Delhi District Court
Vijay Kumar vs Subhash Bhargav on 30 November, 2024
IN THE COURT OF SH. RUPINDER SINGH DHIMAN, ARC-01,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI.
RC ARC NO. 33/2023
Sh. Vijay Kumar
S/o Late Ballu Mal
R/o 2437, First Floor, Naiwara, Chawri Bazar,
Delhi-110006. ..........Petitioner
Versus
Sh. Subhash Bhargav
S/o Late Rajendra Nath Bhargav
R/o 2437, Ground Floor, Naiwara Chawri Bazar,
Delhi-110006 ......Respondent
Date of Institution of the case 17.01.2023
Under Section 14(1)(e) r/w Section 25B, Delhi
Rent Control Act.
Date of reserving of Order 08.11.2024
Date of Order 30.11.2024
Decision Leave to defend application is
dismissed and eviction order is
passed
Argued by:
a) Sh. Amitabh Krishan, Ld Counsel for Petitioner.
b) Sh. Shubhash Garg, Ld Counsel for Respondent
RC ARC No. 33/2023 Vijay Kumar Vs. Subhash Bhargav Page no. 1 of 16
ORDER
1) This order shall dispose off an application for leave to defend filed by the respondent/tenant in an eviction petition under Section 14(1)(e) of the Delhi Rent Control Act ( hereinafter called as the DRC Act).
PETITION
2) It is alleged by the petitioner that he is co-owner of House no. 2437, Naiwara, Chawri Bazar, Delhi-110006 (hereinafter referred to as suit premises). It is stated that the father of the petitioner was the absolute owner of the suit premises consisting of ground floor, first floor, second floor and third floor as shown in the site plan and after the death of the father, petitioner along with his brothers became co-owners of the suit premises. It is further stated that partition took place between the brothers which was subsequently reduced into writing vide MOU dt. 31.03.2021 whereby portion as shown in green colour in the site plan fell into the right of the petitioner and portion as shown in yellow colour fell into the right of his brother Ashok Kumar and the portion as shown in blue fell into the right of his other brother Ajay Kumar. It is further stated that respondent is a tenant in a portion comprising of two rooms and one store on the ground floor of the suit premises (hereinafter referred to as the "tenanted premises") and shown in red colour in the site plan annexed with the petition. It is stated that the tenanted premises RC ARC No. 33/2023 Vijay Kumar Vs. Subhash Bhargav Page no. 2 of 16 falls in the portion of the petitioner's share. Additionally, it is stated that originally father of the respondent was the tenant and after his death respondent being legal heir became the tenant in the premises. It is further stated that the daughters of original tenant Rajinder Nath were married way back and now only the respondent Subhash Bhargav is occupying the premises as a tenant. It is also stated that the rate of rent is Rs. 257/- per month. Petitioner has further stated that in the green portion which fell in his category, he is residing on the first floor with his wife and in the second floor, his son along with daughter in law and grand son are residing in the green portion. It is further stated that he does not have any other portion in his occupation. Petitioner has stated that he requires the tenanted premises which are situated on the ground floor for bonafide need as he is 70 years of age and facing difficulty in climbing stairs for the first floor. It is further stated that the wife of the petitioner is also suffering from various ailments and is also facing hardship in climbing stairs. Additionally, it is stated that the petitioner requires the tenanted premises for running of his business of injector cleaner for which purpose he has to bring raw material from the market and on assembly the finished product weighs 14 to 15 kgs. Hence, it is prayed that an eviction order may be passed against the respondent qua the tenanted premises. Along with the petition, petitioner has filed copy of MOU dt. 31.03.2021, medical documents of his wife, rent receipts, legal notice dt. 01.09.2020 qua termination of tenancy, reply of the respondent and the original site plan.
RC ARC No. 33/2023 Vijay Kumar Vs. Subhash Bhargav Page no. 3 of 16 LEAVE TO DEFEND
3) Upon issuance of summons under the Third Schedule of the DRC Act, the respondent appeared and filed his leave to defend application within the prescribed time period. In the said application, respondent has sought leave to defend and raised various objections. Firstly, it is contended that the petition is bad for the non joinder of other LRs of Ballu Mal. It is further stated that the MOU dt. 31.03.2021 is neither properly stamped or registered and therefore, is not a valid document. Secondly, it is contended that the petitioner has sufficient alternative accommodation on two floors i.e. portion already in his possession on the first floor which consists of two room, store,kitchen, bathroom/WC where the petitioner is residing with his wife only. Further, petitioner also has portion consisting of two rooms, store, kitchen and bathroom/wc on the second floor of suit premises where his son along with wife and grand daughters of the petitioner are residing. It is further stated that the petitioner and his wife are healthy and they are residing comfortably on the first floor. Thirdly, it is stated that the respondent is also willing to exchange the tenanted premises with the portion of the petitioner on the first floor. It is also stated that the son of the petitioner and the wife of the son are earning sufficient income and are not dependent upon the petitioner. Lastly, it is contended that the present petition has been filed with an ulterior motive to evict the respondent and induct new tenants. Hence, it is prayed that triable issues have been raised and therefore, the leave to defend application may be RC ARC No. 33/2023 Vijay Kumar Vs. Subhash Bhargav Page no. 4 of 16 allowed. Along with the application, respondent has also filed rent receipts and his medical documents.
REPLY TO LEAVE TO DEFEND APPLICATION
4) In the reply to the leave to defend application supported with the accompanying affidavit, petitioner has denied the averments of the respondent and reiterated his requirement of bonafide need of the tenanted premises.
REJOINDER
5) The respondent thereafter filed rejoinder and denied the assertions of the petitioner.
ARGUMENTS
6) Thereafter, arguments were advanced by ld. counsels for both the parties. In addition, Ld. Counsel for the petitioner has relied upon the following judgments:
(i) Ram Narain Vs. Lakhmi Dass Kundra; 1971 AIR (Del) 268
(ii) Prativa Devi Vs. T.V. Krishnan ; 1996 (5) SCC 353\
(iii) Balwant Singh @ Bant Singh & Anr. Vs. Sudarshan Kumar & Anr.; 2021 (15) SCC 75
7) Per contra, counsel for respondent has relied upon the following judgments:
(i) Precision Steel & Engg. Works Vs. Prem Deva Niranjan;
(1982) SCC 270
(ii) Joginder Dev Vs. Uzma Sajid; 264 (2019) D.L.T 489
(iii) Laiq Ahmed Vs. Habeeb-Ur-Rehnan; (2000) 5 SCC 708
RC ARC No. 33/2023 Vijay Kumar Vs. Subhash Bhargav Page no. 5 of 16
(iv) Manoj Kumar Vs. Bihari Lal; (2001) 4 SCC 655
(v) Deepak Gupta Vs. Sushma; 202 (2013) DLT 121 (CN)
(vi) Inderjeet Kaur Vs. Nirpal Singh; (2001) 1 SCC 706
(vii) Prahled Rai Mittal Vs. Rita Devi; 196 (2013) DLT 703
(viii) Chander PK Vs. Maneel Bansiwal; 264 (2019) DLT 194 FINDINGS
8) At the outset, it is stated here that there is no doubt regarding the case laws filed on behalf of both the parties where the Hon'ble Supreme Court and the Hon'ble High Court of Delhi has laid down the principles with respect to provisions of the DRC Act, 1958 in different factual scenarios. However, each case has its own distinguishing facts and circumstances and each matter has to be decided in its own factual background. It is trite to state that in a petition u/s 14(1)(e) of DRC Act in order to get an eviction order the petitioner/landlord is required to establish the following :-
(i) That he/she is the owner/landlord of the property;
(ii) That he/she requires the premises bonafide and
iii) That he/she does not have any other alternative suitable accommodation for this purpose.
LANDLORD-TENANT RELATIONSHIP
9) As far as the landlord-tenant relationship is concerned, the respondent has not disputed that he is a tenant in the premises. However, he has taken objection that the other LRs of erstwhile owner/landlord Ballu Mal were a necessary party but they have not been impleaded as a RC ARC No. 33/2023 Vijay Kumar Vs. Subhash Bhargav Page no. 6 of 16 party. However, it is a well settled law that petition u/s 14 (1) (e) of DRC Act can be filed even by one of the co-owners without impleading the other co-owners. In this regard, it is pertinent to referr to the judgment of the Hon'ble Supreme Court of India in M/s India Umbrella Manufacturing Company Vs. Bhaja Bandei Aggarwalla, 2004 (3) SCC 178 whereby it was held that even a co-owner can file an eviction petition against the tenant and all the co-owners are not required to be joined as a party. Similarly, it was held by Hon'ble Supreme Court in case titled as Dhannalal Vs. Kalawati Bai & Ors. (2002) 6 SCC 16 that even one of the co-owner can file a petition under Section 14 (1) (e) of DRC Act on the ground of bonafide necessity, against the tenants without impleading the other co-owners. Hence, the said contention is devoid of merits.
10) The second contention pressed on behalf of the respondent is that the MOU relied upon by the petitioner is not valid being unsigned and unstamped. In this regard, it is important to bear in mind the principle laid down in the case of Sh. Bharat Bhushan Vs. Arti Teckchandani 2008 (153) DLT 247 which is as follows:-
"The concept of ownership in a landlord-tenant litigation governed by the Delhi Rent Control Act, has to be distinguished from the one in a title suit. If the premises was let out by a person and after his death, the premises has come in the hands of beneficiary under a Will, the tenant has no right to challenge the title of such a beneficiary. If on the death of the original owner the tenant has any doubt as to who was the owner of the premises, he is supposed to file an interpleader suit impleading all the legal heirs of the deceased and ask the Court to decide as to who shall be the landlord/owner after the death of the original owner.'' RC ARC No. 33/2023 Vijay Kumar Vs. Subhash Bhargav Page no. 7 of 16
11) Thus, as held above, in case the tenant had any doubt regarding ownership, he could have filed an interpleader suit. Besides in the present case, the petitioner has not to prove absolute ownership. He only has to show that he has a better title than that of the tenant. The principle is very clear that once a tenant always a tenant. The tenant cannot dispute the title of his landlord or his successor-in-interest. The Hon'ble Supreme Court in the case of Bansraj Laltaprasad Mishra v.
Stanley Parker Jones (2006) 3 SCC 91 had held that:
".....13. The underlying policy of section 116 is that where a person has been brought into possession as a tenant by the landlord and if that tenant is permitted to question the title of the landlord at the time of the settlement, then that will give rise to extreme confusion in the matter of relationship of the landlord and tenant and so the equitable principle of estoppel has been incorporated by the legislature in the said section.
12) Thus, a tenant is estopped from challenging the ownership or denying the title of the landlord. Even otherwise, if the MOU is ignored, still the petitioner being the son/Legal Heir of erstwhile owner would be a co-owner of the tenanted premises. Accordingly, it can be stated that the petitioner was the owner /landlord of the tenanted premises and the respondent was the tenant in the said premises and thus, the first ingredient of landlord-tenant relationship between the parties in the present case, stands established.
RC ARC No. 33/2023 Vijay Kumar Vs. Subhash Bhargav Page no. 8 of 16 BONAFIDE REQUIREMENT
13) Moving forward, in order to succeed in his petition, petitioner was required to establish his bonafide need. Petitioner has stated two requirements i.e. (i) for residential need of himself and his wife on the ground floor being of old age and (ii) for running of his livelihood by shifting his job work of assembly of "injector cleaner". As far as the contention of the respondent is concerned that the requirement of landlord is not bonafide but fanciful, it is a well settled principle that the tenant cannot dictate to the landlord how much space is adequate for landlord or how best to use the tenanted premises or even to adjust in some other premises. In this regard, reliance is to be placed upon the decision of the Hon'ble Delhi High Court in case of Praveen & Anr. Vs. Mulak Raj & Ors. RC Rev. 417/2016 in which it was held by the Hon'ble Delhi High Court that "the Hon'ble Supreme Court as well as this Court has repeatedly held that the Courts are not to sit in the armchair of the landlord and dictate as to how the available property of the landlord is to be best utilized by him. The landlord is the absolute owner of his property and is the best person to decide which property is to be utilized in what way. The respondent cannot dictate as to how the landlord is to utilize his property. The landlord possesses the prerogative to determine their specific requirements, exercising full autonomy in this regard. It is not within the purview of the courts to impose directives on the landlord regarding the nature or quality of their chosen usage of the tenanted premises. Essentially, the courts refrain from prescribing RC ARC No. 33/2023 Vijay Kumar Vs. Subhash Bhargav Page no. 9 of 16 any standard or guidelines for the landlord's choices (residential or commercial)".
14) Further, the Hon'ble Supreme Court in "Balwant Singh v. Sudarshan Kumar" [(2021) 15 SCC 75] has held that "it is not for the tenant to dictate how much space is adequate for the proposed business venture or to suggest that the available space with the landlord will be adequate". Besides in Ragavendra Kumar Vs. Prem Machinery & Company (2000) 1 SCC 679, it was held by Hon'ble Supreme Court that the landlord is the best judge of his requirement for residential or business purpose and he has got complete freedom in the matter. Furthermore, the Hon'ble Supreme court in Baldev Singh Bajwa vs Monish Saini (2005) 12 SCC 778 has held that whenever a landlord seeks eviction of the tenant for bonafide need, the controller shall presume the need as genuine and bonfide. Additionally, the burden to refute the said presumption squarely lies on the tenant and mere assertion on the part of tenant is insufficient. Hence, the assertion that petitioner has ample space on first and second floor by itself is not sufficient to raise a triable issue. It is pertinent to note that the respondent himself has conceded that son of the petitioner along with his wife and children are residing on the second floor and petitioner only has first floor in his possession. Further, petitioner has expressed multiple requirements for the ground floor. In case of Dr. Jitender Mohan Gulati Vs. Hira Lal Singh, 2019 (2015) DLT 489, it was held by the Hon'ble High Court of Delhi as under:-
RC ARC No. 33/2023 Vijay Kumar Vs. Subhash Bhargav Page no. 10 of 16 "....... The fact that Hira Lal has mentioned two bonafide re- quirements i.e. to start the business for himself and the other for expansion of business of his son would not nullify his bonafide requirement. There is no requirement in the law that while filing an eviction petition under Section 14 (1) (e) of DRC Act, the landlord must restrict himself to only one bonafide requirement".
"......... Merely because the landlord has multiple require- ments of the tenanted premises, his eviction petition cannot be dismissed on ground of vagueness or that he is confused about the requirement. It will be for the landlord to use the same for the more pressing requirements and the Court cannot dictate the same."
15) Thus, the need of the landlord is to be examined as per the circumstances prevailing on the date of institution of the case. It is trite to state that in old age it is difficult for one to climb stairs. Further, the advantages of ground floor over other floors are well settled in a number of matters for projected commercial requirement of the petitioner. In this regard it is pertinent to note the judgement of the Hon'ble Apex Court in Uday Shankar Upadhyay v. Naveen Maheshwari (2010) 1 SCC 503, where it was held that it is not for the Courts to say that the landlord should shift to the first floor or any higher floor as it is well known that shops and businesses are usually conducted on the ground floor, because the customers can reach there easily. Thus, the Court cannot dictate to the landlord which floor he should use for his business and that is for the landlord himself to decide. Even otherwise, it is a well known fact that a ground floor premises is more suitable for commercial purpose than the first floor premises as it has more footfall of the customers. Further, it RC ARC No. 33/2023 Vijay Kumar Vs. Subhash Bhargav Page no. 11 of 16 has been held by the Hon'ble Supreme Court in the case of Rahabhar Productions Pvt. Ltd. Vs. Rajendera Kumar Tandon 72 (1998) DLT 629 that the landlord is not disentitled from seeking recovery of the possession of a ground floor merely on the plea that he is also in possession of first floor and second floor so long as the court is satisfied with respect to the bonafide requirement of the landlord for the tenanted premises. Similarly, in the present case, merely because petitioner has portion on first and second floor of the suit premises, it cannot be held that the requirement of the petitioner of the tenanted premises situated at ground floor is not bonafide for residential need of himself and his wife being of old age and secondly, for running of his livelihood by shifting his job work of assembly of "injector cleaner". Hence, the contention of the respondent that the petitioners are healthy and can easily climb stairs does not amount to any triable issue.
16) Furthermore, with respect to the contention that the petitioner wants to induct new tenant at higher rent, the provision of Section 19 (2) of DRC Act is to be emphasized which protects a tenant in case the landlord recovers possession of any premises and the premises are not occupied by the landlord or by the person for whose benefit the premises are held within two months of obtaining such possession or having obtained the possession, the same are re-let to any other person within three years from the date of obtaining the possession. Thus, the said contention is also devoid of merits.
RC ARC No. 33/2023 Vijay Kumar Vs. Subhash Bhargav Page no. 12 of 16
17) It is also pertinent to mention that in a society like ours, parents often see it as their moral obligation to settle even their adult children and make them economically independent. Therefore, merely because the son of the petitioner or his wife is earning does not mean that the petitioners may not provide them accommodation. Even otherwise, in the present matter, the bonafide requirement is of the petitioners themselves and not their children. Furthermore, the premises in occupation of the son of the petitioner is the portion on the second floor, which as discussed above, is not comparable with the portion of the tenanted premises which is on the ground floor for the projected residential and commercial requirement of the petitioner.
18) Hence, I find that, thus the petitioner has been able to establish their bonafide requirement for the tenanted premises.
ALTERNATE ACCOMMODATION
19) With regard to the plea of alternative accommodation, it is contended by the respondent that the petitioner has already alternative accommodation in the form of portion on the first floor as well as the second floor of the same premises. It is stated that the premises on first floor are much more suitable for the petitioner than the ground floor as the premises on the first floor are in better condition. Furthermore, it is also submitted that the respondent is also willing to exchange his portion on the ground floor with the petitioner's portion on the first floor. However, it is a well settled proposition of law that it is not sufficient RC ARC No. 33/2023 Vijay Kumar Vs. Subhash Bhargav Page no. 13 of 16 that any kind of the property should be available to the petitioner/landlord to rule out the benefit of 14(1)(e) of D.R.C. Act. The property available with the petitioner/landlord should also be reasonably suitable property. In M M Quasim vs/ Manohar Lal Sharma, (1981) 3 SCC 36, the Apex Court has that the landlord does not have an unfettered right to choose the premises but merely showing that the landlord has some other vacant premises in his possession may not be sufficient to negative the landlord's claim if the vacant premises were not suitable for the purpose for which he required the premises. In the present case, the portion on second floor is occupied by the son of the petitioner and his family. The said fact is not disputed by the respondent. Therefore, the portion on the second floor cannot be stated to be vacant and available for the petitioner. Even otherwise, it is the prerogative of the landlord to determine which premises best suits his requirements. It is trite to state that an alternative accommodation, to entail denial of claim of landlord, must be reasonably suitable, obviously in comparison with tenanted premises, wherefrom the landlord is seeking eviction. For this, convenience and safety of landlord and his family members would be relevant factor.
20) In the present case, the portion on the ground floor is most suitable to the projected requirements of the petitioner, since it is common knowledge that in old age people find difficulty in climbing stairs. Further, the ground floor portion is also more conducive to the projected commercial requirement of the petitioner as it has been held in RC ARC No. 33/2023 Vijay Kumar Vs. Subhash Bhargav Page no. 14 of 16 a catena of judgments that the ground floor is much more beneficial than upper floors for commercial purposes. With respect to the offer of exchange, it is observed that the tenant cannot dictate the landlord as to how he must use his property and therefore he cannot direct the landlord to exchange his premises. It is pertinent to note here the judgment of the Hon'ble Apex Court in Abid-ul-Islam Vs. Inder Sain Dua, Civil Appeal No. 9444 of 2016 where it was stated by the Hon'ble court that requirement is the existence of bona fide need, when there is no other "reasonably suitable accommodation". Therefore, there has to be satisfaction on two grounds, namely, (i) the requirement being bona fide and (ii) the non-availability of a reasonably suitable residential accommodation. Such reasonableness along with suitability is to be seen from the perspective of the landlord and not the tenant. Therefore, the said contention also does not amount to any triable issue as it is for the landlord to decide which premises are suitable and not for the court to sit in armchair of the landlord and dictate as to how the available property of landlord is best utilized by him.
RELIEF
21) Hence, in view of the aforesaid discussion, I hold that the petitioner has been able to establish the essential ingredients of petition u/s 14 (1) (e) of DRC Act i.e. landlord-tenant relationship, bonafide necessity and absence of reasonably suitable accommodation. Thus, in view of the foregoing discussion, this court is of the view that no triable issue has been raised by the respondent in his leave to defend RC ARC No. 33/2023 Vijay Kumar Vs. Subhash Bhargav Page no. 15 of 16 application. Accordingly, the leave to defend application is hereby dismissed and consequently, an eviction order u/s 14(1)(e) r/w Section 25B, DRCA is passed in favor of petitioner and against the respondent with respect to the tenanted premises i.e. portion comprising of two rooms and one store on the ground floor of the property bearing no 2437, Naiwara, Chawri Bazar, Delhi-110006 and more specifically shown in red color in the site plan annexed with the petition. However, in light of Section 14(7) DRCA, the eviction order shall not be executable for a period of six months from today.
No order as to costs.
File be consigned to Record Room after due compliance.
Digitally signed
RUPINDER by RUPINDER
SINGH SINGH DHIMAN
Date: 2024.11.30
DHIMAN 16:56:24 +0530
RUPINDER SINGH DHIMAN)
ARC-01, Central District, THC
Delhi/30.11.2024
RC ARC No. 33/2023 Vijay Kumar Vs. Subhash Bhargav Page no. 16 of 16