Delhi District Court
Through Attorney vs Mr. Som Dutt on 26 March, 2018
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IN THE COURT OF MR. SHIRISH AGGARWAL, ARC-1, CENTRAL
DISTRICT, TIS HAZARI COUTS, DELHI
Eviction Petition No. E-285/14
Unique Case ID no. 78695/16
Mr. Raj Nath Gupta
S/o Late Sh. Mussadi Lal Gupta
R/o 53/59 Ramjas Road, Karol Bagh,
New Delhi-110005
Through Attorney
Sh. Mukesh Khandelwal
S/o Sh. Raj Nath Gupta
R/o 53/59 Ramjas Road, Karol Bagh,
New Delhi 110005. ...Petitioner
Versus
1. Mr. Som Dutt
2. Mr. Sandeep Dhingra
M/s. Temptations
171-E, Kamla Nagar, Delhi-110007. ...Respondents
Application for eviction of tenant under section 14(1) (e) r/w section 25 B of
Delhi Rent Control Act 1958.
Date of Institution of Petition : 02.01.2012
Date on which order was reserved : 26.03.2018
Date of decision : 26.03.2018
Decision : Application seeking leave to defend
filed on behalf of the respondent is
dismissed. Eviction order is passed.
Eviction Petition No. 285/14 Page 1 of 26
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ORDER
1. This order shall dispose of the application seeking leave to defend filed by the respondents. This is a petition for eviction of tenant under Section 14 (1) (e) r/w Section 25 B of the Delhi Rent Control Act.
2. The petitioner claims to be the owner and landlord of shop on ground floor bearing no. 171-E, Kamla Nagar, Delhi-110007 hereinafter referred to as the 'tenanted premises' shown in red colour in the site plan filed alongwith the eviction petition. It is stated that the respondents were inducted as tenants in this non-residential premises on 19.12.1988. It is averred that the monthly rate of rent of this premises is Rs. 200/- excluding electricity and MCD charges.
3. It is stated in the eviction petition that the petitioner requires the premises bonafide for his son who wants to do business of retailing. It is averred that the petitioner and his son have no other reasonably suitable non-residential premises for this purpose. It is pleaded that the son is dependent upon the petitioner for work.
4. The petitioner has prayed that eviction order may be passed in respect Eviction Petition No. 285/14 Page 2 of 26 //3// of the tenanted premises in terms of under section 14 (1) (e) of the Delhi Rent Control Act.
5. Notice of the petition was served upon the respondents. However, application seeking leave to defend was filed only by the respondent Mr. Som Dutt. It is stated in the application that it be considered to have been filed by the respondent Mr. Sandeep Dhingra also. The respondents have pleaded that the petitioner has suppressed material facts and has not come to the court with clean hands. It is stated that the eviction petition is vague, contradictory, lacks material particulars and contains false statements. It is submitted that the petitioner has two sons and it has not been clarified for which son the tenanted premises is required and what is the nature of business that is to be carried out from the premises.
6. It is pleaded that neither of two sons of the petitioner are dependent upon him for work. It is submitted that the sons are doing such nature of business that they surely do not require the tenanted premises. It is stated that the sons cannot be expected to leave their existing business to carry on the business of retailing from the tenanted premises. Eviction Petition No. 285/14 Page 3 of 26
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7. It is submitted that the assertions made in the petition are contradictory. It is submitted that the petitioner claims that the tenanted premises is required for his son. However, it is thereafter mentioned that the premises is required for the family members of the petitioner.
8. It is submitted that one son of the petitioner, namely, Mr. Praveen Khandelwal is CEO of M/s. Empire Fasteners which manufacturers screws, bolts, nuts and allied fasteners. It is stated that the other son, namely, Mr. Mukesh Khandelwal is the Director of M/s. Empire Fasteners. It is pleaded that M/s. Empire Fasteners has two units. One unit functions from Sahibabad Industrial Area, Ghaziabad, Uttar Pradesh and the other unit operates from Derabassi, Punjab. It is submitted that both units are situated on land measuring about 25,000 sq ft. It is stated that as per the information available on the internet, M/s. Empire Fasteners has 150 employees and has annual turn over of two million US dollars. It is submitted that both the sons of the petitioner are holding highest position in M/s. Empire Fasteners. It is pleaded that it is clear that neither of the sons who are actively involved in the business of M/s. Empire Fasteners will require tenanted premises for use. Eviction Petition No. 285/14 Page 4 of 26
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9. It is submitted that the petitioner is himself running a shop in the name of Raj Nath Gupta and Sons from shop no. 4912, Chowk Hauz Quazi Chandni Chowk, Delhi-110006 and deals in supply and sales of bolts, nuts and fasteners.
10. It is submitted by the respondents that the verification clause is not in accordance with law. It is stated that the attorney of the petitioner who has filed the present case on behalf of the petitioner has not stated as to which facts alleged in the petition are from his personal knowledge and which facts are from the knowledge of the principal.
11. It is pleaded that the requirement of the petitioner is a mere wish, fanciful desire or whims of the landlord. It is submitted that the degree of intensity contemplated by the expression 'required bonafide' is higher than 'mere desire'.
12. It is submitted that the petitioner has not disclosed the details of the properties available with him and as such has concealed material facts. Eviction Petition No. 285/14 Page 5 of 26
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13. It is stated that the petitioner has not filed the complete site plan of the property so as to conceal that the first floor of the property has been sold by the petitioner. It is submitted that even the shop adjacent to the tenanted premises has been sold. It is pointed out that the immediate next shop and portion on the rare side are on rent. It is argued that the petitioner cannot adopt pick and choose tactic against the tenants. It is submitted that the landlord either wants to sell the tenanted premises or put the same on higher rent.
14. The respondents have pleaded that the alleged bonafide need of the petitioner is fake and malafide and have prayed that leave to defend the petition may be granted to the respondents as the application/affidavit of the respondents/tenants disclose triable issues which would disentitle the landlord from obtaining an order for the recovery of possession of the premises under section 14 (1) (e) of DRC Act.
15. The petitioner filed reply to the application seeking leave to defend. The petitioner reiterated and reaffirmed the contents of his eviction petition. It is stated that the petitioner requires the tenanted premises for his younger son Eviction Petition No. 285/14 Page 6 of 26 //7// Mr. Mukesh Khandelwal. It is submitted that the said son of the petitioner does not have any commercial property in his name and is not doing any business independently. It is averred that he is at the mercy of his father and elder brother who have their independent businesses. It is submitted that Mr. Mukesh Khandelwal will do retailing of fasteners and alike products which are manufactured by his elder brother. It is pleaded that the respondents have no right to question the owner about what business he wishes to start from the tenanted premises.
16. It is pleaded that the Delhi Rent Control Act is a beneficial legislation to provide security to tenants from being evicted from non-residential premises so that they can run their businesses without fear. It is submitted that since the respondents are rich and wealthy and have chain of outlets in Delhi, they do not need any such security.
17. It is stated that M/s. Empire Fasteners is not a limited company. Therefore, being a Director in the firm does not mean that the business is owned by Mr. Mukesh Khandelwal. It is submitted that he only works for his brother Mr. Praveen Khandelwal. It is stated that M/s. Empire Fasteners is a Eviction Petition No. 285/14 Page 7 of 26 //8// partnership firm having two partners, namely, Mr. Praveen Khandelwal and Ms. Ratna Khandelwal. It is averred that Mr. Mukesh Khandelwal has no concern with the firm. It is stated that the petitioner's elder son has no business premises in Delhi. It is pleaded that one business premises is in Punjab and the other in UP.
18. It is pleaded that the petitioner is running a shop at Hauz Quazi Chowk, Delhi, which is he is looking after himself. It is stated that the petitioner does not like any interference in his business. Therefore, none of his sons have any concern with the shop which is solely owned and run by the petitioner who is proprietor of the firm.
19. It is denied in the reply that the petition has not been verified in accordance with law. It is submitted that the attorney of the petitioner, being the son of the petitioner, has personal knowledge of all facts mentioned in the petition.
20. It is stated that the petitioner has no concern with the first floor of the property in question as it has been sold by him. It is pleaded by the petitioner Eviction Petition No. 285/14 Page 8 of 26 //9// that he cannot be expected to file a site plan of this property. The Petitioner has prayed for dismissal of the application seeking leave to defend.
21. The respondents filed Rejoinder to the reply of the petitioner and denied the averments made in the reply of the petitioner and simultaneously reiterated and reaffirmed the contents of the application. It is also stated that Mr. Mukesh Khandelwal is earning a handsome amount. It is stated that besides two industrial plots bearing no. 48/1/20 and 48/1/22, site no. IV, Sahibabad Industrial Area, Ghaziabad, UP which are in the name of elder son of the petitioner and wife of Mr. Mukesh Khandelwal, where son of the Mr. Mukesh Khandelwal is doing business under the name and style of M/s. Empire Fasteners, Mr. Mukesh Khandelwal is also having commercial property in Dera Basi, Punjab. It is submitted that all these three properties are in use and occupation of Mr. Mukesh Khandelwal but the petitioner has deliberately and intentionally not disclosed about availability of these plots in the eviction petition. It is submitted that Mr. Mukesh Khandelwal is very well settled and financially well to do showing income of Rs. 21,05,240/- in income tax returns. It is pleaded that Mr. Mukesh Khandelwal lives a lavish and luxurious life.
Eviction Petition No. 285/14 Page 9 of 26
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22. It is stated by the respondents in the rejoinder that the petitioner has alternative accommodation at 4912, Hauz Quazi Road, Delhi besides the premises where Mr. Mukesh Khandelwal is running a factory.
23. During pendency of the present case, the application of the respondents for bringing on record subsequent event was allowed. Additional affidavit of the respondents was filed. It is stated that two more eviction petitions were filed by the petitioner regarding other premises. It is submitted that the petitions have been disposed off and the petitioner has got vacant possession of two premises which were subject matter of the eviction petitions. It is averred that since the petitioner has obtained vacant possession of the two premises, the alleged bonafide requirement of the petitioner stands fulfiled.
24. In response to the additional affidavit, the petitioner filed reply by way of affidavit. It is stated that in pursuance of the two eviction petitions, the petitioner obtained possession of two rooms used for godown purposes and is situated at the back side of the property. It is submitted that these two portions are not suitable for carrying on the business by Mr. Mukesh Khandelwal. It is Eviction Petition No. 285/14 Page 10 of 26 //11// pleaded that the tenanted premises is a shop and situated on the front side of the property.
25. I have heard arguments and carefully gone through the record. It has been clarified by the petitioner that he has personal knowledge of all facts mentioned in the petition, as he is son of the petitioner. Accordingly, the court is of the view that the petition has been verified in accordance with law.
26. The scope of section 14(1)(e) of the Delhi Rent Control Act has been enlarged in view of the Judgment of the Hon'ble Supreme Court titled Satyawati Sharma Vs. Union of India, AIR 2008 SC 3148 so as to include premises let out for commercial purposes also within the scope and ambit of a petition u/s 14(1)(e) of the Delhi Rent Control Act. In order to succeed in a petition for eviction filed under section 14 (1) (e) of the Delhi Rent Control Act, the petitioner must establish that:
i. He is owner and landlady in respect of the tenanted premises. ii.He requires the premises bonafide for himself or for any member of his family dependent upon him.
iii.He has no other reasonably suitable accommodation.
27. The respondents have not denied the ownership of the petitioner of the Eviction Petition No. 285/14 Page 11 of 26 //12// tenanted premises and the relationship of landlord-tenant between petitioner and respondents. It shall now be determined if the requirement of premises by the petitioner for his son who is allegedly dependent upon him is bonafide and non-availability of any other reasonably suitable accommodation.
28. The respondents have alleged that the eviction petition is vague and lacks immaterial particulars. It is stated that the petitioner did not disclose in the eviction petition as to for which of his two sons, he requires the tenanted premises. However, in the reply to the application for leave to defend, the petitioner clarified that the tenanted premises is required for use of his younger son Mr. Mukesh Khandelwal. The court is of the view that the petitioner cannot be said to have concealed a material fact, which has been later disclosed when the respondents raised an objection in this regard. The petitioner cannot be said to have benefited by non-disclosure of name of his son, in the eviction petition.
29. Also, the allegation of the respondents that contradictory statements have been made by the petitioner in the eviction petition, in as much as at one place it is mentioned that the tenanted premises is required for use of the son Eviction Petition No. 285/14 Page 12 of 26 //13// of the petitioner and at other places it is mentioned that the premises is required for use by family members of the petitioner, is misconceived. Son of the petitioner is of course a family member of the petitioner.
30. The respondents have alleged that the petitioner does not bonafide need the tenanted premises for his son Mr. Mukesh Khandelwal to start a business of retailing. It is alleged that the Mr. Mukesh Khandelwal is not dependent upon the petitioner for work. It is pleaded that Mr. Mukesh Khandelwal is already gainfully employed and is Director of M/s. Empire Fasteners which is a well established organization. It is stated that Mr. Mukesh Khandelwal is leading a luxurious and lavish life. It has further been alleged by the respondents that the petitioner has deliberately not disclosed the nature of business of Mr. Mukesh Khandelwal from which he is earning a substantial amount. These allegations have been denied by the petitioner. It is stated by the petitioner that Mr. Mukesh Khandelwal has no concerned with M/s. Empire Fasteners which is a partnership firm having two partners, namely, Mr. Praveen Khandelwal and Ms. Ratna Khandelwal. It is stated that Mr. Mukesh Khandelwal is not doing any business independently in his name and that he is at the mercy of his father and elder brother who have Eviction Petition No. 285/14 Page 13 of 26 //14// independent businesses.
31. The petitioner not disclosing the details of the business/work being done by Mr. Mukesh Khandelwal cannot be said to be concealment of material facts as his financial standing or already having another business is not relevant for the purpose of deciding the present case. Also, it is irrelevant that the son and wife of Mr. Mukesh Khandelwal are already running a business. In this regard, reference is made to the decision of the Hon'ble High Court of Delhi in the case of M/s A.K. Woolen Industries and Ors. Vs. Shri Narayan Gupta RC Rev. 495/2017 dated 31.10.2017 in which the following was held :-
"19.The law to be applied in this regard has been laid down by the Supreme Court in Ragavendra Kumar Vs. Firm Prem Machindery & Co. (2000) 1 SCC 679, Sait Nagjee Purushottam & Co. Ltd. Vs. Vimlabai Prabhulal (2005) 8 SCC 252 and Anil Bajaj Vs. Vinod Ahuja (2014) 15 SCC 610. It has been held that even if the landlord has other commercial premises available to him and even if the landlord is carrying on other businesses, if it is found that the landlord intends to use the premises in occupation of the tenant for carrying on his business therefrom, the landlord is entitled to an order of eviction and the Courts cannot intervene in the same.
21. I may in this regard also notice that Section 19(2) of Eviction Petition No. 285/14 Page 14 of 26 //15// the Rent Act of Delhi provides as remedy to the tenant of repossession, if finds landlord to be not in use of the premises after obtaining an order of eviction against the tenant on the ground of the requirement of the premises for own use."
32. The following was held by the Hon'ble Delhi High Court in the case of Naresh Khanna Vs. Saroj Gupta RC Rev. 281/2017 dated 28.08.2017 :-
"11. Merely because the landlady is well to do or her husband is a practitioner of law, does not prevent him/her from invoking Section 14(1)(e) of the Act and vague arguments, without any specifics, cannot be considered. Supreme Court in Bhimanagouda Basanagouda Patil Vs. Mohammad Gudusaheb (2003) 3 SCC 101 held that the fact that a person has a capacity to purchase the property cannot be the sole ground to hold against him, if has a genuine need for the premises purchased. This Court also, in Ramesh Kumar Vs. Neelam Dawar MANU/DE/175/2014, (SLP (C) No. 23911/2014 preferred where against was dismissed on 3rd September, 2014) held that although the landlord may be financially well off but in the absence of suitable accommodation for his need, his financial well being cannot deny him the eviction order.
...The said question is no longer res integra and it has been settled that the words 'requirement of the landlord' within the meaning of Section 14(1)(e) of the Act is not only confined to requirement of the landlord but of all members of the family of the landlord who are dependent upon the landlord for accommodation and with whom landlord is residing as a family or who constitute family of landlord. It is for this reason only Eviction Petition No. 285/14 Page 15 of 26 //16// that eviction under Section 14(1)(e) of the Act has been ordered for the requirements of financially well off sons as well. In the present case, the plea of the respondent/landlady in the petition for eviction is that the shop in the tenancy of the petitioner/tenant is required to enable her daughter-in-law who have been doing the work of sale of garments from their residence, to set up a boutique.
...It was yet further held that dependence may not in all circumstances be entirely a matter of finance. Again in J.L.Mehta Vs. Hira Devi (1970) 6 DLT 484 it was held that what constitutes a family in a particular society depends upon the habits and ideas of persons constituting that society and the religious and socio religious customs of the community to which such persons may belong. It was thus held that the requirement of the family of the brother of the landlord residing with the landlord would also be the requirement of the landlord. It was further held that the requirement of the landlord "himself" cannot be considered by excluding the requirement of other persons with whom the landlord is habituated to residing us a family. To the same effect is the judgment of the Division Bench of this Court in Gobind Dass Vs. Kuldip Singh ILR (1970) I Delhi 585. Supreme Court inn Joginder Pal Vs. Naval Kishore Behal (2002) 5 SCC 397 approved of the view taken in J.L.Mehta supra as well as in Krishna Devi Vs. Parmeshwari Devi (1977) 2 RCJ 529 where requirement of the family of the married daughter was also considered as a requirement of the landlady. It was further held that the words "for his own use" cannot be construed narrowly. Again, in Kailash Chand Vs. Dharam Das (2005) 5 SCC 375 it was held that the expression "his own occupation" has to be liberally construed and given a practical meaning and does not mean occupation by the landlord himself only. Recently in Bhupinder Singh Bawa Vs. Asha Devi (2016) 10 SCC Eviction Petition No. 285/14 Page 16 of 26 //17// 209 also the requirement of premises for the business of the son already engaged in one other business was held to be the requirement of the landlord. Reference in this regard may also be made to my judgment dated 17th July, 2017 in RC. Rev. No. 315/2017 titled Asha Sawhney Vs. Kamini Gupta and to Anil Kumar Gupta Vs. Deepika Verma (224) 2015 DLT 473 and Labhu Lal Vs. Sandhya Gupta (2010) 119 DRJ 599. The latter two were also cases of requirement of the daughter-in-law residing with the mother-in-law. Mention may also be made of M/s. Jhalani Tools (India) Pvt. Ltd. Vs. B.K.Soni AIR 1994 Del 167 and Santosh Kumari Mehra Vs. Om Prakash (2015) 221 DLT 578 (SLP (C) No. 20970/2015 preferred whereagainst was dismissed on 15 th January, 2016), both of which were cases of requirement for financially independent sons and grand children of the landlord."
33. Even if Mr. Mukesh Khandelwal is financially well off and having independent business, same is not a bar for him to start a new business. In view of the aforesaid decisions, it also cannot be held that Mr. Mukesh Khandelwal is not dependent upon his father/petitioner for the purpose of Section 14 (1) (e) of the Delhi Rent Control Act as dependence is not always a matter of finance. There is no reason to believe that in view of the current business and financial standing of Mr. Mukesh Khandelwal, he shall not get into the business of retailing. It has been disclosed by the petitioner that Mr. Mukesh Khandelwal will do retailing of fasteners and alike products which are Eviction Petition No. 285/14 Page 17 of 26 //18// being manufactured by his elder brother. There is no reason to doubt the correctness of the assertions made by the petitioner. Admittedly, even the petitioner deals in sales and supply of bolts, nuts and fasteners which are manufactured by his elder son at M/s. Empire Fasteners. It may be commercially profitable for Mr. Mukesh Khandelwal also to do retailing of products which are manufactured by his brother. The respondents have no locus to question the nature of business that the petitioner intends to do at the tenanted premises. There is no reason to hold that the requirement for the tenanted premises is a fanciful desire or whim of the petitioner.
34. The respondents have made reference to the following properties and have stated that the petitioner has alternative reasonably suitable accommodation for Mr. Mukesh Khandelwal to start business of retailing:
i) Industrial Plot no. 48/1/20, Site No. IV, Sahibabad Industrial Area, Ghaziabad, UP.
ii) Industrial Plot no. 48/1/22, Site No. IV, Sahibabad Industrial Area, Ghaziabad, UP.
iii) Shop No. 4912, Hauz Quazi Road, Chandni Chowk, Delhi.
iv) Commercial property at Village Gholu Majra, Dera Bassi, Punjab.Eviction Petition No. 285/14 Page 18 of 26
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v) Portions of property number 171-E, Kamla Nagar, Delhi of which possession has been received on disposal of eviction petitions no. E- 272/14 and E-196/13.
35. The petitioner has denied that Mr. Mukesh Khandelwal has any of the aforesaid properties available for his use. At the outset, it is observed that the properties in Punjab and Uttar Pradesh cannot be said to be alternate reasonably suitable accommodation for Mr. Mukesh Khandelwal to start a shop of retailing fasteners and alike products. The need expressed by the petitioner is of a shop and not industrial plots situated outside Delhi or of godowns. The respondents have not filed any material and documents to substantiate that the aforesaid properties are indeed available for Mr. Mukesh Khandewal to start the desired business of retailing. In the case of Rajender Kumar Sharma v. Smt. Leela Wati 155 (2008) DLT 383, the Hon'ble High Court of Delhi held that the respondents' tenants have to place on record some material in support of the assertions made. In this context, the following was held by the Hon'ble Delhi High Court in the case of Sarwan Dass Bange Vs. Ram Prakash, 161 (2010) DLT 80:
"The tenant is required to give all the necessary facts and particulars supported by documentary evidence if available Eviction Petition No. 285/14 Page 19 of 26 //20// to prove his plea in the affidavit itself so that the Controller will be in a position to adjudicate and decide the question of genuine or bonafide requirement of the landlord; a mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine."
36. Even in the case of K.K. Sarin Vs. M/s Pigott Chapman & Co. 46 (1992) DLT 352, the Hon'ble Delhi High Court held that the tenant has to produce material on which he is relying upon. Since no material has been placed on record by the respondents, there is no reason to disbelieve that Mr. Mukesh Khandelwal or the petitioner have no other property which can be used by Mr. Mukesh Khandelwal to start business of retailing. There is no material placed on record to establish that the shop no. 4912, Hauz Quazi, Chandni Chowk, Delhi is not being used by the petitioner and is vacant for use of Mr. Mukesh Khandelwal.
37. With regard to the portions of property no. 171-E, Kamla Nagar, Delhi of which possession has been received by the petitioner during pendency of this case, it has been stated that these portions are rooms used for godown purposes and are situated at the rear side of the property and are thus not reasonably suitable for starting retail business. It is pointed out that the Eviction Petition No. 285/14 Page 20 of 26 //21// tenanted premises is a shop situated on the front side of the property.
38. The court is of the view that the properties on the rear side of the building cannot be considered to be a property as suitable for starting a business of retailing as is the tenanted premises. The petitioner cannot be expected to provide his son a property which is not as commercially profitable only because the respondents do not wish to vacate better part of his property. It is well known that having a shop on the front side of a building is more profitable because the customers can reach there easily. In this regard, reference is made to the decision of the Hon'ble High Court of Delhi in the case of M/s A.K. Woolen Industries and Ors. Vs. Shri Narayan Gupta RC Rev. 495/2017 dated 31.10.2017 in which the following was held :-
"The landlord cannot be compelled to carry on business activity from a commercially unviable location, for the sake of continuing with a tenant in a more commercially viable premises."
39. The tenanted premises being a shop on the front side of a building on the ground floor in a prominent commercial market of Delhi is definitely more viable commercially than industrial plots in other States or godowns on the Eviction Petition No. 285/14 Page 21 of 26 //22// rear side of the building. In the case of Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta AIR 1999 SC 2507, it was held as under:
"...... The landlord may convince the court that the alternate residential accommodation though available is still of no consequence as the same is not reasonable suitable to satisfy the felt need which the landlord has succeeded in demonstrating objectively to exist. Needless to say that an alternate accommodation, the entail denial of the claim of the landlord, must be reasonable suitable, obviously in comparison with the suitable accommodation wherefrom the landlord is seeking eviction. Convenience and safely of the landlord and his family members would be relevant factors. While considering the totality of the circumstances, the court may keep in view the profession or vocation of the landlord and his family members, their style of living, their habits and the background wherefrom they come..."
40. In view of the aforementioned decision, the court has to assess if the properties mentioned by the respondents are as reasonably suitable in comparison to the tenanted premises of the requirement of the petitioner. As has been observed hereinabove, industrial plots in UP & Punjab and godowns in Delhi cannot be said to be as reasonably suitable for Mr. Mukesh Khandelwal to start business of retailing, in comparison to the tenanted premises. The only premises which could have been as suitable is shop no. 4912, Hauz Qauzi, Chandni Chhowk. However, this is not vacant and is being Eviction Petition No. 285/14 Page 22 of 26 //23// used by the petitioner himself.
41. Even if it is presumed that the aforesaid properties are indeed vacant and available for Mr. Mukesh Khandelwal to start a new business of retailing, yet the petitioner is at liberty to choose the property which he wishes to provide to his son Mr. Mukesh Khandelwal for starting his business. In the case of Ragavendra Kumar vs. Firm Prem Machinery AIR 2000 SC 534, the Hon'ble Supreme court held that it is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter. Reference may also be made to the case of Prativa Devi (Smt) v. T.V. Krishnan (1996) 5 SCC 353.
42. In view of the settled legal position it is not for the respondents to dictate to the petitioner that he should manage his family in whatever accommodation is available with him. The tenanted premises belongs to the petitioner and it is for him to choose the property he feels is more commercially profitable for his son to start a new business venture. It is the right of the petitioner to look after his family and if the tenanted premises which is a shop results in earning for the son of the petitioner, he has every Eviction Petition No. 285/14 Page 23 of 26 //24// right to possess the said premises and the respondents cannot contend that he should provide another property to his son for starting a new business venture. It is normal for the petitioner to contend that his son requires the tenanted premises and it cannot be said that the demand of the petitioner for it is not bonafide. While deciding the question of bonafide requirement of the landlord, it is quite unnecessary to make an endeavor as to how else the landlord could have adjusted.
43. It has further been argued by Ld. Counsel for the respondents that the petitioner has not come to the court with clean hands as he has not disclosed material facts including details of properties owned by him. The petitioner has denied having concealed any material fact.
44. The court is of the view that the petitioner having failed to mention details of properties owned by him does not amount to concealment of material facts since the properties own by him are not suitable for his specified requirement. It has already been held hereinabove that the properties referred to by the respondents are not suitable for the requirements of the petitioner. In the case of Ram Narayan Arora Vs. Aska Rani (1999) 1 Eviction Petition No. 285/14 Page 24 of 26 //25// SCC 141, it was held that non-disclosure of accommodation which the court agrees cannot be alternate suitable accommodation cannot be fatal to the petition for eviction. Having not mentioned about the sale of the first floor of the property or its other portions which have been rented out to other persons can also not be called concealment of material facts. Not mentioning of these properties would have been concealment if they were vacant and suitable for Mr. Mukesh Khandelwal to start business of retail. For this reason, there was no requirement for the petitioner to have shown the first floor of the property in the site plan. The respondents have failed to disclose any property in Delhi owned by the petitioner or Mr. Mukesh Khandelwal which is reasonably suitable for Mukesh Khandelwal to start a business of retailing of fasteners and alike products.
45. The net result is that petitioner has been able to establish that the tenanted premises is required bonafide for the use of his son, who is dependent upon him and he has no other reasonably suitable alternative accommodation in his possession for his son to start business of retailing. The respondents have failed to raise any triable issue. The application for leave to defend is dismissed.
Eviction Petition No. 285/14 Page 25 of 26
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46. Since the application seeking leave to defend has been dismissed, the petitioner is entitled to an eviction order. Accordingly, eviction order is passed in favour of the petitioner and against the respondents directing the respondents to vacate the tenanted premises i.e. shop on ground floor bearing no. 171-E, Kamla Nagar, Delhi-110007 shown in red colour in the site plan filed by the petitioner, in terms of Section 14 (1) (e) r/w Section 25-B of the Delhi Rent Control Act. The landlord however shall not be entitled to obtain possession thereof before the expiration of a period of six months from the date of this order.
47. No order as to costs. File be consigned to Record Room. Digitally signed by
SHIRISH SHIRISH AGGARWAL
AGGARWAL Date: 2018.03.26
14:49:04 +0530
SHIRISH AGGARWAL
ARC-I, Central District,
Tis Hazari Courts, Delhi
(Announced in open court
on 26.03.2018)
Eviction Petition No. 285/14 Page 26 of 26