Delhi District Court
Ritesh Joseph vs M/S David Shoes Corner on 17 August, 2016
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In the Court of Ms. Namrita Aggarwal
CCJ Cum Additional Rent Controller1 (Central)
Tis Hazari Courts, Delhi.
Case No. E 104/15
Unique I.D. No. 02401C0245902015
In the matter of :
Ritesh Joseph
S/o Sh. Raj Kumar Joseph
Grandson of late Sh. L. Joseph
R/o 3347, Christian Colony,
Karol Bagh, New Delhi110005. ...........Petitioner
Versus
M/s David Shoes Corner,
Properietor Vijay David
C/o 3347, Christian Colony,
Karol Bagh, New Delhi110005.
Also at:
Vijay David
S/o late Sh. H. David,
R/o D83, DDA Flats,
Paschim Vihar, New Delhi. ......... Respondent
Page 1 of 12 E. No. 104/15
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ORDER
16.08.2016
1. Vide this order, I shall dispose off the application moved by respondents for grant of leave to defend the eviction petition filed by the petitioner u/s 14(1)(e) Delhi Rent Control Act, 1958 [in short, 'the Act'].
2. An eviction petition has been filed by the petitioner Ritesh Joseph against the respondent M/s David Shoes Corner for vacation of the tenanted premises, i.e., commercial two shops measuring 6.8' x 8' forming part of property No. 3347, Christian Colony, Karol Bagh, New Delhi110005, as shown in colour red in the site plan annexed alongwith the petition on the ground of bonafide requirement under Section 14 (1) (e) of the DRC Act. (hereinafter referred to as "the Act").
3. The case of the petitioner is that the petitioner Sh. Ritesh Joseph, grandson of late Sh. L. Joseph, is the lawful owner of the tenanted premises by virtue of probate granted by Hon'ble court on 04.08.1987. That the respondent has been attorned and has admitted the petitioner to be the owner.
4. That the tenanted premises is bonafidely required by the Page 2 of 12 E. No. 104/15 3 petitioner for himself and his family members dependent upon him as petitioner No. 1 is not having any commercial property. That the petitioner alongwith his wife and father want to start study / coaching / tuition centre from the tenanted premises as the wife of the petitioner is unemployed and father of the petitioner is retired. That all of them are unemployed for the source of their livelihood. That the wife of the petitioner is graduate (B.Ed.) and unemployed. The petitioner wants to start business and to settle his wife and father in the tenanted premises.
On the above stated grounds, prayer is made for eviction of the respondents from the tenanted premises. It is further submitted that earlier also petitioner's late grand father had filed an eviction petition in the year 1978 which was dismissed on 19.11.1985 by the then Ld. Rent Controller Ah. J M Malik.
5. Summons were served upon the respondent who appeared and filed the leave to defend application stating that the petitioner is neither the owner nor the landlord of the tenanted premises, hence the petitioner is not entitled for any relief. It is further submitted by the respondent that the property of the petitioner is comprising of ground and first floor. On the ground floor, there are two shops which are under the tenancy of the respondent and besides that there are two more shops behind the shops under the occupation Page 3 of 12 E. No. 104/15 4 of the respondent which are lying vacant and surplus with the petitioner. That on the first floor as well there are two shops on the front side and two shops on the back side and all the four shops are lying vacant and are surplus with the petitioner. It is further averred that in this way there are six shops in the property which are lying vacant and surplus with the petitioner. The rest of the portion of the property is being used by the petitioner for residential purposes. It is further submitted that the petitioners wants to sell out the property after getting it vacated from the respondent.
6. Reply to the application for leave to defend has been filed by the petitioner wherein the petitioner has denied all the averments made by the respondent in his leave to defend application stating that the petitioner is the absolute legal owner of the tenanted premises. It is denied by the petitioner that there are other shops in the premises other than the said two shops being used by the respondent. It is further stated that the entire property other than the said two shops in question is being used for residential purposes only. It has been specifically denied that the petitioner is having six shops which are lying vacant and are surplus with him.
7. Rejoinder has been filed wherein the respondent has denied all the averments made by petitioner in her reply to the leave to Page 4 of 12 E. No. 104/15 5 defend application and reaverred what was averred by him in his leave to defend application.
8. I have heard the arguments and have gone through the documents.
9. Proviso (e) to Section 14(1) is a special provision which has been enacted by the legislature for the class of landlords who require the premises genuinely and their requirement is bonafide and they do not have any suitable accommodation. The essential ingredients for attracting the proviso (e) of the Section 14(1) are :
a) The said premises are bonafide required by the landlord either for himself or for his family member.
b) The landlord or the family member has no other reasonable suitable accommodation.
These twin thresholds are to be satisfied conjunctively in order to attract the provisions of Section 14(1)(e) and the absence of even one of the said ingredients clearly makes the said provision inapplicable.
10. The satisfaction of the two requirements of bonafide need and no reasonably suitable accommodation has been time and again emphasized by the Supreme Court of India in several cases Page 5 of 12 E. No. 104/15 6 and more recently in the case Deena Nath Vs. Pooran Lal, (2001) 5 SCC 705 wherein the Supreme Court observed thus:
"The Legislature in enacting the provision has taken ample care to avoid any arbitrary or whimsical action of a landlord to evict his tenant. The statutory mandate is that there must be first a requirement by the landlord which means that it is not a mere whim or a fanciful desire by him; further, such requirement must be bonafide which is intended to avoid the mere whim or desire. The 'bonafide requirement' must be in presenti and must be manifested in actual need which would evidence the Court that it is not a mere fanciful or whimsical desire. The legislative intent is made further clear by making the provision that the landlord has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. This requirement lays stress that the need is pressing and there is no reasonably suitable alternative for the landlord but to get the tenant evicted from the accommodation. Similar statutory provision is made in subsection (e) of Section 12(1) of the Act Page 6 of 12 E. No. 104/15 7 in respect of accommodation let for residential purposes. Thus, the legislative mandate being clear and unambiguous, the Court is dutybound to examine not merely the requirement of the landlord as pleaded in the eviction petition but also whether any other reasonably suitable nonresidential accommodation in his occupation in the city/town is available. The judgment/order of the court/authority for eviction of a tenant which does not show that the court/authority has applied its mind to these statutory requirements cannot be sustained and the superior court will be justified in upsetting such judgment/order in appeal/second appeal/revision. Bonafide requirement, on a first look, appears to be a question of fact. But in recording a finding on the question the court has to bear in mind that statutory mandate incorporated in Section 12(1)(f). If it is found that the court has not applied the statutory provisions to the evidence on record in its proper perspective then the finding regarding bonafide requirement would cease to be a mere finding Page 7 of 12 E. No. 104/15 8 of fact, for such erroneous finding illegally arrived at would vitiate the entire judgment."
11. Chambers 20th Century Dictionary defines bona fide to mean "in good faith and genuine i.e. without fraud or deceit". 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 the 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 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 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 bonafides would be capable of successfully withstanding the test of objective determination by the court. In short, the concept of bonafide need or genuine requirement needs a practical approach instructed by the realities of life. It is no concern of the Courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own.
Page 8 of 12 E. No. 104/15 912. The meaning of "bonafide" in the context appears to be in two folds. (a) the need of the landlord must be a genuine one and not a frivolous one. (b) landlord is not motivated by extraneous considerations in trying to recover the possession from the tenant with a view to let it out again to another tenant on higher rent.
OWNERSHIP AS WELL AS LANDLORDTENANT RELATIONSHIP
13. In the present case, the ownership of the petitioner over the premises in question as well as existence of landlordtenant relationship has been disputed by the respondent but he has failed to state that if the petitioner is not the owner / landlord of the premises then who else is the owner / landlord of the premises in question. The petitioner on the other hand has filed the grant of letter of administration under the Indian Succession Act by virtue of which after the death of grand father of the petitioner, petitioner was declared to be the absolute owner of the property in question. The respondent being the tenant is estopped from disputing the title of the petitioner over the premises in question on vague grounds. Thus, the ownership of the petitioner over the premises in question as well as landlordtenant relationship between the petitioner and the respondent for the purpose of DRC Act stands duly established.
Page 9 of 12 E. No. 104/15 10BONAFIDE REQUIREMENT AS WELL AS AVAILABILITY OF ALTERNATIVE ACCOMMODATION
14. It is averred by the petitioner that the tenanted premises is bonafidely required by him for himself and his family members dependent upon him as petitioner No. 1 is not having any commercial property. That the petitioner alongwith his wife and father wants to start study / coaching / tuition centre from the tenanted premises as the wife of the petitioner as well as petitioner are unemployed and father of the petitioner is retired. That all of them are unemployed for the source of their livelihood. That the wife of the petitioner is graduate (B.Ed.) and unemployed. The petitioner wants to start business and to settle his wife and father in the tenanted premises. The respondent has not disputed the status of the wife and father of the petitioner. It is not the case of the respondent that either the wife or the father of the petitioner are engaged in some other profession or carrying on any other business. The only contention made by the respondent is that there are two other shops on the ground floor as well as four shops on the first floor of the property in question which are lying vacant and which can be used by the petitioner for the alleged bonafide requirement. Per contra, it is submitted by the petitioner that the entire property except the two shops under the occupation of the Page 10 of 12 E. No. 104/15 11 respondent is being used as residential premises by the petitioner. In order to prove the same the petitioner has filed the site plan of the property in question clearly showing that except the two shops under the occupation of the respondent, there is no other shop which can be used for commercial purposes and rest of the portion of the property in question is being used for residential purposes by the petitioner. Respondent on the other hand has failed to file even a single document, photograph or any site plan to contradict the site plan filed by the petitioner or to prove that there is any other shop / portion except two shops under the occupation of the respondent which can be used by the petitioner for commercial purposes. Hence, this contention of the respondent seems to be a mere bald averment without any substance. The site plan filed by the petitioner stands proved in absence of any counter site plan filed by the respondent. Thus, the bonafide requirement as well as nonavailability of alternate suitable commercial accommodation with the petitioner stands duly proved.
15. Thus, from the discussion made above, respondent has failed to raise any triable issue, which requires evidence to be proved. The petitioner, on the other hand, has clearly established his bonafide requirement regarding tenanted premises. Hence, the application for leave to defend filed by respondent is ordered to be Page 11 of 12 E. No. 104/15 12 dismissed. Consequently, eviction order is liable to be passed against the respondent under Section 25 B (4) of the Act. In view of above, petitioner is held entitled for recovery of the tenanted premises, i.e., commercial two shops measuring 6.8' x 8' forming part of property No. 3347, Christian Colony, Karol Bagh, New Delhi110005, as shown in red colour in the site plan annexed with the petition. However, the petitioner would not be entitled to initiate execution proceedings for recovery of possession of the tenanted premises before expiration of six months from today in view of provisions given in Section 14 (7) of the Act.
Announced in open Court (Namrita Aggarwal)
th
on 17 Day of August, 2016 CCJ cum ARC1 (Central)
[This order contains 12 pages.] Tis Hazari Courts, Delhi.
Page 12 of 12 E. No. 104/15