Shop no.4/5203B against Sh. Vinod Kohli and Sh. Punit Kohli and the possession whereof is liable to be received by the petitioner on 31.03.2021. 3.7. It is asserted that the petitioner is having minor children and earning handsome income, therefore, there was no reason to start the new business from the residential house exposing the family to the danger of Covid- 19 Pandemic. There is no economic crises or financial need which compelled the wife of the petitioner to start a new business . 3.8. It is averred that the projected need as alleged in the petition is malafide besides being whimsical and fanciful. 3.9. It is submitted that the Shop bearing No.4/5876, Kishan Nagar (Dev Nagar), Karol Bagh, New Delhi is the property of Shri Harish Narang, the brother of the respondent (NEETU NAGAR) Page No.7/32 JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally signed 07.02.2024 NEETU by NEETU NAGAR NAGAR 2024.02.07 Date:
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who has been carrying on his separate and independent business and having separate GST registration. 3.10. It is further submitted that the tenanted premises is the only place where the respondent no.1 who is a senior citizen is carrying on his business and is the only source of livelihood of the large family dependent upon the respondent no.1. On the other hand, the petitioner himself is admittedly in settled business and roaring in wealth and does not require any further commercial accommodation. It is averred next that the respondent no.1 has come to know that the petitioner also owns other commercial properties.
3.11. Upon these grounds, the respondent No.1 prayed that there exists triable issue(s) that would disentitle the petitioner from obtaining an eviction order in respect of tenanted premises.
4. Reply to leave to defend application has been filed by the petitioner alongwith supporting affidavit wherein he has denied that the present petition is based on false and frivolous grounds and does not contain the ingredients of Section 14(1)(e) of DRC Act. The petitioner denied all the allegations and assertions made in leave to defend application and affidavit. 4.1. Additionally, it is submitted that petitioner is not the owner of the premises 5878, Gali No. 4, Dev Nagar, Karol Bagh, New Delhi as alleged. The basement situated in the said property has been taken on rent from its owners.(NEETU NAGAR) Page No.8/32
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4.2. It is reiterated that the first floor of property bearing no. 5/5202, Krishan Nagar, Karol Bagh, New Delhi-110005 is the residence of the petitioner and his family. 4.3. It is submitted that all the commercial activities were going on even in the Covid-19 pandemic, however all necessary precautions were being taken while carrying out the business activities by the wife of petitioner. It is denied that petitioner's wife is not carrying on any business or that the petitioner manipulated to obtain GST licence in the name of his wife with malafide intention to create false ground of eviction of respondent no. 1 from the tenanted premises.
5. Rejoinder was filed by the respondent No.1 to the reply of leave to defend application of the petitioner. 5.1. It is submitted that the petitioner is the owner and in possession of basement measuring about 500 sq ft. each bearing property no. 5201 and 5202 Krishan Nagar, Karol Bagh, New Delhi which are available to the petitioner for use for commercial purposes. The ground floor of property no. 5202 measuring about 470 sq ft. is commercial and is available for the commercial need and requirement of petitioner. The petitioner is also owner of property no. 5203 situated at Krishan Nagar, Karol Bagh, New Delhi. It is reiterated that the entire ground floor property no. 5202 and 5203 is a commercial accommodation which is in the possession of the petitioner and more than sufficient for the (NEETU NAGAR) Page No.9/32 JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally signed 07.02.2024 by NEETU NEETU NAGAR Date:
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bonafide fide need and requirement of the wife of the petitioner. The petitioner on the first floor, second floor and third floor has amalgamated and merged the property no. 5202 and 5203 aforesaid. The first floor of the aforesaid two properties is commercial accommodation and the second and third floor thereof is residential. Besides, the petitioner has roof right. Given the size of the family of the petitioner, the accommodation on the second floor and third floor aforesaid is more than sufficient for the need and requirement of the petitioner and his family members.
5.2. It is denied for want of knowledge that the premises bearing no.5878, Block-4, Dev Nagar, Karol Bagh, New Delhi is the rented accommodation as alleged. However, it is submitted that petitioner has deliberately and intentionally concealed the aforesaid accommodation in the petition. 5.3. It is submitted that there is no evidence on record to show that the wife of the petitioner is carrying on the alleged business and requires any commercial accommodation. 5.4. It is stated that the petitioner in case no. E- 94/18 titled as Amandeep Singh Gandhi V/s Shri Vinod Kohli and Anr. decided vide order dated 30.07.2018, the petitioner while stating the bonafide requirement clearly submitted that the tenanted premises bearing shop no. 5205 under the tenancy of respondent (NEETU NAGAR) Page No.10/32 JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 07.02.2024 Digitally signed by NEETU NEETU NAGAR Date:
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was not suitable for the bonafide need and requirement of the petitioner.
6. I have heard learned counsel for both the parties and have gone through the material on record carefully. I have also given my thoughtful consideration to the submissions made on behalf of both the parties and gone through the written submissions as well as case laws filed on behalf of both the parties.
7. The present petition for eviction is under clause (e) of proviso to sub-section (1) of section 14 of Act 59 of 1958 which after the judgment of Hon'ble Supreme Court in "Satyawati Sharma Versus Union of India", on 16.04.2008 reads as under :-
14.(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by and court or Controller in favour of the landlord against a tenant:Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:-(NEETU NAGAR) Page No.11/32
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* * *
(e) that the premises are required bona fide by the landlord for occupation for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation.
8. In order to succeed in a petition for eviction filed under section 14 (1) (e) of the DRC Act, the petitioners must establish the following ingredients:-
(i) That he is the owner of the tenanted premises and there exists relationship of landlord and tenant between him and the respondents.
(ii) That tenanted premises is required bonafide by the petitioner for himself or for any member of his family dependent upon him.
(iii) Petitioner does not have any other alternate, reasonable and suitable accommodation.
9. It is now well settled that while deciding the question of the grant of leave to contest under the provisions of section 25B of Act 59 of 1958, the Rent Controller should see the affidavit filed by the tenant and the counter affidavit filed by the (NEETU NAGAR) Page No.12/32 JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally signed 07.02.2024 by NEETU NEETU NAGAR Date:
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landlord. The Controller is not required to conduct a full fledged trial and should only see that if the affidavit of the tenant raise any triable point the decision on which may disentitle the landlord from recovering possession of the premises. At the time of the decision on the question of leave, the Controller is not required to seek the proof of the defence of the tenant. The tenant should only disclose such facts in his affidavit that would disentitle the landlord from recovering possession of the disputed premises. At the stage of granting the leave to defend, the Rent Controller should confine himself to the affidavit and reply, if any. The controller does not have the task of testing the veracity of the issues raised by the tenant, since that stage of the case will arise only after a leave to defend application has been allowed . The level of proof at this stage is that of a prima facie case. Reference at this point can be made to the landmark judgment of the Apex Court in "Precision Steel Engineering Works and Anr. Versus v. Prem Deva Niranjan Deva Tayal, 1982 (2) RCR 544: AIR 1982 Supreme Court 1518", wherein it was held that:-
"If the averments in the affidavit disclose such facts which, if ultimately proved to the satisfaction of the Court, would disentitle the landlord from recovering possession, that by (NEETU NAGAR) Page No.13/32 JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally signed by 07.02.2024 NEETU NEETU NAGAR NAGAR Date:
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itself makes it obligatory upon the Controller to grant leave.
It is immaterial that facts alleged and disclosed are controverted by the landlord because the stage of proof is yet to come. It is distinctly possible that a tenant may fail to make good the defence raised by him. Plausibility of the defence raised and proof of the same are materially different from each other and one cannot bring in the concept of proof at the stage when plausibility has to be shown."
10. Further, the above cited case also poses a statutory duty on the Controller to grant leave to defend, if the tenant is able to disclose certain facts which would have to be tested at a later stage. Relevant paragraphs of the judgment are as under:
"Statutory duty is cast on the Controller to give leave as the legislature uses the expression 'the Controller shall give' to the tenant leave to contest if the affidavit filed by the tenant discloses such fact as would disentitle the landlord for an order for recovery of possession. The Controller has to look at the affidavit of the tenant seeking (NEETU NAGAR) Page No.14/32 JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally signed by 07.02.2024 NEETU NEETU NAGAR NAGAR Date:
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leave to contest. Browsing through the affidavit if there emerges averment - of facts which on a trial, if believed, would non-suit the landlord, leave ought to be granted. Let it be made clear that the statute is not cast in a negative form by enacting that the Controller shall refuse to give to the tenant leave to contest the application unless the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order etc.... The language of sub-section 5 of section 25B casts a statutory duty on the Controller to give to the tenant leave to contest the application, the only precondition for exercise of jurisdiction being that the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of 13; possession of the premises on the ground mentioned in section 14(1) (e)."
11. Let us now discuss the facts and circumstances of the present case keeping the principle of law as discussed above.
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I. Ownership of the petitioner over the tenanted premises as well as existence of landlord-tenant relationship between the petitioner and the respondents.
12. It is contended on behalf of the petitioner that the petitioner is the owner/landlord of the tenanted premises. The respondent no.1 in his leave to defend application has admitted the same. The respondent no.1 also admitted that earlier he was paying rentals to Smt. Shahni Devi and thereafter subsequently to the petitioner. Furthermore, rent receipts have been placed on record by the petitioner confirming the relationship of landlord and tenant between the petitioner and respondents which stands admitted. Hence, no triable issue arises regarding the ownership as well as relationship of landlord and tenant between the parties to the present petition.
II. BONAFIDE NEED AND ALTERNATE ACCOMODATION
13. In case of "Sarla Ahuja v. United India Insurance Co. Ltd., reported as AIR 1999 SUPREME COURT 100", 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 (NEETU NAGAR) Page No.16/32 JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally signed by 07.02.2024 NEETU NEETU NAGAR NAGAR Date:
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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 is 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 bonafides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself...".
14. Admittedly, the family of the petitioner consists of his wife Smt. Sukhmeet Kaur Gandhi and two schoolgoing children.It is also not disputed that the mother of the petitioner namely Smt. Jogender Kaur expired on 26.02.2018 and that the petitioner's mother prior to her demise was living in the petitioner's house.
15. It is contended on behalf of the petitioner that after the demise of petitioner's mother, the wife of the petitioner was (NEETU NAGAR) Page No.17/32 JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally signed 07.02.2024 by NEETU NEETU NAGAR Date:
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sitting idle at home and was keen to do business of trading and selling of Handlooms products. As such, the wife of the petitioner namely Smt. Sukhmeet Kaur Gandhi having lot of interest and knowledge and resources, started a business of trading and selling of Handlooms products under the name and style of "Nirmal Handlooms", in the month of June, 2020, of which she is the proprietor. It is contended that the petitioner's wife is running the said business from the front room of her residential house situated on the first floor of the property bearing no. 5/5202, Krishan Nagar, Karol Bagh, New Delhi- 110005. Same is vehemently disputed by the respondent. It is averred that the first floor is commercial and the wife of the petitioner is a housewife and not carrying on any business.
16. The petitioner has placed on record copy of Registration Certificate of "Nirmal Handlooms" in the name of wife of the petitioner namely Smt. Sukhmeet Kaur Gandhi having period of validity since 29.06.2020 and Invoice dated 04.07.2020 issued by "Nirmal Handlooms" for sale of products.
From the said documents, it is clear that the wife of the petitioner is doing the said business.
17. It was contended on behalf of the petitioner that running of the said business from the residential portion of the petitioner at first floor is not only inconvenient but is impermissible as well and is causing hardships for the family (NEETU NAGAR) Page No.18/32 JSCC-ASCJ-GJ, South East District, Saket Courts Digitally (the then ARC-02, Central District, THC) signed by NEETU 07.02.2024 NEETU NAGAR NAGAR Date:
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members of the petitioner as the privacy and security of the family of the petitioner gets interfered and compromised. Further, it is causing inconvenience and hardships to the customers, as customers have to climb stairs when they come to buy the products. Moreover, wife of the petitioner is also facing problems in attracting the customers on the first floor of the residential portion and as such the wife of the petitioner is not able to earn the income, which is expected and required from her said business. Hence, it was argued that the tenanted premises is most suited for running of the said business by the dependant wife of the petitioner as it is situated on ground floor and it is on the main commercial road as well as situated in the same building where the residence of the petitioner and his family is situated.
18. In case titled as "Ravinder Singh Vs. Dipesh Khorana (RC Revision No. 3/11 Dated 10.12.2012)", the landlord sought the possession of the suit property for his son who was stated to be unemployed. The tenant made allegations regarding the landlord's son being gainfully employed in an MNC. The Hon'ble High Court of Delhi held the following:-
"17... Even if one should assume that the landlord is leading a comfortable life, it is not malafide for him to want his son to find a suitable source of livelihood and get settled in his life."(NEETU NAGAR) Page No.19/32
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19. In case of "Sarla Ahuja v. United India Insurance Co. Ltd., reported as AIR 1999 SUPREME COURT 100", 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 is 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 bonafides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how (NEETU NAGAR) Page No.20/32 JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally signed by 07.02.2024 NEETU NEETU NAGAR NAGAR Date:
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else the landlord could have adjusted himself...".
20. Similarly, in case tiled as Balwant P. Doshi Vs Shantaben Dhirailal Shah &Ar 2003(2) BomCR 190, it was held that the Courts cannot ordinarily doubt the bonafide need of the landlord nor the Courts can dictate to the landlord as to how the premise owned by him should be used. It is sufficient for the landlord to express his desire to occupy the premises owned by him. It is not necessary for the landlord to establish the dire necessity but it is enough to show that some need exists.
21. In case titled as "Rishal Singh Vs. Bohat Ram & Ors. (2014) 144 DRJ 633" wherein Hon'ble High Court of Delhi held that income of a person, be it landlord or dependent of the landlord, is inconsequential to the outcome of the eviction petition. It was held that comfortable earnings or financial well- being of the petitioner or his dependent cannot be a ground for denying the eviction order sought in a petition founded on bona fide need.
22. Hence, even if for the sake of arguments it is assumed that the petitioner is earning well as alleged but that does not mean that the wife of the petitioner can not start her own business and become financially independent. The registration certificate placed on record by the petitioner cannot be treated as fabricated when respondent himself stated that his brother Sh.
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Harish Narang has separate GST registration qua shop bearing No.4/5876, Krishna Nagar. It is absurd that his brother's GST registration is correct and that of the wife of petitioner is fabricated. Hence, the contention of learned counsel of the respondents totally fails in this regard.
23. It is well settled law that it is the petitioner himself/ herself, who is the best person to explain as to what is his/ her bona-fide necessity and the tenant cannot dictate him what to do.
Reliance in this regard can be placed on case law titled as Balwant Singh alias Bant Singh and Anr. V. Sudarshan Kumar and Anr., 2021 SCC Online SC 114, it has been held as under:-
"11. On the above aspect, it is not for the tenant to dictate how much space is adequate for the proposed business venture or to suggest that the available space with the landlord will be adequate...."
24. Similarly, in Sait Nagjee Purushotham & Co. Ltd. v. Vimalabai Prabhulal, (2005) 8SCC 252, the Hon'ble Supreme Court has held as under:
"4. It is not the tenant who can dictate the terms to the landlord and advise him what he should do and what he should not. It is (NEETU NAGAR) Page No.22/32 JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally signed 07.02.2024 NEETU by NEETU NAGAR NAGAR 2024.02.07 Date:
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always the privilege of the landlord to choose the nature of the business and the place of business."
25. The Hon'ble High Court of Delhi in Anita Jain Vs. Praveen Kumar Jain 2023/DHC/000068 held as under
(relevant paras 12-15):
"12. Even otherwise, it is not for the petitioner/tenant to insist that the respondents/landlord must seek to occupy/ carry out business from the adjacent shop in preference over the tenanted premises. The law is well settled that it is not for the tenant to dictate terms to the landlord as to how he can adjust himself without getting possession of the tenanted premises.
26. Hence, I am of the view of that the petitioner's ground that he requires the tenanted premises for the business of his wife comes within the category of bonafide requirement and no triable issues arise regarding the same.
27. Admittedly, the petitioner has been running his business under the name and style of "Gandhi Foam Centre"
from the shop in the same building bearing no. 4/5203-A, Ground Floor, Krishan Nagar, Karol Bagh, New Delhi. It is (NEETU NAGAR) Page No.23/32 JSCC-ASCJ-GJ, South East District, Saket Courts Digitally (the then ARC-02, Central District, THC) signed by NEETU 07.02.2024 NEETU NAGAR NAGAR Date:
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averred on behalf of the petitioner that for storing and keeping his goods and materials for the said business the petitioner is using the back side halls, one of which is at the backside basement bearing nos. 5201 and 5202 and another hall being at upper level/height i.e. upper ground floor, which bears no. 5202, both of which are behind the said shop and their entry is from inside the said shop of the petitioner bearing no. 4/5203-A, Ground Floor. It is averred on behalf of the respondent that the said basements and the first floor of the residence of the petitioner is the alternate accommodation for the wife of petitioner.
28. Even if it is assumed that the said first floor is commercial as alleged by the respondent no.1 and that the basements are available and vacant, even in that scenario same can not be treated as alternative by any stretch of imagination The wife of the petitioner being the landlord cannot be forced to run her business from the basement or upper floors. It cannot be denied that business being run on the ground floor is always much more profitable as the footfall of the customers on the ground floor is much more as compared to any other floor. Reliance may be placed upon the law laid down in Rajesh Jain v. Quazi Sammin Ahmad 2015 (2) RL 438 wherein it has been held that since eviction was sought for commercial purposes, it (NEETU NAGAR) Page No.24/32 JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally signed by NEETU 07.02.2024 NEETU NAGAR Date:
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was rightly held that ground floor of the property would be more suitable.
29. Similarly in Viran Wali v. Kuldeep Rai Kochhar 2010 (174) DLT 328, it has been held even if the basement is available with the respondent, then why respondent who is the landlord of the premises should be forced to work from the basement, when he can get the tenanted premises vacated which is more suitable and also situated on the ground floor, for running his business.
30. Likewise in K.B. Watts v. Vipin Kalra 2015 (220) DLT 402, it has been held that it is well settled that for a profession or business ground floor premises are always more suitable. It is trite law that the tenant cannot dictate the landlord as to how he should utilize the premises. Similar view has been taken in Surinder Singh v. Jasbir Singh 172 (2010) DLT 611, it has been held that with regard to the availability of basement or first floor, it is contended that these portion are not suitable for business, as tenanted premises is situated on the main road and that too on the ground floor. No customer would like to go to the basement or first floor. The premises or the space available at the basement or at the first floor, can in no way substitute the commercial space available at the ground floor of a given property.(NEETU NAGAR) Page No.25/32
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31. It is next urged on behalf of the respondents that the petitioner has got the possession of the premises bearing no.
4/5203-B, Ground Floor, Krishan Nagar, Karol Bagh, New Delhi-11005 on 31.03.2021 and the same is vacant and available. Per contra, it is urged on behalf of the petitioner that the petitioner has already used and utilized the same for his said bonafide needs and requirements as per the said eviction petition. There is nothing on record to suggest otherwise if the said portion has not been used for the purpose as detailed in the said eviction petition. Mere bald averments in this regard are not suffice.
32. Another contention raised by the respondents is that respondents and his whole family are dependent on the tenanted premises to earn their bread and butter. However, the said contention of the respondents is without any basis as it is well settled position of law laid by the Hon'ble Apex Court in Bega Begum and Ors. v. Abdul Ahad Khan and Ors (1979) AIR 272 that the inconvenience, loss and trouble resulting from denial of decree of eviction in favour of the landlord far outweigh the prejudice or the inconvenience which will be caused to the tenant. Moreover, it has been pointed out by the Hon'ble Apex Court and Hon'ble Madras High Court in M/s. Bentool Steel Products Pvt Ltd v. O.M.A. Mohammed Omar in CA No.112 of 2002 that "comparative hardships of the tenant is (NEETU NAGAR) Page No.26/32 JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) Digitally signed by NEETU 07.02.2024 NEETU NAGAR Date:
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unsustainable in the eye of the law" and "a little inconvenience to the tenant cannot be called a hardship". Similarly, in case of Mohd. Ayub v. Mukesh Chand (2012) 2 SCC 153, 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 to move 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 the 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 the sole determinative factor". The same has been reiterated in Puran Chand Aggarwal v. Lekh Raj 2010 (2014) DLT 449.
33. Regarding the premises bearing no. 5878, Basement, Gali No.4, Block no. 4, Dev Nagar, Karol Bagh, New Delhi, it stands clear that petitioner is not the owner of the premises as the the petitioner had taken the same on rent from its owners namely Shri Sudesh Kapoor and Shri Ramesh Kapoor as clear from Rent Agreement dated 11.05.2016 for monthly rent of Rs. 23,000/-
excluding other charges. It is submitted that tenancy in respect of the said premises has been kept extended orally with mutual understandings and at present the petitioner is paying Rs. 25,000/- as monthly rent in respect of the said premises, which is being paid i.e. Rs. 12,500/- to Shri Sudesh Kapoor and Rs.
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12,500/- to Ms. Kiran Kapoor wife of Ramesh Kapoor, as Ramesh Kapoor has expired. The petitioner has also placed on record copies of Bank statement showing payment of rent by the petitioner to Shri Sudesh Kapoor and Shri Ramesh Kapoor. Otherwise also, the respondent has not placed on record any document of the said property or any other property alleged to be pertaining to petitioner except for bald averments in this regard.
34. It is next contended on behalf of the respondents that property bearing municipal no. 5202 belongs to the petitioner.
However, the petitioner has himself placed on record sale deed dated 27.12.2021 in the name of his father-in-law namely Sh. Prem Singh executed by the erstwhile owner namely Smt. Shalini Bhatija qua Shop No.5202, Gali No.4 Krishna Nagar, Karol Bagh, New Delhi and rent deed in order to show that the said premises has been rented out by him. The petitioner has also placed on record bank passbook in order to substantiate that the payment has been made by his father-in-law to Sh. Prem Singh as clear from Copy of Sale Deed registered on 29.12.2021 in favour of Ms. Shalini Bhatija. The petitioner has also placed on record Copy of Rent Agreement dated 21.06.2022 executed by Shri Prem Singh to let out the said Shop 5202 at Krishan Nagar, Karol Bagh, New Delhi to one Sh. Atul Kumar. Further, from a perusal of Order Sheet dated 12.01.2023, it is clear that the counsel for the petitioner fairly admitted the fact that the father-in-law of the (NEETU NAGAR) Page No.28/32 JSCC-ASCJ-GJ, South East District, Saket Courts Digitally (the then ARC-02, Central District, THC) signed by NEETU 07.02.2024 NEETU NAGAR NAGAR Date:
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petitioner namely Shri Prem Singh has purchased one property/Shop which is adjacent to the tenanted premises in his own rights and that the father-in-law is not dependent of the petitioner. Clearly, father-in-law, has let-out the said shop and therefore, the said fact does not in any manner affect the rights of the petitioner to seek the eviction order on the ground of the bonafide need and requirement as stated in the eviction petition. The argument of learned counsel of the respondent that the said sale deed is to create self induced scarcity of accommodation is meritless. In this regard, reliance can be placed on case law titled as "Geeta Malhotra Vs. Ravneet Kaur Choudhary" RC Rev. 51/2017 Decided on 23.02.2017, wherein the Hon'ble High Court held that it is futile to try and claim that the property admittedly owned by her husband or by father-in-law or mother- in-law can be utilized by her when she has a property in her own name. The first floor belongs to the father-in-law which has been let out by the father-in-law. He is a senior citizen who needs income at this age of life.
35. Further, in "M/S. Metropolitan Book Co. Pvt. Ltd.
Vs. Shri Ajay Rastogi & Ors." RC Rev. No. 484/2013; decided on 31.07.2014, the Hon'ble High Court held that once the property, alleged as alternative accommodation, is not vacant, the said property cannot be considered as an alternative suitable accommodation.
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36. Hence, the property bearing No.5202 is neither owned by the petitioners nor available or vacant.
37. It was next contended on behalf of the respondents that the petitioner wants to sell/let out the tenanted premises. Here it would be relevant to state that the said apprehension is already taken care of in the DRC Act itself by our legislative forefathers while enacting the laws who have already considered possibility of misuse in the hands of unscrupulous landlords and thereby inserted Section 19 of DRC Act which reads as follows:-
"Where a landlord recovers possession of any premises 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, relet to any person than the evicted tenant without obtaining the permission of the Controller such tenant can be put back to the premises or can be paid such compensation as the Controller thinks fit."(NEETU NAGAR) Page No.30/32
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38. Hence, if the requirement of landlord is not bonafide and if a landlord abuses the process of the court, obtains an order of eviction, subsequently lets out the property or sells the same, the tenant can always apply for restitution under section 19 of the DRC Act.
39. Merely stating in the affidavit that the application for eviction has been made with mala fide intention is not sufficient to sustain the contention of the respondents.
40. In view of above discussion and the documents filed by the parties, this court is of the considered view that there is no triable issue between the parties which entitles the respondent for leave to contest the present application for eviction. The application for leave to contest is without merit and the same is dismissed.
41. Hence, the present petition for eviction is allowed.
Petitioner is held entitled for recovery of the tenanted premises i.e. one shop bearing no.4/5205, Ground Floor, Krishan Nagar, Karol Bagh, New Delhi-110005 as shown in red colour in site plan(s) annexed with the petition. However, the petitioner would not be entitled to initiate execution proceedings for recovery of the possession of the tenanted premises before expiration of six months from today in view of provisions given in Section 14 (7) of the Act.
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42. In the facts and circumstances of the case there shall be no order as to costs.
43. File be consigned to record room.
Announced in the open Court on 07.02.2024 Digitally signed by NEETU NEETU NAGAR (This order contains 32 pages) Date:
NAGAR 2024.02.07
15:33:39
+0530
(Neetu Nagar)
JSCC-ASCJ-GJ/South East
Saket Courts: New Delhi
(the then ARC-02, Central District, Tis Hazari Courts, Delhi) (NEETU NAGAR) Page No.32/32 JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 07.02.2024