Delhi District Court
Smt. Santosh Chopra vs Smt. Saroj Rani Arora on 15 December, 2021
IN THE COURT OF MS. SNIGDHA SARVARIA,
ACJ-cum-CCJ-cum-ARC, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI.
ARC No : 362/2019
Smt. Santosh Chopra
W/o Late Sh. I.K. Chopra
E-6/9, Krishna Nagar,
New Delhi-110051 ......... Petitioner
Versus.
1 Smt. Saroj Rani Arora
2 Sh. Kewal Krishan Arora
Shop no. 6,
E-6/9, Krishna Nagar,
New Delhi-110051 ......... Respondents
Order on application under S. 25 (B) of The Delhi Rent Control Act, 1958 seeking leave to defend
1. Vide this order I shall decide the application under S. 25 (B) of The Delhi Rent Control Act, 1958 (DRC Act) seeking leave to defend filed by the respondents.
2. The brief facts of the case are that the petitioner has filed the present eviction petition under S. 14 (1) (e) of the Delhi Rent Control Act on the grounds that petitioner is the legal heir and landlady of the tenanted shop bearing no. 6 (hereinafter referred to as the shop) situated at First Floor, forming part of property bearing no. E-6/9, Krishna Nagar, New Delhi- 110051 (hereinafter referred to as the said property). It is stated that ARC No : 362/2019 Smt. Santosh Chopra Versus. Smt. Saroj Rani Arora Page no. 1 petitioner is a widow, aged about 86 years and is suffering from various old age ailments, apart from being not able to walk and is totally dependable on wheel chair. She is also suffering from visual impairment as her visibility is very low from both the eyes having cataract in her eyes. It is stated that petitioner is living in the said building from last 55 years with her family. It is stated that in the diameter of approx. 2.5 km where thee abovesaid house is situated more than 10 families of other close relatives reside within the same vicinity and therefore it is imperative that the petitioner and her family require the said shop for her bonafide needs urgently and immediately. It is further stated that the petitioner requires the tenanted premises which can supplement the space available with her on the ground floor to form one room for herself and domestic help/maid, one big toilet where her wheel chair can enter into the same easily and also come out and one big room where she can entertain her guests and other old friends and relatives and some open space for terrace purpose. It is stated that the said shop was let out/tenanted to the respondent in the year 1998 by the husband of the petitioner namely Sh. I.K. Chopra (now deceased), during hs life-time and subsequently after his demise, the petitioner became the legal heir as well as the landlady of the said property including said shop. It is further stated that respondent, after the death of husband of the petitioner, had been paying the monthly rent to the petitioner till June, 2019 and thereafter intentionally and deliberately failed to pay the rent of the shop in dispute till filing of this eviction petition i.e. October, 2019. It is stated that petitioner is the landlady of the said shop/property and therefore, has, under law every right, title and interest to file the present petition before this Court. It is stated that respondent after the death of the husband of the petitioner had been paying the monthly rent to the petitioner, thus, the respondent also acknowledges the petitioner as the landlady of the said shop. It is stated that the respondent has also ARC No : 362/2019 Smt. Santosh Chopra Versus. Smt. Saroj Rani Arora Page no. 2 intentionally and deliberately failed to pay the arrears of rent i.e. Rs.810/- per month from July, 2019 to September, 2019 which comes to a total of Rs.2430/-. The petitioner is compelled to depend on meager amount of rent i.e. Rs.810/- per month paid untimely by the respondent which is very less amount in comparison to present inflated rates of every things of daily usable items, coming from the shops of the said property and also from a very small retain business of selling kurties having meager income. It is further stated that late Mr. Satya Pal Chopra left two sons, the elder one namely Mr. Saurabh Chopra is married and has two children and is running a small petty business of molding iron in District Narayana, Delhi. The younger son namely Mr. Ashutosh Chopra is jobless and currently helpling his brother in the business. The income earned through this business is insufficient to meet the needs of the family, such as school fees of the children and the medical expenses of Smt. Santosh Chopra. It is stated that the respondent has already enjoyed the tenanted shop for about 30 years and now the children of petitioner have grown up and they require sufficient space to reside because of the small rooms. It is stated that in case the respondent vacates the tenanted shop, the petitioner and her family members would be in a position to enlarge their residential accommodation, thus, the petitioner require a pucca structure for her bonafide residential activities only. It is stated that the petitioner and her family have a dream to reconstruct the entire building into a state of the art construction meaning thereby a modern house for residential purpose to reside in that dream house just like the other neighbours in the vicinity have constructed. It is stated that the said building is a very old building which even do not have the `lift'. It is stated that the petitioner in order to see her family members settle in their life wants to reconstruct the entire property and divide and allocate the said property proportionately for residential purpose only among the family members so that they can have ARC No : 362/2019 Smt. Santosh Chopra Versus. Smt. Saroj Rani Arora Page no. 3 enough space for the next generation for better and systematic living. It is prayed that eviction order may be passed in favour of the petitioner and against the respondents qua the aforesaid property/shop.
3. The respondents were summoned vide order dated 15.10.2019 and were served with the summons of this petition on 07.11.2019, thereafter, affidavits seeking leave to defend under S. 25 B of the DRC Act were filed by the respondents on 20.11.2019 and the petitioner filed reply to it on 05.02.2021.
4. In the affidavits seeking leave to defend under S. 25 B of the DRC Act, the respondents have stated that the respondents are in the possession of the above said premises/shop since 1987 and at the time of taking the possession, a security amount of Rs.35,000/- was given to the late husband of the petitioner namely I.K. Chopra. It is stated that the total property size is 200 sq. yards approximately, the petitioner's property falls in the market area of Krishna Nagar and the entire property is constructed up to the second floor that consists three shops at ground floor. It is stated that the entire first floor having 11 shops and there is very small toilet (2.5 x 2.5 sq. ft.) and on the first floor, 6 shops are occupied by different tenants out of the 11 shops and remaining five shops are already in the possession of petitioner. It is stated that entire second floor is in the possession of the petitioner. The petitioner deliberately has not disclosed about the 5 vacant shops of first floor which are vacant from last so many years. The petitioner is receiving the rents from her other properties in Chander Nagar, Delhi-110051 and she has concealed and suppressed this vital material fact.
5. The petitioner denied the averments made in the affidavit seeking ARC No : 362/2019 Smt. Santosh Chopra Versus. Smt. Saroj Rani Arora Page no. 4 leave to defend under S. 25 B of the DRC Act of the respondents. It is stated that the respondent has one shop in his name and another in his wife's name jointly and litigation of the shops are pending before this Court.
6. I have heard counsel for the parties, perused the record and have gone through the relevant provisions of the law.
7. The Supreme Court had in "Inderjeet Kaur Vs.Nirpal Singh", [2000]Supp 5 SCR 707, laid down the following guidelines to be followed by the Courts while deciding the applications for leave to contest filed by the tenants under Section 25(4) of the Delhi Rent Control Act,1958:-
"11. As is evident from Section 25B(4) & (5) of the Act, burden placed on a tenant is light and limited in that if the affidavit filed by him discloses such facts as would disentitle the landlord from obtaining an order for the recovery of the possession of the premises on the ground specified in Clause (e) of the proviso to Section 14(1) of the Act, with which we are concerned in this case, are good enough to grant leave to defend.
12................................"
13. We are of the considered view that at a stage when the tenant seeks leave to defend, it is enough if he prima facie makes out a case by disclosing such facts as would disentitle the landlord from obtaining an order of eviction. It would not be right approach to say that unless the tenant at that stage itself establishes a strong case as would non-suit the landlord leave to defend should not be granted when it is not the requirement of Section 25B(5). A leave to defend sought for cannot also be granted for mere asking or in a routine manner which will defeat the very object of the special provisions contained in Chapter IIIA of the Act, Leave to defend cannot be refused where an eviction petition is filed on a mere design or desire of a landlord to recover possession of the premises from a tenant under Clause
(e) of the proviso to Sub-section (1) of Section 14, when as a matter of fact the requirement may not be bona fide. Refusing to grant leave in such a case leads to eviction of a tenant summarily resulting in great hardship to him and his family members, if any, although he could establish if only leave is granted that a landlord would be disentitled for an order of eviction. At the stage of granting leave to defend, parties rely on affidavits in support of the rival contentions. Assertions and counter-assertions made in affidavits may not afford safe and acceptable evidence so as to arrive at an affirmative conclusion one way or the other unless there is a strong and acceptable evidence available to show that the facts disclosed in the application filed by the tenant seeking leave to defend were either frivolous, untenable or most unreasonable. Take a case when a possession is sought on the ground of personal requirement, a landlord has to establish his need and not his mere desire. The ground under Clause (e) of the proviso to Sub- section (1) of Section 14 enables a landlord to recover possession of the tenanted premises on the ground of his bona fide requirement. This being an enabling provision, essentially the ARC No : 362/2019 Smt. Santosh Chopra Versus. Smt. Saroj Rani Arora Page no. 5 burden is on the landlord to establish his case affirmatively. In short and substance wholly frivolous and totally untenable defence may not entitle a tenant to leave to defend but when a triable issue is raised a duty is placed on the Rent Controller by the statute itself to grant leave. At the stage of granting leave the real test should be whether facts disclosed in the affidavit filed seeking leave to defend prima facie show that the landlord would be disentitled from obtaining an order of eviction and not whether at the end defence may fail. It is well to remember that when a leave to defend is refused, serious consequences of eviction shall follow and the party seeking leave is denied an opportunity to test the truth of the averments made in the eviction petition by cross-examination. It may also be noted that even in cases where leave is granted provisions are made in this very Chapter for expeditious disposal of eviction petitions. Section 25B(6) states that where leave is granted to a tenant to contest the eviction application, the Controller shall commence the hearing of the application as early as practicable. Section 25B(7) speaks of the procedure to be followed in such cases. Section 25B(8) bars the appeals against an order of recovery of possession except a provision of revision to the High Court. Thus a combined effect of Section 25B(6), (7) and (8) would lead to expeditious disposal of eviction petitions so that a landlord need not wait and suffer for long time. On the other hand, when a tenant is denied leave to defend although he had fair chance to prove his defence, will suffer great hardship. In this view a balanced view is to be taken having regard to competing claims. "14. This Court in Charan Dass Duggal v. Brahma Nand (1983)1SCC301 while dealing with the question in the matter of granting leave to defend to contest the eviction petition filed on the ground of personal requirement, in para 5 has stated thus:
"5. What should be the approach when leave to defend is sought for? There appears to be a mistaken belief that unless the tenant at that stage makes out such a strong case as would non-suit the landlord, leave to defend cannot be granted. This approach is wholly improper. When leave to defend is sought for, the tenant must make out such a prima facie case raising such pleas that a triable issue would emerge and that in our opinion should be sufficient to grant leave. The test is the test of a triable issue and not the final success in the action (see Santosh Kumar v. Bhai Mool Singh). At the stage of granting the leave parties rely in support of their rival contentions on affidavits and assertions and counter- assertions on affidavits may not afford such incontrovertible evidence to lead to an affirmative conclusion one way or the other. Conceding that when possession is sought for on the ground of personal requirement, an absolute need is not to be satisfied but a mere desire equally is not sufficient. It has to be something more than a mere desire. And being an enabling provision, the burden is on the landlord to establish his case affirmatively. If as it appears in this case, the landlord is staying at Pathankot, that a house is purchased, may be in the name of his sons and daughters, but there may not be an apparent need to return to Delhi in his old age, a triable issue would come into existence and that was sufficient in our opinion to grant leave to defend in this case."
15. In the same judgment, in para 7 it is further observed:
"7. The genesis of our procedural laws is to be traced to principles of natural justice, the principal amongst them being that no one shall suffer civil or evil or pecuniary consequence at his back without giving him an adequate and effective opportunity to participate to disprove the case against him and provide his own case. Summary procedure does not clothe an authority with power to enjoy summary dismissal. Undoubtedly wholly frivolous defence may not entitle a person leave to defend. But equally a triable issue raised, enjoins a duty to grant leave: May be in the end the defence may fail. It is necessary to bear in mind that when leave to defend is refused the party seeking leave is denied an opportunity to test the truth of the averments of ARC No : 362/2019 Smt. Santosh Chopra Versus. Smt. Saroj Rani Arora Page no. 6 the opposite party by cross-examination and rival affidavits may not furnish reliable evidence for concluding the point one way or the other. It is not for a moment suggested that leave to defend must be granted on mere asking but it is equally improper to refuse to grant leave though triable issues are raised and the controversy can be properly adjudicated after ascertainment of truth through cross- examination of witnesses who have filed their affidavits........................................................."
8. Same view has been reiterated by the Supreme Court in a judgment in "Rachpal Singh and Ors.Vs. Gurmit Kaur and Ors.", (2009)15 SCC 88, in para no.12 which is re-produced below:-
"12. If some triable issues are raised then the controversy can be properly adjudicated after ascertainment of truth through cross-examination of witnesses who have filed their affidavits and other material documents. Burden is on the landlord to prove his requirements and his assertion is required..........................."
9. In the present case eviction petition has been filed under Ss. 14 (1) (e ) and 14D r/w S. 25-B of the Delhi Rent Control Act.
10. Proviso (e) to Section 14(1) is a special provision which has been enacted by the legislature for the class of landlords who require the premises genuinely and their requirement is bona-fide and they do not have any suitable accommodation. The essential ingredients for attracting the proviso
(e) of the Section 14(1) are : -
a) there exists landlord tenant relationship;
b) the premises were let out for residential or commercial purpose;
c)The said premises are bona-fide required by the landlord either for himself or for his dependant family member.
d) The landlord or the dependant family member has no other reasonable suitable accommodation.
11. The thresholds hereinabove are to be satisfied conjunctively in order to attract the provisions of Section 14(1)(e) and the absence of even one of the said ingredients clearly makes the said provision inapplicable.
ARC No : 362/2019 Smt. Santosh Chopra Versus. Smt. Saroj Rani Arora Page no. 7
12. The ingredients to be satisfied by the petitioner for passing eviction orders on the ground mentioned u/s 14D of the DRC Act consists of the following facts:-
(i) The petitioner is a widow;
(ii) The petitioner is a landlady;
(iii) The petitioner requires the premises for her own residence.
13. For the purposes of leave to defend, the respondent had to show some defence which would disentitle the petitioner of the relief claimed.
14. In the case at hand, it is an admitted fact that the petitioner is the landlord and the respondent is the tenant and that the petitioner is a widow.
15. The respondent-tenant has taken various defences including that premises was let out for commercial purpose and the petitioner now wants it for her own residence and personal use. Letting of premises for commercial use is concerned, the issue is squarely covered by a judgment of Hon'ble Supreme Court in Satyawati Sharma v. Union of India reported in 148 (2008) DLT 705 (SC). The observations of Hon'ble Supreme Court are reproduced hereinbelow for ready reference:
"38. In view of the above discussion, we hold that Section 14(1)(e) of the 1958 Act is violative of the doctrine of equality embodied in Article 14 of the Constitution of India insofar as it discriminates between the premises let for residential and non-residential purposes when the same are required bona fide by the landlord for occupation for himself or for any member of his family dependent on him and restricts the latter's right to seek eviction of the tenant from the premises let for residential purposes only.
39. However, the aforesaid declaration should not be misunderstood as total striking down of Section 14(1)(e) of the 1958 Act because it is neither the pleaded case of the parties nor the learned Counsel argued that Section 14(1)(e) is unconstitutional in its entirety and we feel that ends of justice will be met by striking down the discriminatory portion of Section 14(1)(e) so that the remaining part thereof may read as under:
ARC No : 362/2019 Smt. Santosh Chopra Versus. Smt. Saroj Rani Arora Page no. 8 "That the premises are required bona fide by the landlord for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation."
While adopting this course, we have kept in view well recognized rule that if the offending portion of a statute can be served without doing violence to the remaining part thereof, then such a course is permissible R.M.D. Chamarbaugwalla v. Union of India, AIR 1957 SC 628, and Bhawani Singh v. State of Rajasthan, 1996 (3) SCC 105.
As a sequel to the above, the explanation appearing below Section 14(1)(e) of the 1958 Act will have to be treated as redundant."
16. In view of the foregoing discussions, the defence that tenanted premises was let out for commercial purpose and so now petitioner cannot seek eviction for residential purpose is irrelevant and untenable in law.
17. The respondent has taken a defence that as per Section 14D Act (2) of the DRC Act, where the landlord referred to in sub-section (1) has let out more than one premises, it shall be open to her to make an application under that sub-section in respect of any one of the premises chosen by her and in the present case the petitioner has filed two cases one against the respondent and another against another tenant which is also pending before this Hon'ble Court. Furthermore, this defence is without any merits in view of the decision of the Hon'ble High Court of Delhi in Dr. S.K. Mahajan vs Har Piari Kapoor :113 (2004) DLT 104, 2004 (77) DRJ 621; wherein it has been held as under:
5. I have heard counsel for the parties and have given my thought to the question in issue. I am of the view that if in a single house there are more than one tenants and the entire house or portion thereof is needed by the widow-landlady for her residence, she can maintain separate petitions under Section 14D of the Act in respect of different tenants in the same house. To say that she has to choose from amongst the tenants would be doing violence to the intent and interpretation of statute. It must be construed harmoniously and rationally. If the premises were two different dwelling units/houses then the widow will have to choose one of them and in that sense will be barred from exercising her right under Section 14D more than once. That being the situation the judgment of the Supreme Court does not help the petitioner. it is also immaterial whether the premises let out was for residential or commercial purpose.
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18. It is well settled in catena of judgments that the widow like any other landlord, has to show her bona fide need for the occupation of the premises for her own residence for S. 14 D DRC Act. (See: M/S. Rahabhar Production Pvt. Ltd vs Rajendra K. Tandon decided by Hon'ble Apex Court on 26/03/1998.). similarly, for S. 14 (1) ( e) DRC Act it has to be shown that premises are bona-fide required by the landlord either for himself or for his dependant family member
19. In the case at hand, the case of the petitioner is that she is a widow and 86 years of age and suffering from old age ailments apart from being not able to walk and is totally dependent on wheel chair and is suffering from visual impairment having very low visibility in both eyes and cataract and so the tenanted premises in question can supplement the space available with her on the ground floor to form one room for herself and domestic help/maid, one big toilet where her wheel chair can enter into the same easily and also come out and one big room where she can entertain her guests and other old friends and relatives and some open space for terrace purpose.
20. The fact that she cannot climb stairs can easily be inferred as natural due to old age. Thus, clearly, the petitioner has a bona fide need, which is genuine, honest and conceived in good faith on account of her old age.
21. It is well established law that though the landlord may have pleaded use of the premises in a particular manner but when a landlord has a large family as has been found to be the case with the petitioner herein, the portions of the accommodation which members of family may occupy from time to time may keep on changing as per their mutual understanding and it is not open to the petitioner as a tenant to tell the landlord, as to how the ARC No : 362/2019 Smt. Santosh Chopra Versus. Smt. Saroj Rani Arora Page no. 10 landlord should use the premises. (See: Sarla Ahuja Vs. United India Insurance Company Ltd. (1998) 8 SCC 119, Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta (1999) 6 SCC 222, Sait Nagjee Purushotham & Co. Ltd. Vs. Vimalabai Prabhulal (2005) 8 SCC 252 and Anil Bajaj Vs. Vinod Ahuja (2014) 15 SCC 610).
22. In order to evaluate whether the need of the petitioner is bonafide or not, let us understand the legislative and judicial connotation of the term, ' bonafide'. In landmark case Deena Nath v. Pooran Lal, (2001) 5 SCC 705 wherein the Supreme Court observed thus:
"The Legislature in enacting the provision has taken ample care to avoid any arbitrary or whimsical action of a landlord to evict his tenant. The statutory mandate is that there must be first a requirement by the landlord which means that it is not a mere whim or a fanciful desire by him; further, such requirement must be bonafide which is intended to avoid the mere whim or desire. The 'bonafide requirement' must be in presenti and must be manifested in actual need which would evidence the Court that it is not a mere fanciful or whimsical desire. The legislative intent is made further clear by making the provision that the landlord has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. This requirement lays stress that the need is pressing and there is no reasonably suitable alternative for the landlord but to get the tenant evicted from the accommodation. Similar statutory provision is made in sub- section (e) of Section 12(1) of the Act in respect of accommodation let for residential purposes. Thus, the legislative mandate being clear and unambiguous, the Court is dutybound to examine not merely the requirement of the landlord as pleaded in the eviction petition but also whether any other reasonably suitable nonresidential accommodation in his occupation in the city/town is available. The judgment/order of the court/authority for eviction of a tenant which does not show that the court/authority has applied its mind to these statutory requirements cannot be sustained and the superior court will be justified in upsetting such judgment/order in appeal/second appeal/revision. Bonafide requirement, on a first look, appears to be a question of fact. But in recording a finding on the question the court has to bear in mind that statutory mandate incorporated in Section 12(1)(f). If it is found that the court has not applied the statutory provisions to the evidence on record in its proper perspective then the finding regarding bonafide requirement would cease to be a mere finding of fact, for such erroneous finding illegally arrived at would vitiate the entire judgment."
Chambers 20th Century Dictionary defines bona fide to mean "in good faith and genuine". Requirement is not a mere desire. The degree of intensity contemplated by "requires" is much more higher than in mere desire. The phrase "required bonafide" is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the ARC No : 362/2019 Smt. Santosh Chopra Versus. Smt. Saroj Rani Arora Page no. 11 premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of the landlord and its bonafides would be capable of successfully withstanding the test of objective determination by the court. In short, the concept of bonafide need or genuine requirement needs a practical approach instructed by the realities of life. It is no concern of the Courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own. The meaning of "bonafide" in the context appears to be in two folds. (a) the need of the landlord must be a genuine one and not a frivolous one. (b) landlord is not motivated by extraneous considerations in trying to recover the possession from the tenant with a view to let it out again to another tenant at a higher rent.
23. The Apex Court in the case of Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta reported in SCFBRC 1999 Page 330, has observed as under:
"In Prativa Devi (Smt.) v. T.V. Krishnan, 1996 (5) SCC 353, this Court has held that in considering the availability of alternative accommodation, not availability merely but also whether the landlord has the legal right to such accommodation has to be considered.
Reverting back to the case at hand, the landlord has been living on the ground floor of the Defence Colony house. It was conceded at the Bar that as on the day the family of the landlord consists of the landlord himself (a practicing doctor), his son (again a practicing doctor), the daughter-in-law and two grand children who are gradually growing in their age. Looking at the size of the family, available of three bed rooms in the premises in which the landlord may live, is a requirement which is natural and consistent with the sense of decency-not to talk of comfort and convenience. There is nothing unreasonable in a family with two practicing doctors as members thereof needing a room or two or a room with a verandah to be used as a residential-clinic divided into a consultation room and a waiting place for the patients. A drawing room, a kitchen, a living room and a garage are bare necessities for a comfortable living. The landlord has been living in Defence Colony locality for more than 35 years. The first floor which was let out to the tenant in the year 1978 as being an accommodation surplus with the landlord has with the lapse of time become a necessity for occupation by the landlord and his family members. More than ten years by now have been lost in litigation. The death of the wife of the landlord and the death of landlord's mother-in-law, are events which have hardly any bearing on the case of felt need of the landlord, The need as pleaded and proved by the landlord is undoubtedly natural sincere and honest and hence a bona fide need. There is no material available on record to doubt the genuineness of such need. It continues to subsist inspite of the two deaths. It is not the case of the tenant-appellant that while seeking eviction of the tenant the landlord is moved by any ulterior motive or is guided by some other thing in his mind. It will be most unreasonable to suggest that the landlord may continue to five on the ground floor of the Defence Colony house and some members of the family may move to Sarvodaya Enclave House if the whole family cannot be conveniently and comfortably accommodated as one unit in the Defence Colony house. It would be equally unreasonable to suggest that the entire family must shift to Sarvodaya Enclave House which is admittedly situated at a distance of about 7-8 kms. from Defence Colony. The landlord and his family are used to living in Defence Colony where they have developed friends and acquaintances, also familiarity with the neighbourhood and the ARC No : 362/2019 Smt. Santosh Chopra Versus. Smt. Saroj Rani Arora Page no. 12 environment. The patients usually visiting or likely to visit the residential clinic know where their doctor would be available. Shri Arun Jaitley, learned Senior Counsel for the respondent, has very rightly submitted that it could not have been the intendment of the Rent Control Law to compel the landlord in such facts an circumstances to shift to a different house and locality so to permit the tenant to continue to live in the tenanted premises. If the landlord wishes to live with comfort in a house of his own, the law does not command or compel him to squeeze himself rightly into lesser premises protecting the tenant's occupancy."
24. It is further stated by the petitioner that she resides with her family comprising of 11 persons. Her 2 sons have already expired & 2 daughters are married. Widow of her younger son, with her son, daughter-in-law and grandson, widow of elder son with her 2 sons, a daughter-in-law and 2 grand children also reside with the petitioner. Late Mr. Satya Pal Chopra, son of the petitioner, left two sons, the elder one namely Mr. Saurabh Chopra is married and has two children and is running a small petty business of molding iron in District Narayana, Delhi. The younger son namely Mr. Ashutosh Chopra is jobless and currently helpling his brother in the business. The income earned through this business is insufficient to meet the needs of the family, such as school fees of the children and the medical expenses of Smt. Santosh Chopra. It is stated that the respondent has already enjoyed the tenanted shop for about 30 years and now the children of petitioner have grown up and they require sufficient space to reside because of the small rooms. It is stated that in case the respondent vacates the tenanted shop, the petitioner and her family members would be in a position to enlarge their residential accommodation, thus, the petitioner require a pucca structure for her bonafide residential activities only. It is stated that the petitioner and her family have a dream to reconstruct the entire building into a state of the art construction meaning thereby a modern house for residential purpose to reside in that dream house just like the other neighbours in the vicinity have constructed. It is stated that the said building is a very old building which even do not have the `lift'. It is ARC No : 362/2019 Smt. Santosh Chopra Versus. Smt. Saroj Rani Arora Page no. 13 stated that the petitioner in order to see her family members settle in their life wants to reconstruct the entire property and divide and allocate the said property proportionately for residential purpose only among the family members so that they can have enough space for the next generation for better and systematic living.
25. It is stated by the respondent that the petitioner has no bona fide requirement as the total property size is 200 sq. yards approximately, the petitioner's property falls in the market area of Krishna Nagar and the entire property is constructed up to the second floor that consists of three shops at ground floor. It is stated that the entire first floor having 11 shops and there is very small toilet (2.5 x 2.5 sq. ft.) and on the first floor, 6 shops are occupied by different tenants out of the 11 shops and remaining five shops are already in the possession of petitioner. It is stated that entire second floor is in the possession of the petitioner. The petitioner deliberately has not disclosed about the 5 vacant shops of first floor which are vacant from last so many years. On the other hand, the petitioner has stated that 3 shops are in possession of the petitioner & qua 2 shops eviction orders in favour of the petitioner has been passed but possession is yet to be recovered. It is well settled that it is no concern of the Courts or the tenant to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own.
26. Further, in another landmark case of "Sarla Ahuja v. United India Insurance Co. Ltd., reported as AIR 1999 SUPREME COURT 100", whereby 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 ARC No : 362/2019 Smt. Santosh Chopra Versus. Smt. Saroj Rani Arora Page no. 14 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 is 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 bonafides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself....".
27. From the aforesaid it is clear that the petitioner requires the tenanted premises for herself and for her family to continue to live with her in her old age, as mentioned hereinabove, as the family of the petitioner has grown over a period of time and the petitioner is now aged and cannot live on the second floor or cannot live alone. As per own case of the respondent the entire property measures 200 sq yds and petitioner and her family are occupying 6 rooms, 3 kitchen and three bathrooms, which although is denied by the petitioner, but considering the growing family of the petitioner it cannot be said that the said residential portion is sufficient for the petitioner and her family. Thus, the bona fide requirement of petitioner is made out and clearly, the respondent has failed to raise any triable issue qua bona fide requirement. Also, the fact that she is already in possession of 5 shops on the first floor, which is denied by the petitioner, is also not relevant since clearly, the petitioner requires, as pleaded, all the shops in the property E-6/9, Krishna Nagar, New Delhi-110051 for residence of herself and her entire family and also for making the said property conducive to occupy as residence.
28. For the purpose of S. 14 (1) ( e) DRC Act it also has to be shown that the landlord or the defendant family member has no other reasonable suitable accommodation. Petitioner stated that the petitioner and his entire family members have no other place to reside in a manner fit for necessary human ARC No : 362/2019 Smt. Santosh Chopra Versus. Smt. Saroj Rani Arora Page no. 15 existance.
29. The respondent has pleaded that the petitioner is receiving the rents from her other properties in Chander Nagar, Delhi-110051 and she has concealed and suppressed this vital material fact. But no document has been placed on record to show that the petitioner has any connection with Chander Nagar property ; no description of the said property i.e. property number, landmark etc have not been given, thus, in the absence of any material to connect petitioner with Chander Nagar property the plea of the respondent qua alternative accommodation is without any merits. In this regard in Sarwan Dass Bange V. Ram Prakash 2010 IV AD (Delhi) 252, observations made by Supreme Court in Baldev Singh Bajwa V Monish Saini MANU/SC/1239/2005 (2005) 12SCC 778, have been quoted as under :
It was held that the legislative intent is of expeditious disposal of the application for ejectment of tenant filed on the ground of requirement by the landlord of the premises for his own occupation; a special category of landlords requiring the premises for their own use has been created; if there is any breach by the landlord, the tenant is given right of restoration of possession; the landlord who evicts the tenant on the ground of his own requirement is not only prohibited from letting out the premises or disposing of the same but also required to use the same for his own residence only. It was held that these restrictions and conditions inculcate inbuilt strong presumption that the need of the landlord is genuine;the restrictions and conditions imposed on the landlord make it virtually improbable for the landlord to approach the court for ejectment of tenant unless his need is bonafide no unscrupulous landlord in all probability, under this section, would approach the court for ejectment of the tenant considering the onerous conditions imposed on him. It was further held that his inbuilt protection in the Act for the tenants implies that whenever the landlord would approach the court his requirement shall be presumed to be genuine and bonafide. It was further held that a heavy burden lies on the tenant to prove that the requirement is not genuine. The tenant is required to give all necessary facts 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 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.
30. In Adarsh Electricals and others vs Dinesh Dayal, MANU/DE/2782/2010, it was held that " the concept of alternate ARC No : 362/2019 Smt. Santosh Chopra Versus. Smt. Saroj Rani Arora Page no. 16 accommodation means that accommodation which is reasonably suitable for the landlord, and the court would not expect the landlord to sacrifice on his own comforts and requirements merely on the ground that the premises is with a tenant . The problem had to be approached from the point of view of a reasonable man and not that of a whimsical landlord. The court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need."
31. The respondent has disputed the site plan of the petitioner and stated that the shop in tenancy of the respondent is about 91 sq ft in measurement and has also filed his own site plan on record. However, it is well settled that the purpose of filing of the site plan is to identify the property in question. In the present case, there is no dispute to the fact that the tenanted premises is shop bearing no. 6 situated at First Floor, forming part of property bearing no. E-6/9, Krishna Nagar, New Delhi-110051. Thus, the premises in question is identifiable as shop no. 6, which has not been disputed so the plea of wrong site plan is not a triable issue in the facts of the present case and thus, of no assistance to the respondent.
32. The plea of the respondent qua security amount is not relevant for present case filed under S. 14 D and S. 14 (1) (e ) DRC Act.
33. The decisions in Narender Kumar Manchanda vs Hemant Kumar Talwar decided on 10.12.2012 in RC Rev 107/2012 decided by Hon'ble High Court of Delhi; Tarun Pahwa vs Pradeep Makin decided on 21.12.2012 in RC ARC No : 362/2019 Smt. Santosh Chopra Versus. Smt. Saroj Rani Arora Page no. 17 Rev 75/2012 decided by Hon'ble High Court of Delhi & Inderjeet Kaur vs Nirpal Singh decided on 15/12/2000 in SLP (civ) 554/2000 decided by Hon'ble Apex Court of India, relied upon by the respondents is of no assistance to the respondents as all three have been decided on different fact situations and Hon'ble High courts both judgments pertain to bona fide requirement of commercial use/business whereas in the present case the requirement is of residence and the considerations qua commercial and residential requirements to be bona fide are different.
34. In view of the above discussion and the documents filed by the parties, there is no triable issue between the parties which entitles the respondent for leave to contest the present application for eviction. The application for leave to contest is without merits and is dismissed.
35. Conclusion:
Since leave to defend is dismissed, and considering the petitioner has shown bonafide and fulfilled the requisites of Ss 14D & 14 (1) (e) DRC Act, petitioner has become entitled to eviction. Consequently, eviction order is liable to be passed against the respondents u/s Section 25 B (4) of the Act. In these circumstances, the applications for leave to defend filed by the respondent is dismissed and the respondent Saroj Rani Arora and Kewal Krishan Arora is liable to be evicted from the tenanted premises i.e. shop bearing no. 6 situated at First Floor, forming part of property bearing no. E-6/9, Krishna Nagar, New Delhi-110051 as shown in red colour in the site plan filed with the present petition by the petitioner (now marked as Ex P1). Accordingly, the petition filed by the petitioner u/Ss 14D & 14 (1) (e) r/w S. 25B of the DRC Act is allowed, subject to ARC No : 362/2019 Smt. Santosh Chopra Versus. Smt. Saroj Rani Arora Page no. 18 provisions u/s 19 of the DRC Act. However, the petitioner would not be entitled to initiate execution proceedings for recovery of possession of the tenanted premises before expiration of six months from today in view of provisions given in Section 14 (7) of the Act.Digitally signed
No orders as to costs. SNIGDHA by SNIGDHA
SARVARIA
SARVARIA Date: 2021.12.05
15:15:38 +0530
Announced in open Court (SNIGDHA SARVARIA)
on 15th Day of December, 2021. ACJ/ARC/CCJ
[This judgment contains 19 pages.] (SHAHDARA) KKD, DELHI.
ARC No : 362/2019 Smt. Santosh Chopra Versus. Smt. Saroj Rani Arora Page no. 19