Delhi District Court
Sh. Prem Singh Tanwar vs Sh. Jagdish on 20 March, 2014
E No. 27/13 1 20.03.2014
IN THE COURT OF MS. KIRAN GUPTA, SENIOR CIVIL JUDGECUM
RENT CONTROLLER, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
E27/13
Unique ID No. 02403C0120242013
Sh. Prem Singh Tanwar
S/o Late Sh. Shiv Dayal Tanwar
R/o CB167, Ring Road, Naraina
New Delhi110067
.....Petitioner
Versus
Sh. Jagdish
S/o Sh. Sunera
Shop at Ground Floor
R/o CB167, Ring Road, Naraina
New Delhi110067 .....Respondent
Date of institution : 10.09.2013
Date of arguments : 17.02.2014
Date of order : 20.03.2014
JUDGMENT
1 Vide this order, I shall dispose of the application U/s 25(B) (4) of the DRC Act (hereinafter referred as "the Act"), filed by the tenant against the landlord/owner praying therein that he be allowed to contest the eviction petition u/s 14(1)(e) r/w sec. 25B of the Act in Prem Singh Tanwar Vs. Jagdish Page 1 of 23 E No. 27/13 2 20.03.2014 respect of the tenanted premises, i.e. one shop at Ground Floor of property No. CB167, Ring Road, Naraina, New Delhi as shown red in the site plan (hereinafter referred as tenanted premises).
2 Brief facts of the case as stated by the petitioner are that he is the owner and landlord of the entire premises bearing no. CB167, Ring Road, Naraina, New Delhi which is 130 sq yards constructed upto second floor. It is stated that at the ground floor there are three shops in front out of which one shop is the tenanted premises while the other two shops are under tenancy with Mr. Amarjeet and Mr. Ravinder Kumar at monthly rent of Rs. 770/ and 660/ respectively. There is one drawing room and two bed rooms, one kitchen and one bathroom at the ground floor which is in possession of petitioner. On first floor, there are three shops in front, including one shop with store room, one drawing room and one bed room, one kitchen, one bathroom and two toilets. Out of the said shops one is under the tenancy of Mr. Ashok Kumar, who has not paid rent since March 2004 and has closed the shop since 2009 without handing over the key and possession of the same to petitioner for which he has already issued the legal notice. The other shop on the first floor is under tenancy of Mr. Ravinder Kumar for Rs.800/ per month and the remaining shop with store is under the tenancy of M/s Ajex Fire Control for Rs. 400/ per month. On second floor, there are two offices in front, one bed room, kitchen, bathroom and two toilets. One room in front on Prem Singh Tanwar Vs. Jagdish Page 2 of 23 E No. 27/13 3 20.03.2014 second floor is under tenancy of Mr. Vinod Kumar for Rs.1000/ per month and the remaining portion on the various floors are being used by the petitioner and his family members for their residence. It is stated that the petitioner was employed with DTC and retired on 31.1.2011 where he was working as Store Keeper. He has two sons, namely, Vipin and Kishan. Vipin is doing some private job while Kishan carries on his own business of quilting on job work. It is stated that after retirement, he wants to do his own business, hence, wants the tenanted premises as the same is required bonafidely by him for carrying on business / work, so that he can have some source of income even after retirement and is not dependent upon his sons for his requirement. It is stated that he has no other alternative commercial premises except the rented premises as the rest of the portion of the property is being used for residence by him and his family members. It is further stated that the tenanted premises is not being used by respondent for any purposes as he opens the same only once or twice in a month. Whenever the petitioner has requested the respondent to vacate the premises, he instead demanded Rs.10 Lakh from him. It is stated that the tenanted premises is required bonafide by the petitioner for carrying out the business / work and no prejudice will be caused to the respondent as he is not carrying any business or trade from the said premises and has just locked the tenanted premises in order to unjustly enrich himself at the cost of petitioner by blackmailing. It is further stated that the tenanted premises is on Ring Prem Singh Tanwar Vs. Jagdish Page 3 of 23 E No. 27/13 4 20.03.2014 Road and would fetch good returns, if the petitioner starts any business as he is retired now. It is prayed that an order of eviction be passed in his favour and against the respondent in respect of the tenanted premises.
3 After notice of the petition, which was received by the respondent on 25.9.2013, he filed the leave to contest the present eviction petition on 28.9.2013. In the Affidavit filed along with the application to leave to contest, respondent has admitted that petitioner is the landlord of the tenanted premises, however, he has disputed his ownership in the absence of any such document. It is stated that he had taken the tenanted premises admeasuring 7.4 feet x 11.3 feet on ground floor in the year 1997 on perpetual tenancy from Late Sh. Shiv Dayal Tanwar and since then he is doing business of Motor Mechanic therefrom. No written agreement was executed between the parties but presently the monthly rent of the tenanted premises is Rs. 485/ and he has been regularly paying the monthly rent on time. It is further stated that no electricity connection has been provided for the tenanted premises. It is stated that he repairs engines of Trucks, Buses and commercial vehicle and due to the nature of the work, he has to mostly visit the clients site for doing work. The tenanted premises is the only business address where the clients contact to avail the service and over the years he has built goodwill and client base who associate him with the shop at tenanted premises. All Prem Singh Tanwar Vs. Jagdish Page 4 of 23 E No. 27/13 5 20.03.2014 his tools and equipments are in the tenanted premises and he daily opens his shops. Even before going to the clients site, he opens his shop and offers prayers, collects required tools and then leave for the clients site. It is stated that the tenanted premises is the commercial site rented out for commercial purposes and the same is not required bonafide by petitioner either for himself or for any of his family members. It is stated that the petitioner is a retired Govt. employee and is getting sufficient pension to run his household. He is also getting regular rental income from various shops and offices rented by him. He has further received provident fund, gratuity and other retirement benefits which he has invested in such a manner that he is getting regular monthly income, hence he has no bonafide or other requirement. It is further stated that the tenanted premises is the smallest of the three shops on the ground floor and the petitioner has failed to show how the tenanted premises is the most suitable accommodation as against the other shops. It is alleged that the petition is not maintainable as petitioner has not served any legal notice upon him terminating his tenancy. It is further stated that the petitioner neither has any experience of any business nor he has stated the type / nature of business which he is contemplating to start in the tenanted premises. It is further stated that the petitioner is having other reasonable suitable accommodation in the form of huge office space on the second floor and further he is likely to get possession of shop on first floor under tenancy with Mr. Ashok Kumar to whom he Prem Singh Tanwar Vs. Jagdish Page 5 of 23 E No. 27/13 6 20.03.2014 has already served with the legal notice. It is further stated that the tenanted premises is the only source of income of the respondent while the petitioner who is a retired Govt. employee has sufficient means to meet his requirement and as such has no bonafide requirement. It is prayed that since he has raised these triable issues, he be allowed to contest the case.
4 In the reply to the application of respondent, petitioner while reiterating the facts as stated in petition, has prayed that since no triable issue has been raised by the respondent, his application be dismissed accordingly. It is further stated that the respondent has only disclosed the office space on second floor as alternate accommodation. It is submitted that the same is not suitable to the petitioner as compared to the tenanted premises which is at ground floor and is bound to attract more customers. Further the petitioner being the old age person cannot climb stairs upto second floor and the tenanted premises being on the ground floor is the most suitable and convenient to him. It is stated that till he was employed with DTC, he did not prefer any eviction petition, but now since he has retired, he requires the tenanted premises to start his business.
5 It is argued by the counsel for petitioner that since respondent has not raised any triable issue, the petitioner be decreed and an order of eviction be passed in favour of petitioner. It is further Prem Singh Tanwar Vs. Jagdish Page 6 of 23 E No. 27/13 7 20.03.2014 argued that the tenanted premises is bonafide required by petitioner for his own use as he intents to start his own business after retirement. He has further relied upon following judgments:
a) Mukesh Kumar Vs. Rishi Prakash 174 (2010) DLT 64
b) Raghubar Dayal Om Prakash Vs. Jai Kishan Rohtagi RCR 92/12 & CM No. 6191 & 3588/2012.
c) Shri Gurcharan Lal Kumar Vs. Srimati Satyawati & Ors.RCR285/2012 & CM 11263/2012
d) Viran Wali Vs. Kuldeep Rai Kochhar, 174 (2010) DLT 328.
6 Per contra, it is argued by the counsel for respondent that there is no bonafide requirement or need of petitioner and he has filed this petition only in order to get the tenanted premises vacated. It is further argued that petitioner is earning handsomely as he is getting pension and rental income and has also got a lot of retirement benefits and his bonafide requirement of opening the business is merely a sham . It is further argued that since the petitioner has failed to disclose the nature of business, it itself raises a triable issue. He has relied upon the following judgment in support of his contentions:
a) Attar Singh Vs. Tahoora Khwaja, RCR 51/2007
b) Deepak Gupta Vs. Sushma Aggarwal, RCR 18/2013
c) Khem Chand & Ors. Vs. Arjun Jain & Ors, RCR 442/2012 & C.M. No. 9444/2013.
7 Heard arguments on behalf of both the parties. perused the complete record file.
8 A landlord/land lady will be entitled to an order of eviction
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U/s. 14(1)(e) if he/she is able to show that
(1) the premises in question were let out for residential purpose or commercial purposes (as the law laid down by the Hon'ble Supreme Court in Satyawati Sharma v. Union of India and another, 148 (2008) DLT 705 (SC), (2) he/she is the landlord/land lady and owner of the suit premises, (3) the premises 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 (4) 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 and 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. While deciding the question of leave, 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.
10 As regards the question of petitioner being the owner / landlord is concerned, the relationship of landlord and tenant is admitted between the parties, however, the respondent has challenged the status of ownership of the petitioner on the ground that no such Prem Singh Tanwar Vs. Jagdish Page 8 of 23 E No. 27/13 9 20.03.2014 document has been filed by the petitioner. Respondent in his affidavit filed along with leave to contest application has stated that he has taken the tenanted premises on perpetual tenancy from Late Sh. Shiv Dayal Tanwar. Shiv Dayal Tanwar is the father of petitioner. He has admitted that he is regularly paying the rent at the rate of Rs.485/ per month as on date to the petitioner. From the said averments made by the respondent, it is evident that he is paying rent to petitioner and has admitted petitioner as the landlord of the tenanted premises. Though he has challenged the title of the petitioner, however, he has not specified as to who is the owner of the tenanted premises, if not the petitioner.
10.1 In Bharat Bhushan Vij Vs. Arti Techchandani 2008 (153) DLT 247, in para 4 and 5 it was held that " the concept of ownership in a landlord tenant litigation governed by the Delhi Rent Control Act, has to be distinguished from the one in a title suit . If the premises was let out by a person and after the death , the premises has come in the hands of a beneficiary under a Will, the tenant has no right to challenge the title of such a beneficiary. If on the death of the original owner, the tenant has any doubt as to who was the owner of the premises , he is supposed to file an interpleader suit impleading all the legal heirs of the deceased and ask the court to decide as to who shall be the landlord / owner after the death of the original owner. Where no interpleader suit is filed by the tenant and the Prem Singh Tanwar Vs. Jagdish Page 9 of 23 E No. 27/13 10 20.03.2014 tenant continues in possession after the death of original owner without demur and without raising any objection against the person , who claims to have inherited the property under Will, he later on cannot challenge the ownership of such a person. It is not the domain of the tenant to challenge the Will of the deceased landlord. If a landlord is able to show there is a testament in his / her favour, he is deemed to have discharged his burden of proving under the Act. If the tenant takes a frivolous objection about ownership, such an objection cannot be entertained unless the tenant comes forward as to who was the landlord / owner of the premises and to whom he has been paying rent after the death of original owner.
10.2 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 Prem Singh Tanwar Vs. Jagdish Page 10 of 23 E No. 27/13 11 20.03.2014 visa vis tenant under Delhi Rent Control Act.
10.3 In Ramesh Chand Vs. Uganti Devi , 157 (2009) DLT 450 Hon'ble High Court of Delhi held that " it is settled proposition of law that in order to consider the concept of ownership under Delhi Rent control Act, the court has to see the title and right of the landlord qua the tenant. The only thing to 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 u/.s 14 (1) (e) of DRC Act. 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 to the landlord. Section 116 of Indian Evidence Act creates estoppel against such tenant. A tenant can challenge the title of landlord only after vacating the premises and not when he is occupying the premises. In fact, such a tenant who denies the title of the landlord, qua the premises , to whom he is paying rent, acts dishonestly.
10.4 In Meenakshi Vs. Ramesh Khanna and anr. , 60(1995)
DLT 524 it was held that
" mere denial of ownership is no denial at
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all. It has to be something more. The object of the requirement contained in clause (e ) that the petitioner should be the owner of the premises is not to provide an additional ground to the tenant to delay the proceedings by simply denying the ownership of the landlord of the premises and thereby putting him to proof by way of a full fledged trial. The object seems to be to ensure that the provision is not misused by the people having no legal right or interest in the premises. In proceedings under section 14 (1) (e) of the Act, the tenant is never a contender for title to the property. For this first and foremost thing which has always been considered as a good guide is , does that tenant say who else is the owner of the premises, if not the petitioner? Thus the tenant has to specify about the actual owner, in case he denies the ownership of the petitioner / landlord.
10.5 From the above decisions, it is evident that the landlord is not supposed to prove absolute ownership. He is only to prove that he is something more than tenant and is /was collecting rent not for someone else but for himself. In the present case, respondent himself has admitted that he is tendering rent to petitioner. The fact that he has taken the tenanted premises on perpetual tenancy from Late Sh Shiv Dayal Tanwar in the the year 1997 and till date he is paying rent regularly on time to petitioner after the death of Shiv Dayal Tanwar is admitted. Thus now the respondent cannot be allowed to dispute the title of the petitioner when he admittedly is paying him rent regularly till date without any challenge or otherwise in respect of his title.
Prem Singh Tanwar Vs. Jagdish Page 12 of 23E No. 27/13 13 20.03.2014 Respondent has merely denied the ownership of petitioner, and has not disclosed as to who is the actual owner, if not the petitioner. In proceedings u/s. 14 (1) (e) of the Act, the tenant is never a contender for title to the property. When the tenant does not even aver that there is any other person having a better title to the property, there is no worth of the plea of denial of ownership of the petitioner [ reliance place on the judgment of Meenakshi (supra)]. In the present petition the question of title is not to be decided and the only question which is for consideration is whether the petitioner being the owner, solely or otherwise, and landlord of the premises is entitled to seek possession of the premises for his bonafide requirement. Thus the objection raised by the respondent in this regard is not only frivolous but without any merit and does not give rise to any triable issue.
11 Now coming to the other aspect as to whether the premises is bonafide required by petitioner and as to whether he has any other suitable alternate accommodation. The fact that petitioner is retired Government employee from DTC is not disputed. Respondent in his entire application for leave to contest has not stated about any other business or work being undertaken by petitioner. Merely because petitioner is getting pension or has got certain retirement benefits, cannot lead to the inference that his requirement qua the tenanted premises is not bonafide or is actuated with malafide. 11.1 In Sarla Ahuja Vs. United India Insurance Company Ltd.
Prem Singh Tanwar Vs. Jagdish Page 13 of 23E No. 27/13 14 20.03.2014 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."
11.2 In Ragavendra Kumar Vs Firm Prem Machinery & Co.
(2001) 1 SCC 679 Hon'ble Supreme court while relying upon the judgment of Prativa Devi Vs T V Krishanan (1996) 5 SCC 353, reiterated that "it is true that the plaintiff landlord in his evidence stated that there were a number of other shops and houses belonging to him but he made a categorical statement that his said houses and shops were not vacant and that the suit premises is suitable for his business purpose. It is a settled position of law that the landlord is the best judge of his requirement for residential or business purpose and he has got complete freedom in the matter . In the case in hand Prem Singh Tanwar Vs. Jagdish Page 14 of 23 E No. 27/13 15 20.03.2014 the plaintiff landlord wanted eviction of the tenant from the suit premises for starting his business as it was suitable and it cannot be defaulted."
11.3 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".
11.4 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 he requires the tenanted premises for opening business for himself. His two sons are doing their own job and he does not want to depend on either of them for his subsistence. The fact that petitioner is a retired government employee is not disputed. It is natural that after retirement, petitioner wants to keep himself busy in some work and for this purpose he requires some accommodation to start his work / business. Even if he is getting the pension or rental Prem Singh Tanwar Vs. Jagdish Page 15 of 23 E No. 27/13 16 20.03.2014 income, does not mean that his claim for starting the new business be rejected on the ground that it is a false claim. 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 he has filed this petition only at this stage, when he has actually retired from his job . On the face of it and from the above discussion, the case of bonafide requirement is made out and no triable issue is raised in this regard.
12 As regards the argument of the counsel for respondent that the nature of business is not disclosed by the petitioner. The Apex court in judgment of Raj Kumar Khaitan & Ors Vs Bibi Zubaida Khatun & Anr. AIR 1995 SC 576 observed as under
" it was not necessary for the appellant - landlord to indicate the precise nature of the business which they intended to start in the premises. Even if the nature of business would have been indicated, nobody could bind the landlords to start the same business in the premises after it was vacated."
12.1 Thus in view of the observation of the Apex court, if the specific business need is not disclosed, this would not wipe away the bonafide need of landlord , hence, the objection / argument is Prem Singh Tanwar Vs. Jagdish Page 16 of 23 E No. 27/13 17 20.03.2014 accordingly without any merit. Further, the argument that no notice was served upon the respondent is also misconceived as there is no such mandatory provision that notice is required to be served before filing the petition U/s. 14(1)(e).
13 Now coming to the plea regarding alternate accommodation. It is stated by the respondent that petitioner has one shop at the first floor and one office at the second floor. Admittedly, the shop at the first floor is under the tenancy of one Ashok Kumar and is lying locked since long. As regards the office on the second floor is concerned, it is stated by the petitioner that the space is not suitable accommodation to meet his requirement as no business would run profitably on the second floor and further it is very difficult for him to climb up to second floor at this juncture of age. Admittedly, the remaining shops in the entire property where the tenanted premises is also situated are under occupation of various tenants 13.1 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 Prem Singh Tanwar Vs. Jagdish Page 17 of 23 E No. 27/13 18 20.03.2014 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 .
13.2 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".
13.3 In Uday Shankar Upadhyay & Ors. Vs. Naveen Maheshwari, 2010(1) RCR 555, in para 11 it has been observed that " In our opinion, once it is not disputed that the landlord is in bonafide need of the premises , it is not for the courts to say that he should shift to the first floor or any higher floor. It is well known that shops and businesses are usually conducted on the ground floor, because the customers can reach there easily. The court cannot dictate to the landlord which floor he should use for his business; that is for the landlord himself to decide. Hence, the view of the courts below that the sons of plaintiff no. 1 should do business on Prem Singh Tanwar Vs. Jagdish Page 18 of 23 E No. 27/13 19 20.03.2014 the first floor in the hall which is being used for residential purpose was , in our opinion, wholly arbitrary, and hence cannot be sustained."
13.4 In Viran Wali Vs Kuldeep Rai Kochhar , 174 (2010) DLT 328 , in para 34, 35 and 36 observed as under
" 34. Admittedly, the tenanted premises are situated on the ground floor . It is not the case of petitioner, the beside basement respondent is having any other suitable and readily available accommodation with him in the entire premises. Respondent has categorically stated that basement is not suitable for him to carry on the business as the same is being used for storage and parking purposes. Even if the basement is available with the respondent, the why respondent who is the landlord of the premises, should be forced to work from basement, when he get the tenanted premises which is more suitable and also situated on the ground floor for running his business.
35. It sounds really strange that owner / landlord should be at the mercy of the tenant for running his own business in the property owned by him as per the dictates of the tenants. It is a well known fact, that any shop situated on the ground floor is more convenient than a shop situated in the basement of the premises . Respondent being the owner / landlord of the premises in question, has all the right and choice to start his own business in the premises more suitable and most convenient to him .
36. Any business which is being run from the ground floor of the premises, will obviously attract more customers than the business being run from the basement. It is settled law , that a tenant cannot Prem Singh Tanwar Vs. Jagdish Page 19 of 23 E No. 27/13 20 20.03.2014 dictate the land lord as to how and in what manner the landlord should use his own property".
13.5 Thus the concept of alternate accommodation means that accommodation, which is "reasonable suitable" for the landlord. It must be reasonably equivalent as regards suitability in respect to the accommodation, which the landlord is claiming. The court would permit the landlord to satisfy the proven need by choosing the accommodation which he feels the most suited, however, the court cannot thrust its own wisdom upon choice of the landlord. 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 himself after retirement. Landlord cannot be directed to get the premises vacated from other tenants first. As discussed above, it is well known that shops and businesses are usually conducted on the ground floor because the customers can reach there easily. The respondent has miserably failed to bring to the notice of this court any alternative accommodation with the petitioner which would disentitle him for claiming the premises for his own bonafide use, when admittedly the other shops in the premises at the ground floor as well as on the first floor and the second floor are in possession of other tenants. The landlord cannot be directed to first get the rooms vacated from the other tenants. There is no triable issue Prem Singh Tanwar Vs. Jagdish Page 20 of 23 E No. 27/13 21 20.03.2014 between the parties on this aspect also.
14 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 i.e the shop at the ground floor is the most suitable to meet the requirement of petitioner for starting his business.
15 Further respondent in his affidavit has himself stated that he opens the shop in the morning to offer prayer and take his tools and thereafter he goes to the client's site for repairing the machinery. It is not the case of the respondent that he is carrying out the repair work at the tenanted premises. He has merely stated that his clients associate him with the said shop. Since the nature of work of the respondent is such that he visits the client's site for doing the necessary repairs, no prejudice shall be caused to him if the petition of the petitioner is allowed as he can still proceed with his work by maintaining contacts with his clients. Thus the argument of Ld. counsel for respondent that the 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 petition is decreed is not tenable.
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15.1 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."
15.2 In Subhash Jain Vs Ravi Sehgal decided on 04.02.2014, Hon'ble High Court of Delhi has observed "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.
16 From the above discussion and in the given facts and circumstances, petitioner has been able to show that he is the owner/landlord of the tenanted premises. He has no other suitable alternate accommodation, the tenanted premises is the only most suitable commercial shop which is available to him for opening his business after retirement. There is no triable issue raised by the respondent to allow his application to contest the present eviction Prem Singh Tanwar Vs. Jagdish Page 22 of 23 E No. 27/13 23 20.03.2014 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. one shop at Ground Floor, CB167, Ring Road, Naraina, New Delhi as shown red in the site plan. The eviction petition is allowed. No order as to costs. File be consigned to record room.
17 In view of provisions of sub section 7 of Section 14 of the 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.
ANNOUNCED IN THE OPEN ( KIRAN GUPTA )
COURT ON 20.3.2014 SCJCUMRENT CONTROLLER
PATIALA HOUSE COURTS:NEW DELHI
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