Delhi District Court
Rent Controller vs Shri Naresh Gupta on 28 February, 2014
28.02.2014 1 E No. 09/13
IN THE COURT OF MS. KIRAN GUPTA, SENIOR CIVIL JUDGECUM
RENT CONTROLLER, NEW DELHI DISTRICT, PATIALA HOUSE
COURTS, NEW DELHI
E09/13
Unique ID No. 02403C0041832013
Sh Rajinder Kumar
S/o Shri Lachhi Ram
R/o 26/8, East Patel Nagar,
New Delhi110067
.....Petitioner
Versus
Shri Naresh Gupta
S/o. Late Shri Mithan Lal Gupta
C/o. M/s. Gupta Sweek Corner ,
Shop no. 129 Plot no. 1,
Block no. 88, Baird Road
(Now known as Bangla Sahib Road)
Near Gole Market
New Delhi110001 .....Respondent
Date of institution : 18.04.2013
Date of arguments : 25.02.2014
Date of order : 28.02.2014
J U D G M E N T
1 Vide this order, I shall dispose of the application u/s 25(B) (4) of the Delhi Rent Control Act (hereinafter referred as "the Act"), filed by the tenant praying therein that he be allowed to contest the eviction petition U/s 14(1)(e) r/w sec. 25B of the Act in respect of the tenanted premises, i.e. Shop no. 129 , Plot no. 1, Block no. 88, Baird Rajinder Kumar Vs Naresh Gupta Page 1 of 40 28.02.2014 2 E No. 09/13 Road (now known as Bangla Sahib Road), measuring about 588.7 sq ft as shown red in the site plan (hereinafter referred as tenanted premises). Sh. Rajinder Kumar / landlord shall be hereafter referred as petitioner and Naresh Gupta /tenant shall be referred as respondent.
2 Petitioner has filed the present petition U/s 14 (1) (e) of the Act, with the plea that the tenanted premises is required bonafide for opening the business of restaurant/ eatery shop for one of his son Deepanshu Aggarwal. It is stated that just above the tenanted premises, there is a tin shed which has been constructed by the respondent without the Municipal sanction and afterwards, which did not form part of the tenancy and tenanted premises. It is stated that the father of the respondent late Sh. Mitthan Lal was the tenant under erstwhile landlord / owner Sh Ramesh Chander and was occupying the tenanted premises as tenant at the monthly rent of Rs. 67.75 and was running a confectionery and sweet shop under the name of Gupta Sweet Corner in partnership with his son ie the respondent. After death of Sh. Mitthan Lal, tenancy rights in respect of the tenanted premises have devolved upon the respondent and he became the proprietor of Gupta Sweet Corner and is running the said business. It is stated that the tenanted premises was purchased by petitioner from the erstwhile owner and landlord Mr. Ramesh Chander S/o. Sh. Des Raj R/o. R855, New Rajender Nagar, New Delhi by way of registered Sale Deed dated 20.08.1993 which was registered in the office of concerned Sub Registrar vide registration no. 6176, Book No. 1, Vol. No. 8009, Pages 14 to 20 on 20.08.1993. It is further stated that as per page 4 of the sale deed dt. 20.08.1993, the possessory possession of the tenanted premises which was actually in possession of Sh. Mitthan Lal was Rajinder Kumar Vs Naresh Gupta Page 2 of 40 28.02.2014 3 E No. 09/13 delivered to him by Sh Ramesh Chander, the erstwhile owner and landlord, hence the petitioner became entitled to receive rent from the respondent in respect of the tenanted premises. For this , he repeatedly approached the respondent and also produced him the copy of registered sale deed and also informed him that he has become the owner / landlord of tenanted premises and requested him to pay the monthly rent. Respondent acknowledged and admitted the status of petitioner as new landlord and even agreed to honour the commitment of payment of rent in respect of the tenanted premises to petitioner. He then started paying the rentals on yearly basis and on most of the occasions, he tendered rent to him through his brother Sh. Ved Prakash, whose shop ie M/s. Bangla Pastry shop is adjacent to the tenanted premises. It is further stated that respondent from time to time paid rent to the petitioner and thereafter started defaulting in payment of the same and has not paid the rent for last many years. It is alleged that respondent has also not paid the enhanced property tax since April, 2004 or even 2010, and it is the petitioner who is depositing the house tax of the tenanted premises with the office of Assessor and Collector, NDMC being the owner of tenanted premises. It is stated that Petitioner's family comprises of his wife namely Mrs. Poonam Aggarwal, two sons, namely Mr. Amit Aggarwal and Mr. Deepanshu Aggarwal and one married daughter namely Mrs. Pooja Mittal who is well settled in her matrimonial life. His elder son Sh. Amit Aggarwal is married to Mrs. Kritika Aggarwal. Petitioner himself is working as a partner in M/s. Capital Metal Industries having its office at M 25, Badli Industrial Area, Phase I, Delhi with works / factory at Kundli, Haryana. The land and Building where the said partnership firm is carried on belongs to and vests in the partnership firm. The said property is in Rajinder Kumar Vs Naresh Gupta Page 3 of 40 28.02.2014 4 E No. 09/13 joint ownership of Smt. Poonam Aggarwal and Smt. Surender Kumari ie the wife of brother of petitioner Sh. Ved Prakash. M/s. Capital Metal Industries is operating its business from the said address since 1994 and the firm is paying rent for the use of the same to the said joint owners. His elder son Amit Aggarwal is also assisting in the said partnership business and is drawing the salary of Rs. 1,75,000/ per year. Sh Amit Aggarwal has no immovable property in his name or any share in any ancestral property as there is no such property. Amit has no independent business and is dependent on the salary which he receives from the partnership firm for his livelihood. Petitioner's daughter in law Mrs. Kritika Aggarwal W/o. Sh. Amit Aggarwal in 2012 has purchased a shop bearing no. 123, Plot no. 1, Block no. 88, Baird Road, New Delhi (admeasuring around 500 sq ft.) in which she is planning to start her own independent business of boutique cum saloon for ladies or such other business as may be expedient at particular time. It is stated that petitioner does not owns or otherwise possesses any other immovable property in his own name except the tenanted premises and is working as partner in M/s. Capital Metal Industries. His wife Smt. Poonam Aggarwal is having share of 40 % (undivided ) in the immovable property bearing no. M25, Baldli Ind. Area, Phase I, Delhi and the said premises are on rent with M/s. Capital Metal Industries since 1994. His wife is also the owner of the residential house i.e 26/8 East Patel Nagar where the entire family of petitioner is living jointly. It is stated that his younger son Deepanshu Aggarwal has completed his graduation from Amity University in the year 2012 and has been successfully awarded Graduates Degree in a three year full time course of Hotel Management and has also completed his training in the said field during the period from Rajinder Kumar Vs Naresh Gupta Page 4 of 40 28.02.2014 5 E No. 09/13 01.06.2010 to 09.05.2011 in a five star hotel "The Maurya" and has been awarded a certificate in this regard. It is stated that his son after completion of the course of Hotel Management wants to start his own independent business of a restaurant so that he can earn his livelihood from the same, hence, petitioner requires the tenanted premises for enabling his son Deepanshu Aggarwal to start his own independent business of a restaurant therefrom. It is stated that petitioner requires the tenanted premises bonafide for use and occupation by his son Deepanshu Aggarwal, who is dependent upon him for accommodation and does not own or possess any similar or other suitable accommodation of his own. It is further stated that since his family including his brother Mr. Ved Prakash is running a pastry and confectionery shop under the name of Bangla Pastry shop which is adjacent to the tenanted premises and the paternal family of his wife is also in the business of Bakery and are successfully running the bakery business under the name and style of M/s. Kumar Baker/ pastry shop having its retail outlets at various places in Delhi, hence, the expertise and guidance required for establishing this business is readily available to him and his son. It is further stated that the tenanted premises are located in the area known as Gole Market , adjacent to Connaught place, where a number of famous restaurants and sweet shops are already running and have lucrative business. It is stated that the tenanted premises is ideally located and best suited for the business of running restaurant, cake / pastry shop or any other eatery business. Even the area of the tenanted premises ie 587.78 sq ft. is sufficient for opening any restaurant or eatery shop. It is prayed that the petition be allowed and an order of eviction in respect of tenanted premises be passed in favour of petitioner.
Rajinder Kumar Vs Naresh Gupta Page 5 of 40 28.02.2014 6 E No. 09/133 After service of notice of the petition on 23.04.2013, the application for leave to contest was filed on 07.05.2013. In the application for leave to contest filed by respondent, it is alleged that petitioner has not come to the court with clean hands and has filed the present petition by misrepresenting and concealing various material facts. It is stated that petitioner is neither the owner nor the landlord of the tenanted premises as neither the petitioner nor Mr. Ramesh Chander, who is the landlord of the respondent and to whom he has been continuously and regularly sending the rent for the last many years, has never intimated about the selling of the tenanted premises to the petitioner or asking him to pay rent to the petitioner. Rather, the aforesaid landlord ie. Mr. Ramesh Chander continued to receive/ accept the rent whenever tendered to him by respondent by money order without any protest/ reservation for the last many years. It is further stated that no letter of attornment of tenancy was served to respondent till date. It is stated that he has tendered rent vide money order to Sh. Ramesh Chander till 31.12.2012. It is further stated that perusal of the sale deed dt. 20.08.93 and the letter of mutation dt. 12.04.2013, clearly shows that the petitioner has only purchased a lease hold right of the tenanted premises vide the sale deed and the not the ownership right as alleged in the eviction petition. It is further alleged that since petitioner is not the owner of the tenanted premises, he has not even shown the ownership in his balance sheet for the year 20072008 to 20092010 which he has filed with the income tax department for the assessment year ending on 31.03.2007, 31.03.2008 and 31.03.2009. It is stated that since petitioner is not the owner of the tenanted premises, present petition is not maintainable as ownership is a precondition for maintainability of the petition U/s. 14 (1) (e) of Rajinder Kumar Vs Naresh Gupta Page 6 of 40 28.02.2014 7 E No. 09/13 the Act and hence raises a triable issue. It is further stated the he is in continuous possession and occupation of the tenanted premises since last many years and has been running his business of restaurant for earning his livelihood and his family members, and it is the only source of income for his survival, whereas the petitioner and his both sons are well engaged and settled in their already existing businesses/ occupations. It is alleged that the tenanted premises is not required by the petitioner bonafide either for his own use or for his son Deepanshu Aggarwal , alleged to be dependent upon him as they are already settled in their existing business. It is stated that the alleged need of the petitioner for his son Deepanshu Aggarwal is neither bonafide nor genuine , rather it has been created artificially in order to just evict him. If, petitioner would have required the tenanted premises , he would have claimed the same earlier. It is stated that son of the petitioner Deepanshu Aggarwal is already well settled and engaged in the existing family business and has been regularly looking after and managing the Bangla Pastry Shop which is adjoining to the tenanted premises and allegedly owned by the brother of petitioner. It is alleged that infact the said pastry shop is also run / managed by the petitioner as he has been frequently sitting and looking after the operation of the said pastry shop in the absence of his younger son Deepanshu Aggarwal and as such there is no bonafide requirement either of petitioner or his son Deepanshu Aggarwal. Further, Deepanshu Aggarwal is sufficiently earning from his already engaged occupation, he has a PAN Card no. BB NPA 6812P , under which he has filed his income tax return for the assessment year 20122013 and also claimed refund of the excessive income tax paid. It is alleged that Deepanshu is not dependent upon petitioner for his requirement of the tenanted premises being already Rajinder Kumar Vs Naresh Gupta Page 7 of 40 28.02.2014 8 E No. 09/13 gainfully employed, engaged and as such his requirement cannot be considered as requirement of petitioner. It is alleged that petitioner has deliberately made false statement that his son is unemployed whereas he is gainfully employed and earning handsomely and as such the said fact is a triable issue. It is further alleged that respondent has never tendered the rent to the petitioner as his tenancy was never attorned in favour of petitioner as alleged in the petition. Further, he has never tendered rent to his brother Sh Ved Prakash as alleged, hence, triable issue is raised in this regard also. It is further alleged that the petition itself suffers from material contradictions as at one place petitioner has stated that respondent has paid him rent through his brother whereas at other place it is stated that no rent has been paid by respondent for the last many years. It is alleged that the petitioner has not disclosed the source of funds and the proposed business which shall be carried out by his daughter in law Mrs. Kritika Aggarwal in respect of the property purchased in her name when in fact the said property has been deliberately purchased by the petitioner out of his own funds in the name of his daughter in law. In addition to the abovesaid triable issues in the application, respondent has detailed out the triable issues in para no. 22 of his application which are basically the repetition and are not discussed herein for the sake of brevity. It is prayed that since he has raised triable issues qua the ownership, relationship, alternate accommodation, and the bonafide requirement of petitioner , his application be allowed accordingly and he be granted leave to contest the present petition.
4 In the reply to the application for leave to contest, petitioner while reiterating the facts as stated in the petition has prayed Rajinder Kumar Vs Naresh Gupta Page 8 of 40 28.02.2014 9 E No. 09/13 that since the respondent has not raised any triable issue , his suit be decreed accordingly. He has denied that Mr. Ramesh Chander is the present landlord / owner of the tenanted premises or that the respondent is continuously / regularly sending or tendering rent Mr. Ramesh Chander. It is stated that he is the owner of the tenanted premises vide registered sale deed dt. 20.08.93 and mutation letter dt. 12.04.2013. It is stated that he in the return of net wealth for the assessment year 20082009 has duly disclosed and declared his rights and status qua the tenanted premises. It is alleged that respondent has illegally and fraudulently procured by impersonation the balance sheet of petitioner with the entire record file. It is further stated that the mere plea of tendering of rent and acceptance by Mr. Ramesh Chander by money order cannot be believed or looked into and is inconsequential and does not raises any triable issue. It is alleged that respondent is falsely feigning ignorance regarding the transfer of rights of the premises and attornment of tenancy in favour of petitioner. It is stated that respondent is aware about the ownership rights of the petitioner and has also tendered rent to his brother Mr. Ved Prakash whose shop is adjacent to tenanted premises. The alleged tendering of rent by respondent to Ramesh Chander is not only malafide and appears to be in collusion with Mr. Ramesh Chander to create false ground. It is stated that respondent is socially attached with him and his brother Ved Prakash for the last more than 20 years and has participated in family functions and marriages and has also availed the services of CA of petitioner for the purpose of his business / Income tax purposes. He has denied that respondent and his family members do not have any other source of income or livelihood except the business run by him in the tenanted premises. He has denied that his son Rajinder Kumar Vs Naresh Gupta Page 9 of 40 28.02.2014 10 E No. 09/13 Deepanshu Aggarwal is settled or engaged in the existing family business. He has further denied that the shop under the name of Bangla Sweets is the family business of petitioner. It is further stated that the income tax return of 20122013 of Deepanshu Aggarwal does not reflect any sufficient income but only marginal / adhoc earnings from commission as reflected in the form 16 A . He has denied that his son Deepanshu Aggarwal is gainfully employed or that he does not require the tenanted premises for bonafide use for opening the businesses of restaurant / eatery. He has denied all the contents of the application for leave to contest as well as the counter affidavit.
5 In the rejoinder filed by the respondent to the said reply of the petitioner, he has altogether brought some new facts and has alleged that petitioner has concealed that he owns shop no. 30, Shaheed Bhagat Singh Marg, New Delhi and the same is used for Bakery business by him. It is further stated that it has come to his knowledge that petitioner jointly owns with his relatives the factory at HSIDC 346, Phase IV sector 57, Kundli, Sonipat. Further, the premises bearing FPS No. 2200, 3/3 Hanuman Road, is also owned by the petitioner and petitioner has given the same on rent. It is alleged that petitioner with malafide intention has delibertaelty concealed the facts pertaining to the said shop which is located in the prime locality of New Delhi. It is further stated that respondent lastly , before filing of the present petition , paid the rent for amount of Rs. 813/ in advance to Sh. Ramesh Chander Sahni who is his landlord for the period of one year ending on August 2013 and the same has been received by him . He has placed on record certain money order slips and receipts in this regard to show that he has been paying rent continuously to Sh.
Rajinder Kumar Vs Naresh Gupta Page 10 of 40 28.02.2014 11 E No. 09/13Ramesh Chander. It is further alleged that petitioner has started using the shop no. 123, Baird Road, allegedly owned by Ms. Kritika Aggarwal for his eatery business jointly with his brother Sh. Ved Prakash who is allegedly the owner of shop no. 125, Baird road, New Delhi. He has further denied all the contents of the reply of the petitioner and reiterated the facts as stated in this application for leave to contest.
6 It is argued by Ld. counsel for petitioner that petitioner is the owner of the tenanted premises vide registered sale deed dt. 20.08.93 and mutation dt. 12.04.2013 and has become landlord by operation of law and since now he requires the tenanted premises for the bonafide requirement of his son Deepanshu Aggarwal his petition be decreed as respondent has failed to raise any triable issue in his leave to contest and counter affidavit. It is further argued that despite purchasing the property in the year 1993, petitioner has waited for long 20 years for this day and has filed this petition only to fulfill the bonafide requirement of his son Deepanshu Aggarwal who has obtained the degree and done course in Hotel Management and now wants to start his business of restaurant / eatery . It is further argued that his son Deepanshu Aggarwal has no other source of income and is dependent upon petitioner for the purpose of property for opening his business. It is further argued that respondent in collusion with the erstwhile owner Sh Ramesh Chander is deliberately tendering the rent by way of money order, despite the fact that he is aware that petitioner is the owner of the tenanted premises vide registered sale deed which has been executed way back in the year 1993. It is further argued that the respondent did not disclosed any alternate property in his application for leave to defend but only to waste the time of the court Rajinder Kumar Vs Naresh Gupta Page 11 of 40 28.02.2014 12 E No. 09/13 has deliberately disclosed the property of other family members of petitioner ie. his brother and father who are neither dependent upon petitioner and alleged that the said properties belongs to petitioner. It is submitted that he has filed the additional affidavit of petitioner in this regard and clarified that the properties as alleged are not owned by petitioner and the property at Kundli is under the partnership firm under the name and style of M/s. Capital Metal Industries which he has already detailed in para 11 of his petition. It is further argued that since the respondent has failed to raise any triable issue against the bonafide requirement of son of petitioner or in respect of any other suitable commercial accommodation available with the petitioner for his son, the application of respondent be dismissed and his petition be decreed accordingly. He has relied upon following judgments:
i) M/s. Devansh Real Estate Pvt. Ltd. V. The Oriental Insurance Co. Ltd.
CS (OS) No. 2686/11 dt. 20.03.2013 Delhi High Court.
ii) Mahendra Raghunathdas Gupta V. Vishwanath Bhikaji Mogul &
Ors. AIR 1997 SC 2437
iii) Mohar Singh (dead) by LRs V. Devi Charan & Ors., AIR 1988 SC 1365
iv) J C Mehra V. Kusum Gupta, 117 (2005) DLT 506
v) Raghunath (dead) V. Chaganlal 1999(8) SCC 1
vi) Ramkumbai (smt. ) V. Hajarimal 1999 (6) SCC 540
vii) Rattan Studio V. Raju Rani Jain, RCR No. 306/12 dt. 06.08.2012, Delhi
High Court
viii) Sait Nagjee Purushotham & Co. Ltd. V. Vimla Bai Prabhu Lal & Ors.
(2005) 8 SCC 252
ix) Labhu Lal V. Sandhya Gupta , 2010 (119) DRJ 599
x) Satish Kumar V. Subhash Chand Aggarwal, RC (Rev.) 479/11 dt.
28.08.2012 Delhi High Court.
xi) A.M Shah V Pushpa Food, 92 (2001) DLT 694
xii) Inderjeet Singh V Harish Chandra , 192 (2012) DLT 124
xiii) Akhileshwar Kumar V Mustaqim & Ors. , 2003 (1) SCC 462
xiv) G S Kapoor V Nand Kumar Bhasin & ors., 2002 (1) SCC 610
xv) T. B Jain V Savita Ravi, 2008 (6) AD Delhi 103 xvi) Dattatraya V Abdul Rasul 1999 (4) SCC 1
xv) Dwarkaprasad V Niranjan 2003 (4) SCC 549 xvi) Mohan Lal V Tirath Ram Chopra & Anr., AIR 1982 Delhi 405 Rajinder Kumar Vs Naresh Gupta Page 12 of 40 28.02.2014 13 E No. 09/13 xvii) Suraj Lamp & Industries Pvt. Ltd. V State of Haryana & Anr.
AIR 2012 Supreme Court 206 7 Per contra, it is argued by the counsel for respondent that since he has raised various triable issues , his application be allowed . It is argued that the respondent has denied the very relationship of landlord and tenant between the petitioner and him as he is still paying rent to the erstwhile landlord ie Ramesh Chander, hence, the petitioner has failed to fulfill the very precondition that he is the landlord/ owner of the tenanted premises. It is further argued that petitioner has deliberately not informed the respondent of any alleged purchase of the tenanted premises and neither issued any notice of attornment to the respondent to let him know that he has become the landlord by operation of law or otherwise. It is further argued that since the respondent has specifically shown the various other alternate accommodations including the adjacent property which is admittedly in the name of daughter in law of petitioner and the other accommodations as specified in the rejoinder, same raises a triable issue and his application be allowed accordingly. It is further argued that the son of petitioner is neither dependent upon petitioner nor wants to open any restaurant at the tenanted premises, as there is no bonafide need either of the petitioner or his son except to get the premises vacated from the respondent. In support of his contentions, respondent has relied upon following judgments:
i) Inderjeet Kaur V Nirpal Singh (2001) 1 SCC 706
ii) Liaq ahmed & Ors V Shri HabeebUrRehman (2000) 5 SCC 708
iii) Uppalapati Veera Venkata Satyanarayanaraju & Anr V Josyula Hanumayamma & Anr. AIR 1967 SC 174
iv) Aggarwal papers V Mukesh Kumar DECD Thr LR's 194 (2012) DLT 605 Rajinder Kumar Vs Naresh Gupta Page 13 of 40 28.02.2014 14 E No. 09/13
v) Deepak Gupta V Suhma Aggarwal dt. 24.07.2013 in RC , Rev. no. 180/2013
vi) John Impex (P) Ltd. V Surinder Singh & Ors.(2003 9 SCC 176
vii) Prahlad Rai Mittal V Rita Devi 196 (2013) DLT 703
viii) Gopal Dass & sons V Dineshwar Nath Kedar 2013 (133) DRJ 468
ix) Kiran Sachdeva & Anr V Pushpa Devi & Anr. 2013 (133) DRJ 725
8 Heard Ld. counsels for the parties and perused the complete record file. Under section 14 (1) (e) of the Delhi Rent Control Act, a landlord/land lady will be entitled to an order of eviction, if, he/she is able to show that
(a) the premises in question were let out for residential purpose or commercial purposes [as per the law laid down by the Hon'ble Supreme Court in Satyawati Sharma v. Union of India and another, 148 (2008) DLT 705 (SC),]
(b) he/she is the landlord/land lady and owner of the suit premises,
(c) the premises is required bona fide by him/her for occupation as residence for himself/herself or any member of his family dependent upon him/her for residence and for any person for whom the premises are held, and
(d) the landlord/land lady or such person has no other suitable residential accommodation.
9 Thus the foremost condition which the landlord has to prove is his bonafide requirement. Further he has to prove that there is no other alternate accommodation available. Thus there are twin requirements which are to be satisfied conjunctively in order to attract the provisions of the Section 14(1)(e) of the Act i.e the bonafide requirement coupled with the reasonably suitable accommodation, Rajinder Kumar Vs Naresh Gupta Page 14 of 40 28.02.2014 15 E No. 09/13 which means that both are to be satisfied together and collectively. While deciding the question of grant of leave, the court has to consider whether the tenant has raised any triable point / issue, the decision of which may disentitle the landlord from recovering possession of the premises.
10 In Precision Steel and Engineering Works v. Prem Deva Niranjan Deva Tayal, AIR 1982 SC 1518 the Hon'ble Supreme Court having discussed the relevant provisions of Act 59 of 1958 held as follows: "The Controller has to confine himself to the affidavit filed by the tenant under subsec. (4) and the reply if any. On perusing the affidavit filed by the tenant and the reply if any filed by landlord the Controller has to pose to himself the only question, `Does the affidavit disclose, not prove, facts as would disentitle the landlord from obtaining an order for the recovery of possession on the ground specified in cl. (e) of the proviso to Section 14 (1)?' The Controller is not to record a finding on disputed questions of facts or his preference of one set of affidavits against the other set of affidavits. That is not the jurisdiction conferred on the Controller by subsec. (5) because the Controller while examining the question whether there is a proper case for granting leave to contest the application has to confine himself to the affidavit filed by the tenant disclosing such facts as would prima facie and not on contest disentitle the landlord from obtaining an order for recovery of possession. At the stage when affidavit is filed under subsec.(4) by the tenant and the same is being examined for the purpose of subsec.(5) the Controller has to confine himself only to the averments in the affidavit and the reply if any and that become manifestly clear from the language of subsec. (5) that the Controller shall give to the tenant leave to contest the application if the Rajinder Kumar Vs Naresh Gupta Page 15 of 40 28.02.2014 16 E No. 09/13 affidavit filed by the tenant discloses such facts as would disentitle the landlord from recovering possession etc. The jurisdiction to grant leave to contest or refuse the same is to be exercised on the basis of the affidavit filed by the tenant. That alone at that stage is the relevant document and one must confine to the averments in the affidavit. 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 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."
11 In Sarwan Dass Bange v. Ram Prakash, 2010 IV AD (Delhi) 252, it has been observed by the Hon'ble Delhi High Court as follows:
"............However, merely because the tenant so disputes and controverts the pleas of the landlord does not imply that the provisions of summary procedure introduced in the Act with respect to ground of eviction on the ground of requirement is to be set at naught. The Controller is required to sift/comb through the application for leave to defend and the affidavit filed therewith and to see whether the tenant has given any facts/particulars which require to be established by evidence and which if established would disentitle the landlord from an order of eviction. The test is not of the tenant having controverted/denied the claim of the landlord and thus disputed questions of fact arising; the test is to examine the pleas of facts and then to determine the Rajinder Kumar Vs Naresh Gupta Page 16 of 40 28.02.2014 17 E No. 09/13 impact thereof."
12 Thus while deciding the question of leave, the controller is not required to conduct a full fledged trial but only to see from the affidavit of the tenant, as to whether any triable point / issue the decision of which may disentitle the landlord from recovering the possession of the premises is disclosed. The Controller is not required to seek the proof of the defence of the tenant but only to see whether any triable issue is raised by the tenant or not.
13 As regards the question of petitioner being the owner / landlord and the relationship of landlord and tenant between the parties, same is challenged by the respondent. It is stated by the respondent that petitioner is neither the owner nor the landlord of the tenanted premises as he is tendering rent and has tendered rent till 31.12.2012 to Ramesh Chander ie the erstwhile landlord of the premises. On the contrary petitioner has stated that he is the owner of the tenanted premises vide registered sale deed dt. 20.08.1993 and mutation letter dated 12.04.2013. Petitioner has placed on record the copy of the registered sale deed dt. 20.08.1993 and has further relied upon the page 4 of the said sale deed wherein he has been handed over the proprietary possession in respect of the tenanted premises, which was actually in possession of Sh. Mitthan Lal. The fact that the erstwhile owner of the tenanted premises is Ramesh Chander and the father of respondent Sh. Mitthan Lal was inducted as tenant by him and not the petitioner is admitted. The question which is for consideration is whether petitioner is the owner of the tenanted premises by virtue of registered sale deed dt. 20.08.93 and whether he is the landlord in respect of the tenanted premises.
Rajinder Kumar Vs Naresh Gupta Page 17 of 40 28.02.2014 18 E No. 09/1314 Section 54 of Transfer of Property Acts reads as under :
" Sale" is a transfer of ownership in exchange for a price paid or promised or part paid and part promised.
Such a transfer, in case of a tangible immovable property of the value of Rs. 100/ and upwards , or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immovable property, of a value less than Rs. 100/ , such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs ; in possession of the property.
A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not , of itself, create any interest in or charge on such property.
15 Thus the definition indicates that in order to constitute a sale, there must be a transfer of ownership from one person to another , ie , transfer of all rights and interests in the properties which are possessed by that person are transfered by him to another person. The transferor cannot retain any part of his interest or right in that property or else it would not be a sale. Even if the whole of the price is not paid but the document is executed and thereafter registered, if the property is of the value of more than Rs. 100/, the sale would be complete. The real test is the intention of the parties. In order to constitute a "Sale", the parties must intend to transfer the ownership of Rajinder Kumar Vs Naresh Gupta Page 18 of 40 28.02.2014 19 E No. 09/13 the property and they must also intend that the price would be paid either in presenti or in future . The intention is to be gathered from the recital in the sale deed, conduct of the parties and evidence on record (reliance placed on the judgment titled as Vidyadhar Vs. Makikrao , AIR 1999 SC 1441).
16 Thus once necessary ingredients are complied with and possession of the property is delivered to the proposed transferee, then neither the actual owner nor his successor in interest has any right to enforce against the transferee in respect of the immovable property except those specified by the agreement to sell itself. Hence, in order to constitute the sale, the parties must intend to transfer the ownership and the intention is to be gathered from the recital in the sale deed. The petitioner has placed on record the photocopy of the registered sale deed dt. 20.08.1993 executed by Sh. Ramesh Chander in his favour for a sum of Rs. 90,000/ . At page 4 of the said sale deed it is specifically stated :
"That the said shop is in occupation and possession of Shri. Mithan Lal as tenant on a monthly rent of Rs. 67.75 P. That the proprietary possession of the said shop has been delivered by the vendor to the vendee.
That the vendee is fully entitled to receive the rent from the said tenant from the date of the registration of this sale deed onwards and to deal with the said tenant directly, to get the said shop vacated from the tenant according to law."
17 Thus from the said recital in the sale deed it is evident that the proprietary possession of the tenanted premises along with the Rajinder Kumar Vs Naresh Gupta Page 19 of 40 28.02.2014 20 E No. 09/13 tenancy which was in favour of Sh. Mitthan Lal was transferred by Sh. Ramesh Chander in favour of petitioner, so was the right to recover rent. The said sale deed has not been challenged till date by either of the parties to the sale deed or any third person. Further, the respondent in the entire application for leave to contest has not alleged that the sale deed is fraudulent or forged or fabricated document.
18 In Sushil Kanta Chakarvarty Vs. Rajeshwar Kumar , 79 (1999) DLT 210, it has been held "that in case of a petition u/s. 14 (1) (e) of the Act, in order to show the ownership, it is not necessary to show absolute ownership. The legislature used the word "owner", in section 14 (1) (e) not in the sense of absolute owner, but it was used in contra distinction with a landlord as defined in the Act who is not an owner but who owns the property for the benefit of another person and merely collects the rent. If the person collected the rent for himself and for his own benefit and the property is his own even in the loose sense and no one is claiming rights over the property, then he is considered as owner for the purpose of section 14 (1) (e) of the Act. Even possessory rights over the property of a person have been given recognition as ownership visa vis tenant under Delhi Rent Control Act."
19 Hon'ble Supreme Court of India in Shanti Sharma and Ors. Vs. Ved Prabha and Ors 33 (1987) DLT 80 had the occasion to consider the import of word owner in context of section 14(1) (e) of Delhi Rent Control Act and observed as under:
"..................................................... this Act has been enacted for protection of the tenants. But at Rajinder Kumar Vs Naresh Gupta Page 20 of 40 28.02.2014 21 E No. 09/13 the same time it has provided that the landlord under certain circumstances will be entitled to eviction and bonafide requirement is one of such ground on the basis of which landlords have been permitted to have eviction of a tenant. In this context, the phrase "owner" thereof has to be understood, and it is clear that what is contemplated is that where the person builds up his property and lets out to the tenant and subsequently needs it for his own use , he should be entitled to an order or decree for eviction , the only thing necessary for him to prove is bonafide requirement and that he is the owner thereof. In this context what appears to be the meaning of the term "owner" is vis a vis with the tenant ie the owner should be something more than the tenant"..... It is not the concern of the tenant as to how the landlord acquired the property .
20 Hon'ble High Court of Delhi in the judgment titled as J C Mehra Vs. Kusum Gupta decided on 26.05.2003, in detail has discussed the issue as to whether a person who purchases a property by means of an agreement to sell for consideration along with possession (or the right to recover rent), and power of attorney can seek to evict the person after five years of execution of such documents in his favour and has held in para 19 of the said judgment that :
" it is not right to say that it needs a tenant's consent to attornment before the delivery of possession takes place. Once possession or right to recover rent has been handed over, it is sufficient delivery of possession. Delivery of possession does not have to be physical. In these circumstance, i.e for power of attorney sales, so long as the right to recover rent has been handed over, it is sufficient.Rajinder Kumar Vs Naresh Gupta Page 21 of 40 28.02.2014 22 E No. 09/13
The question is transfer of that right. Whether consequent to such transfer, the transferee exercises these rights or not is not germane because it is transfer of that right and not exercise of it that is relevant or matters....................................................... The law Lexicon by P. Ramantha Aiyer , 2nd Edition 1997 (Page 1848) defines symbolic delivery as under:
" Symbolic delivery is a substitute for actual delivery when the latter is impracticable and leaves the real delivery to be made afterwards. As between the parties, the whole title passes by such delivery, when that is their intention."
Further in para 20 of the said judgment , it has been held that :
"If .................................. If a property is tenanted , the sale thereof by any accepted mode does not have to be dependent or await attornment by the tenant . It depends on the agreement to sell, full payment and transfer of right to recover the rent as distinct from sending a letter of attornment to the tenant. The contention of the petitioner that asking the tenant to attorn is imperative , may now be tested. If attornment letter is not sent by the purchaser would it mean that only after giving information the power of attorney sale would be complete or that the statutory authorities would assess the previous owner and not the purchaser as the owner. The answer to each is in negative. To my mind omission to ask the tenant to attorn cannot be fatal or postpone the actual sale till that is done."
21 In the present case, it has not been pleaded that there was any fraud in executing the sale deed or that the sale was executed in order to get rid of the respondent. The sale deed was executed way back in the year 1993 and the present petition has been filed in the year Rajinder Kumar Vs Naresh Gupta Page 22 of 40 28.02.2014 23 E No. 09/13 2013. Interest was thus created in the property i.e the tenanted premises in favour of the petitioner in the year 1993 itself . Proprietary possession was also handed over so was the right to recover rent. Thus the petitioner acquired the premises by transfer vide registered sale deed, and got notional possession of the premises which continued to be in possession of the father of respondent, Sh. Mitthan Lal along with him and after death of his father in his exclusive possession being the tenant , for all intends and purposes. The legislature in order to protect the right of tenant in such cases has also stipulated the period of five years and put the restriction on the right of the subsequent purchaser under section 14 (6) of the DRC Act. The fact that the respondent is only a tenant in the rented premises is not disputed. From the sale deed and above discussion, it is evident that title of petitioner is better than that of respondent. Even the possessory rights over the property of a person have been given recognition as ownership viz a viz tenant under Delhi Rent Control Act [reliance placed on Sushil Kanta Chakarvarty's Judgment (Supra )]. Thus the mere denial of respondent regarding the ownership of petitioner does not raises any triable issue, when the petitioner has placed on record the copy of the registered sale deed in his favour and there is no other document to the contrary placed by respondent or plea that the sale deed has been executed fraudulently in order to curb his rights.
22 Now coming to the other argument of the counsel for respondent that petitioner is not the landlord because respondent has never paid rent to petitioner or dealt with him as landlord as he is paying rent to the erstwhile landlord/ owner Sh. Ramesh Chander.
Rajinder Kumar Vs Naresh Gupta Page 23 of 40 28.02.2014 24 E No. 09/13Section 2 (e) of the Delhi Rent Control Act defines the term landlord as under:
"landlord means a person who , for the time being is receiving, or is entitled to receive , the rent of any premises , whether on his own account or on account of or on behalf of , or for the benefit of , any other person or as a trustee , guardian or receiver for any other person , or who would so receive the rent or be entitled to receive the rent , if the premises were let to a tenant."
23 In Mahinder Nath Raghunath Dass V Vishvanath Bhikaji Mogul ( 1997) 5 SCC 329, it was held that "it is well settled that a transferee of the landlord's rights steps into the shoes of the landlord with all the rights and liabilities of the transferee landlord in respect of the subsisting tenancy. The section does not require that the transfer of the right of the landlord cannot take effect only if the tenant attorns to him. Attornment by the tenant is not necessary to confer validity of the transfer of the landlord's rights . Since attornment by the tenant is not required , a notice U/s. 106 in terms of the old terms of lease by the transferor landlord would be proper and so also the suit for ejectment . Attornment would, however, be desirable, as it means the acknowledgment of relation of a tenant to a new landlord. It also implies continuity of tenancy.
24 In Ram Kumar Vs. S K Gulati decided by the Hon'ble High Court of Delhi on 16.09.2013, in para 28, it has been observed that "it is the settled position in law that in a suit between landlord and tenant, it is only the title as landlord which is relevant and not the title as "owner". Further in para 31 it is further observed that " this is as Rajinder Kumar Vs Naresh Gupta Page 24 of 40 28.02.2014 25 E No. 09/13 aforesaid, a litigation between the person claiming to be having rights as owner in an apartment, and the tenant in occupation of the apartment. Once it is found that the person claiming rights in the apartment has rights as per the practice prevalent, even if there may be any imperfections under the law with respect to such title, the said imperfections cannot vest the tenant with a benefit against a person claiming such rights in the apartment and such imperfections would not come in the way of such persons having rights in the apartment, exercising his rights as landlord thereof".
Further in para 35 of the same judgment, it has been held that " I am afraid that the aforesaid contention is also in oblivion of the settled legal position". It has been held in Nalakath Sainuddin Vs Koorikadan Sulaiman , (2002) 6 SCC 1, Mahendra Raghunath Dass Gupta Vs. Vishwanath Bhikaji Mogul (1997) 5 SCC 329 and Mohar Singh Vs. Devi Charan (1988) 3 SCC 63, that on transfer of tenanted premises by the landlord , the transferee automatically becomes the landlord of the tenant by operation of law and the coming into being of the relationship of landlord and tenant between the transferee and tenant is not dependent upon any overt act on the part of the tenant . In the present case , no document of rights if any in the said shop in favour of any other heir of Sh. K R Jolly is shown and thus payment of rent even if any by the appellant / defendant to any other heir of Sh K R Jolly would be of no avail ; as aforesaid it has been established that it was Smt. Chander Mohini Jolly who was the owner of the said shop and who has assigned the same in favour of the respondent / plaintiff and it is thus the respondent / plaintiff alone who will be the landlord.
25 Thus by virtue of registered sale deed and the proprietary possession being specifically handed over to the petitioner along with the right to recover rent, the petitioner became the landlord by Rajinder Kumar Vs Naresh Gupta Page 25 of 40 28.02.2014 26 E No. 09/13 operation of law on the date when the sale deed was executed/ registered. Even as per section 2 (e) of the Act, petitioner being the owner "is entitled to recover rent" and thus qualifies to be the landlord of respondent. The respondent has placed on record photocopy of various money orders and receipts to show that till date he is paying rent to Sh. Ramesh Chander, the erstwhile owner / landlord. Merely because the rent is still being sent to the erstwhile landlord is of no avail as there is specific stipulation regarding the tenancy and proprietary possession being handed over to petitioner in the registered sale deed dt. 20.08.1993. The ground raised by the respondent being strictly legal in character, does not necessitate the holding of a trial. There is no pleading to the effect that the respondent after receiving the notice of the petition sought any clarification regarding the title of the petitioner nor any such document has been filed by the respondent seeking clarification or affidavit on behalf of the erstwhile owner / landlord to the effect that since he is receiving the rent , he is the landlord and not the petitioner. It is already well settled that on transfer of title of the property in occupation of a tenant , the transferee under the law becomes the landlord and no overt act of attornment is required (Supra). The document from which the petitioner is deriving his rights is the registered sale deed and there is no need for requiring proof of the registered document in the absence of any such plea that the said sale deed has been executed fraudulently or with the purpose to curtail the rights of the respondent being the tenant in the premises. The facts of the present case are different from the facts of the case titled as Liaq Ahmed & Ors (supra) relied upon by the respondent as in the said case the property vested in the Custodian Rajinder Kumar Vs Naresh Gupta Page 26 of 40 28.02.2014 27 E No. 09/13 of Enemy Properties of India which could not be alienated or sold by the respondent. Hence, no triable issue is raised in this regard.
26 Now coming to the other aspect as to whether the premises is bonafide required by the petitioner and as to whether he has any other suitable alternate accommodation. These are twin requirements which are to be satisfied conjunctively in order to attract the provisions of Section 14(1)(e) of the Act i.e the bonafide requirement coupled with the reasonably suitable accommodation, are to be satisfied together and collectively.
27 Now coming to the plea of boanfide requirement, it is stated by petitioner that he requires the tenanted premises for opening the business of restaurant/ eatery for his younger son Deepanshu Aggarwal who has obtained the degree in Hotel Management in the year 2012. The bonafide requirement of petitioner is challenged by respondent on two grounds. Firstly, that the petitioner and his sons are well placed in their family businesses / occupation and on the other hand that Deepanshu Aggarwal is already working and is earning handsomely and has placed reliance on the income tax return of Deepanshu Aggarwal for the year 20122013. The fact that petitioner is having two sons is not disputed. It is categorically stated by the petitioner that his elder son Amit Aggarwal is engaged with him in the family business / partnership firm M/s. Capital Metal Industries and the premises is required for the other son Deepanshu Aggarwal. In order to show that his son Deepanshu Aggarwal has completed the course of Hotel Management, petitioner has placed on record the Rajinder Kumar Vs Naresh Gupta Page 27 of 40 28.02.2014 28 E No. 09/13 relevant document i.e the copy of the degree and the certificate of internship completed by Deepanshu Aggarwal. There is no dispute regarding the course of Hotel Management completed by Deepanshu Aggarwal. The tenanted premises is on Bangla Sahib Road, which is famous for eatery joints as number of such joints are located on the said road and are having flourishing business. Even the respondent at the tenanted premises is running the business of restaurant/ eatery.
28 In Sarla Ahuja Vs. United India Insurance Company Ltd. AIR 1999 SC 100, 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 in 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 bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself."
29 In Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta , 1999 (6) SCC 222 it has been observed that " ............ The judge of facts should place himself in the arm chair of the landlord and then ask the question to Rajinder Kumar Vs Naresh Gupta Page 28 of 40 28.02.2014 29 E No. 09/13 himself - whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural , real , sincere, honest . If the answer be in the positive, the need is bonafide. The failure on the part of the landlord to substantiate the pleaded need, or , in a given case, positive material brought on record by the tenant enabling the court drawing an inference that the reality was to the contrary and the landlord is merely attempting at finding out a pretence or pretext for getting rid of the tenant , would be enough to persuade the court certainly to deny its judicial assistance to the landlord.
30 In Sudesh Kumar Soni & Anr. Vs. Prabha Khanna &Anr. 153 (2008), DLT 652 it was held that "it is not for the tenant to dictate the terms to the landlord as to how else he can adjust himself without getting possession of tenanted premisessuitability has to be seen for convenience of landlord and his family members and on the basis of circumstances including their profession, vocation , style of living , habit and background".
31 In Labhu Lal Vs. Sandhya Gupta, 2010 (173) DLT
318, it was held that
"the requirement of the respondents son and
daughter in law for expanding their clinic being run in the premises in question is most bona fide and genuine since they are dependent for accommodation on the respondent".
32 In Kharati Ram Khanna & sons. Vs. Krishna Luthra 172 (2010) DLT 551, it was held that "landlord's requirement of two separate shops for running business by her two sons separately and independently is bona fide and genuine requirement".
Rajinder Kumar Vs Naresh Gupta Page 29 of 40 28.02.2014 30 E No. 09/1333 From the above judgments it is evident that landlord is the best judge of his premises . Petitioner has reasonably explained that the tenanted premises is required for opening the business of restaurant for his son. Merely because the son of petitioner ie Deepanshu Aggarwal is earning and filing income tax returns does not leads to the inference that his requirement is not bonafide or that he shall not start the business of restaurant/ eatery as stated in the petition. Hon'ble Supreme Court in Raghunath G Panhale (dead) by Lrs V Chagganlal Sundarji & Co. (1999) 8 SCC 1 held that:
" a landlord need not lose his existing job , nor resigned it , nor reached a level of starvation to contemplate that he must get possession of his premises for establishing a business. . One cannot imagine that a landlord who is in service should first resign his job and wait for the unknown and uncertain result of a long drawn litigation. If he resigned his job, he might indeed end up in utter poverty. Joblessness is not a condition precedent for seeking to get back ones premises. For that matter assuming the landlord was in a job and had not resigned it or assuming that pending the longdrawn litigation he started some other temporary water business to sustain himself, that would not be an indication that his need for establishing a grocery shop was not a bonafide or a reasonable requirement or that it was motivated or was a mere design to evict the tenant. It is not necessary for the landlord to adduce evidence that he had money in deposit in a bank nor produce proof of funds to prove his readiness and willingness as in a suit for specific performance of an agreement of sale of immovable property".Rajinder Kumar Vs Naresh Gupta Page 30 of 40 28.02.2014 31 E No. 09/13
34 In Ram Babu Aggarwal Vs Jay Kishan Das 2009 (2) RCR 455 It was held that "we are of the opinion that a person can start a new business even if he has no experience in the new business. That does not mean that his claim for starting the new business must be rejected on the ground that it is a false claim. Many people start new businesses even if they do not have experience in the new business and some times they are successful in the new business also".
35 In Joginder Pal Singh Vs. Naval Kishore Behal AIR 2002 SC 2256:
"24.......... Keeping in view the social or 'socioreligious milieu and practices prevalent in a particular section of society or a particular region, to which the landlord belongs, it may be 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 . If the requirement is of actual user of the premises by a person other than the landlord himself the court shall with circumspection inquire: (i) whether the requirement of such person can be considered to be the requirement of the landlord, and
(ii) whether there is a close interrelation or identify nexus between such person and the landlord so as to satisfy the requirement of the first query. Applying the overlaid tests to the facts of the present case it is clear that the tenancy premises are required for the office of the landlord's son who is a chartered accountant. It is the moral obligation of the landlord to settle his son well in his life and to contribute his best to see him Rajinder Kumar Vs Naresh Gupta Page 31 of 40 28.02.2014 32 E No. 09/13 economically independent.
36 In Ramkubai & Ors V Hajarimal Dhokalchand Chandak & ors. JT 1999 (5) SC 630 it was observed that :
" B was unemployed on the date of filing of the suit but in the meanwhile started some business and in that context , their lordships held that he cannot be expected to idle away the time by remaining unemployed till the case was finally decided. It was held that if the eldest son was carrying on business along with his mother, that does not mean that his need has not been established for starting his own business."
37 Thus it is well settled law that the requirement or need not be fanciful or unreasonable. It cannot be a mere desire and must be something more than a mere desire but need not certainly be a compelling or absolute or dire necessity. It may be a need in praesenti or within a reasonable proximity in the future. Petitioner has categorically stated that his son Deepanshu Aggarwal has completed his course in Hotel Management and wants to start his business of restaurant and eatery in the tenanted premises. The fact that Deepanshu Aggarwal has completed his course and obtained degree in Hotel Management in the year 2012 is not disputed. It is natural that after doing the course in Hotel Management, Deepanshu wants to take the said vocation and settle in some job / profession / business in relation to Hotel Management. He after obtaining the specific degree in Hotel Management cannot be expected to do some other business or probably join the partnership firm of his father i.e M/s. Capital Metal Industries. It is quite natural that the petitioner would like to settle his Rajinder Kumar Vs Naresh Gupta Page 32 of 40 28.02.2014 33 E No. 09/13 sons in separate businesses without interference of each other. Respondent has only placed on record the ITRs of Deepanshu for the year 20122013 and not before that. The reason for the same might be that he was studying and pursuing his course of Hotel Management. Merely because he has filed the income tax returns for the year 20122013 does not leads to the inference that he is gainfully employed or cast any doubt on his bonafide as stated in the petition or he is not dependent on the petitioner. Petitioner has categorically stated that his son Deepanshu Aggarwal is dependent upon him for his livelihood and for accommodation. Respondent himself has admitted that sons of petitioner are engaged in the family business/ occupation. Even if it is assumed that son of petitioner is gainfully employed, that does not mean that his claim for starting the new business be rejected on the ground that it is a false claim. Further joblessness or being unemployed is not a precondition to show the bonafide. In the absence of any substantial material brought before the court or pointed out by the respondent in the affidavit, it cannot be said that the present petition for eviction is actuated by malafide or has not been made with bonafide intention. Further, the bonafide requirement of petitioner is established from the fact that despite purchasing the property in the year 1993, he has filed the present petition now when his son has completed the course of Hotel Management and wants to open his own restaurant. The bonafide requirement is further established from the fact that he wants to open restaurant/ eatery for his son on the tenanted premises as he has obtained necessary experience in the said field. On the face of it and from the above discussion, the case of bonafide requirement is made out.
Rajinder Kumar Vs Naresh Gupta Page 33 of 40 28.02.2014 34 E No. 09/1338 Now coming to the plea regarding alternate accommodation. In the entire leave to defend, there is no whisper of any alternate accommodation except the property ie shop no. 123, Baird Lane. Petitioner in his petition has specifically stated that the said shop is in the name of his daughter in law where she intends to open her own business. The respondent has denied the same and stated that the said property has been deliberately purchased by the petitioner in the name of his daughter in law. The fact that the said property is in the name of daughter in law of petitioner i.e Ms. Kritika Aggarwal who is the wife of Amit Aggarwal, the elder son of petitioner is not disputed. The present petition has been filed for the bonafide requirement of the other son Deepanshu Aggarwal. The question for consideration is whether the said property which is in the name of daughter in law of petitioner can be termed as suitable alternate accommodation. The answer is in negative. It is natural that petitioner wants to settle both his sons in their separate businesses without interference of each other. The argument of Ld. counsel for respondent that the said shop is available with the petitioner and is more suitable is misconceived and not tenable and does not raises any triable issue.
39 In Mukesh Kumar Vs. Rishi Prakash , 2009 (2) RCR, 485 it was held that :
" A landlord, while seeking the eviction of a tenant on the ground of bonafide requirement for himself or his family members dependent upon him, is not expected to disclose the manner in which he is utilizing the accommodation available with him, if the accommodation with the tenant in respect of which he Rajinder Kumar Vs Naresh Gupta Page 34 of 40 28.02.2014 35 E No. 09/13 files the eviction petition is required by him for a purpose different from the purpose he is occupying and using the accommodation available with him . For instance the extent of residential accommodation available with the landlord who seeks the eviction of the tenant from a purely commercial or industrial premises, is wholly irrelevant .
40 The respondent in his rejoinder has disclosed three other properties allegedly in the name of petitioner i.e
a) FPS No. 2200, 3/3 , Hanuman Road, New Delhi.
b) Factory at HSIDC, 346, Phase IV, Sector 57, Kundli, Sonepat.
c) Shop No. 30, Shaheed Bhagat Singh Marg, New Delhi.
41 It is argued by the counsel for respondent that since these properties are available with the petitioner, he has other suitable alternate accommodation to meet his requirement , if any. It is further argued that since the petitioner has deliberately not disclosed these properties in his petition, triable issue is raised in this regard, hence his application be allowed accordingly. Per contra, it is argued by Ld. counsel for petitioner that petitioner in para 11 of the petition has categorically stated that he is running his partnership business with his brother under the name and style of M/s. Capital Metal Industries having its office at M 25, Badli Industrial Area, Phase I, Delhi with works / factory at Kundli, Haryana. The land and building where the business of the partnership firm is carried out belongs and vests in the partnership firm. The property at Badli is in joint ownership of his wife and Smt. Surender Kumari ie the wife of his brother Ved Prakash. The Rajinder Kumar Vs Naresh Gupta Page 35 of 40 28.02.2014 36 E No. 09/13 factory at HSIDC 346, Phase IV , Sector 57 , Kundli, Sonepat, Haryana is owned and possessed by partnership firm M/s. Capital Metal Industries and as per the conveyance deed dt. 18.05.2010, it is between HSIDC and partnership firm M/s. Capital Metal Industries. The petitioner has specifically stated that the partnership firm is being run at Badli with office at Kundli. Further respondent himself in the rejoinder has stated stated that it has come to his knowledge that petitioner jointly owns with the relatives the said factory at Kundli. Hence there is no concealment as pointed out by the counsel for respondent as the petitioner was not required to disclose the property of which he is not the actual owner.
42 As regards the premises bearing FPS No. 2200, 3/3, Hanuman Road, New Delhi is concerned. It is submitted by the petitioner in his detailed affidavit that it is a tenanted premises which was earlier under the tenancy of father of petitioner and now after his death, petitioner is running the business of ration shop under the licence which has been transferred in his name. He has further placed on record the photographs of the said premises and stated that the same is in such a dilapidated condition that no business of restaurant/ eatery can be opened on the same and further the same being the tenanted premises, he does not has the requisite permission. I have perused the photographs of the said premises filed along with the detailed affidavit. The said premises being tenanted premises cannot be termed as suitable alternate accommodation available with the petitioner, hence, no triable issue is raised in this regard also.
43 As regards the property ie. Shop no. 30, Shaheed Bhagat Rajinder Kumar Vs Naresh Gupta Page 36 of 40 28.02.2014 37 E No. 09/13 Singh Marg, New Delhi, petitioner has placed on record the copy of agreement to sell, GPA and receipt of the said property. The agreement to sell and receipt is in the name of his brother Ved Prakash while GPA is in the name of the petitioner. It is well settled law that a power of attorney is not an instrument of transfer in regard to any right , title or interest in an immovable property. The power of attorney is creation of an agency and is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee (reliance placed on the the judgment titled as Suraj Lamp & industries Pvt. Ltd. Vs State of Haraya, AIR 2012 SC 206).
44 Thus from the above discussion, it is evident that the respondent has made preposterous claims in respect of accommodation available with the petitioner and included in this the areas which are not owned by the petitioner. The respondent has deliberately tried to show that the property no. 30, Shaheed Bhagat Singh road is owned by respondent when the agreement to sell and receipt is specifically in the name of Ved Prakash ie the brother of petitioner. Only the GPA itself does not creates any right of ownership or otherwise in favour of the holder .
45 It is settled law that landlord is the best judge of his requirement and has complete freedom in the manner of beneficial enjoyment of his property, once it is not disputed that his requirement is bonafide. The petitioner has specifically pleaded that he needs the tenanted premises for starting business for his son Deepanshu Rajinder Kumar Vs Naresh Gupta Page 37 of 40 28.02.2014 38 E No. 09/13 Aggarwal . He has specifically stated that his son Deepanshu Aggarwal has done the course of Hotel Management and obtained relevant expertise and knowledge and now wants to settle his own independent business of restaurant/ eatery. He has specifically stated that he has no other suitable commercial accommodation for opening restaurant/ eatery for his son. From the above discussion, this court is satisfied that need of petitioner is bonafide and appears to be sincere and honest and not a mere pretext to evict the respondent/ tenant. The tenanted premises ie the shop no. Shop no. 129 , Plot no. 1, Block no. 88, Baird Road (now known as Bangla Sahib Road) is the most suitable to meet the requirement of petitioner for opening the business of restaurant / eatery for his son Deepanshu Aggarwal.
46 Now coming to the other argument of Ld. counsel for respondent that since tenanted premises is the only means of earning and livelihood of respondent and his family, a lot of hardship shall be caused to him if his application is dismissed or the suit of the petitioner is decreed. The concept of comparative hardship has no application so far as ground of eviction U/s. 14 (1) (e) of the Act is concerned. Hence, the argument of the Ld. counsel for respondent is untenable. In the case of Mohd. Ayub Vs. Mukesh Chand, (2012) 2 SCC 155 it was observed that the hardship which appellant would suffer by not occupying their own premises would be far greater than the hardship respondent would suffer by having to move out to another place.
47 In Subhash Jain Vs Ravi Sehgal decided on 04.02.2014, Hon'ble High Court of Delhi has observed Rajinder Kumar Vs Naresh Gupta Page 38 of 40 28.02.2014 39 E No. 09/13 "we are mindful of the fact that whenever the tenant is asked to move out of the premises some hardship is inherent. But in our opinion, in the facts of this case, that circumstance cannot be the sole determinative factum . That hardship can be mitigated by granting him longer period to move out of the premises in his occupation so that in the meantime he can make alternative arrangement". Hon'ble High Court of Delhi in the said judgment granted one year time to the petitioner to vacate the premises.
48 From the above discussion and in the given facts and circumstances, petitioner has been able to show that he is the owner and has the status of landlord in the tenanted premises . He has no other alternate accommodation, the tenanted premises is the only most suitable commercial shop which is available to him which he can provide to his son Deepanshu Aggarwal for meeting his bonafide requirement i.e. carrying out the business of restaurant / eatery. There is no triable issue raised by the respondent to allow his application to contest the present eviction petition. The application for leave to contest is accordingly dismissed. As a result of the dismissal of the application for leave to contest, the petitioner is entitled to recover the possession of the tenanted premises i.e. Shop no. 129 , Plot no. 1, Block no. 88, Baird Road (now known as Bangla Sahib Road), measuring about 588.7 sq ft as shown red in the site plan attached with the petition. The eviction petition is allowed. No order as to costs. File be consigned to record room.
49 In view of provisions of sub section 7 of Section 14 of the Rajinder Kumar Vs Naresh Gupta Page 39 of 40 28.02.2014 40 E No. 09/13 Act, this order for recovery of possession of premises shall not be executed before the expiration of the period of six months from this date. The respondent is further restrained not to sublet or create any third party interest during the aforesaid period of six months.
50 Needless to say that respondent shall also handover the possession of the tin shed constructed by him in the tenanted premises which did not form part of the same when it was let out as there is no dispute regarding the same despite specific pleading by the petitioner and is also evident from the photographs filed by both the parties. Present petition is disposed of accordingly. File be consigned to record room.
ANNOUNCED IN OPEN ( KIRAN GUPTA )
COURT ON 28.02.2014 SCJCUMRENT CONTROLLER
PATIALA HOUSE COURTS:NEW DELHI
Rajinder Kumar Vs Naresh Gupta Page 40 of 40