Delhi District Court
Smt. Kamlesh Kumari vs Rajender Kumaar Verma on 25 January, 2022
IN THE COURT OF MS. SNIGDHA SARVARIA,
ACJ-cum-CCJ-cum-ARC, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI.
RC ARC No : 465/2017
Smt. Kamlesh Kumari
widow of late Sh. Satish Kumar Sharma
r/o IX/2110, Gali no. 8,
Kailash Nagar,
Delhi-110031 ......... Petitioner
Versus.
Rajender Kumaar Verma
s/o Sh. Chander Prakash Verma
C/o IX/2110, Gali no. 8,
Kailash Nagar,
Delhi-110031 ......... Respondent
Order on application under S. 25-B of The Delhi Rent Control Act, 1958 seeking leave to defend
1. Vide this order I shall decide the application under S. 25-B of The Delhi Rent Control Act (DRC Act) seeking leave to defend filed by the respondent.
2. The brief facts of the case are that the petitioner has filed a petition for eviction of tenant/respondent u/s 14(1)(e) r/w S. 25-B of DRC Act stating that petitioner is the landlady/owner of the tenanted shop i.e. part of premises no. IX/2110, Gali no. 8, Kailash Nagar, Delhi-110031. The petitioner has two sons Ashwani Sharma and Anurag Sharma with two daughters. The elder son Ashwani Sharma is running a business under the name and style of M/s Om Sai Traders and Distributors and seller of electronics goods like TV, fridge, washing machine, AC etc of LG, Samsung, Videocon, Whirlpool etc, while younger son Anurag Sharma is running a medical shop under the name and style of M/s Om Medicos. Both the sons of petitioner are totally dependent upon the petitioner for residence as well as commercial space/premises. The shop under the possession of Anurag Sharma is insufficient for his business. He wants to expand his shop and the tenanted shop Digitally RC ARC No : 465/2017 Kamlesh Kumari Vs. Rajender Kumar Verma 1 of 17 signed by SNIGDHA SNIGDHA SARVARIA SARVARIA Date:
2022.01.25 13:29:35 +0530 with the other space under the possession of LRs of Harbans Singh are most suitable and attachable to the present shop of Anurag Sharma. The shop of Anurag Sharma have all legal authorities and is income tax assessee. The tenanted shop is bonafide required for the petitioner for expanding the business of his son Anurag Sharma. It is prayed that eviction order may be passed in favour of the petitioner and against the respondent qua the aforesaid premises/shop.
3. The respondent was summoned vide order dated 05.01.2018 and was served with the summons of this petition on 16.05.2018, thereafter, affidavit seeking leave to defend under S. 25 B of the DRC Act was filed by the respondent on 30.05.2018 and the petitioner filed reply to it.
4. In the affidavit seeking leave to defend under S. 25 B of the DRC Act, the respondent has stated that the petition is not maintainable in the eyes of law as the Delhi Rent Control Act is not applicable within the area where the suit property is situated. It is stated that the petitioner has filed a wrong site plan. The petitioner has concealed the material facts from this Court that she has sufficient accommodation as well as the landlady/owner of the suit property. It is stated that the landlady got 450 sq. yards land/property out of which 90 sq. yards was sold by her which shows that she has sufficient land and sufficient means. The respondent has no other way to earn except from the suit property by working there to feed his family, the petitioner already got evicted two shops in the suit property in the year 2005 as well as after some time two more shops were evicted and the owner of the suit property took the possession of the same and there is a big portion/hall in the said property which is in the possession of the owner of the suit property and the said hall is behind the tenanted shops but the petitioner has not mentioned it in the site plan. It is stated that the plea of bonafide necessity of the petitioner is unrealistic and impermissible, same is based on after thought and concoction in order to pressurize the respondent by causing harassment to achieve the unlawful motive. The petitioner wants to re-let the shops in question to some other person at higher rate of rent. The has already let out the adjacent commercial shop on rent and atleast nine shops are given on rent to the tenants includig the tenants namely Digitally signed by SNIGDHA SNIGDHA SARVARIA SARVARIA RC ARC No : 465/2017 Kamlesh Kumari Vs. Rajender Kumar Verma 2 of 17 Date:
2022.01.25 13:30:16 +0530 Ravinder Jain, Raj Narayan, Ramesh pan wala, Kapil Jain and Sukhbir etc. The petitioner has rental income from the suit property and he is getting a handsome rental amount from the same. Both the sons of petitioner are working i.e. elder son is doing job in private company and the other one is indulging in supply of medical appliances and are well established but the respondent is the jewellery repairer/painter who earns only Rs.14,000/- to 16,000/- per month and he has to take care of his family in the same amount. It is stated that the respondent has no immovable property in his own name in Delhi or NCR or any other place so the question of alternate shop in the respondent's property does not arise. The respondent has no option to earn livelihood and the shop in question is the only source of income for him and his family members.
5. The petitioners in their counter affidavit to application for leave to defend denied the averments made in the affidavit seeking leave to defend under S. 25 B of the DRC Act of the respondent. It is stated that 90 sq. yds. land as alleged was sold to the occupant in the year 2008. It is stated that the sons of the petitioner started their business i.e. medical shop as well as electronic showroom in two shops vacated by tenants Ved Raj and Jai Pal Jain and thereafter, they expanded their business in the shop vacated by tenant Vijay Jain. It is denied that there is a vacant big hall behind the shops. It is stated that the said area is residential and used for the same.
6. I have heard counsel for the parties, perused the record and have gone through the relevant provisions of the law.
7. The Supreme Court had in "Inderjeet Kaur Vs.Nirpal Singh", [2000]Supp 5 SCR 707, laid down the following guidelines to be followed by the Courts while deciding the applications for leave to contest filed by the tenants under Section 25(4) of the Delhi Rent Control Act,1958:-
"11. As is evident from Section 25B(4) & (5) of the Act, burden placed on a tenant is light and limited in that if the affidavit filed by him discloses such facts as would disentitle the landlord from obtaining an order for the recovery of the possession of the premises on the ground specified in Clause (e) of the proviso to Section 14(1) of the Act, with which we are concerned in this case, are good enough to grant leave to defend. Digitally signed by SNIGDHA
12................................" SARVARIA SNIGDHA Date:
SARVARIA 2022.01.25 13:30:39 RC ARC No : 465/2017 Kamlesh Kumari Vs. Rajender Kumar Verma 3 of 17 +0530
13. We are of the considered view that at a stage when the tenant seeks leave to defend, it is enough if he prima facie makes out a case by disclosing such facts as would disentitle the landlord from obtaining an order of eviction. It would not be right approach to say that unless the tenant at that stage itself establishes a strong case as would non-suit the landlord leave to defend should not be granted when it is not the requirement of Section 25B(5). A leave to defend sought for cannot also be granted for mere asking or in a routine manner which will defeat the very object of the special provisions contained in Chapter IIIA of the Act, Leave to defend cannot be refused where an eviction petition is filed on a mere design or desire of a landlord to recover possession of the premises from a tenant under Clause (e) of the proviso to Sub-
section (1) of Section 14, when as a matter of fact the requirement may not be bona fide. Refusing to grant leave in such a case leads to eviction of a tenant summarily resulting in great hardship to him and his family members, if any, although he could establish if only leave is granted that a landlord would be disentitled for an order of eviction. At the stage of granting leave to defend, parties rely on affidavits in support of the rival contentions. Assertions and counter-assertions made in affidavits may not afford safe and acceptable evidence so as to arrive at an affirmative conclusion one way or the other unless there is a strong and acceptable evidence available to show that the facts disclosed in the application filed by the tenant seeking leave to defend were either frivolous, untenable or most unreasonable. Take a case when a possession is sought on the ground of personal requirement, a landlord has to establish his need and not his mere desire. The ground under Clause (e) of the proviso to Sub- section (1) of Section 14 enables a landlord to recover possession of the tenanted premises on the ground of his bona fide requirement. This being an enabling provision, essentially the burden is on the landlord to establish his case affirmatively. In short and substance wholly frivolous and totally untenable defence may not entitle a tenant to leave to defend but when a triable issue is raised a duty is placed on the Rent Controller by the statute itself to grant leave. At the stage of granting leave the real test should be whether facts disclosed in the affidavit filed seeking leave to defend prima facie show that the landlord would be disentitled from obtaining an order of eviction and not whether at the end defence may fail. It is well to remember that when a leave to defend is refused, serious consequences of eviction shall follow and the party seeking leave is denied an opportunity to test the truth of the averments made in the eviction petition by cross-examination. It may also be noted that even in cases where leave is granted provisions are made in this very Chapter for expeditious disposal of eviction petitions. Section 25B(6) states that where leave is granted to a tenant to contest the eviction application, the Controller shall commence the hearing of the application as early as practicable. Section 25B(7) speaks of the procedure to be followed in such cases. Section 25B(8) bars the appeals against an order of recovery of possession except a provision of revision to the High Court. Thus a combined effect of Section 25B(6), (7) and (8) would lead to expeditious disposal of eviction petitions so that a landlord need not wait and suffer for long time. On the other hand, when a tenant is denied leave to defend although he had fair chance to prove his defence, will suffer great hardship. In this view a balanced view is to be taken having regard to competing claims.
"14. This Court in Charan Dass Duggal v. Brahma Nand (1983)1SCC301 while dealing with the question in the matter of granting leave to defend to contest the eviction petition filed on the ground of personal requirement, in para 5 has stated thus:
"5. What should be the approach when leave to defend is sought for? There appears to be a mistaken belief that unless the tenant at that stage makes out such a strong case as would non-suit the landlord, leave to defend cannot be granted. This approach is wholly improper. When leave to defend is sought for, the tenant must make out such a prima facie case raising such pleas that a triable issue would emerge and that in our opinion should be sufficient to grant leave. The test is the test of a triable issue and not the final success in the action (see Santosh Kumar v. Bhai Mool Singh). At the stage of granting the leave parties rely in support of their rival contentions on affidavits and assertions and counter- assertions on affidavits may not afford such incontrovertible evidence to lead to an affirmative conclusion one way or the other. Conceding that when possession is sought for on the ground of personal requirement, an absolute need is not to be satisfied but a mere desire equally is not sufficient. It has to be something more than a mere desire. And being an enabling provision, the burden is on the landlord to establish his case affirmatively. If as it RC ARC No : 465/2017 Kamlesh Kumari Vs. Rajender Kumar Verma 4 of 17 Digitally signed by SNIGDHA SNIGDHA SARVARIA SARVARIA Date:
2022.01.25 13:31:03 +0530 appears in this case, the landlord is staying at Pathankot, that a house is purchased, may be in the name of his sons and daughters, but there may not be an apparent need to return to Delhi in his old age, a triable issue would come into existence and that was sufficient in our opinion to grant leave to defend in this case."
15. In the same judgment, in para 7 it is further observed:
"7. The genesis of our procedural laws is to be traced to principles of natural justice, the principal amongst them being that no one shall suffer civil or evil or pecuniary consequence at his back without giving him an adequate and effective opportunity to participate to disprove the case against him and provide his own case. Summary procedure does not clothe an authority with power to enjoy summary dismissal. Undoubtedly wholly frivolous defence may not entitle a person leave to defend. But equally a triable issue raised, enjoins a duty to grant leave: May be in the end the defence may fail. It is necessary to bear in mind that when leave to defend is refused the party seeking leave is denied an opportunity to test the truth of the averments of the opposite party by cross-examination and rival affidavits may not furnish reliable evidence for concluding the point one way or the other. It is not for a moment suggested that leave to defend must be granted on mere asking but it is equally improper to refuse to grant leave though triable issues are raised and the controversy can be properly adjudicated after ascertainment of truth through cross- examination of witnesses who have filed their affidavits........................................................."
8. Same view has been reiterated by the Supreme Court in a judgment in "Rachpal Singh and Ors.Vs. Gurmit Kaur and Ors.", (2009)15 SCC 88, in para no.12 which is re-produced below:-
"12. If some triable issues are raised then the controversy can be properly adjudicated after ascertainment of truth through cross-examination of witnesses who have filed their affidavits and other material documents. Burden is on the landlord to prove his requirements and his assertion is required..........................."
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 bona-fide and they do not have any suitable accommodation. The essential ingredients for attracting the proviso (e) of the Section 14(1) are : -
a) there exists landlord tenant relationship;
b) the premises were let out for residential or commercial purpose;
c)The said premises are bona-fide required by the landlord either for himself or for his dependant family member.
d) The landlord or the dependant family member has no other reasonable suitable accommodation.
10. The thresholds hereinabove 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.
11. For the purposes of leave to defend, the respondent had to show some defence RC ARC No : 465/2017 Kamlesh Kumari Vs. Rajender Kumar Verma Digitally signed by SNIGDHA 5 of 17 SNIGDHA SARVARIA SARVARIA Date:
2022.01.25 13:31:24 +0530 which would disentitle the petitioner of the relief claimed.
12. As per the case of the petitioner she is the owner and landlady of the premises in question and has filed registered sale deed dated 13.03.1953 executed by Munshi Ram & Chanderman in favour of Tota Ram of property/ plot bearing no. 55, 56 & 57 each measuring 150 sq yds and total area 450 sq yds in khasra no. 32, 33 Khewat no. 106 situated in Seelampur, Gandhi Nagar, Delhi; death certificate of Tota Ram to show he expired on 14.02.1968; regd. Will of Tota Ram dated 24.07.1961 in favour of Mayadevi registered on 15.06.1961; regd will dated 11.05.1992 of Mayadevi in favour of Satish Kumar & Kamlesh Kumari qua property H. no. 995/31 (old) & new no. IX/2110, measuring area 450 sq yds situated in abadi gali no. 8, Kailash Nagar in the area of village Seelampur, illaqa Shahdara, Delhi-31 out of khasra no. 32, 33 Khewat no. 106 bearing plot no. 55, 56 & 57; death certificate of Satish Kumar Sharma who expired on 17.09.1997 and regd. Relinquishment deed dated 28.07.2000 of Ashwani Kumar Sharma, Anurag Sharma, Alka Sharma and Vandana Sharma in favour of Kamlesh Kumari. The respondent has admitted payment of rent to the petitioner and petitioner being the landlady.
13. In this behalf, the judgment of Hon'ble Delhi High Court in PlastiChemicals Company v. Ashit Chadha and Anr 114 (2004) DLT 408, 2004 (76) DRJ 654 says that if a landlord is able to show by producing a document of his ownership on record, landlord is deemed to have discharged his burden of ownership vis-a-vis the Rent Control Act and such a document can at best be challenged by the heirs of the owner and not by the tenant.
14. Thus, the petitioner is the owner of the tenanted premises and that there is a relationship of landlord and tenant between the petitioner and the respondents herein in respect of the tenanted premises for the purpose of section 14 (1) (e) of Delhi Rent Control Act.
15. It is stated by the respondent that the Delhi Rent Control Act is not applicable within the area where the suit property is situated. The petitioner has denied the same. As Digitally signed by RC ARC No : 465/2017 Kamlesh Kumari Vs. Rajender Kumar Verma SNIGDHA SNIGDHA SARVARIA SARVARIA Date:
6 of 17 2022.01.25 13:32:28 +0530 per the documents placed on record the property in question falls in Kailash Nagar in the area of village Seelampur, illaqa Shahdara, Delhi. By a notification SO1236 New Delhi dated 27.3.79 issued by the Central Government under Section 1(2) of Delhi Rent Control Act, 1958 and a notification of MCD no.F-9(2)66-LAW.Corp. Dated 28.5.66. By the notification dated 28.5.1966 issued under the Delhi Municipal Corporation Act, 1957 certain areas including Seelampur and Shahdara were declared as urban. By the notification dated 27.3.1979 areas contained in the notification dated 28.5.1966 were declared as urban for the purpose of Section 1(2) of Delhi Rent Control Act, 1958. (See: GANPAT RAM SHARMA & ORS. Vs. SMT. GAYATRI DEVI :1987 AIR 2016; 1987 SCR (3) 539; 1987 SCC (3) 576; JT 1987 (3) 99 and 1987 SCALE (2)46; Mohd. Safiq vs Sh. Kamruddin decided by Ld. ADJ, NE, KKD in RCA No. 86/11 decided on 28.01.2012). Thus, clearly, this plea of the respondent is without any merits.
16. The petitioner has not mentioned the rate of rent in the present petition but the respondent has also not alleged that the rate of rent is such to take away the jurisdiction of the ARC rather the respondent has stated that he pays rent from time to time to the petitioner, thus, the present petition is maintainable under DRC Act.
17. The case of the petitioner is that the petitioner is the landlady/owner of the tenanted shop i.e. part of premises no. IX/2110, Gali no. 8, Kailash Nagar, Delhi-110031 as shown in red colour in the site plan. The petitioner has two sons Ashwani Sharma and Anurag Sharma and two daughters. The elder son Ashwani Sharma is running a business under the name and style of M/s Om Sai Traders and Distributors and seller of electronics goods like TV, fridge, washing machine, AC etc of LG, Samsung, Videocon, Whirlpool etc,. The younger son Anurag Sharma is running a medical shop under the name and style of M/s Om Medicos. Both the sons of petitioner are totally dependent upon the petitioner for residence as well as commercial space/premises. The shop under the possession of Anurag Sharma is insufficient for his business and he wants to expand his shop and the tenanted shop with the other space under the possession of LRs of Harbans Singh are most suitable and attachable to the present shop of Anurag Sharma. The tenanted shop is bonafide required for the petitioner for expanding the business of her son Anurag Sharma.
Digitally signed by SNIGDHA SNIGDHA SARVARIA
SARVARIA Date: 2022.01.25
13:32:50 +0530
RC ARC No : 465/2017 Kamlesh Kumari Vs. Rajender Kumar Verma 7 of 17
18. It is no more res integra that a son can be dependant on his parents for accommodation, residential or commercial or both. It is also settled principle of law that the landlord is entitled to seek eviction of tenanted premises not only for himself/herself, but for other dependant family members. There is no dispute that the parents are under moral obligation to help establish their son in business and can seek eviction of the tenanted premises for them. Reference in this regard can be made to the case of Joginder Pal v. Naval Kishore Behal, (2002) 5 SCC 397, where the Supreme Court held that:
"The requirement is not the requirement of the landlord alone in the sense that the landlord must for himself require the accommodation and to fulfill the requirement he must himself physically occupy the premises. The requirement of a member of the family or of a person on whom the landlord is dependent or who is dependent on the landlord can be considered to be the requirement of the landlord for his own use......... Keeping in view the social or socio-religious milieu and practices prevalent in a particular section of society or a particular region, to which the landlord belongs, it may be the obligation of the landlord to settle a person closely connected with him to make him economically independent so as to support himself and/or the landlord. To discharge such obligation the landlord may require the tenancy premises and such requirement would be the requirement of the landlord."
19. In Kharati Ram Khanna & Sons. vs. Krishna Luthra, 2010 (172) DLT 551, it was observed that the requirement of the landlord to settle down her two sons separately and independently was found to be genuine and bonafide. In Labhu Lal vs. Sandhya Gupta, 2010 (173) DLT 318, it was observed that the landlord's son and daughter in law are dependent for accommodation on respondent the requirement of the landlord's son and daughter in law for expanding clinic being run in premises in question is genuine. In Sh. Ravinder Singh v Sh. Deepesh Khorana (RC. Rev. No.3/2011, Date of decision:
10th December, 2012), it was observed that the son of the respondent is unemployed and is dependent on respondent for his livelihood. It is nothing but bona fide for the respondent to require the suit shop to set up a computer business for his son and to help him find a source of income and subsequently settle down in life. In Brij Mohan vs. Shri Pal Jain, 49 (1993) DLT 543, it was observed that it is settled law that grown up children require separate rooms to live in a manner he or she likes. In Ram Babu Aggarwal v. Jay Kishan Das, 2009 (2) RCR 455, the court recognized the right of the landlord for possession of his property for setting up a business for his son.
20. It is not the case of the respondent that the Anurag Sharma has his own property. Clearly, he is dependant on the petitioner for accommodation. Merely because he is running a business and is self employed does not mean he is not dependant for property RC ARC No : 465/2017 Kamlesh Kumari Vs. Rajender Kumar Verma Digitally signed by 8 of 17 SNIGDHA SNIGDHA SARVARIA SARVARIA Date:
2022.01.25 13:33:11 +0530 on the petitioner.
21. In view of the aforesaid discussions and case laws and considering that Anurag Sharma, son of the petitioner, seeks expansion of his business the requirement of the petitioner as mentioned herein above is found to be genuine and bonafide and said son of the petitioner since has no property of his own is held to be dependant on the petitioner for the premises in question to expand his business.
22. In order to evaluate whether the need of the petitioner is bonafide or not, let us understand the legislative and judicial connotation of the term, ' bonafide'. In landmark case Deena Nath v. 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 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 of fact, for such erroneous finding illegally arrived at would vitiate the entire judgment."
Chambers 20th Century Dictionary defines bona fide to mean "in good faith and genuine". 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 RC ARC No : 465/2017 Kamlesh Kumari Vs. Rajender Kumar Verma Digitally signed by SNIGDHA 9 of 17 SNIGDHA SARVARIA SARVARIA Date:
2022.01.25 13:33:28 +0530 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. 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 at a higher rent.
23. The Apex Court in the case of Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta reported in SCFBRC 1999 Page 330, has observed as under:
"In Prativa Devi (Smt.) v. T.V. Krishnan, 1996 (5) SCC 353, this Court has held that in considering the availability of alternative accommodation, not availability merely but also whether the landlord has the legal right to such accommodation has to be considered.
Reverting back to the case at hand, the landlord has been living on the ground floor of the Defence Colony house. It was conceded at the Bar that as on the day the family of the landlord consists of the landlord himself (a practicing doctor), his son (again a practicing doctor), the daughter-in-law and two grand children who are gradually growing in their age. Looking at the size of the family, available of three bed rooms in the premises in which the landlord may live, is a requirement which is natural and consistent with the sense of decency-not to talk of comfort and convenience. There is nothing unreasonable in a family with two practicing doctors as members thereof needing a room or two or a room with a verandah to be used as a residential-clinic divided into a consultation room and a waiting place for the patients. A drawing room, a kitchen, a living room and a garage are bare necessities for a comfortable living. The landlord has been living in Defence Colony locality for more than 35 years. The first floor which was let out to the tenant in the year 1978 as being an accommodation surplus with the landlord has with the lapse of time become a necessity for occupation by the landlord and his family members. More than ten years by now have been lost in litigation. The death of the wife of the landlord and the death of landlord's mother-in-law, are events which have hardly any bearing on the case of felt need of the landlord, The need as pleaded and proved by the landlord is undoubtedly natural sincere and honest and hence a bona fide need. There is no material available on record to doubt the genuineness of such need. It continues to subsist inspite of the two deaths. It is not the case of the tenant- appellant that while seeking eviction of the tenant the landlord is moved by any ulterior motive or is guided by some other thing in his mind. It will be most unreasonable to suggest that the landlord may continue to five on the ground floor of the Defence Colony house and some members of the family may move to Sarvodaya Enclave House if the whole family cannot be conveniently and comfortably accommodated as one unit in the Defence Colony house. It would be equally unreasonable to suggest that the entire family must shift to Sarvodaya Enclave House which is admittedly situated at a distance of about 7-8 kms. from Defence Colony. The landlord and his family are used to living in Defence Colony where they have developed friends and acquaintances, also familiarity with the neighbourhood and the environment. The patients usually visiting or likely to visit the residential clinic know where their doctor would be available. Shri Arun Jaitley, learned Senior Counsel for the respondent, has very rightly submitted that it could not have been the intendment of the Rent Control Law to compel the landlord in such facts an circumstances to shift to a different house and locality so to permit the tenant to continue to live in the tenanted premises. If the landlord wishes to live with comfort in a house of his own, the law does not command or compel him to squeeze himself rightly into lesser premises protecting the tenant's occupancy."
24. Further, in another landmark case of "Sarla Ahuja v. United India Insurance Co. Ltd., reported as AIR 1999 SUPREME COURT 100", whereby RC ARC No : 465/2017 Kamlesh Kumari Vs. Rajender Kumar Verma Digitally signed by 10 of 17 SNIGDHA SNIGDHA SARVARIA SARVARIA Date:
2022.01.25 13:33:47 +0530 it was 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 else the landlord could have adjusted himself....".
25. It is averred by the respondent that the petitioner has concealed the material facts from this Hon'ble Court that she has sufficient accommodation as well as is the landlady/ owner of the suit property·. It is submitted by the respondent that the landlady got 450 sq yds of the land/ property out of which 90 Sq. Yards was sold by her which shows that the landlady has sufficient land and the sufficient means, and the present petition has been filed just to harass the respondent and his family members as the respondent has no other way to earn from except from the suit property by working there to feed his family. As per the petitioner the alleged 90 sq. yds. Plot was sold in the year 2008 to the occupants. The respondent has not filed any document or cogent material on record to show that the petitioner has any other alternate suitable accommodation. Although, it is denied by the petitioner but assuming if respondent is to be believed that the petitioner has other accommodation then also having other accomodations is not sufficient. It has to be shown by the respondent that the other accommodation is also a suitable accommodation. The respondent has not proved the same. Selling of 90 sq yds of property in 2008 long before filing of this petition is of no assistance to the respondent as the need to expand the business of son of the petitioner is now. Thus, this plea of the respondent is without any merits.
26. It is stated by the respondent that the petitioner has already got evicted 2 shops in the suit property in the year 2005, and two more shops were evicted later on and the owner of the suit property took the possession of the same. It is stated by the respondent that there is a big portion or a hall in the suit property which is in the possession of the owner of the suit property. It is stated by the respondent that the RC ARC No : 465/2017 Kamlesh Kumari Vs. Rajender Kumar Verma Digitally signed by 11 of 17 SNIGDHA SNIGDHA SARVARIA SARVARIA Date:
2022.01.25 13:34:16 +0530 petitioner has already let out adjacent commercial shop on rent, some names of the tenant are Ravinder Jain, Raj Narayan, Ramesh pan Wala, Kapil Jain & Sukhbir etc and later and atleast 9 shops are given on the rent to the tenants including the tenants named above. As well as some of the other cases in the same provisions against the tenants are also filed in the Court. As per the petitioner the eviction petition is not filed for re-letting the tenanted shop on higher rate. Raj Narain and Ramesh Pan Wala has space of 2x2 under the stair case while the petition against Ravinder Jain and his brother who are sons of Sukhbir Jain are pending. Sukhbir Jain was tenant in two shops since 45 years, he is now deceased and his sons are in possession. Kapil Jain is tenant since 1992. It is not correct that petitioner rented out nine shops. The other tenant Manoj Jain and Mohit Jain are in the backside of the property. The son of the petitioner started their business in the shops vacated by Sh. Ved Raj and Jaipal Jain while the shop vacated by Vijay Jain was merged in the shop of electronic showroom. It is denied by the petitioner that any shop has been let out in past 15-20 years. The space of 2x2 under the stair case cannot be an alternate accommodation to the shop in question. Also, the respondent has not brought on record any material to show that the petitioner has got vacated any other tenanted premises recent to filing of the present petition which has been let out recently with ulterior motives. The old tenancies in the same property as the tenanted premises in question have also not been shown and explained by the respondent as to how are alternative suitable accomodations. No document has been placed on record to show that any new tenancy is created in other shops in the same property by the petitioner. Mere bald averments of the respondent are of no help. The aforesaid submissions of the respondent qua other tenancies and vacant spaces is thus without any merits.
27. As regards plea of the respondent qua concealment of selling of 90 sq yds out of 450 sq yds of property by the petitioner same cannot be said to be a concealment as same was not essential for decision of this case as said transaction pertained to long before the present case was filed by the petitioner and has no bearing on the present case and the situation prevailing at the time of filing of this case. Even otherwise, it is well settled that that once the facts which are alleged to have been concealed Digitally signed by SNIGDHA RC ARC No : 465/2017 Kamlesh Kumari Vs. Rajender Kumar Verma SNIGDHA SARVARIA SARVARIA Date: 12 of 17 2022.01.25 13:34:38 +0530 have come before the Court and the Court has had occasion to consider the same and after considering the same finds in favour of the landlord, the petition for eviction cannot be dismissed on the ground of concealment. The Hon'ble High court of Delhi in Sunil Kumar Goyal vs Harbans Singh decided on 18 July, 2017 in RC.REV. 300/2017 it was held as under:
It cannot be lost sight of that according to the tenant also, on the date of institution of the petition for eviction, the other shop was in occupation of another tenant. It is thus not as if the other shop already stood vacated and was concealed from the petition for eviction. The question for adjudication is whether in such facts, the concealment was such so as to warrant dismissal of the petition for eviction or grant of leave to defend to the petitioner. Supreme Court in Bhairab Chandra Nandan Vs Ranadhir Chandra Dutta (1988) 1 SCC 383 held that once the facts which are alleged to have been concealed have come before the Court and the Court has had occasion to consider the same and after considering the same finds in favour of the landlord, the petition for eviction cannot be dismissed on the ground of concealment. Similarly, in M.L. Prabhakar Vs. Rajiv Singhal (2001) 2 SCC 355, qua the plea of concealment / suppression, it was held that the fact that the landlord has another accommodation would not be fatal to the eviction proceedings if both the parties understood the case and placed materials before the Court and case of neither party was prejudiced. Accordingly, it was held that though the landlord in that case had not mentioned about the other premises but the material in respect of the other two premises had come before the Rent Controller as well as before the High Court and no prejudice had been caused and the parties had squarely dealt with the question. Hon'ble High Court of Delhi also in Harbant Singh Vs. Vinod Sikari 189 (2012) DLT 215 held that unless there is concealment of fact which is so vital to the bearing of the petition in issue, it would not amount to concealment. It was reiterated that concealment of accommodation which was not available or suitable cannot be a ground for non-suiting the landlord or granting leave to defend.
28. It is averred by the respondent that Ashwani is doing private job and also doing business with Anurag of medical equipments. It is submitted that Ashwani is not doing private job. He have a showroom of electronic items like fridge, AC, Washing machine, geyser etc in the premises where the tenanted premises is situated. Sometimes he visits the field according to demand on call. No document has been placed on record by the respondent to show that Ashwani is doing private job and also doing business with Anurag of medical equipments. Thus, plea in this regard is of no help to the petitioner.
29. As regards alternate accommodation in Sarwan Dass Bange vs Ram Prakash 2010 IV AD (Delhi) 252, observations made by Supreme Court in Baldev Singh Bajwa V RC ARC No : 465/2017 Kamlesh Kumari Vs. Rajender Kumar Verma Digitally signed by 13 of 17 SNIGDHA SNIGDHA SARVARIA SARVARIA Date:
2022.01.25 13:35:05 +0530 Monish Saini MANU/SC/1239/2005 (2005) 12SCC 778, have been quoted as under :
It was held that the legislative intent is of expeditious disposal of the application for ejectment of tenant filed on the ground of requirement by the landlord of the premises for his own occupation; a special category of landlords requiring the premises for their own use has been created; if there is any breach by the landlord, the tenant is given right of restoration of possession; the landlord who evicts the tenant on the ground of his own requirement is not only prohibited from letting out the premises or disposing of the same but also required to use the same for his own residence only. It was held that these restrictions and conditions inculcate inbuilt strong presumption that the need of the landlord is genuine;the restrictions and conditions imposed on the landlord make it virtually improbable for the landlord to approach the court for ejectment of tenant unless his need is bonafide no unscrupulous landlord in all probability, under this section, would approach the court for ejectment of the tenant considering the onerous conditions imposed on him. It was further held that his inbuilt protection in the Act for the tenants implies that whenever the landlord would approach the court his requirement shall be presumed to be genuine and bonafide. It was further held that a heavy burden lies on the tenant to prove that the requirement is not genuine. The tenant is required to give all necessary facts and particulars supported by documentary evidence if available to prove his plea in the affidavit itself so that the controller will be in a position to adjudicate and decide the question of genuine or bonafide requirement of the landlord; a mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine.
30. In Adarsh Electricals and others vs Dinesh Dayal -
MANU/DE/2782/2010, it was held that " the concept of alternate accommodation means that accommodation which is reasonably suitable for the landlord, and the court would not expect the landlord to sacrifice on his own comforts and requirements merely on the ground that the premises is with a tenant . The problem had to be approached from the point of view of a reasonable man and not that of a whimsical landlord. The court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most 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 need."
31. The respondent has raised the plea that the petitioner has alternative suitable premises and thus this petition is not maintainable is without any merits as neither the respondent has brought forth any material to show an alternative suitable accommodation nor details of such alternative suitable accommodation is given. Clearly, this is a sham defence. It is well settled that the tenant is required to give all necessary facts and particulars supported by documentary evidence if available to prove his plea in the affidavit itself so that the controller will be in a position to adjudicate and decide the question of genuine or bonafide requirement of the landlord; a mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine. (See:
RC ARC No : 465/2017 Kamlesh Kumari Vs. Rajender Kumar Verma Digitally signed by 14 of 17 SNIGDHA SNIGDHA SARVARIA SARVARIA Date:
2022.01.25 13:35:39 +0530 Sarwan Dass Bange V. Ram Prakash 2010 IV AD (Delhi) 252).
32. Landlord is the best judge of his needs. It is well settled 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. From the aforesaid submissions of the petitioner, clearly, his need is bona fide. Herein the son of the petitioner is adult and need to stand on his feet and earn his own living. The respondent has not brought any material on record that the need or requirement of the petitioner is not genuine and bonafide. Also, there is no material on record to show that there is any alternative suitable accommodation for the petitioner apart from the tenanted premises in question. The petitioner-owner of the premises in question, is clearly not expected to accommodate himself and his family in tenanted shop when he bona fide requires the tenanted premises. In Mahendra Trivedi Vs. Jai Prakash Verma, 157 (2009) DLT 690 and Sudesh Kumar Soni & Anr. Vs. Prabhas Khanna & Anr. 153 (2008) DLT 652, it is held that If landlord wishes to live with comfort in a house of his own, law does not common or compel him to squeeze himself lightly into lesser premises protecting tenants occupancy.
33. It is stated by the respondent that the petitioner has filed a wrong site plan and as per the various judgment of the Hon'ble Supreme Court of India whereby the petitioner has filed the wrong and incorrect site plan, and the said suit was dismissed with heavy exemplary cost. It is stated by the respondent that there is a big portion or a hall in the suit property which is in the possession of the owner of the suit property. It is stated that the site plan which shall be filed by the respondent, that will be according to the knowledge of the structure of the suit property because the respondent and other tenants are restricted to enter in the hall of the suit property and the said hall is behind the tenanted shops but same is not mentioned by the petitioner in the site plan. The petitioner stated that she has filed the correct site plan with the petition and has not concealed any fact as alleged. She is residing in the premises with her two sons and their families who are dependant upon her for residence and commercial purpose. The petition is filed to get evicted the shop under the possession of the respondent hence residential issue is not involved. There is a residential complex/godown of electronics behind the electronic shop which is a private property where any tenant has no right or title. The purpose of filing the site plan is to RC ARC No : 465/2017 Kamlesh Kumari Vs. Rajender Kumar Verma Digitally signed by SNIGDHA
15 of 17 SNIGDHA SARVARIA SARVARIA Date:
2022.01.25 13:36:19 +0530 identify the suit property, which has been clearly shown in red colour by the petitioner and it is not disputed by the respondent that the said red coloured shop is not the suit shop in question. Thus, the plea regarding filing of wrong site plan is without any merits. The plea that other portion/hall is not shown in the site plan is not material as even as per the respondent he has not visited the spot/ said hall and his site plan filed on record is as per knowledge/logic, which is of no help to the respondent. Thus, there is nothing on record to show that the site plan filed by the petitioner is false/wrong.
34. The contention of the respondent that the petitioner and her sons have sufficient income is not relevant as merely because the petitioner and her sons have sufficient funds at hand does not mean they should be forced to buy or rent out new accommodation when the existing accomodations (accommodation in question) are in the vicinity/adjacent to the business shop of Anurag Sharma.
35. It is stated by the respondent that the petition filed by the petitioner is full of mistakes as in para no. 11, 18, & 20 as well as he has not mentioned the age in the affidavit as well as correction in Verification clause. The respondent has not disclosed the mistakes which would result in dismissal of the petition thus mere bald averments without specifying specific mistakes is of no assistance to the respondent.
36. The respondent has averred that the present petition is not maintainable as in para 18 (a) of the application under S 14 (1) (e) DRC Act relief qua LRs of Harbans Singh has been sought but same is without any merits as it is stated in the said para that the shop under the possession of Anurag Sharma is insufficient for his business as he wants to expand his shop and the tenanted shop with the other space under the possession of LRs of Harbans Singh are most suitable and attachable to the present shop of Anurag Sharma. This means that Anurag Sharma requires tenanted shop as well as space under the possession of LRs of Harbans Singh to expand his business.
37. The decisions (i) Ramjas Foundation and another Vs. Union of India and others (2010) 14 Supreme Court Cases 38 (ii) Sandeep Kumar Vs. Nihal Chand DHC DOD:
Digitally RC ARC No : 465/2017 Kamlesh Kumari Vs. Rajender Kumar Verma signed by SNIGDHA SNIGDHA SARVARIA
16 of 17 SARVARIA Date:
2022.01.25 13:36:42 +0530 02.01.2014, (iii) Sanjay Chug Vs. Opender Nath Ahuja & anr. DHC DOD: 06.01.2014 and (iv) Gurubachan Singh Sachdeva Vs. Gurubachan Singh Puri DHC DOD:
22.01.2014; relied upon by the respondent is of no assistance to the respondent as it has been decided on different fact situation and cannot be applied like a Euclid's theorem.
38. In view of the above discussion and the documents filed by the parties, 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 merits.
39. Conclusion:
In these circumstances, the application for leave to defend filed by the respondent is dismissed and the respondent Rajender Kumar Verma is liable to be evicted from the tenanted premises i.e. shop measuring approximately 5'x8' between shop of Lakhmi Chand Jain and shop of Harbans Singh in property no. IX/2110, Gali no. 8, Kailash Nagar, Delhi-110031 as shown in red colour in the site plan (now exhibited as Ex P1) filed with the present petition. Accordingly, the petition filed by the petitioner u/s 14 (1) (e) r/w S. 25B of the DRC Act is allowed, subject to provisions u/s 19 of the DRC Act. 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. No orders as to costs. Digitally signed by SNIGDHA SNIGDHA SARVARIA SARVARIA Date:
2022.01.25 13:37:02 +0530 Announced through VC (SNIGDHA SARVARIA) on 25th Day of January, 2022. ACJ/ARC/CCJ [This judgment contains 17 pages.] (SHAHDARA) KKD, DELHI.
RC ARC No : 465/2017 Kamlesh Kumari Vs. Rajender Kumar Verma 17 of 17