Delhi District Court
Sh. Jagdish Chandar Thapar (Huf) vs Sh. Gautam Chopra E - 153/14 on 22 September, 2015
1
In the Court of Ms. Namrita Aggarwal
CCJ Cum Additional Rent Controller1 (Central)
Tis Hazari Courts, Delhi.
Case No. E 153/14
Unique I.D. No. 02401C0264482014
In the matter of :
1. Sh. Jagdish Chandar Thapar (HUF)
through its Karta Sh. Jagdish Chandar Thapar
Permanent resident of
XVI/924, Faiz Road, Karol Bagh,
New Delhi110005.
At present residing at
L9/16, DLF Phase II,
Gurgaon (Haryana)
2. Sh. Jagdish Chandar Thapar
S/o Sh. Ganga Ram Thapar
Karta of Sh. Jagdish Chandar Thapar (HUF)
Permanent resident of
XVI/924, Faiz Road, Karol Bagh,
New Delhi110005.
At present residing at
L9/16, DLF Phase II,
Gurgaon (Haryana) ...........Petitioners
Page 1 of 15 Sh. Jagdish Chandar Thapar (HUF) & Anr. Vs. Sh. Gautam Chopra E - 153/14
2
Versus
Sh. Gautam Chopra
S/o Sh. Chandar Mohan Chopra
R/o C1101, LaLagune, Sector54,
Golf Course Road,
Gurgaon122002.
Address of demised premises
XVI/924, Faiz Road, Karol Bagh,
New Delhi110005. ...........Respondent
ORDER
22.09.2015
1. Vide this order, I shall dispose off the application moved by respondent for grant of leave to defend the eviction petition filed by the petitioner u/s 14(1)(e) of the Delhi Rent Control Act, 1956 [in short, 'the DRC Act'].
2. An eviction petition has been filed by the petitioner Jagdish Chandar Thapar (HUF) through its Karta Sh. Jagdish Chandar Thapar against the tenant/respondent Sh. Gautam Chopra for vacation of the tenanted premises, i.e., one shop & back side portion on the ground floor at the address XVI (old)/924, Faiz Road, Karol Bagh, New Delhi, as Page 2 of 15 Sh. Jagdish Chandar Thapar (HUF) & Anr. Vs. Sh. Gautam Chopra E - 153/14 3 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.
3. The case of the petitioners is that the petitioner no. 2 is the owner/landlord in respect of the tenanted premises. That petitioner no. 1 is the HUF and petitioner no. 2 is the Karta of the said HUF. That the tenanted premises was let out to mother of the respondent in 1983 for nonresidential purposes. After the death of the mother of the respondent, the respondent has become tenant under the petitioner. That for the last 5 years or more, the tenanted premises have been lying locked. It is averred by the petitioner that the tenanted premises is required jointly as well as severally by the petitioner for own use and occupation and more specifically for petitioner no. 2 for the purpose of carrying on his own business. That the petitioner do not own any other reasonable suitable commercial accommodation for the purpose of carrying on the business.
4. That the petitioner no. 2 is a senior citizen aged about 90 years. The second son of the petitioner no. 2, namely, Sh. Anil Thapar left for his heavenly abode on 18.05.2009, leaving behind his widow, i.e., second daughterinlaw of petitioner no. 2 Smt. Neeta Thapar, who is carrying on Page 3 of 15 Sh. Jagdish Chandar Thapar (HUF) & Anr. Vs. Sh. Gautam Chopra E - 153/14 4 her business under the name and style of M/s Varuni Exports from the shop adjacent to the tenanted premises and also from the first floor thereof. That petitioner no. 2 is unemployed. He is able bodied and is willing to work to supplement his financial resources. That the petitioner no. 2 is living with her daugherinlaw Smt. Neeta Thapar at L9/16, DLF Phase II, Gurgaon and as such, it is very easy for petitioner no. 2 to commute to tenanted premises every day to look after his business since his daughterinlaw Smt. Neeta Thapar also commute every day from her residence to the suit premises.
5. That the elder son of the petitioner no. 2 is also a coparcener in the HUF, namely, Sh. Rakesh Chandra Thapar, who earlier was a clerk with Canara Bank. He took voluntary retirement in 1996 and presently, drawing pension from the bank. He too is not carrying on any independent business and therefore, wants to joint hands with petitioner no. 2 to assist petitioner no. 2 in carrying on business from the tenanted premises to enhance income of petitioner no. 2. That the name of the respondent who was carrying on business under the name and style of M/s Inder Plastic International from the tenanted premise has already been struck off by the statutory authorities concerned from the list of business houses and the TIN No. allotted to the respondent has also Page 4 of 15 Sh. Jagdish Chandar Thapar (HUF) & Anr. Vs. Sh. Gautam Chopra E - 153/14 5 been revoked.
On the above stated grounds, the present eviction petition has been filed by the petitioners against the respondent for vacation of the tenanted premises.
6. Summons were served upon the respondent who filed leave to defend application taking various grounds interalia :
a) That the petitioner is already running a flourishing export business under the name and style of M/s Varuni Exports from the building forming part of the suit property.
b) That the petitioners are in occupation and possession of the entire first and second floor of the said building, which is sufficient for their business.
c) That the petitioners have even got vacated a tenant from the shop bearing no. 924/2, adjacent to the tenanted shop which is now lying vacant and locked under the power and possession of the petitioners.
d) That the petitioners have sufficient accommodation within the building forming part of the suit property for expansion of their business activities or for starting new ventures. Page 5 of 15 Sh. Jagdish Chandar Thapar (HUF) & Anr. Vs. Sh. Gautam Chopra E - 153/14 6
7. 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 application for leave to defend alongwith affidavit dated 12.12.2014 have not been filed by the respondent within the statutory time period of 15 days from the date of service. It is further averred by the petitioners that M/s Varuni Exports is being run by the daughterinlaw of petitioner no. 2 Smt. Neeta Thapar as sole proprietor and that petitioner no. 1 or petitioner no. 2 have nothing to do with the said business. That petitioner no. 2 as well as his elder son are sitting idle at home and they do not have any business or avocation of their own. That the entire first floor of the building at Faiz Road is being used as an office by M/s Varuni Exports. That the area of plot in hand is less than 90 sq. yds. The accommodation on the second floor is used as store cum godown by the firm M/s Varuni Exports and even otherwise, upper floors are not suitable for the proposed business of the petitioners, particularly for petitioner no. 2 who is aged 90 plus. It is admitted that the petitioners had recovered vacant possession of the shop adjacent to the tenanted premises but it is submitted that the said shop is being used for business purposes by Smt. Neeta Thapar who is carrying her business under the name and style of M/s Varuni Exports right from the day, the same was got vacated by the erstwhile tenant. Page 6 of 15 Sh. Jagdish Chandar Thapar (HUF) & Anr. Vs. Sh. Gautam Chopra E - 153/14 7 Even otherwise, the documents clearly shows that the TIN No. allotted to the respondent's firm M/s Inder Plastic International has already been revoked or cancelled and no business is being carried on from the tenanted premises.
8. I have heard the arguments and perused the material available on record.
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 Page 7 of 15 Sh. Jagdish Chandar Thapar (HUF) & Anr. Vs. Sh. Gautam Chopra E - 153/14 8 reasonably suitable accommodation has been time and again emphasized by the Supreme Court of India in several cases 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 Page 8 of 15 Sh. Jagdish Chandar Thapar (HUF) & Anr. Vs. Sh. Gautam Chopra E - 153/14 9 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 non residential 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 Page 9 of 15 Sh. Jagdish Chandar Thapar (HUF) & Anr. Vs. Sh. Gautam Chopra E - 153/14 10 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 ."
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 Page 10 of 15 Sh. Jagdish Chandar Thapar (HUF) & Anr. Vs. Sh. Gautam Chopra E - 153/14 11 how, and in what manner, he should live or to prescribe for him a residential standard of their own.
12. 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.
Ownership as well as landlordtenant relationship :
13. The respondent has not disputed the ownership of the petitioners over the tenanted premises as well as existence of landlordtenant relationship.
14. The contention of the petitioners is that the present eviction petition has not been filed within the statutory time period is baseless as earlier when the respondent was served with ordinary process as well as registered post, the report was received back as unserved stating the tenanted premises was found locked. Thereafter, the process was served through affixation on 04.12.2014 at the address of the respondent and the Page 11 of 15 Sh. Jagdish Chandar Thapar (HUF) & Anr. Vs. Sh. Gautam Chopra E - 153/14 12 respondent filed leave to defend application on 12.12.2014, i.e., within the statutory time period. Hence, it cannot be stated that the present leave to defend application has not been filed within the statutory time period. Bonafide requirement :
15. It is stated by the petitioner that the tenanted premises is required by petitioner no. 2 and his elder son Sh. Anil Thapar as presently both petitioner no. 2 as well as his elder son is not engaged in any business and therefore, want to start their own business. Respondent has not averred that either petitioner no. 2 or his elder son are presently doing any work or are engaged in any business. The only contention made by the respondent is that the petitioners are running flourishing export business under the name and style of M/s Varuni Exports. However, the petitioners have filed the photocopy of Income Tax Return of Smt. Neeta Thapar for the assessment year 2012 till 2015 in order to prove that Smt. Neeta Thapar is carrying on her business of M/s Varuni Exports in her individual capacity. The Certificate of ImportExport Code is also filed in order to prove that Smt. Neeta Thapar is carrying on her business under the name & style of M/s Varuni Exports in her individual capacity and even, ImportExport Code Number has been issued in favour of Smt. Page 12 of 15 Sh. Jagdish Chandar Thapar (HUF) & Anr. Vs. Sh. Gautam Chopra E - 153/14 13 Neeta Thapar as sole proprietor of M/s Varuni Exports. Hence, it cannot be said that petitioner no. 2 or his elder son are in any way connected with M/s Varuni Exports, which is the sole proprietorship concern of Smt. Neeta Thapar. Hence, the bonafide requirement of petitioner no. 2 and his elder son stands duly proved.
Availability of alternative suitable accommodation:
16. It is averred by the respondent that the petitioners are in possession and occupation of the entire first and second floor of the suit property. Per contra, it is averred by the petitioners that the entire first floor is being used by Smt. Neeta Thapar for carrying on her business under the name & style of M/s Varuni Exports and the second floor is being used as godown. It is not disputed by the respondent himself that M/s Varuni Exports is carrying on business from the suit premises and hence, it cannot be said that these two floors are available to petitioner no. 2 and his elder son to start their business. Even otherwise, the business on the ground floor would fetch much more customers as compared to upper floors. Further, petitioner no. 2 is aged 90 years plus and would find very difficult to climb stairs everyday to look after his business.
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17. Further, it is averred by the respondents that the petitioners also have in their possession shop no. 924/2, Faiz Road, Karol Bagh, New Delhi, adjacent to the tenanted premises which can be used by petitioner no. 2 and his elder son for starting their business. Per contra, it is submitted by petitioners that the said shop is being used by Smt. Neeta Thapar to store the packing material of M/s Varuni Exports. Even, photographs have been filed by the petitioners, which clearly shows that the said shop is not lying empty and his being used by Smt. Neeta Thapar for storing packing material. In these circumstances, it cannot be said that these two premises are available to petitioner no. 2 and his elder son to start their business. Hence, respondent has failed to prove the availability of alternative suitable accommodation with the petitioner to meet his bonafide requirement.
18. Thus, from the discussion made above, respondent has failed to raise any triable issue, which requires evidence to be proved. The petitioners, on the other hand, have clearly established their bonafide requirement regarding tenanted premises. Hence, the application for leave to defend filed by respondent is ordered to be dismissed. Consequently, eviction order is liable to be passed against the respondent u/s Section 25 B (4) of the Act. In view of above, petitioners Page 14 of 15 Sh. Jagdish Chandar Thapar (HUF) & Anr. Vs. Sh. Gautam Chopra E - 153/14 15 are held entitled for recovery of the tenanted premises, i.e., one shop & back side portion on the ground floor at the address XVI (old)/924, Faiz Road, Karol Bagh, New Delhi, as shown in red colour in the site plan annexed with the petition. However, the petitioners 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)
on 22 Day of September, 2015.
nd
CCJ cum ARC1 (Central)
[This order contains 15 pages.] Tis Hazari Courts, Delhi
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