Delhi District Court
Sh. Ramesh Kumar Dora vs Sh. Om Parkash Kalra on 24 September, 2015
In the Court of Shri Naresh Kumar Laka
Senior Civil Judge-cum-Rent Controller
District Shahdara, Karkardooma Courts, Delhi
E. No. 28/12
Unique ID No. 02402C0093822012
Sh. Ramesh Kumar Dora
S/o Late Sh. Radhu Ram Dora
R/o F-14/19, Krishna Nagar,
Delhi 110051
.....Petitioner
Versus
Sh. Om Parkash Kalra
Shop no. 5, In property no. IX/1632,
Near New Post Office, Gandhi Nagar,
Delhi 110031
2nd Address:
IX/1623, Gandhi Nagar,
Near Police Station, Gandhi Nagar,
Delhi 110031
....Respondent
Date of institution of petition : 02.04.2012
Judgment reserved on : 11.09.2015
Judgment announced on : 24.09.2015
Final Order : Petition allowed.
Application/Petition under Section 14 (1) (e) of
the Delhi Rent Control Act, 1958
E No. : 28/12 Page No. 1 of 14
Rakesh Kumar Dora vs. Om Prakash Kalra
JUDGMENT
Brief Facts: The present petition has been filed under Section 14 (1)(e) of the Delhi Rent Control Act, 1958 [in short, "the Act"] seeking eviction of the shop no. 5 situated at the ground floor of the property bearing no. IX/1632, Near Post Office, Gandhi Nagar, Delhi (as shown in red colour in the site plan attached with the petition). It is claimed by the petitioner that there are two shops in the above said property, out of which one is in occupation of respondent and another is in occupation of other tenant and wife of the respondent is an LIC agent and she wants to run her office of insurance and investment advisor from the above said two shops after their vacation. It is also stated that the wife of the petitioner also wants to open a cyber cafe by employing few persons. The petitioner further disclosed that there is no other alternative suitable accommodation for doing the said business.
Written Statement
2. The respondent contested this case and disputed the claim of the petitioner and his wife. It is specifically stated that the wife of the petitioner is already doing her business as LIC agent from F-14/19, Krishna Nagar, Delhi and of her E No. : 28/12 Page No. 2 of 14 Rakesh Kumar Dora vs. Om Prakash Kalra clientage are situated in the said area only whereas the premises in question is situated at Gandhi Nagar. The respondent also pleaded that in another case filed by the petitioner against other tenant, namely, Pritpal Singh, the eviction order has already been stayed by the Hon. High Court of Delhi and, as such, there is no bona fide requirement of the wife of the petitioner in the present case also. The respondent also took various other pleas which will be discussed in subsequent paragraphs:
3. The petitioner filed replication wherein the allegations of the respondent were controverted and the stands already taken in the petition were reiterated.
4. In order to prove his case, the petitioner examined himself as PW1. Likewise the respondent also examined himself as RW1 and one Sh. Pritpal Singh as RW2. Both the parties also relied on various documents during the course of their examination. The necessary documents will be referred to in the subsequent paragraphs by their description and exhibit mark.
5. I have heard Sh. Rajeev Kumar Sharma, learned counsel for the petitioner and Sh. T.S. Ahuja and Sh. Brij Bhushan, learned counsel for the respondent. File perused.
E No. : 28/12 Page No. 3 of 14Rakesh Kumar Dora vs. Om Prakash Kalra REASONS FOR DECISION
6. There is no dispute as regards relationship between the parties as landlord and tenant and the status of the petitioner as owner of the property in question. From the pleadings of the parties, following points emerged which require determination of this court:
(1) Question of existence of bona fide requirement of the petitioner (2) Question of existence of alternative suitable accommodation and other arguments (1) Question of existence of bona fide requirement of the petitioner
7. The present petition has been filed by the petitioner by claiming bona fide requirement of his wife for running insurance business, installation of computer, fax machine, telephone, internet and for opening a Cyber Cafe by employing few persons. It is specifically claimed that the wife of the petitioner is presently running her business as LIC Agent. This fact has been admitted by the respondent in his WS as well as evidence. But it is the stand of the respondent that the wife of the petitioner is already running her business of LIC agent from her residential premises situated at Krishna Nagar and her clients are residing in Krishna Nagar only whereas the shop in question is situated E No. : 28/12 Page No. 4 of 14 Rakesh Kumar Dora vs. Om Prakash Kalra in other area i.e. Gandhi Nagar. The respondent also claimed that there is no bona fide requirement of the petitioner and the present case has been filed just to harass the tenant.
8. When the respondent already admitted that the wife of the petitioner is running the business of LIC agent, in my opinion the wife of the petitioner has every right to set up said business in modernized manner by installing all the paraphernalia which includes the installation of computer and other accessories. Moreover it is specifically stated that the petitioner also wants to open a cyber cafe which is the additional requirement of the petitioner. The respondent however alleged that the petitioner is not doing her business of LIC agent on a big scale and as such she does not require the shop in question and she can verly well do her business from the property bearing no. F-14/19, Krishna Nagar which is already having three floors. On the contrary, the petitioner has placed on record various documents especially the Certificates issued by Life Insurance Corporation of India and various Awards which prove that the wife of the petitioner is having very good standing in her profession of LIC agent. Moreover she is not a new comer in the said business but an established professional since a long duration. Accordingly I hold that the petitioner has every E No. : 28/12 Page No. 5 of 14 Rakesh Kumar Dora vs. Om Prakash Kalra right to start and extend her business in the said field, alongwith other ancillary businesses.
9. It is a settled law that a landlord has complete discretion and freedom to choose the nature and place of business. In such cases, courts are not required to see as to whether proposed business would earn him profit or not. In the judgment titled as "Ragavendra Kumar v. Firm Prem Machinary reported as AIR 2000 SUPREME COURT 534", the Supreme Court held that it is settled position of law that the landlord is best judge of his requirement for residential or business purposes and he has got complete freedom in such matter. Reference may also be made to the judgment titled as "Prativa Devi (Smt) v. T.V. Krishnan reported as (1996) 5 SCC 353".
10. Reliance can be placed on the case of Aero Traders Pvt. Ltd. Vs. Mohan Singh [RC Rev. No. 391/2011 decided on 02.01.2014] wherein it has been held by our own High Court as under:
"With regard to bona fide requirement of the respondents, it is not permissible for the tenant to raise such issues pertaining to the age of the landlord, his experience and financial status. These issues are not much relevant for the purpose of deciding the application for leave to E No. : 28/12 Page No. 6 of 14 Rakesh Kumar Dora vs. Om Prakash Kalra defend in the eviction petition if it is established prima facie that the requirement of the landlord is genuine and bona fide and no triable issues are raised by the tenant."
11. In the light of above said discussion, I hold that the wife of the petitioner has bona fide requirement to do the business as discussed above.
(2) Question of existence of alternative suitable accommodation and other arguments
12. The respondent took plea that the petitioner is having alternative property i.e. Krishna Nagar which consists of nine rooms including one office. On the other hand, it is the case of the petitioner that the said premises is residential completely. The respondent did not take any specific plea at the time of filing of his WS about the existence of any office and the said plea was taken by him on the basis of an assertion/averment came in the order of Hon. High Court of Delhi which was filed against another tenant, namely, Pritpal Singh. In order to prove the said fact, the respondent also examined said Pritpal Singh as RW2 but from the examination of RW2, it is clear that he has not clearly described the nature of said office and its exact location. He vaguely stated that there is one table and some chairs in the corridor of the ground floor of the E No. : 28/12 Page No. 7 of 14 Rakesh Kumar Dora vs. Om Prakash Kalra property of Krishna Nagar. On perusal of the entire deposition of RW2, it is evident that his testimony is not reliable especially when he has given contradictory statements. This fact was also observed and noted during his examination by this court.
13. The respondent has not himself led any evidence especially by filing any site plan of the property of Krishna Nagar or by filing any other document or photograph to show existence of any such office. Thus I hold that the stand of the respondent about existence of an office in the property of Krishna Nagar is a false plea.
14. The respondent took a stand in the WS that the area of Krishna Nagar where the property of the petitioner is situated is completely commercial. The counsel for respondent also pointed out that the petitioner also admitted in his cross examination that the nearby properties are being used as Suhana Beauty Parlour and other commercial shop. Thus it is argued that the petitioner may use the premises bearing no. F-14/19, Krishna Nagar, Delhi as commercial property. From the allegations of the respondent, it is clear that he has not alleged that the above said property is commercial in nature but rather he claimed that the area where the suit property is situated is E No. : 28/12 Page No. 8 of 14 Rakesh Kumar Dora vs. Om Prakash Kalra commercial in nature. Although the petitioner admitted in his cross examination about existence of other commercial properties/ventures in the surrounding area of the property no. F-14/19 but by that very fact, it cannot be said that the street where the property no. F-14/19 is situated is commercial or that the said property has been constructed for using it commercially.
15. On contrary, the learned counsel for petitioner specifically argued that the said commercial activities are being carried on illegally. The respondent has not placed on record any notification/evidence to prove that the street/road where the property no. F-14/19 is situated is commercial. Moreover in my considered opinion, it is the choice of the owner/landlord to use a particular property as per his wish/desire whether it is for commercial or residential purposes. Neither this court nor the tenant can dictate to a landlord as to in which manner the property has to be used. In other words, when the plaintiff is already having commercial properties (which consists of shop in question), it is his choice to choose a particular property for his residential housing need since every one requires a residence also to live therein. Thus the said argument is without substance and rejected.
E No. : 28/12 Page No. 9 of 14Rakesh Kumar Dora vs. Om Prakash Kalra
16. The learned counsel for respondent also argued that clients of the wife of petitioner are from Krishna Nagar only, and as such, the property of Gandhi Nagar is not suitable to him. It is a settled law that it is the choice of the landlord to decide as to which place is most suitable to him/her and in this regard neither this court nor a tenant can dictate to the landlord.
17. Reliance can be placed on the case of Shamsheer Ahmad Vs. Tilak Raj Bajaj [152 (2008) DLT 301 (SC)] wherein Hon. Supreme Court has held that the requirement of Section 14 (1) (e) is "Bona fide requirement" and it has to be seen as per the requirement of the petitioner (landlord) and even if the petitioner is very rich and having other properties at different places that does not affect his requirement of the premises.
18. The respondent also claimed that the shop in question is of very small size i.e. 7 sq. yds. and the same is not capable of being used as a cyber cafe. In this context, it is apparent that the petitioner has not claimed eviction of the shop in question only but he has sought eviction separately for the other adjoining shop in occupation of tenant Pritpal Singh also and accordingly this argument is without force.
E No. : 28/12 Page No. 10 of 14Rakesh Kumar Dora vs. Om Prakash Kalra
19. The counsel for respondent also argued that the wife of the petitioner is not possessing any special qualification for carrying on the business of insurance agent and he further stressed that her ITRs also show very nominal rise in her business during recent years on account of inflationary pressure on the economy. It is a settled law that for doing a particular business, no specific qualification is required and any person can do any kind of business if he has knowledge or simple idea about it. The wife of the petitioner is already doing work as an insurance agent admittedly for a long period and thus her requirement for starting business cannot be doubted on account of non possessing of any such qualification. Apart from it, the wife of the petitioner also claimed to open a cyber cafe and for said business, no specific qualification is required.
20. It is next argued by counsel for respondent that the petitioner has no bona fide requirement and, as such, the other petition filed by the petitioner against the tenant, namely, Pritpal Singh was also stayed by Hon. High Court of Delhi. The record reveals that the matter reached to the Hon'ble High Court of Delhi after dismissal of application seeking leave to contest the case filed against Shri Pritpal Singh against the eviction order passed by Ld. ARC. As per the statutory provisions of the DRC Act, the procedure and E No. : 28/12 Page No. 11 of 14 Rakesh Kumar Dora vs. Om Prakash Kalra consideration to be kept in mind at the time of deciding the application seeking leave to defend a case under Section 25 B (4&5) of the DRC Act and the evaluation of the evidence after conclusion of a trial, are altogether different thing. In this case, the rival claims of the parties are being decided on the basis of full fledged trial after grant of leave. Accordingly the order of stay passed by the Hon'ble High Court of Delhi against the eviction order passed in respect of Shri Pritpal Singh is not related to the parameters which are applicable in deciding the present case. Thus the said argument is not tenable in law and thus rejected.
21. The counsel for the respondent further pointed out that from the letters/awards issued by LIC, it is clear that the petitioner was already doing her business of LIC agent from the property no. F- 14/19, Krishan Nagar and as such she can work from said address only. Per contra, learned the counsel for the petitioner clarified that the said address was only for the purpose of correspondence address only and the property of Krishna Nagar is residential only as clearly mentioned in the memo of parties. In the preceding paragraph, it is already held that the said premises is residential in nature.
22. The counsel for the respondent also argued that E No. : 28/12 Page No. 12 of 14 Rakesh Kumar Dora vs. Om Prakash Kalra the petitioner did not disclose the property of Krishna Nagar and it amounts to concealment of fact. It is a settled law that a party can be denied a relief on account of concealment of fact but such must be a material and important one. When it has already been held that the premises of Krishan Nagar is a residential one, the above fact is not material. Moreover, the said property was also disclosed by the petitioner in the memo of parties.
23. Lastly the counsel for the respondent argued that the petitioner had recently sold some part of the property and had there been any bona fide need, the petitioner would not have sold such part of property. In this regard, the petitioner disclosed that he had sold part of property in 1995 and remaining some part in 2010-11 and the said property was sold on account of educational requirement of his children. Moreover, I hold that the selling of part/property pertaining to the very old period prior to the filing of present case and as such the same is not related to the date of cause of action of filing the present case and the same cannot be considered. Further it is the choice of the landlord to see as to how he has to manage and dispose of his property and the tenant cannot dictate terms in this regard to the landlord.
24. It is also contended on behalf of the respondent that E No. : 28/12 Page No. 13 of 14 Rakesh Kumar Dora vs. Om Prakash Kalra from the ITRs filed on record on behalf of the wife of the petitioner, it is clear that her business is not growing and as such she does not require any premises for doing the said business. In this regard, it has already been held that the premises is not only required for doing the business of LIC agent but also for doing other ancillary activities and to open a cyber cafe and the said requirements are independent to the business of LIC. Thus said argument is without substance.
Conclusion
25. In the light of aforesaid findings, I hold that the petitioner proved all the essential ingredients of Section 14 (1) (e) of the Act. Accordingly the petition is allowed. The respondent is directed to handover the physical vacant possession of the shop in question as shown in red colour in the site plan Ex. PW1/34 attached with the petition within six months to the petitioner. File be consigned to record room.
Announced in the open court on 24.09.2015 (Naresh Kumar Laka) Senior Civil Judge-cum-Rent Controller, Shahdara District, Karkardooma Courts,Delhi.
E No. : 28/12 Page No. 14 of 14Rakesh Kumar Dora vs. Om Prakash Kalra