Delhi District Court
Sh. Hemant Kumar Verma vs Sh. Jasbir Singh S/O Late Sh. Hari Singh on 24 July, 2012
IN THE COURT OF RAKESH KUMARIII, ACJ/ARC(WEST)
TIS HAZARI, DELHI
E No.: 39/2011
Date of Institution: 24.09.2010
Date of decision : 24.07.2012
Sh. Hemant Kumar Verma,
S/o Late Sh. Dal Chand Verma,
R/o E1/A, Second Floor,
Mansarover Garden, New Delhi110015
... Petitioner
Versus
Sh. Jasbir Singh S/o Late Sh. Hari Singh,
Proprietor R.R. Electrical Engeinnering Workds,
E1/A, Ground Floor, Mansarover Garden,
New Delhi110015
Also At:
R/o 4/35, Ramesh Nagar, New Delhi110015
... Respondent
JUDGMENT
1. Vide this order I shall dispose off an application u/s 25B (4) of DRC Act filed on behalf of the respondent seeking leave to contest the present eviction petition.
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Facts briefly stated on behalf of petitioner in the petition on which the eviction of the tenant has sought are as under :
(a) That the premises in question is in the ownership of Smt. Mitlesh Verma Wife of the petitioner.
(b) That the premises in question is required for bonafide by the petitioner/owner/landlord for occupation as a residence for his 80 years old and ailing mother who is unable to climb stairs due to her ailment and is the member of the petitioner's family who dependent on him.
(c) That neither the petitioner nor any member of his family including his mother has any other place either in the said building or any where else except the shop in question and the other adjoining Shop in the building situated on the ground floor of the building which are in occupation of the respondent and other tenant Sh. Madan Khurana, Proprietor of M/s. Super Paints and Marble House against whom also the similar petition has been filed. In case both the shops on the ground floor i.e. the shop in question and the other adjoining shop are vacated the petitioner can keep his mother on the ground floor after making minor alterations there.
(d) That the mother of the petitioner at present is residing with the petitioner on second floor of the said property alongwith the petitioner and his family. The mother of the petitioner is having pain in joints specially in knee for the last about 1 year. The said problem has become quite severe and unbearable in E No. 39/11 Page 2 of 34 MarchApril 2010. She is having regular and constant pain in the knee and other joints and has become unable to climbup and climb down the stairs. The doctor attending on her has advised her not to climb stairs. The mother of the petitioner is taking medicines regularly and because of her said ailment it has become very difficult for the petitioner and his family to even to take her to the doctor for regular check up in fact the petitioner has to lift her mother on a chair with the help of atleast two three persons to climb down and climb up the stairs whenever the petitioner used to take her to the doctor.
(e) That initially the property in which the suit premises is situated was in the name of Sh. D. C. Verma Father of the petitioner who had died on 04.12.1996 leaving behind two sons. i.e. the petitioner and Sh. Ashwani Kumar, the brother of the petitioner, one daughter and widow Smt. Krishna Devi (Mother of the petitioner) who is living with the petitioner after the death of the father. After the death of the father of petitioner suit property devolved on his heirs i.e. the petitioner, his brother Sh. Ashwani Kumar, his sister Smt. Suman Verma and Smt. Krishna Devi but Smt. Suman Verma and Smt. Krishna Devi had relinquished their respective shares in the properties in favour of their brother and son respectively i.e. Sh. Hemant Kumar Verma petitioner and Sh. Ashwani Kumar, later on both the brothers i.e. the petitioner and Sh. Ashwani Kumar partitioned the said property vide registered partition deed dated 11.11.05 and the portion in which the suit premises is situated had fallen to the share of the petitioner. The portion fallen to the petitioner is shown in Blue colour and the portion fallen to the share of brother in the said property is E No. 39/11 Page 3 of 34 shown in yellow colour is consisting of a tin shed godown which is occupied by the tenant of Ashwani Kumar. The portion adjoining the shop in question on the ground floor is being used as godown by another tenant of the petitioner. The petitioner does not require the said godown which is like a big hall and the petitioner is not in a financial position to make the same as a dwelling unit.
The petitioner is also having ancestral property in village bearing no. WZ38, Village Naraina which is on rent and none of the member of the petitioner's family is residing there so the mother of the petitioner cannot be shifted there in the old age of more than 80 years as after the death of father of the petitioner the mother of the petitioner has been continuously living with the petitioner in property bearing no. E1/A, Mansarover Garden, New Delhi15.
(f) That the petitioner several times requested the respondent to vacate the premises after telling him the above said facts and hardships being faced by the mother of the petitioner, the petitioner and his family as well but despite several promises and assurances the respondent has not vacated the suit premises.
Further relied upon the judgment of Hon'ble Supreme Court in case titled, "Satya Wati Sharma Vs. Union of India & Anr." reported in 148 (2008) DLT 705, has laid down the law that the provisions of Section 14 (1) (e) are also applicable on premises let out for commercial/nonresidential purposes. In view of the said law laid down by he Hon'ble Supreme Court the petitioner is entitled to recover the possession of the premises in question from the E No. 39/11 Page 4 of 34 respondent.
Lastly prayed that a decree for eviction in respect of the premises in question i.e. shop measuring 7' X 18' on the ground floor of property bearing No. E1/A, Mansarover Garden, New Delhi110015 more clearly shown in Red colour in the site plan attached, be passed in favour of the petitioner as the petitioner or the mother of petitioner do not have any other suitable accommodation in Delhi except the shop in question (premises in dispute) which is required for bonafide use for the residence of his (petitioner) mother.
2. An application U/s 25B (4) of the DRC Act by way of affidavit was filed by the respondent seeking leave to contest the petition on the grounds:
(i) That the present petition filed by the petitioner is false and frivolous and has been filed with malafide intentions and ulterior motive just to get the respondent evicted on the basis of false and flimsy grounds.
(ii) That the petitioner has furnished the wrong, false and incorrect facts in the petition by misleading the Hon'ble Court by mentioning that the mother of the petitioner is residing with the petitioner on second floor of the said property alongwith the petitioner and his family and specifically averted in para B of his leave to defend application that the mother of the petitioner Smt. Krishna Devi never resided with the petitioner ever since the petitioner started living in the suit property.
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(iii) That the mother of the petitioner is not living with the petitioner. She is visiting the petitioner occasionally but she is permanently residing in the ancestral house property in Village bearing no. WZ38, Village Naraina, Delhi.
Further submitted that despite having big house in the name of his (petitioner) father Shri D. C. Verma. The whole family of Shri D. C. Verma was residing in the said ancestral house in village Naraina alongwith the petitioner and his brother Shri Ashwini Kumar. It is further submitted that when the petitioner shifted in the suit property, even at that time the petitioner's mother did not accompany with the petitioner to live with her son in the suit property.
(iv) That the petitioner's father expired on 04.12.1996 and even after the death of husband, petitioner's mother preferred to live in the said ancestral house with her younger son Shri Ashwini Kumar and continued to live there till date. And the name of the petitioner's mother clearly exist in the electoral list of the said village Naraina for the year 2003 and 2009 which are annexed with the application as Annexure R1 and Annexure R2.
(v) That the petitioner has filed the present petition for the eviction of the shop on the ground floor of the suit premises on the alleged ground of bonafide requirement of his ailing mother Smt. Krishna Devi aged about 80 years old stated to be suffering from Osteo Arthritis. Further submitting that at the age of 80, such type of ailments are bound to be there.
(vi) That the petitioner has stated that the petitioner has to lift her mother on a chair with the help of at least two three persons to climb down and climb up E No. 39/11 Page 6 of 34 the stairs whenever the petitioner used to take her to the doctor. It is respectfully submitted that taking the petitioner's mother to the doctor is not a daily routine and for this reason petitioner cannot put her own mother in isolation just for his own convenience.
(vii) That the property in question is not a suitable for residence purpose as the whole area is notified for mix land use where the ground floor of all the properties are meant for commercial use only and this is an India's biggest International Market of Marble Stone and where the loading and unloading of marble stone is done through out day and night. The whole day and night disturbance of trucks and other road traffic vehicles noise is always irritating and pollution around the whole area is unquestionable health hazards hence the ground floors of all the properties are not meant for residential purpose. In such an unhealthy and uncomfortable conditions, keeping an old lady of 80 years lonely on the ground floor is not only advisable at all but also unsafe and health hazard which can cause more danger to her health and life rather to give her any comfort or relief of any nature.
(viii) That on the other side, respondents' family is completely dependant on the earning of this small shop. The respondent's family is consisting of four members including two studying children. The rented shop is the only source of income of respondent.
(ix) That the respondent was inducted as tenant in respect to shop in question on the ground floor of the property bearing no. E1/A, Mansarover E No. 39/11 Page 7 of 34 Garden, New Delhi110015 by executing the Rent Deed dated 30.11.1986 on a monthly rent of Rs. 500/. The tenancy was started w.e.f. 1st December 1986.
The copies of Rent Receipts dated 11.12.1986 for Rs. 500/ for the month of December, dated 22.02.2002 for Rs. 725/ for the month of February 2002 and dated 31.01.2010 for two months @ 970/ per month are annexed as AnnexuresR3, R4 and R5.
The respondent's shop is registered with shops and establishments department of MCD. The copy of said registration is annexed as Annexure R6. The respondent is doing the business in the name of M/s. R. R. Electrical and Eng. Works in the said rented shop and the same is registered with Delhi Sales Tax Department. The Registration Certificate is annexed as Annexure R7. The respondents' shop is situated on the Notified mixed use roads as Master Plan Delhi2021 and the said shop of the respondent is regisgered under said scheme. The copy of the registration and receipt of the payment made for the same are annexed as AnnexuresR8 and R9. The receipt of the conversion Charges made to the MCD is annexed as AnnexureR10. The copy of the current electricity bill in the name of respondent firm is annexed as AnnexureR11.
Lastly, submitted that the need of the suit premises is neither honest nor real as the shop in question is not suitable for the health and life of the ailing mother of the petitioner and petitioner has created the false evidence just for the sake of getting the eviction order hence made request to grant leave to E No. 39/11 Page 8 of 34 contest the present eviction petition. Respondent relied upon the following judgments which are as under:
(i) In Santhosh Devi Soni Vs. Chand Kiran 2000(3) CCC 178 SC
(ii) In Ram Narain Arora Vs. Asha Rani and others AIR 1998 SC 3012
(iii) In Puran Chand & Anr. Vs. Yaspal 113 (2004) DLT 421
(iv) In Deena Nath Vs. Pooran Lal (2001) 5 SCC 705
(v) In M. M. Quasim Vs. Manohar Lal Shara and others AIR 1981 SC 1113
(vi) In Inderjeet Kaur Vs. Nirpal Singh (2001) 1 SCC 706
(vii) In Mohd. Illyas Vs. Nooruddin & Ors. 184 (2011) DLT 590
(viii) In Kusum Lata Vs. Shyam Mohan Sharma RCR No. 240/2010
(ix) In Dolly Chandra & Anr. Vs. Rameshwar Prasad RCR No. 171/2011
(x) Jatinder Singh Nanra Vs. Sarita Rani RC. REV No. 81/2010
(xi) In Anand Kumar Jain Vs. Subhash Chand Aggarwal RC.REV No. 127/2011
(xii) In Pradeep Kumar Sethi Vs. Rajender Kumar Sethi RC. REV No. 127/2010
(xiii) In S. K. Dey Vs. D. C. Gagerna 26 (1984) DLT 438
(xiv) In Mr. N.N. Khurana Vs. Mrs. Leela DLT 15 (1979) 97
3. Reply to leave to defend application by way of affidavit filed on behalf of petitioner wherein grounds for leave to defend has been denied on the following grounds that:
E No. 39/11 Page 9 of 34
(i) the shop in question is required for bonafide use and that petitioner or the mother of petitioner has no other suitable accommodation except the property in question.
(ii) petitioner in his counter affidavit specifically denied that mother of petitioner occasionally visited the petitioner and she is permanently residing in an ancestral house property bearing no. WZ38, Village Naraina and submitted that mother of the petitioner has been actually physically and continuously living with the petitioner in property No. E1/A, Mansarover Garden, New Delhi110015 after the death of father of the petitioner in the year 1986 and respondent with malafide intention and oblique motive has given false facts in his affidavit.
(iii) that the mother of the petitioner does not want to live with the wife of the brother of the petitioner as the mother as well as wife of the brother of the petitioner are having altogether different temperament and the mother of the petitioner shifted from village Naraina and started to live with the petitioner immediately after the death of the father of the petitioner and denied rest of the paras of leave to defend application.
4. Rejoinder affidavit to the reply of petitioner filed on behalf of respondent wherein denied all the contents of reply filed by the petitioner and stated that the mother of the petitioner has not been residing with the petitioner and the said fact is corroborated with the electoral list filed for the year 2003 & 2009 by the respondent and the documents filed by the petitioner is manipulated so E No. 39/11 Page 10 of 34 as to make his mother instrumental in getting the eviction against the respondent. Respondent further stated that all the contents & averments made in the reply are false, vague and fictitious and the only sole motive of the petitioner is to get vacated the shop in question, so as to sell it off after some addition and alteration etc. at higher price. It is also further stated by the respondent that petitioner has failed to file any prescription of St. Stephen Hospital, Delhi or any other local Doctor to even primafacie show that the mother of the petitioner was suffering from any ailment and the documents filed are manipulated and fictitious and all these facts as well as contentions would have to be tested in various way in the Trial to arrive at just and proper decision upon the question of bonafide use and occupation as mentioned required to be proved in accordance with law in the trial. It is also stated by the respondent that he has no other source of business. Lastly request for allowing the present application.
5. Heard and perused the file and gone through the records accordingly.
6. From the bare perusal of record it is admitted case that there is no dispute between the parties as regard to landlord and tenant relationship as well as ownership, rate of rent, period of tenancy and the purpose of letting are concerned. The only objection taken by the respondent are in respect to the bonafide requirement of the petitioner, suppression and concealment of material fact. Hence the only questions which has to be determined for the present leave to defend are as under: E No. 39/11 Page 11 of 34
1. Whether the petitioner has filed the false and frivolous case with malafide intention and ulterior motive just to evict the respondent?
2. Whether the petitioner has concealed any material fact from this Court?
3. Whether the mother of the petitioner is not residing in the property in question alongwith the petitioner?
4. Whether the petitioner has bonafide requirement of the property in question?
7. (i) Whether the petitioner has filed the false and frivolous case with malafide intention and ulterior motive just to evict the respondent? In respect of this contention nothing contrary documents has been placed by the respondent however addressed the arguments on the ground that as per the site plan of the petitioner only one shop has been occupied by the respondent which is not habitable despite the fact the other large portion of the ground floor has been let out to some other tenant i.e. Mahesh Parwal but this is specific averted in the petition & it is not out of mention to place here that it is ruled out in Devi Ram V. Ram Kapoor, 76 (1998) DLT 637 "The law is well settled that the landlord is entitled to assess the need and requirement for himself and his other family members. Neither the Court nor the tenant can dictate to him the mode and manner in which he should live or to prescribe for him a residential standard of their own" E No. 39/11 Page 12 of 34
Also in case title Sudesh Kumar Soni Vs. Prabha Khanna, 2008 (153) DLT 652: 2008 (9) AD (Delhi) 657.
"Bona fide requirementDetermination of, requirement forWhether to decide bona fide requirement of landlord, it is necessary to make an endevour as to how else the landlord could have adjusted himself? Held, Nowhether tenant can dictate the terms to landlord as to how else he can adjust himself without getting possession of tenanted premises?
Further it has also been held as per the judgment passed by Hon'ble Justice V.B.Gupta as reported in Vol.173 (2010) 189 titled as 'Navneet Lal versus Deepak Sawhney' which is as under :
"(i) Delhi Rent Control Act, 1958 - Sections 14(1)(e), 25 B(8) - Leave to Defend - Bonafide requirement - Petitioners failed to raise any triable issue, which if proved might disentitle respondent from getting an order of eviction in his favour - During pendency of petitions, respondent has got vacant possession of two shops -
Averments made by respondent in its eviction petition with regard to accommodation available with him on ground floor and grounds on which he requires shop in question, not disputed by petitioner tenants in their leave applications - Area of shops is very small and would not meet entire requirement of respondent and his family members - Trial Court has given detailed and reasoned order which does not E No. 39/11 Page 13 of 34 call for interference nor same suffers from any infirmity of erroneous exercise of jurisdiction."
Further it is ruled out by the Hon'ble High Court of Delhi in Hari Shanker Vs. Madan Mohan Gupta, 111 (2004) DLT 534 & held that 'Summary procedure in Section 25B of Delhi Rent Control Act, 1958 cannot be defeated by merely making frivolous and vague allegations which can never be substantiated."
Since in the present leave to defend, respondent has failed to file any document to substantiate that the present eviction petition has been filed with malafide intention and in view of the judgment i.e. Hari Shanker Vs. Madan Mohan Gupta, 111 (2004) DLT 534, the contention is appears to be vague hence present issue is decided in favour of petitioner and against the respondent.
8. (ii) Whether the petitioner has concealed or suppressed any material fact from this Court?
(iii) Whether the mother of the petitioner is not residing in the property in question alongwith the petitioner?
Both these questions are interconnected hence taken together.
The respondent has stated that petitioner has concealed and suppressed the material fact from this Court, in respect of this, it is contended that Smt. E No. 39/11 Page 14 of 34 Krishna Devi (mother of the petitioner) never resided with the petitioner even since the petitioner started living in the suit property with further averment that the Smt. Krishan Devi is permanently residing in ancestral house of his (petitioner) father Late Sh. D. C. Verma bearing no. WZ 38 Village Naraina Delhi and even at the time of shifting to the petitioner to the suit property the mother of the petitioner Smt. Krishna Devi did not accompany with him to live in the suit property and placed the electoral list for the year 2003 and 2009 which is as per Annexure R1 & R2 wherein the name of the mother, Smt. Krishna Devi has been recorded in the Voter List.
On the other hand, the contention of the respondent opposed by the petitioner on the ground that the electoral roll of 2003 for the Assembly Constituency is old one and even without epic number and without mentioning any election card number in the list and on the contrary filed the photocopy of election I card of Smt. Krishna Devi wherein the address of the property in question is mentioned. Moreover, he has also placed electoral roll of 2003 of Assembly Constituency65 Moti Nagar wherein epic number is mentioned which is corroborated with the number of the Voter I Card of the Krishna Devi as well as placed the electoral roll of the year 2010 wherein at S. No. 12 name of the Krishna Devi is recorded as a resident of property in question.
Keeping in view the contrary documents having been placed by the petitioner i.e. Electoral roll of the year 2003 and 2010. The submission/contention of the respondent cannot be considered that she has not been residing in the property in question at any point of time or the petitioner E No. 39/11 Page 15 of 34 has concealed or suppressed material facts from this Court. In absence of any cogent evidence or documents on behalf of the respondent the contention of respondent is not tenable in eyes of law hence both these issues are decided in favour of the petitioner and against the respondent.
(iv) Whether the petitioner has bonafide requirement of the property in question?
Respondent has taken objection in his leave to defendant application that the present petition is filed with malafide intention and need of the suit premises is neither honest nor real.
On the other hand petitioner has claimed bonafide requirement for the tenanted portion and contended in respect of this issue that the property in question is required for the occupation as a residence for his mother who is 80 years old and ailing, who is unable to climb stairs due to her ailment and is the member of the petitioner's family and is dependent on him. The petitioner and his mother has no other reasonable suitable accommodation. The mother of the petitioner at present is residing with the petitioner on the second floor of the said property alongwith the petitioner and his family and due to joint pain in knee for the last about one year the said problem has become quite severe and unbearable in MarchApril 2010 and unable to climbup and climb down the stairs as such the doctor attending on her has advised her not to climb stairs at all and placed medical treatment of Smt. Krishna Devi. E No. 39/11 Page 16 of 34
It is contended by the respondent that the submission of petitioner is false and frivolous as there is no as such disease has been noticed by the respondent with further submission that at the age of 80, such type of ailments are bound to be there, not only Oesteo Arthritis but also B. P., Heart problems, Blood Sugar etc. But most importantly, the million Dollar question is that whether the required tenanted premises of the respondent is suitable or not for the health and safety of life of the petitioner's mother and further contended that as the petitioner has stated that the petitioner has to lift her mother on a chair with the help of at least two or three persons to climb down and climb up the stairs whenever the petitioner used to take her to the doctor are wrong. Moreover, it is not a daily routine to take the mother to the doctor but the petitioner cannot put her own mother in isolation just for his own convenience. Further it is submitted that the mother of the petitioner does not want to reside on second floor with his other son namely Sh. Ashwani Kumar, due to inconvenience with the temperament with his wife the other son. And relied upon the unreported judgment in case titled Shri Jitendra Singh Verma Vs. Manohar Lal Aggarwal passed by Hon'ble High Court of Delhi 1978 (1) RCR 203 wherein it has been ruled out:
Delhi Rent Control Act, 1958, Section 14 (a) - Landlord suffering from heart trouble and wanted ground floor - Landlord producing Medical Certificate - Leave to contest be granted to tenant - To prove illness was a matter of evidence and could not be decided in summarily. E No. 39/11 Page 17 of 34
Further respondent relied upon other judgments of Hon'ble High Court of Delhi in case titled:
(i) B. R. Anand Vs. Prem Sagar 2002 (1) RCR 234
(ii) National Labour Institute Vs. Mrs. Prem Chandra 1982 (1) RCR 186
(iii) Delhi Cloth & General Mills Vs. T. S. Bhatia (1977) 13 DLT 100 However, petitioner has also filed judgment in contrary to the respondent of Hon'ble Supreme Court in case titled, "Satya Wati Sharma Vs. Union of India & Anr." reported in 148 (2008) DLT 705 Wherein Hon'ble Supreme Court of India held that there is no distinction between the premises led out for residential purpose or for commercial purpose. For the matter of fact on the ground of bonafide requirement of the landlord or any member of his family depended on him. Such distinction could also not drawn so as to entitle the landlord from seeking vacation from bonafide requirement of the premises, be it commercial or residential, for his personal use and occupation or that any member of his family depended on him by putting it, either use for residential purpose or for commercial purpose. The similar view also taken by Hon'ble High Court of Delhi while deciding the case title Mr. Hot Chand Vs. Mr. Dhanpat Rai & Others in Revision Petition bearing no. 106/09 and Civil Miscl. bearing no. 15536/09 on 27.01.2010.
Also relied upon judgments 167 (2010) Delhi Law Times 678 in case titled Benson Shoes Vs. Chunni Lal Takkar wherein it has been held that: E No. 39/11 Page 18 of 34
(i) Delhi Rent Control Act, 1958 Sections 14 (1) (e), 25B, 25B (4) Bona fide Requirement Denial of leave to defend to tenant Justified Respondent's requirement of accommodation is genuine, dire and highly bona fide Accommodation was not being sought just for sake of it It is a case where family has been compelled to squeeze itself in available accommodation because it could not earlier file eviction petitioner against petitioner and get premises vacated for their use and occupation and it could file eviction petition only after decision in Satya wati Sharma case Trial Court rightly dismissed application under section 25 B of Act.
In case titled Shree Ram Sharma Vs. Mohd. Sabir (2011) Delhi Law Times 1 of Hon'ble High Court of Delhi wherein it has ruled out:
Delhi Rent Control Act, 1958 Sections 14 (1)
(e), 25B (8) - Bonafide requirement Leave to defend Respondent tenant did not raise any triable issue which required trial and for which leave to defend the eviction petition granted to respondent Same has been granted by adopting erroneous approach and on a perfunctory reading of submissions of parties - Additional Rent Controller did not take into account fact that petitioner and his wife were aged and suffering from her diseases and arthritis cannot climb stairs and need accommodation on ground floor Their 3 married daughters alongwith their family, also visit them frequently Requirement of petitioner cannot E No. 39/11 Page 19 of 34 be pegged down at only one room They would at least require two rooms Need of the petitioner to stay at ground floor is genuine and bonafide Tenanted accommodation was the most suitable to meet requirement of petitioner's expanded family Impugned order set aside and respondent's application seeking leave to defend rejected.
Also "Learned Counsel for the petitioner/landlord has submitted that the petitioner being the landlord is the best judge of his requirement for residential or business purpose as upheld by the Supreme Court in Raghavendra Kumar Vs. Firm Prem Machinery & Co. I (2000) SLT 211=2000 (1) SCC 679."
In Case titled Prativa Devi Vs. T. V. Krishnan, (1996) 5 SCC 353 Referred (Sudesh Kumari Soni Vs. Prabha Khanna, 2008 (153 DLT 652 :
208 (9) AD (Delhi) 657.
"Bona fide requirementDetermination ofHeld, if the landlord wishes to live with comfort in a house of his on, the law does not command or compel him to squeeze himself tightly into lesser premises protecting the tenant's occupancy."
It was further held that 'landlord is the best judge of his residential requirement. He has complete freedom in the matter. It is no concern of the Courts to dictate to the landlord how and in what manner he should live or to E No. 39/11 Page 20 of 34 prescribe for him a residential stand of their own.' In Rajinder Kumar Sharma & Ors Vs. Leela Wati & Ors., 155 (2008) Delhi Law Times 383, this Court observed:
"Section 25 B was inserted by the Legislature in Delhi Rent Control Act as a special provision for eviction of the tenants in respect of specified category of cases as provided therein. Where a landlord seeks eviction on the basis of bona fide necessity, a summary procedure is provided and tenant has to seek leave to defend disclosing such facts which disentitled the landlord from seeking eviction.' In Nem Chand Daga Vs. Inder Mohan Singh Rama, 94 (2201) Delhi Law Times 683, it was held:
"That before leave to defend is granted, the respondent must show that some triable issues which disentitled the applicant from getting the order of eviction against the respondent and at the same time entitled the respondent to leave to defend exited. The onus is prima facie on the respondent and if he fails, the eviction follows.
It is ruled out in M. L. Prabhakar Vs. Rajiv Singhal reported at 1(2001) SLT 282 (2001) 2 SCC 355 wherein it was held the Court would permit the landlord to satisfy the proven need by choosing the accommodation which E No. 39/11 Page 21 of 34 the landlord feels would be most suited for his 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 requirement needs a practical approach instructed by the realities of life. An approach either too liberal or too constructive or pedantic must be guarded against".
In Prem Lata Vs. Pawan Kumar Khurana & Ors. 187(2012) DLT 340 wherein it has been held: Leave to defend eviction petition - No triable issue raised by tenant, respondent No. 1 justifying grant of leave to defend by him by Additional Rent Controller - Fact that petitioner landlady is 85 years of age by itself was sufficient to accept her need for accommodation on ground floor and that need cannot be said to be mala fide - As far as availability of one shop adjacent to shop in question in possession of respondent no.1 is concerned, it is respondent No.1's own case that grand son of petitioner landlord was using same as a shop though for one year he was not using the same - Since grandson of petitioner is coowner of property of which shop in question forms a part, just because he was not using the shop in his possession for sometime, would not mean that part of property is available to petitioner landlady is bona fide - Impugned order passed by ARC is set aside.
In Hot Chand Vs. Dhanpat Rai & ORS. 168 (2010) Delhi Law Times 78 wherein it has been held: Bona fide requirement - Eviction order - Upheld E No. 39/11 Page 22 of 34
- Contention that premises in question was let out for commercial purpose hence petition of landlord for eviction on ground of bona fide requirement not maintainable, rejected - In satyawati Sharma case Supreme Court made it clear that there is no distinction between premises let for residential and commercial purpose in matter of eviction on ground of bona fide requirement of landlord - Another contention that premises is situated in commercial area and premises is only a single Hall without any bathroom facilities or any water connection, not understood how landlord would put it to use for residential purpose also rejected - Municipal byelaws do not bar landlord from internally partitioning the said hall into rooms by constructing walls after obtaining sanction in that regard - It is also not a case of petitioner that civil authority on an application being received would decline to grant water connection to tenanted premises merely because it is situated in commercial area - It is not for tenant to question decision of landlord to put tenanted premises to use for residential purposes - Further said plea was not raised before ARC and now tenant cannot be allowed to raise such plea - Impugned order does not suffer from illegality.
Further it has been held:
"It is not the case of the petitioner that the civic authority, on an application being received, would decline to grant a water connection to the tenanted premises merely because it is situated in a commercial area. In so far as the toilet facilities are concerned, as stated by the counsel for the petitioner/tenant himself, the tenanted premises is a single hall in his E No. 39/11 Page 23 of 34 occupation along with respondents No. 9 to 13, the legal heirs of late Sh. Daulat Ram. The Municipal Byelaws do not bar the respondents from internally partitioning the said hall into rooms by constructing walls including a toilet, after obtaining necessary sanctions in that regard. There is no law that prohibits the respondents from making such an application, and the civic authority entertaining the same if it is in accordance with the Building Bye Laws."
Further it is held in Sarla Ahuja Vs. United India Insurance Co. Ltd. (1998) 8 SCC 119 passed by Hon'ble Supreme Court:
"The crux of the ground envisaged in clause (e) of Section 14 (1) of Act is that the requirement of the landlord for occupation of the tenanted premises must be bonafide. 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 bonafide. 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 is bonafide. 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 bonafides of the requirement of the landlord, it is quite unnecessary to make an endeavor as to how else the landlord could have adjusted himself" E No. 39/11 Page 24 of 34
In case title Nireanjan Deva Tagal, AIR 1982 (SC 1518 S. K. Dey Vs. D. C. Gogerna, 1984 (2) RCR 615, (referred) "Choice of landlord to reside in particular premisesWeight age to, ScopeBona fide requirementEviction of tenant sought for on ground of bona fide requirementNot for tenant to dictate terms as how and where the landlady should live."
It is further also not out of mention to place here that while assessing bona fides of the landlord, the approach of the Court should not be unrealistic and impermissible. Nor should it be too technical devoid, of realities.
It has also been held as per the judgment passed by Hon'ble Justice V.B.Gupta in case titled as 'Veeran Wali Versus Kuldip Rai Kochar', which is reported in Vol. 174(2010) DLT 328, which is as under:
"Delhi Rent Control Act, 1958 - Section 25B(8) - Leave to Defend - Failure to raise any triable issue by petitioner - tenant - Besides basement, respondent landlord is not having any other suitable and readily available accommodation with him in entire premises - Respondent has categorically stated that basement is not suitable for him to carry on business, as same is being used for storage and parking purposes - Any business which is run from ground floor of premises will attract more customers than business being run from basement - Tenant cannot dictate landlord as to how and in what manner landlord should use his own property - Respondent in his E No. 39/11 Page 25 of 34 eviction petition in clear and unequivocal terms mentioned about his requirements - Concept of alternate accommodation means accommodation which is reasonably suitable for landlord Problem to be approached from point of view of reasonable man and not whimsical landlord - Petition failed to raise any triable issue which if proved might disentitle respondent from getting order of eviction in its favour - Trial Court has given detailed and reasoned order which does not call for any interference nor same suffer from any infirmity or erroneous exercise of jurisdiction."
In Sarvan Dass Bange V. Ram Parkash, 167 (2010) DLT 80 = 2010 IV AD (Delhi) 232, Observations made by Supreme Court in Baldev Singh Bajwa V. Monish Saini, VII (2005) SLT 112+(2005) 12 SCC778, have been quoted as under:
"The tenant is required to give all the necessary fact, and particulars supported by documentary evidence if available 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 bona fide 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."
Also in the case Meenakshi V. Ramesh Khanna and Anr. [60 (1995) E No. 39/11 Page 26 of 34 DLT 524] wherein it has been held that:
"(6).....The tenants are well aware that once leave to contest is granted, the cases go on for trial for years. Their purpose is achieved. Keeping this in mind, the Controllers should rather have positive approach in such matters of as to discourage such vague and frivolous pleas which are most of the time false to the knowledge of persons raising them."
So far as the judgments placed by respondent which are at S. No. 6 i.e. Inderjeet Kaur Vs. Nirpal Singh (2001) 1 SCC 706 and at S. No.10 i.e. Jatinder Singh Nanra Vs. Sarita Rani RC. REV No. 81/2010 concerned, the ratio of both judgment is not applicable to the given facts & circumstances as I am of the considered view, after taking into consideration the judgment i.e. M. L. Prabhakar Vs. Rajiv Singhal reported at 1(2001) SLT 282 (2001) 2 SCC 355 wherein it was held the Court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for his 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 requirement needs a practical approach instructed by the realities of life. An approach either too liberal or too constructive or pedantic must be guarded against"..
It is not out of mention to place here that in the present case the recovery of possession of the tenanted premises has been sought on the ground that illness of old age mother of petitioner who is 80 years of age and there is no E No. 39/11 Page 27 of 34 out of stress of imagination that she is in very good knee condition to climb the stairs apart from considering medical records which the petitioner has placed.
So far as the ratio of judgments mentioned at S.No. 1 i.e. Santhosh Devi Soni Vs. Chand Kiran 2000(3) CCC 178 SC, at S. No. 2 i.e. Ram Narain Arora Vs. Asha Rani and others AIR 1998 SC 3012, at S. No. 3 i.e. Puran Chand & Anr. Vs. Yaspal 113 (2004) DLT 421 as well as at S. No. 11 i.e. Anand Kumar Jain Vs. Subhash Chand Aggarwal RC.REV No. 127/2011 concerned, are also not applicable to the given facts & circumstances of the present case as even in the present leave to defend application there is no where objection has been taken that the present petition has been filed for the additional accommodation rather the respondent contested the present eviction petition on the ground that the premises in question is not suitable for the residence purpose as the whole area is notified for mix land use. Here it is not out of mention to place that in case titled as Hot Chand Vs. Dhanpat Rai & ORS. 168 (2010) Delhi Law Times 78 wherein it has been held:
"It is not the case of the petitioner that the civic authority, on an application being received, would decline to grant a water connection to the tenanted premises merely because it is situated in a commercial area. In so far as the toilet facilities are concerned, as stated by the counsel for the petitioner/tenant himself, the tenanted premises is a single hall in his occupation along with respondents No. 9 to 13, the legal heirs of late Sh. Daulat Ram. The Municipal Byelaws do not bar the respondents from internally partitioning the said hall into rooms by constructing walls including E No. 39/11 Page 28 of 34 a toilet, after obtaining necessary sanctions in that regard. There is no law that prohibits the respondents from making such an application, and the civic authority entertaining the same if it is in accordance with the Building Bye Laws."
So far judgment mentioned at S. NO. 4 i.e. Deena Nath Vs. Pooran Lal (2001) 5 SCC 705 and at S. No. 5 i.e. M. M. Quasim Vs. Manohar Lal Shara and others AIR 1981 SC 1113, concerned are also not applicable to the facts & circumstances of the present case as they are not related to the provision of Section 25(B)(4)(5) and 14(1)(e) of DRC Act.
Further judgment mentioned at S.No. 7 i.e. Mohd. Illyas Vs. Nooruddin & Ors. 184 (2011) DLT 590 concerned is also not applicable because in the present case there is no as such pleading on behalf of respondent that the petitioner is having huge property which can be fit for the need of petitioner/landlord. So far as the other aspect is concerned that the petitioner has not come with clean hands, the respondent in the present leave to defend failed to establish the fact which leads to me that the petitioner has not approach to this Court with clean hands as discussed above.
Judgment mentioned at S. No. 8 i.e. Kusum Lata Vs. Shyam Mohan Sharma RCR No. 240/2010 is concerned, in that case the tenant contested the petition on the ground that landlord did not require the tenanted premises bonafide since he was not living in the premises in question of which the tenanted premises formed a part and in fact he was living in his another newly E No. 39/11 Page 29 of 34 built four storeyed house no. 2273, Hudson Lines, Kingsway Camp, Delhi110009. Here in the present case objection has also been taken by the respondent that the petitioner is not residing in the property in question and filed photocopy of electoral list for the year 2003 and 2009 which is as per Annexure R1 & R2 but on the contrary the petitioner has also placed electoral roll of 2003 for the Assembly Constituency65 Moti Nagar wherein epic number is mentioned which is corroborated with the number of the Voter I Card of the Krishna Devi as well as placed the electoral roll of the year 2010 wherein at S. No. 12 name of the Krishna Devi is recorded as a resident of property in question hence I am of the considered view the ratio of judgment is not applicable to the facts and circumstances of the present case.
Further the ratio of judgment mentioned at S.No. 9 i.e. Dolly Chandra & Anr. Vs. Rameshwar Prasad RCR No. 171/2011 concerned is also not applicable because the present petition has been filed on the ground that tenanted premises required for the mother of petitioner and the facts of the present case is altogether different.
So far as the ratio of judgment at S. No. 12 Pradeep Kumar Sethi Vs. Rajender Kumar Sethi RC. REV No.127/2010 concerned is also not applicable to the given facts & circumstances of the present case as there is no dispute between relationship of petitioner and respondent as landlord & tenant by the respondent. Moreover in a very recent case of Ramesh Chand Vs. Ugani Devi 157 (2009) DLT 450, our own Hon'ble High Court has E No. 39/11 Page 30 of 34 specifically held that:
"It is settled preposition 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 under Section 14 (1) (e) of the D.R.C. 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 the 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. I, therefore, find that there was no infirmity in the order of learned ARC in this respect."
Keeping in view the judgments and discussion captioned above, I am of the considered view that the requirement of the petitioner for shop in question is appears to be most bonafide as it is required as a residence for his mother who is 80 years old and ailing, who is unable to climb stairs due to her ailment as clear from medical record and is the member of the petitioner's family who is dependent on him and that petitioner and his mother has no other reasonable/suitable accommodation hence requirement of the petitioner cannot be thrown out merely denial by the respondent that she is not suffering seriously & he did not see the petitioner and his family member to climb her to E No. 39/11 Page 31 of 34 upper floor especially keeping in view the report of doctor. Further age factor of mother of petitioner is not denied as she is 80 years old lady and tenanted premises is required for her accommodation and if the leave is granted the respondent might have been succeed to delay the proceedings to years to years as clear from the previous conduct of respondent which is reflected from the previous order sheet of the present case and there is quite possibility to the mother of petitioner that she may be left for the heaven then what purpose would be serve to provide justice at later stage especially the fact that now not only the old people suffering from knee problem but also the younger one. Moreover it is not out of mention to place here that the tenanted premises has been let out by the father of of the petitioner as respondent vide rent deed agreement dated 30.11.1986 and has not ever been disturbed. Further it is well settled by the Hon'ble Supreme Court that there is no law which deprived the landlord of the beneficial enjoyment of his property. So, I am of the further considered view that the petitioner has bonafide requirement of tenanted premises and hence the plea of respondent regarding that present petition has been filed with malafide intention that the tenanted premises is not bonafidely required by the petitioner is untenable. Accordingly this issue is also decided in favour of the petitioner and against the respondent.
In view of the above discussion, application of the respondent for seeking leave to contest is dismissed and eviction order is passed in favour of the petitioner and against the respondent with respect to the tenanted shop measuring 7' X 18' on the ground floor of property bearing No. E1/A, E No. 39/11 Page 32 of 34 Mansarover Garden, New Delhi110015 more clearly shown in Red colour in the site plan. Respondent is directed to handover the peaceful and vacant possession of the shop in question. However, this order shall not be executed prior to the expiry of period of six months from the date of order i.e today. File be consigned to Record Room after due compliance.
Announced in the open Court (Rakesh KumarIII)
on 24th July 2012 ACJ/ARC(West)/24.07.2012
E No. 39/11 Page 33 of 34
E No. 39/11
24.07.2012
Pr. Proxy counsel for parties.
Vide my separate order leave to defend application of the respondent is dismissed and eviction order is passed in favour of the petitioner and against the respondent in respect to the one tenanted shop measuring 7' X 18' on the ground floor of property bearing No. E1/A, Mansarover Garden, New Delhi110015 more clearly shown in red colour in the site plan. Respondent is directed to handover the peaceful and vacant possession of the shop in question. However, in view of Sec. 14(7) of DRC Act, this order shall not be executed before the expiry of period of six months. File be consigned to Record Room.
(Rakesh KumarIII) ACJ/ARC(W)/24.07.2012 E No. 39/11 Page 34 of 34