Delhi District Court
Shri Roop Chand Aggarwal vs Sh. Mohan Lal on 18 June, 2020
IN THE COURT OF SH. SUSHANT CHANGOTRA RENT CONTROLLER (SOUTH), SAKET COURTS, NEW DELHI RC ARC 6240/16 1. Shri Roop Chand Aggarwal S/o Late Shri Narphoal Ram R/o F-74, Green Park (Main), IInd Floor, New Delhi-] 10016, 2. Shri Raj Kumar Aggarwal S/o Sh. Hazari Lal, R/o F-74, Green Park (Main), Ground Floor, New Delhi-110016. wa. Petitioners Versus. Sh. Mohan Lal Late Sh. Chetan Das R/o S-13, [Ind Floor, Green Park (Main) New Delhi-110016 ... Respondent _ PETITION UNDER SECTION 14(1) (E) READ WITH SECTION 25-B OF DELHI RENT CONTROL ACT, 1958 Date of Institution of the petition : 10.01.2013 Date of Pronouncement of Judgment : 18.06.2020 JUDGMENT
1. The brief facts of the case of petitioners are that the petitioners purchased the entire building bearing no. $-14, Green Park (Main), New & Delhi in the year 2003. The ground floor of the said building comprises of
--* RCARCNO, 624016 Roop Chand Aggarwal & Avr. Vs, Mohan Let Page Tt of 38 Scanned with CamScanner two different shops bearing nos, §-14/A and $-14/B, Green Park (Main). The tenanted premises i.e, shop no. 8-14/A, Green Park ( Main) measures 19°6" X 10°10 4". It is part of the building S14, The verandah in front of the shop measuring 7 feet 6 Inches X 12 feet was covered at the lime of its purchase and the same is also part of the tenanted premises, At the time of iis purchase, the shop no. $-I4/A was in occupation of the respondent/tenant who was inducted in the tenanted shop vide unregistered rent agreement dated 01.12.1984 by earlier owners of the property. After the petitioners purchased the shop in the year 2003, the respondent attormed petitioners as owners/ landlords and started paying rent to them.
2. The shop in question/tenanted shop is required by the petitioners for starting their own business of modem grocery shop. The petitioners are the owners of tenanted shop i.e. S-14/A, Green Park (Main), New Delhi. The tenanted shop was let out to the respondent for commercial purpose/running a shop for Rs, 320/- per month exclusive of other charges. The electricity charges are paid by the respondents directly to the authorities. The respondent is running a confectionery shop in the tenanted premises and 3-4 employees are working with him.
3. The petitioner no,1 is the real uncle of petitioner no.2. The petitioner no.! is aged about 63 years and petitioner no.2 is aged about 48 years, The _ petitioners are working in rented grocery shop of Sh. Hazari Lal, who is father of petitioner no.2 and brother of petitioner no. 1,
4. The petitioners are also the owners of shop no. $-14/B, Green Park RCARC NO. 6246/16 Roop Chand Aggarwal & Aur, Ve, Mohan Lal Page 2 of 30 (he Scanned with CamScanner (Main) wherein they are doing the packing work. The said shop is not sufficient to start the business of modern grocery shop with proper display. They require shop no. S-14/B and shop no, 8-14/A in order to start a modern grocery shop. The petitioners will remove the internal wall between shop no. $-14/A and $-14/B to start the business in the said shops making the same as one shop i.e. S-14, The petitioners own only ane building i.e. bearing no, S-14, which comprises of two shops on the ground floor ie. $-14/A and S-14/B and the shop in question is easily approachable and accessible from their house. The shop in question is required by the petitioners for running a modern grocery shop, The petitioners need more space than what is available with them in 5-14/B, Green Park (Main) and they need more space, Though the petitioners are in possession of shop S-14/B, but they will start the business in both the shops simultaneously by removing the intervening wall between the two shops. Therefore, they require the shop in question for their bonafide need of starting the business of grocery.
5, The petitioners also pleaded that they have requisite expertise and knowledge in the business of grocery and general merchants as they have been assisting Sh. Hazari Lal in his business at his shop, The petitioner 'no. is assisting his brother for last about 30 years and petitioner no.2 is assisting his father in his tenanted shop for the last about 20 years, |
6. It is further contended that the respondent is residing in the adjoining ~ property bearing no, S-13, Nnd Floor, Green Park (Main), New Delhi, The RCARC NO, 6240/46 os Roap Chand Aggarwal & An, Pe. Molen Lat Page 3 af 40 Pont Scanned with CamScanner said property and the property in question are meant for commercial use, however, the respondent is using the property no. 8-13 for residence which is against the usage of the property as per rules and regulations of governing body. The respondent is illegally running a bakery unit for manufacturing cakes, pastries, ete. on the roof above the 2™ floor of property no. S-13 by endangering the life of the people of the vicinity.
7. In June, 2012, the petitioners had let out the first and second floor of property no. 8-14, Green Park to Sh. Prem Israni for running a beauty salon under the name 'Gitanjali'. The first and second floor cannot be used for running a grocery shop as in the grocery business the goods have to be displayed in order to attract the customers and all types of customer including old aged people, who cannot climb the stairs will come. Hence, the present eviction petition has been filed.
8. In response to the aforesaid petition, respondent filed application u/s 25-B (4) of DRC Act for grant of leave to defend, which was allowed by the Ld. Predecessor of the Court vide order dated 14.01.2015.
9. Subsequently, respondent filed his written statement and took preliminary objections. He pleaded that the present petition is not maintainable as the petitioners have not disclosed the true and complete facts. The petitioners have filed this malafide petition by suppressing material facts. The alleged requirement of the shop in. question is not the bonafide need of the petitioners and it is only their desire. The eviction petition does not disclose the cause of action. The petitioners have not.
RC ARC NO. 6240/16 . Roop Chand Aggarwal & Anr. Vs. Mohan Lal Page 4 of 30Scanned with CamScanner come to the court with clean hands and have played fraud upon the court.
The petitioners have deliberately concealed the size of shop no. 14B. The size of Shop no 14B is 24' x 60° minus (-) portion under the possession of the respondent Le. five times the area under the possession of the respondent. The petitioners have also concealed the fact that shop no. 14B is lying vacant. The respondent is having possession of area of 281.44 sq. feet, however, by way of site plan, petitioners are trying to project that petitioners are in possession of only similar size shop as that of the respondent. The petitioners are in possession of more than 1200 sq. feet of area of ground floor which is lying vacant. The tenanted premises has not been let out by the petitioners to the respondent. There is sufficient accommodation available at the back side of both the shops. The intention of the petitioners only to get the tenanted premises vacated and to re-let the same on higher rent.
10. The entire ground floor except the tenanted portion of property bearing no, S-14, Green Park (Main), New Delhi is in exclusive possession of the petitioners. The said portion is being used for commercial purposes by the petitioners and the entire said portion is lying vacant. The petitioners have not been able to put the said portion to use to the optimum level.
11. Sh. Hazari Lal (who is father of petitioner no.2 and brother of petitioner no.1) is 73 years of age and is not coming to the shop nor he is running his business as he is suffering from various old age diseases. The business of M/s Rajdhani Provisional & General Store is being run by the RC ARC NO. 6240/16 Roop Chand Aggarwal & Anr. Vs. Mohan Lat a Page § af 30 Ge Scanned with CamScanner petitioners themselves in the capacity of partners and they are earning handsome income from the said business. Petitioners also run business under the name and style of Rajdhani Realtors from shop No. 14B, Green Park (Main), New Delhi.
12. The owner of the property is Sh. Mohan Lal and Trilok Nath and petitioners are collecting the rent on behalf of Sh. Mohan Lal and Trilok Nath as collecting agents. In the year 2003, Sh. Mohan Lal and Sh. Trilok Nath required the respondent that rent be paid to petitioners as they are unable to come due to their difficulty. Thereafter, at the instance of Sh.
Mohan Lal and Sh. Trilok Nath, the rent was paid to the petitioners but not as owners but as agents. The petitioners are intending to sell the property as prices have shot-up beyond proportions. The petitioners have approached various property dealers for selling the property, who advised them to vacate the property from tenant for fetching highest market price.
The alleged need of the petitioners is not their present need. The petitioners have not placed on record the true site plan with respect to the area available to thern and of property no.14, Green Park, Main, New Delhi.
13. The ground floor portion coupled with the first floor and second floor portion makes a huge space for starting the alleged modern grocery | shop. The petitioners have intentionally and deliberately not disclosed the entire accommodation available with them. The petitioners admitted that they are the persons of means and have knowhow of the alleged business and their present business is successful. The petitioners are also in RCARCNO. 6240/16 . Raop Chand Aggarwal & Anr, Vs. Mohan Lal Page 6 of 30 Scanned with CamScanner aveupation af the adjoining property no. §-9 and are having aceummodation of two more shops in the same lane and are also having posseseion thereat because they are storing their goods of the business of premises hearing no, S-15A in said shops. The petitioners are also in Heeupation of the first floor and second floor of property bearing no. S-18. Green Park, New Delhi, They also have property bearing no, 618, DSIDC Shed, Phase-2, Okhla Industrial Area, New Delhi. The petitioners are having another property situated at 132, Pocket-G, Sector-11, Bawana Industrial Area, New Delhi, ld. The respondent had undertaken extensive research with regard to the modern grocery shop and has found that in the nearby locality and in similarly situated localities are number of modern grocery shops which are running on the first and second floor with little space on the ground floor. There is one shop by the name of Harmilapi Store situated in Malviya Nagar Market, New Delhi which has small space on the ground floor and after taking stairs everyone can go to the first floor opening in a big hall where grocery items are on display. The petitioners could have very well started the same using their ground floor which is available to them apart from first floor and second floor.
15. The petitioners allege themselves to be the employees of grocery shop run by Sh. Hazari Lal, however, the petitioners have also alleged that they had purchased property n. S-14 for total consideration of Rs.54,00,000/- inclusive of stamp duty. It fails to appeal to the sense of RC ARC NO, 6240/16 Roop Chand Aggarwal & Anr. Vs, Mohan Lat Page 7 of 30 \ Scanned with CamScanner © any reasonable person that an employee of grocery shop is able to purchase the property worth Rs.50,00,000/-. Respondents denied remaining averments of the petition and prayed that petition may be dismissed with special compensatory costs as provided under Section 35-A of CPC. The respondent also filed additional affidavit i statement.
n support of his written
16. The petitioners filed replication and thereby denied the averments of written statement and reiterated the averments of petition. The petitioners also took alternative plea that in future in case any dispute arises interse themselves, then they can divide the shop in equal shares.
17. After completion of pleadings, matter was fixed for petitioner's evidence. Petitioners examined four witnesses in support of their case. pWw- 1 Sh. Roop Chand Aggarwal stepped into the witness box as PW-1. He tendered his evidence by way of affidavit Ex.PW1 /A, He also relied upon documents i.e. Ex.PWI/1 to Ex.PW1/7, Ex.PW1/9, Ex.PWI/10 and Mark- A. He was cross-examined.
{8. Sh. Raj Kumar Aggarwal also examined himself as PW2. He tendered his evidence by way of affidavit Ex.PW2/A, He also relied upon documents already Ex.PW1/1 to Ex.PWI/10. He was also duly crass- examined.
19. PW3 Sh. Jagpal Singh Malik, Senior Assistant, Sub-Registrar-VA, Hauz Khas, Mehrauli, New Delhi proved the sale deed dated 13.09.2012 registered at no. 1013, Book No.1, Vol. NO. 50, Page 30 to 42 repistered RCARC NO. 61016 Roop Chand Aggarwal & Anr, Ve. Mohan Lal WV Page # af 30 Scanned with CamScanner on 13.09.2012 Ex.PWS3/l. He also proved sale deed dated 29.04.2015 registered at No. 2315, Book No.i, Vol. No. 1025, page 170 to 182 registered on 01.05.2015 Ex.PW3/2. He was also cross-examined.
20. PW-4 Sh. Narender Kumar, Record Keeper, Sub-Registrar-V, Mehrauli, New Delhi proved the photocopy of sale deed dated 22.07.1997 registered at No. 7521, Book No.1, Vol. No. 1204, page 122 to 127 Ex.PW4/i and also proved the photocopy of sale deed dated 22.07.1997 registered at No. 7522, Book No.1, Vol. No. 1204, page 128 to 135 127 Ex.PW4/2, both registered on 22.07.1997. Then, PE was closed on 04.04.2018.
21. Respondent no.l appeared as RW-1 and tendered his affidavit Ex.RWWUA. He was cross-examined. Thereafter, respondent's evidence was closed on 17.07.2019.
22. Ihave heard the arguments of Id. counsels for the parties at length. I have also gone through the written submissions and judgments relied upon by both the parties and evidence on record very carefully.
23. The present petition has been filed under section 14 (1) (e) DRC. It is reproduced below:-
"Section 14 {1} fe): Notwithstanding anything ta the contrary contained in any other law or contract, no order of decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant:
_ Provided that the Controller may, on an application made to him in "RCARCNO. 624016 | Roop Chand Aggarwal & Anr, Fe Mohan Lal _ Page 9 af 30 Scanned with CamScanner the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely? ~
(e) That the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonable suitable residential accommodation. "
24. In order to succeed in the case u/s 14 (1) (e) of DRC Act, the petitioners are required to prove the following ingredients: -
(a) Ownership in respect of tenanted premises;
(b) Relationship of landlord and tenant between the parties;
(c) Petitioners require the tenanted premises for their bonafide need and necessity or necessity of their family members;
(d) Petitioners do not have any other alternative accommodation with therm.
OWNERSHIP IN RESPECT OF TENANTED PREMISES & RELATIONSHIP OF LANDLORD AND TENANT BETWEEN THE PARTIES. |
25. At first, it will be worthwhile to have a look at the settled proposition of law with regard to proof of ownership in the petition under section 14 (1) (¢) of DRC Act. In Dr: Jain Clinic Pvt. Ltd. Vs. Sudesh Kumar Dass in RCR No. 136/12, it has been held that, "Yt is settled Jaw that in the RCARC NO. 6240/16 -- . Roop Chand Aggarwal & Anr, Fs, Mohan Lal Page Waf 30 Scanned with CamScanner context of Delhi Rent Control Act, what appears to be the meaning of the term 'owner" is that vis-a-vis the
26. tenant i.e. the owner should be something more than the tenant." The position in law is that "The ownership" of the landlord. for the purpose of maintaining a petition U/See, 14(1)(e) of the D.R.C. Act is not required te be a absolute ownership of the property and it is sufficient if the landlord is a person who is collecting the rent on his own behalf. The imperfectness of the title of the premises can neither stand in the way of an eviction petition UsSee. 14(1)(e) of the Act, nor can the tenant be allowed to raise the ples of imperfect title or title not vesting in the landlord and that too when the tenant has been paying rent to the landlord."
27. Further, in Meenakshi vs. Ramesh Khanna & Anr., 60 (1995) DLT 524, it has been held that, "Mere denial of ownership is no denial at ail. if has to be something more. For this, first and foremost thing which has always been considered as a good guide is does that tenant say whe else is the owner of the premises if not the petitioner? In the present case, the tenant does not say anything except denying petitioner's ownership. The tenant is completely silent on this aspect. Merely by saying that the petitioner is not the owner, the tenant is trying to ensure that the case drags on for years for trial. If leave is granted on the basis of such vague pleas, it will encourage the tenants to deny ownership of the petitioners in every case." Similarly in Ramesh Chand vs. Uganti Devi, 157 (2009) DLT 450, it has been specifically held that, "Jn order to consider the concept of RC ARC NO. 6240/16 Roop Chand Aggarwal & Anr. ¥s. Mohan Laf . Page £F af Scanned with CamScanner ownership under Delhi Rent Control Act, the Court has to see the title and right of the landlord qua the tenant. The only thing fo be seen by the Court is that the landlord had been receiving rent for his own benefit and not for and on behalf of someone else. If the landlord was receiving rent for himself and not on behalf of someone else, he is to be considered as the owner, howsoever imperfect his title over the premises may be. The imperfectness of the title of the premises cannot stand in the way of an eviction petition under Section 14 (1) (e) of the DRC. Aet, neither the tenant can be allowed to raise the plea of imperfect title or title not vesting in the landlord and that too when the tenant has been paying rent ta the landlord. Section 16 of the Evidence Act creates estoppel against such tenant. A tenant can challenge the title af landlord only after vacating the premises and not when he is occupying the premises".
Therefore, the parameters for adjudicating the defence of lack of title of the petitioners has to be adjudicated on the touchstone of the law as referred above.
28. Though the respondent has the right to challenge the title of the subsequent transferee of his landlord, but the standard of proof required for establishing title in the eviction petition varies from the standard of proof required in the civil suit. In Rajender Kr. Sharma & Ors. Ve. Leela Watt & Ors. 155 (2008) DLT 383; it was held "For the purpose of Sec. 14(1)(e) of the DRC. Act, the landlord is not supposed to prove absolute awnership as required under Transfer of Property Act. He is required to shaw anily RCARC NO. 620016 Rasp Chand Aggarwal € tar, he Modow Lal Page Lg Scanned with CamScanner that he iy more than a tenant," Tt has been further held by the Hon'ble Supreme Court in Smt Shanti Sharma & Ors. Vs, Smt. Ved Prabha & Ors. AIR 1987 SC 2028; "For the purpose of Sec. 140) of the Act, ownership is not to be understood as absolute ownership but only a title better than the tenant. So, what is to be seen is whether on the basis of aforesaid facts it ean be said that the petitioner has any title to the property hetter than the respondent."
29, In the present case, the petitioners have pleaded that they had purchased the demised premises from the erstwhile owner vide registered sale deed executed in August, 2003. In the written statement, the respondent admitted that he has been paying rent to the petitioners, but he denied the ownership of the petitioners.
30. In their evidence, the petitioners tendered the copy of sale deed dated 05.08.2003 Ex. PWI/1 vide which the title of the suit property was transferred to them by the erstwhile owner. The respondent in his cross-
examination conducted on 23.01.2019 admitted the petitioners to be the owner of demised premises. Once again, in his cross-examination conducted on 17.07.2019, the respondent admitted execution of sale deed Ex. PW1/1 in favour of petitioners. Therefore, in his evidence, the respondent himself admitted the ownership of the petitioners in respect of demised premises.
3h. As regards the relationship of landlord and tenant between the parties. is concerned it will be worthwhile to have a glance over the ROARC NO. 6240/16 - Roop Chand Aggarwal & Anr. Ms, Mohan Lat Page 13 of 30 Q qe at rn, Sa ey Scanned with CamScanner meaning of landlord under the act ibid. The term landlord has been defined in Section 2 (e) of Delhi Rent Control Act, 1958. It is reproduced below: -
"Section 2 (e) of DRC Act: " landlord" means a person who, for the time being is receiving, or is entitled to receive, the rent af any premises, whether on his own account or on account of or on behalf of, or jor 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 te receive the rent ifthe premises were let to a tenant."
32. In the pleadings as well as evidence, the respondent has admitted that he has been paying rent to the petitioners continuously. Therefore, relationship of landlord and tenant between the petitioners and respondent is also admitted,
33. Hence, in view of the aforementioned discussion it has to be concluded that petitioners have proved to the preponderance of probability that they are the owners of the demised premises and there exists relationship of landlord and tenant between them and the respondent.
PETITIONERS REQUIRE THE TENANTED PREMISES FOR THEIR _ BONAFIDE NEED AND NECESSITY
34. The petitioners have taken two grounds for their bonafide need and necessity. The first ground taken by the petitioners is that they are in possession of the adjoining shop i.e bearing no. S 14-B. However, they.
RCARC NO. 6240/16 Roop Chand Aggarwal & Ann. Ms Mohua lal Page 1 af 30 Scanned with CamScanner require the demised premises for the purpose of opening a grocery shop with a broader frontage which is conducive for their proposed business of modern grocery store. Secondly, in the alternative the petitioners have taken a plea that in case in future, their relationship got strained, then they can divide the shop bearing no. $14 in equal parts with equal frontage.
35. In Shiv Sarup Gupta V. Dr. Mahesh Chand Gupta, AIR 1999 SC 2507, the Hon'ble Supreme Court dealt with the meaning and scope of the term bonafide need. The relevant portion of the judgment is reproduced below:-
"Chambers 20 Century Dictionary defines bonafide to mean 'in good faith? genuine'. The word 'genuine' means 'natural': not spurious:
real: pure :sincere'. In Law Dictionary, Mozley and Whitley define bonafide ta mean 'good faith, without fraud or deceit', Thus the term bonafide or genuinely refers to a state of mind. 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 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 a 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 RC ARC NO, 6240/16 me Roop Chand Aggarwal & Anr. Vs. Mohan Lal ~ Page 15 of 30 Scanned with CamScanner protruding the need of landlord and its bonafides would be capable of successfully withstanding the test of objective determination by the court. The Judge of facts should place himself in the arm chair of the landlord and then ask the question to 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 landlerd was 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. Once the court is satisfied of the bonafides of the need of the landlord for premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the court. The Court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited Jor 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 in short, the concept of bonafide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too RC ARC NO. 6240/16 : Raop Chand Aggarwat & Adar. Pe, Mokon Lal Page 16 af 38 Scanned with CamScanner eg liberal or two conservative or pedantic must be guarded against.
Thus, the question of bonafide need and necessity will be adjudicated on the basis of the aforementioned proposition of law.
Now, I will deal with both the grounds taken by the petitioners separately.
(1) The Main Ground of Bonafide Need and Necessity:
36. In the petition, the petitioners have pleaded that they require the tenanted premises to start the business of modern grocery shop with proper display so that the customers can themselves select and pick the required goods/ merchandise according to their liking, which is the trend in the business of grocery shops now a days. They have also pleaded that though they are in possession of shop bearing no. $14-B, Green Park which is adjoining to the demised premises (which is also the part of shop bearing no. S-14), but they require the tenanted premises so that they can have proper frontage by removing the internal wall separating both the shops i.e. demised premises no. S-14-A and adjoining shop no. $14-B.
37. The respondent has taken a plea that the petitioners do not have any bonafide necessity as they have been in possession of shop bearing no. $14-B and still they did not start the proposed business in it despite the fact that it has larger area then the demised premises. He also pleaded that there is a sufficient space at the backside of both the shops and still it has not been utilized.
38. The case of petitioners has to be seen in totality. The case of RC ARC NO. 6240/16 ; Roop Chand Aggarwal & Anr, Vs, Mohan Lat Page i7 af 38 Scanned with CamScanner petitioners is to the effect that they require the lenanted premises for apening a modern groce4ry shop. This a nniler of common knowledge that mast modem grocery shops in the m alle ete, have proper dieplays, whereby the customers ean select the goods and proceed for billing. 39, The admitted site plan by both the parties Ex, PWI/RI (uhich has been filed by respondent himself) also shows that the shop bearing no. §14-B (in possession of petitioners) has the frontage of 10 x 10.5 feet. {Lis quite common that generally the billing counters of grocery shops are towards the front side. Therefore, a customer cannot be expected to bring a trolley to the front of 10 x 10.5 feet where the counter bil} will already be at place. In Gulshera Khanam Vs. Aftab Ahmed (2016) 9 SCC 419, the Hon'ble Supreme Court held that, "/t is a well settled principle laid down by this court in rent matters that the landlord is the sole judge to decide as to how much space is needed for him/her to start or expand any of hist her activity."
40. In the aforementioned context, it is also necessary to mention that as per the settled proposition of law, landlord is the best judge of his requirement and neither the tenant nor the court can compel him to utilize his property in a particular manner. In Sardar Mahinder Singh & Anr.
"Vs. Sukhvant Kaur RC REV 320/16, the Hon'ble Delhi High Court vide judgment dated 01/04/2019 dealt with almost similar matter where the petitioner had sought the eviction of tenant for amalgamating the shops into one big unit for starting a new business on the ground floor and the RC ARC NO, 8240/16 Raop Chand Aggarwal & Anr, Vs. Mohan Lat Page {8 of 30 B i Scanned with CamScanner same was considered by the Hon'ble Court. The Hon'ble High Court held that, "Ur cannot be said that her need for pve shops to start her business af raxdvnade garments 8 malaflde wher admittedly, the petifioners themselves had removed the wall and made ita single unit,"
41. Further, in Geeta Kapoor Vs. Jai Pal & Anr RC REV 486/90 the Hon'ble High Court vide judgment dated 10.10.2019 dealt with the issue, whereby the landlord sought eviction of the adjoining shop as the entrance to the sitting area and the shop was lesser and by joining the adjoining shop the entrance would have doubled, The Hon'ble High Court held that, "/ris settled proposition of dow Nhat a tenant canitot dictate as to how the landlond has to put to use an accommodation which is available ta ihe landlord, The fandlond is the best judge of his! her requirement and suitabilit, Neither the tenant nor can the court dictate to the landlord." The Hon'ble High Court had dismissed the petition by holding the aforementioned need as bonalide,
42. Therefore, if the petitioners wish to start the business in the fike manner, in my considered opinion neither the tenant nor the court can dictate that they should have staried the business in the limited space they had and thereafter could have expanded the same.
43. The respondent has also taken a plea that the petitioners can start a new business from the first and second floor of the same property. Admittedly, the petitioners are also owners of first and second floor of property bearing no. S14. It is also admitted that the petitioners had rented Scanned with CamScanner out the said portions to another person for running a beauty parlor. The question that is required to be determined at this stage is whether the first and second floor could have been suitable accommodation for petitioner to start their new business or not?
44. It has already been discussed above in detail that landlord is the best judge of his requirement. Neither the tenant nor the court can compel the landlord to start a business of grocery shop at the upper floors when it can be opened at the ground floor. It is a matter of common sense that a business of grocery would be better run and manage on the ground floor then on the upper floors.
43. The respondent had taken a plea that some other grocery shops at different locations were being run on the upper floor. However, in the cross-examination, the respondent stated that he did not take measurement of any of the aforementioned shops and his entire plea was based on estimation.
46. In regard to the aforementioned question, it has to be noted that the Hon'ble Delhi High Court in Anil Madan Vs, Allied Promoters Ltd. RC REV 395/18 vide judgment dated 18.03.2019 dealt with similar fact, wherein petitioner wanted to have more area on the ground floor for starting a new business. The Hon'ble High Court held that, "In Parveen Kumar Arora vs Akshay 2019 (256) DLT 662 this Court held the requirement of the shop on the ground floor need: to be viewed from a di tifferent perspective then the availability of business spaces on upper RCARCNO, 6240/16 Roop Chand Aggarwal & Ane Vs. Mohan Lat Page 20 of 30 Scanned with CamScanner ca RS Ve, Naveen Maheshwart a8 saart he St .
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apran's deux x8 ws | i ea 8 ahh Le ten By Range Chaat apes GRATE ROAR AD Scanned with CamScanner Zoe SF Beet PRSPER ~ 2 rane § ESS st 3 a: 28 ae ' SNS POY, Sea a) ASARRING | gXN) 48 He has te kept in mind that la bis crosa-enamination conduefed of PRYTIOY, the respondent adinitied that petiioners are emp Mayer of Mr. Hagan Lal in bis tenanted shop La, Raldhand Provisional and General Store at shop bearing ne. S US Therefore, as af today the petitioners do not have thelr own business and thelr need to start new business of modern grocery is clearly a bonaflte and valid need and requirement,
30. Lastly, itis necessary te point out that since the ease of petitioners is that In case they will demolish the internal wall between the fenanted premises and shop ao, S1-E, therefore, a court query was pul to petitioners as te whether the necessary permission fram concerned municipality will stand in the way of passing eviction order ar not?
St, Tr this regan], it is necessary t© mention that in Guishan Rai Vs, Samrendra Bose Seey and Ane 18 R012) EV Delhi $13, the Hon'ble Delhi High Court dealt with aspects relating to obtaining of necessary sanctions between the landlord and the municipal bodies, In the sald case vide the impugned order, the Id. Trial Court had granted leave to defend to the tenant on the basis that the property has heritage status and guest house eannot be run from there without any permission and no such permission RC ARC NA, G2u078 Ruoys Chand dggarest & olan Bi Makan Lad Pape Naf.
Scanned with CamScanner had been placed on record.
The Hon'ble Delhi High Court held that, "The tenant has nowhere disputed the ovwnership/landlordship of the respondent; his only submission being that since the 'Bengali Club' has a heritage status, no guest house without necessary sanction can be run from the said building. Record shows that it is an admitted fact that a guest house is being run from a part portion of the disputed premises; whether it is legal or illegal is a matter inter se between the landlord and the MCD, the tenant has no locus standi to challenge this illegality of his running a guest house which is admittedly being run by the landlord from the portion immediately adjacent to the Bengali Club.
.....Contention of the landlord specifically in the eviction petition is to the effect that after he gets the tenanted portion vacated and afier taking necessary permission from the Department, he will get the unauthorized constructions (raised by the tenant) removed and thereafter after obtaining necessary permissions will expand his business of the guest house which he is admittedly carrying out from a portion of the first floor. This is an inter se arrangement between the owner/landlord and the MCD/Government Body, the tenant cannot raise an issue that merely because the property _ owned by the landlord is a heritage property he cannot run a guest house. If such an argument raised by the tenant is accepted then this would mean that in all such cases where the owner/landlord owns a heritage building he would never be able to get his property vacated only for the reason that RCARC NO, 6240/16 Roop Chand Aggarwal & Anr. Vs, Mohan Lat Page 23 of 30 ha h Scanned with CamScanner it has a heritage status, This 1s definitely not the import of the Building Bye-laws which have been relied upon by the Trial Court holding that triable issues have arisen."
Therefore, in view of the aforementioned discussion, there is no hindrance in passing eviction order with respect to aforementioned aspect as well.
52. Thus, it has to be concluded that petitioners have successfully established that they require the tenanted premises for their bonafide need and necessity.
(2) The Alternative Ground of Bonafide Need and Necessity
53. The petitioners have taken another plea in the replication with _ respect to their bonafide need and necessity. Though the petitioners termed it as alternative plea, but in my considered opinion the pleading reveals that it is an additional plea. There is no bar for the petitioners to take two different pleas for eviction. In S.Kesar Singh vs Paramjeet Singh & Anr in RC. REV. NO427/2017 vide judgment dated 15/09/2017, the Hon'ble Delhi High Court held that, "Till a business is commenced, the intending businessman is always entitled to change his plans from time to time. f have in fact enquired from the counsel for the petitioner, whether not in law college, most of the students' desire to practice corporate law and join law firms and thereafter change their mind and even shift to litigation or to the other areas requiring acumen in law. The counsel for the petitioner is unable to rebut the same.
RC ARC NO. 6240/16 _ Roop Chand Aggarwal & Anr. Vs. Mohan Lat Page 34 of 30(A fo Scanned with CamScanner Once that is so, the requirement for the shop cannot he said to be malafide merely because the landlord during the time for which the petition for eviction remained pending, though it more prudent to commence furniture business therefrom instead of expanding his existing business,"
Hence, the plea of the second plea for bonafide need and necessity is also maintainable.
54. The petitioners have pleaded that they are the jomt owners of the property and in future in case of dispute they can divide the property no. S- 14 into equal halves. Infact both the pleas taken in this case are distinct, but are not contradictory to each other.
55. The first objection of the respondent to this plea is that it has been raised in replication. The Id. Counsel for respondent had relied upon law laid down in O. P. Gupta Vs. R. K Sharma 2001 (2) RCR (Rent) 240, Anant Construction Pvt. Ltd. Vs. Ram Niwas 1994 (31) DRJ, Union of India Vs. Ibrahim Uddin & Anr. (2012) DLT 142 (SE) and Amarjeet Singh Vs. Smt. Bhagwati Dev decided on 18.12.1998. He had argued that replication is not the part of pleadings and the decision cannot be passed on the ground which has not been pleaded.
56. Ihave gone through the aforementioned judgments and considered the submissions at length. The judgments so relied upon by the Id. Counsel for respondent do not apply to the facts of the present case. In the present case, the permission was given by the Id. Predecessor Rent Controller for filinv the replication, Hence, it was filed as per law laid down in Anant RC ARC NO. 6240/16 Roop Chand Aggarwal & Ane. Vs, Mohan Lal Pape 25 0f 38 aA i 4 X Scanned with CamScanner Constructions Pvt. Lid. Vs. Ram Niwas (supra). The judgement of Hon'ble High Court in Amarjeet Singh's case specifically relates to provisions under HMA which provides specific details to be spelt out in the petition ited 37, On the contrary, the Id. Counsel for petitioners had relied upon judgment dded as Shri Md. Shifi Baksh Vs. Smt. Krishna Bansal decided by the Hon'ble Delhi High Court on 28.07.1993, wherein it has been beld thet, "The replication is also a part of pleading though Order 6 Rale 2 OPC defines the pleading as meaning the plaint or the written sistement, Even Otherwise, | feel that a claim should not be thrawn out on @ mere technicality of pleadings when the substance of the matter is there aed no prefuelice is likelp to be caused to either side."
38 In the present case, the respondent has cross-examined the pecuoner's witnesses at length with respect to this ground. Therefore, a ground taken in the replication cannot be prejudicial to the respondent when he has cross-examined the witness on this ground at length.
S89. Moreover in S. Kesari Hanuman Goud Vs. Anjum Jehan 2013) 2 SCC 64, the Hon'ble Supreme court had also held replication to be part of pleadings. Thus, the ground of bonafide necessity taken in replication cannot be ignored. |
60. The Id. Counsel for respondent had also argued that petitioners admitted that there is no dispute between them as of today and therefore this ground is hypothetical On the other hand the Id. Counsel for ROARCNG AMOTE Xoap Chand dygarcal & dan 1. Modan Lal Page 26 of 30 Und ve A! Scanned with CamScanner 7 | | ny ee ty heing home the point that the patitivnens tat goad upon werkt eitations 1) belay home the point | yaad not be fa prevent, concerned, there 8 nO ilental that ponatids Nelly Si Ag tar as merits of this ground 18 3 Sea ces aQane aveag al raday Fiowever, Ue the palidonas do HOt have stained relations are aR OF taday. However, the ~ - % 5 a . AX - Nacy CREMP REETEPPER ey x* ( : * gronnd of road and neTessihy far eviction Ins to be eanaidered on the tuch atone of ite bonatlae.
& In Savla Abuja Vs. United India Insurances Company Ltd, (1998) § SOC. the Hon'ble Supreme Court had held that, "Pacts such as ihe condla) ralationsiip denveent a landlord and her daughter-in-law or that he is commoriaddy residing fy tte preven! building are net relevant in Judging % Y des of the claim af tre landlord. Otherwise it would appear that langlord can unk af residing tn his ar her own residential building only shen cracks develop in the relationship dbenveen him and his other kith and Ain"
&3. In my view the ratio of the aforementioned judgment is applicable to this ground of bonafide need and necessity taken by the petitioners, The aforementioned judgment also recognizes the principle that the landlord ean claim bonafide need of separate requirement as of today even if the real need for separate occupation has not arisen at the given time. As per abovementioned ratio, what has to be seen is whether the ground taken is probable or not? In such a situation the joint owners may want to divide the . property equally amongst themselves. The petitioners cannot be expected io wait till their relations get severed, REARC NO, 6240/16 Roap Chand Aggarwal & Anz. Vs. Mohan Lal Page 27 of 38 Scanned with CamScanner &. Aggiving the petitioners canned bs selations are not arained as of tweday, Tha, ic petitions have aber preven Se, ww 8S the ¢ es eopondonaie: oF PAnnndy Armre neguirentent is ales sonafds seat, oe : < eo. 2 oh. HS 2 Shy SURE ES xt ' SN % be &&. Henee, in view af the afore wartional discuss, hax fa be ' edt ak etek ase Bac te aceoe sog% 3 © ext concluded that petitioners have proved to the preparnionence OF Prec ay that they mepyre the far their bonafides need avsl pecessity ar bath the AEE.
eS ALTERNATIVE ACCOMODATION && The respondent has tekess a pfea that the patidianers have VANES alternative accommendations Lc. ocopertics a, 88, SES ard SUS-B, Green Park, Main Market, New Dethi property no 618, DSIDC Phos I}, Okbis Industrial Area and property number (22, Block Ie Preis & wh Sector [1], Bowens Industrial Area, ?
+.
67. Tt has to be home in mind that the alternative accommodation disentitling the landlord from relief of possession should be reascnahly equivalent of the accommodation that the landlors Lis claiming.
68. In their examinations In chief the vcitoner have depoand that they do not own ayy ather suitable alternative ace somitendation, Sines, the respondent has taken the aforementioned plea, therefore, the onus fy prove these facts was upon him. In his examination in chief the respondent only "deposed sbout the aforementioned facts, but he did not produce any RC ART AG, chaaS itange Chand dggueral & tan hs, Soka tat Aye Suet Scanned with CamScanner document to show that the petitioners were the owners of any of the aforementioned properties. On the contrary, petitioners themselves produced the copies of sale deeds Ex. PW4/1 and PW3/1 to show that properties no, $-9 and $-12 are owned by other persons i.e S-9 by Ms. Kusum Goyal and $-12 by Ms. Vijay Israni and Ms. Manisha Israni jointly. 69, As regards shop no. S-15B , the unrebutted case of petitioners is that it is in possession of Sh. Hazari Lal who is running a grocery store namely Rajdhani Provisional and General Store as 4 tenant. The respondent has himself admitted that petitioners are the employees of Sh. Hazari Lal. Therefore, as per admission of the respondent the petitioners do not own the aforementioned shop.
70. The ld. Counsel for petitioners had argued that the eviction order has already been passed against Sh. Hazari Lal with respect to shop no. S-15B and the threat of eviction is also a bonafide ground for eviction of respondent. Though the respondent has failed to establish that petitioners own that shop, still it has to be pointed out that the argument of ld. Counsel for petitioner in this respect is flawed for two reasons Le. petitioners themselves claim that they do not have any right in the said shop, therefore, the threat therefore eviction from said shop cannot be a threat against the petitioners and secondly without any plea to that effect such ground cannot be considered in the course of argument. .
71. Since the respondent has failed to discharge the initial onus, therefore, the burden never shifted' upon the petitioners. Though the RCARCNO, 6HON6 Roop Chand Aggarwal & Ant, Vs Mohan Lal Page 29 of 30 Ag Scanned with CamScanner petitioners have produced sale deeds of shop beuring no. §-9 and 3-12, but they could not have led the negative evidence with respect to other properties.
72. Thus, in view of the aforementioned discussion, it has to be possession of alternative accommodations is not sufficient to discharge anus te establish the aforementioned fact. Hence, it has to be concluded that the respondent has failed to prove to the preponderance of probability an record that petitioners have reasonable, suitable alternative accommodation.
33. Thus, in view of the aforementioned discussion, it has to be held that the petitioners have proved all the ingredients of section 14 (1) (e) of the D.R.C. Act and they are entitled for an eviction order. An eviction order is passed in favour of petitioners and against the respondent in respect of wnanted premises ie. shop bearing no. S-I4A, Green Park (Main), New Delhi. This order shall not become operative before the passage of six months from today. File be consigned to record room after due compliance. ~ ve gait © pe (Announced in the open (SushantChangotra) Court on 18" June, 2020) Rent Controller (South), Saket Courts New Dethi RC ARC NO, ONE - Bay Chdad Aggarwal & dan VS Mohan Lat 'Page 30 of 30 Scanned with CamScanner