Delhi District Court
Smt. Sultana Begum Naqi vs Smt. Sheel Kapoor on 30 October, 2019
IN THE COURT OF SH. PRASHANT SHARMA
SCJCUMRC (CENTRAL): TIS HAZARI COURTS: DELHI
E. No. 77629/16
Smt. Sultana Begum Naqi
W/o Mohd. Naqi
R/o 114142 Baradari, Nawab Wazir
Beind Novelty Cinema
Delhi - 110006 ... Petitioner
VERSUS
1. Smt. Sheel Kapoor
W/o Late Sh. Gorish Chand Kapoor
2. Sh. Ish Kapoor
S/o Late Sh. Gorish Chand Kapoor
3. Sh. Deepak Kapoor
S/o Late Sh. Gorish Chand Kapoor
All R/o 3B/17, N.E.A, Pusa Road, New Delhi
Also at : 1415A, Gali Teliyan, Phatak Habash Khan,
Tilak Bazar, Delhi110006
4. Sh. Surender
5. Sh. Rohit
Both R/o 1415A, Gali Teliyan,
Phatak Habash Khan,
Tilak Bazar, Delhi110006 ... Respondents
Date of institution of case : 18.05.2013
Date on which judgment was reserved : 24.10.2019
Date on which judgment was pronounced : 30.10.2019
Page 1 of 23
JUDGMENT
1. Petitioner, namely Smt. Sultana Begum Naqi filed present eviction petition, based on his bonafide need, u/s. 14(1)(e) read with Sec.25B of Delhi Rent Control Act (in short 'DRC Act') against respondents namely Smt Sheel Kapoor, Sh. Ish kapoor, Sh. Deepak Kapoor, Sh. Surender and Sh. Rohit alleging following facts :
"That petitioner is owner and landlord of shop no. 1415 A, Ward No. III, Gali Teliyan, Phatak Habash Khan, Tilak Bazar, Delhi110006 (hereinafter referred as tenanted shop in question). Said shop is purchased by petitioner vide sale deed dated 19.08.2004 from erstwhile previous owner. At the time of execution of said sale deed there were two shops in property no. 1415 Ward No. III, Gali Teliyan, Phatak Habash Khan, Tilak Bazar, Delhi110006. One of the shops was bearing no. 1415B which was vacated by previous tenant in favour of petitioner. Another shop bearing no. 1415A, Ward No. III, Gali Teliyan, Phatak Habash Khan, Tilak Bazar, Delhi110006 which is shop in question is in possession of respondents, as on date. Said shop is shown in red colour in the site plan annexed with the petition. Rate of rent of the said shop is Rs. 3000/ per month excluding other charges. It was Page 2 of 23 claimed that respondents have never paid rent since 19.08.2004 when petitioner had purchased the said shop. With regard to bonafide need, petitioner claimed that she requires the said shop for her husband and five sons who are solely dependent upon her. Said family members of petitioner are yet to establish their business/livelihood as they wanted to do the business of readymade garments from the shop in question. Further, petitioner requires shop in question so that her minor son who was studying at the time of filing of this petition can do the business. She explained that respondents have not paid rent since 19.08.2004, that respondents are already running business under the name and style of M/s. Gorish Chand Kapoor and Company from two offices located at 26/13, First Floor, Gali Teliyan, Tilak Bazar, Dehi and M/s. GCK Kapoor at 39/1, Katra Ishwar Bhawan, Khaori Baoli, Delhi and respondents had subletted the shop in question to Surender and Rohit illegally. She also stated that her sons are aged about 34, 30, 28 and 21 years respectively at the time of filing of this petition. Said sons are not doing any solid work / business. Based on said averments, present eviction petition filed by petitioner."Page 3 of 23
2. Respondent no. 4 and 5 did not file any application for leave to defend as noted in ordersheet dated 29.08.2013. It was also noted in ordersheet dated 27.11.2013 that respondent no. 4 and 5 were not contesting.
3. Respondents no.1, 2 and 3 after receiving summons in prescribed proforma filed their application for leave to defend within statutory period of 15 days which was allowed by this court, vide order dated 14.01.2019 (hereinafter referred as respondents). Said respondents were called upon to file written statement.
4. In their written statement, respondents took preliminary objections viz. that petitioner is neither the owner nor the landlord of tenanted premises, no tenancy was created at any point of time in favour of late Sh. Gorish Chander Kapoor or his legal heirs i.e. husband of respondent no.1 and father of respondent no.2 and 3. They also claimed that neither Gorish Chander Kapoor nor respondents have ever paid rent to petitioner. They explained that Gorish Chander Kapoor was in adverse possession in shop in question for last about 4546 years and he always claimed himself to be owner of shop in question without any objection from anybody during said period. So, Gorish Chander Kapoor perfected his ownership rights in the said property u/s. 27 read with Article 65 of the Limitation Act. They denied the validity of sale deed dated 19.08.2004 Page 4 of 23 executed by Sh. Chander Mohan, giving right to petitioner over shop in question. As per them, on 05.02.1998 alleged erstwhile owner Chander Mohan filed suit for recovery of possession against Gorish Chander Kapoor and his brother asserting them illegal and unauthorized occupants. Sh. Gorish Chander Kapoor in the said litigation filed his written statement and had contested the matter. Sh. Chander Mohan in his replication dated 29.01.1999 has asserted that Gorish Chander Kapoor was trespasser and unauthorized occupant. As such Chander Mohan never pleaded that Gorish Chander Kapoor was tenant at any point of time. In fact, petitioner through her counsel had served a legal notice dated 16.04.2013 in which she admitted respondents as unauthorized and illegal occupants in shop in question. After the death of Gorish Chander Kapoor on 04.09.2004, respondents being his legal heirs inherited all legal rights over shop in question as owner. Petitioner as such has filed this petition by approbating and reprobating her stand which is not legally tenable. Present petition is barred u/s. 50 of DRC Act. In fact sale deed dated 19.08.2004 does not relate to shop in question. Further, original landlady Smt. Har Devi W/o Sh. Shyam Bihari never sold shop to Chander Mohan or petitioner. So sale deed dated 19.08.2004 was illegal document. Further, with regard to bonafide need, respondents claimed that husband of petitioner expired in August, 2015. Sons of petitioner are carrying their business under the name and style M/s. Madras General Store at shop no. 397/1, Gali Jutey Wali, Masjid Kalan, Sadar Bazar, Delhi and are also carrying business of optical in Page 5 of 23 the name of M/s. Grace Opticals at shop no. 5, Kohinoor Building Fatehpuri, Delhi and shop no. 6464/1, Katra Baryan, Opp. New India Hotel, Fatehpuri, Delhi. Said sons of petitioner are also doing business in the name of M/s. Alliance Marketing Associates in a shop on ground floor of building no. 114142, Bara Dari, Gali Telian, S. P. Mukherjee Marg, Delhi6. Shop no. 1415B adjoining the shop in question which was earlier in possession of petitioner was let out by petitioner during pendency of this petition to Vinod Shah vide registered lease deed dated 25.04.2014. So sons of petitioner are not dependent upon her and this petition is filed by petitioner with oblique motive. They also claimed that respondent no.4 and 5 have no concern with the shop in question. On merits, case of petitioner was refuted and reference was made to aforesaid preliminary objections.
5. In response to the said written statement, petitioner filed replication in which she refuted the version of respondents and reiterated her version as mentioned in petition. Contents of same are not repeated here for the sake of brevity.
6. After completion of pleadings, matter was fixed for petitioner's evidence.
7. Petitioner examined her son namely Sh. Atif Naqi as PW1 who reiterated the facts as mentioned in the petition in his examinationin chief Ex.PW1/A, which are not repeated here for the sake of brevity.
Page 6 of 23He relied upon documents viz SPA dated 15.05.2013 Ex.PW1/1, site plan Ex.PW1/2, copy of sale deed dated 19.08.2004 Ex.PW1/3, copy of ration card Ex.PW1/4, copy of surrender deed dated 24.08.2004 Ex.PW1/5, copy of sale deed dated 15.12.1997 Ex.PW 1/6(mark A), copy of sale deed executed in the year 1968 Ex.PW1/7, rent receipt Ex. PW1/8, copy of house tax receipts Ex.PW1/9, copy of written statement filed by Sh. Gorish Chander Kapoor Ex.PW1/10 (Mark B), certified copy of judgment dated 09.04.2003 Ex.PW1/11, certified copy of judgment dated 03.05.2007 Ex.PW1/12, copy of affidavit of late Gorish Chander Kapoor dated 20.11.1997 Ex.PW 1/13, copy of partnership deed Ex.PW1/14 (Mark C), copy of ledger Ex.PW1/15 (Mark D), copy of cashbook Ex.PW1/16 (Mark E), pedigree of property no. 1415 Ex.PW1/17 and copy of judgment/ order dated 14.09.2018 Ex.PW1/18. After examining PW1, petitioner closed her evidence and matter was fixed for respondent's evidence.
8. Respondents did not lead any evidence and therefore at request of their counsel, respondent's evidence was closed and matter was fixed for final arguments.
9. After hearing final arguments, matter was fixed for judgment.
10. Before proceeding further, I must mention here the relevant law and its interpretation in the background of relevant caselaws.
Proviso (e) to Section 14 (1) is a special provision Page 7 of 23 which has been enacted by the legislature for the class of landlords who require the premises genuinely and their requirement is bonafide and they do not have any suitable accommodation. The essential ingredients for attracting the proviso (e) of the Section 14 (1) are :
(a) The said premises are bonafide required by the landlord either for himself or for his family member.
(b) The landlord or the family members has no other reasonable suitable accommodation.
These twin thresholds 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.
The satisfaction of the two requirements of bonafide need and no reasonably suitable accommodation has been time and again emphasized by the Supreme Court of India in several cases and more recently in the case Deena Nath Vs. Pooran Lal, (2001) 5 SCC 705 wherein the Supreme Court observed thus:
"The Legislature in enacting the provisions 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 Page 8 of 23 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 present 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 subsection (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 duty bound to examine not merely the requirement of the landlord as pleaded in the eviction petition but also whether any other reasonably suitable non residential 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 Page 9 of 23 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 i.e. without fraud or deceit ". 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 Page 10 of 23 with mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from his 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.
11. 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.
12. In my subsequent paragraphs, I will be appreciating the aspect whether petitioner was able to prove her case based on preponderance of probabilities by proving the ingredients of Sec. 14(1)(e) of DRC Act.
Page 11 of 23OWNERSHIP/ LANDLORDSHIP :
13. Respondents disputed the title of petitioner over shop in question. As per respondents, on one hand, sale deed dated 19.08.2004 Ex.PW 13 was illegal document as Chander Mohan who had executed said sale deed in favour of petitioner has no right in shop in question and on the other hand, respondent's predecessorininterest Gorish Chander Kapoor had acquired title over shop in question by way of adverse possession u/s. 27 read with Article 65 of Limitation Act. Said claim of respondents was not legally tenable.
14. Respondents who are successor in interest of Gorish Chander Kapoor as such have entered into the shoes of Gorish Chander Kapoor legally. So the stand which Gorish Chander Kapoor had taken during his lifetime is binding upon respondents. In this regard, petitioner placed on record certified copy of pleadings and evidence of suit no. 267/98. The said suit for possession was filed by Chander Mohan (a person from whom petitioner had purchased suit shop in question) against Gorish Chander Kapoor and Harinder Mohan Kapoor. In the said suit, Gorish Chander Kapoor had deposed on oath on 23.08.2001 that shop in question was taken on rent by the firm M/s. Harichand Kapoor & Sons in which there were three partners namely Hari Chand, Gorish Chander Kappor and Harender Mohan Kapoor. He further deposed that said partnership firm dissolved in 1968 and that half portion of shop no. 1415, Ward No. III, Gali Teliyan, Phatak Habash Khan, Tilak Bazar, Delhi 110006 came in his possession and other half came in possession of Page 12 of 23 Harender Mohan Kapoor. PW1 placed on record certified copy of partnership deed dated 02.04.1965 in which Hari Chand, Gorish Chander and Harinder Mohan were partners doing the partnership business under the name and style of M/s. Harichand Kapoor & Sons from shop no. 1415, Ward No. III, Gali Teliyan, Phatak Habash Khan, Tilak Bazar, Delhi110006 which was Mark C. PW1 further placed on record surrender deed dated 24.08.2004 Ex.PW1/5 vide which Harinder Mohan had surrendered the portion of shop no. 1415, Ward No. III, Gali Teliyan, Phatak Habash Khan, Tilak Bazar, Delhi110006 to petitioner.
15. The aforesaid documents therefore indicated two aspects. One, that entry of Gorish Chander in shop in question was not of trespasser. He entered into shop in question as a tenant in the capacity of being partner of M/s Harichand Kapoor & sons. Second, that part of shop no. 1415, Ward No. III, Gali Teliyan, Phatak Habash Khan, Tilak Bazar, Delhi110006 was surrendered by Harinder Mohan to petitioner on 24.08.2004. Therefore, the portion in which Gorish Chander remained in property no. 1415, Ward No. III, Gali Teliyan, Phatak Habash Khan, Tilak Bazar, Delhi110006 which is the shop in question, so possessed by Gorish Chander as tenant. Legally speaking, once a person enters into the shoes of tenant, he remains a tenant unless that status legally changes.
16. Respondents herein are legal heirs of Gorish Chander Kapoor. I have already concluded that Gorish Chander Kapoor remained in shop in question in the capacity of being a tenant. If that is so, then Page 13 of 23 respondents entered into the shoes of Gorish Chander Kapoor after his death as tenants. Respondents now by way of present litigation, again changed their stand by claiming themselves to be owners of shop in question on the basis of plea of adverse possession which made Gorish Chander as owner of shop in question.
17. In the wake of aforesaid conclusions, being tenants respondents have no right to challenge the title of petitioner over shop in question as Sec. 116 Indian Evidence Act bars them from doing so. Petitioner on her part had to prove that her status with respect to shop in question is more than that of a tenant. She is not supposed to prove her absolute right over shop in question in the proceedings of like nature. Petitioner placed on record sale deed Ex.PW1/3 executed by Chander Mohan in her favour with respect to property no. 1415, Ward No. III, Gali Teliyan, Phatak Habash Khan, Tilak Bazar, Delhi110006. She also placed on record copy of ration card Ex.PW1/4, previous sale deed of shop in question Ex.PW1/7, records of Delhi Municipal Corporation Ex.PW1/9 showing Har Devi as owner of shop in question, affidavit of Gorish Chander Kapoor Ex.PW1/13 declaring himself to be tenant in property no. 1415, Ward No. III, Gali Teliyan, Phatak Habash Khan, Tilak Bazar, Delhi110006. All the said documents indicated that status of petitioner with respect to shop in question is more than that of a tenant which is required in the proceedings of like nature. Petitioner also placed on record certified copy of judgment Ex.PW1/11 which case was filed by erstwhile owner of shop in question against Gorish Chander Kapoor and Harender Mohan. In the said judgment Ld. Civil Court concluded that suit Page 14 of 23 was barred by Sec. 50 of DRC Act as there was involvement of relationship of landlord and tenant between the parties. The said judgment was confirmed by Ld. Appellate Court vide judgment Ex.PW 1/12. Therefore, Ld. Civil Court had concluded that suit was not maintainable u/s. 50 of DRC Act and it is the court of Rent Controller which has to decide the issue of possession against Gorish Chander.
18. In present proceedings, again respondents have raised issue of Sec. 50 DRC Act. They cannot do so in present proceedings as the order of Ld. Civil Court as noted above has attained finality. Meaning thereby that suit was barred u/s. 50 of DRC Act as noted by Ld. Civil Court and this court has only jurisdiction to decide issue between the parties.
19. Coupled with the same, petitioner also placed on record order of Delhi Urban Shelter Improvement Board Ex.PW1/18 which granted permission to petitioner to file eviction petition with respect to shop in question.
20. The aforesaid documents therefore indicated that status of petitioner is more than that of a tenant and akin to that of an owner. An owner is always the landlord of tenanted premises. Therefore, petitioner was able to prove herself to be owner and landlord of shop in question by said documentary proof.
Page 15 of 23ALTERNATIVE SUITABLE ACCOMMODATION
21. In the petition, petitioner claimed that she has no alternative suitable accommodation for the purpose of meeting out her bonafide need. Per contra, respondents filed application for placing on record the fact that after filing of this eviction petition, petitioner had obtained vacant and peaceful possession of one portion of shop no. 1415 Ward No. III, Gali Teliyan, Phatak Habash Khan, Tilak Bazar, Delhi110006 which she did not utilize for her bonafide need rather she rented out it to a tenant namely Vinod Shah. Petitioner as such admitted the fact that she had rented out the said portion in property no. 1415 to Vinod Shah after filing this eviction petition. For appreciating the said aspect as to whether said portion amounted to or did not amount to alternative suitable accommodation, this court had granted leave to respondents to contest eviction petition. PW1 Atif Naqi who was son of petitioner in response to court question, answered that petitioner could not utilize the said portion in shop no. 1415 for her bonafide need as she and her family members were in dire need of money. He further deposed that Vinod Shah gave handsome rent amount which was needed at that time for the purpose of meeting out medical expenses of father of PW1 who was ill at that time. Further, he claimed that said portion of 1415 Ward No. III, Gali Teliyan, Phatak Habash Khan, Tilak Bazar, Delhi110006 was small in size and therefore it cannot be utilized. Based on said answers he reasoned as to why petitioner did not utilize the said portion of shop no. 1415 for her bonafide need.
Page 16 of 2322. The aforesaid explanation of PW1 was not probable. It was never the case of petitioner that her husband was ill either in pleadings or in evidence. Petitioner did not place on record any documentary proof indicating the illness of her husband. Petitioner also did not place on record any documentary proof regarding expenses she had to bear for meeting out the expenses of her husband. As such petitioner did not probabilize her financial status which existed when vacant possession of portion in shop no. 1415 was received by her in 2016 which she eventually rented out to tenant namely Vinod Shah. PW1 did not explain as to what he meant by "handsome rent amount" which Vinod Shah had given to petitioner. PW1 did not explain as to how much amount was needed for meeting out medical expenses of his father in 2016 when petitioner had rented out portion in shop no. 1415 to Vinod Shah. PW1 further did not explain the size of said portion of shop no. 1415 and therefore I could not appreciate as to what was the size of shop no.1415 B, Ward No. III, Gali Teliyan, Phatak Habash Khan, Tilak Bazar, Delhi in comparison to shop in question. In other words, I have no basis to conclude that said portion in shop no. 1415 was smaller in size in comparison to shop in question.
23. The net result is that petitioner, through testimony of PW1 failed to remove the doubt that portion in shop no. 1415 whose possession she had obtained after filing of this petition did not amount to suitable alternative accommodation for meeting out her bonafide need. Aforesaid Page 17 of 23 ingredient, therefore, was not proved by petitioner.
BONAFIDE NEED
24. Since petitioner had moved the court by filing present eviction petition so she should have examined herself so that necessary clarifications can be obtained from her with regard to her bonafide need and other aspects as per Sec. 14(1)(e) DRC Act. She did not examine herself. She examined her son PW1 Atif Naqi in her place. Her son Atif Naqi placed on record special power of attorney Ex.PW1/1. The said attorney as such did not explain as to why petitioner had executed power of attorney in favour of her son. The said attorney did not explain as to what was the reason based on which petitioner did not appear in the court. It is trite to mention here that facts which are within the personal knowledge of a person can be deposed by the said person only. An attorney cannot depose in place and instead of principal. Reliance in this regard is placed upon case law titled as Janki Vashdeo Vs. Indusind Bank Ltd. AIR 2005 SC 439. Therefore, by not examining herself, petitioner failed to prove her bonafide need.
25. It was incumbent upon petitioner to examine herself for the reason that answers given by PW1 regarding nonutilization of one portion in shop no. 1415 were based on his estimation. The said answers were not based on any documentary proof or any specific fact. In fact the said answers have already been appreciated above improved the case of petitioner with regard to bonafide need which did not help the case of Page 18 of 23 petitioner.
26. PW1 in his testimony deposed that his elder brother Kashif Naqi who is doing the work of commission on sale of specs for last 45 years. PW1 failed to place on record any documentary proof or oral evidence regarding the income of Kashif Naqi. He had no knowledge about the fact that Kashif was income tax payee or not. In other words, PW1 failed to give specific answers with regard to the financial status of Kashif Naqi. The said failure on his part was a material failure, hurting the case of petitioner as petitioner in the eviction petition stated that her sons are not doing any "Solid work / business". Petitioner did not explain as to what she has meant by "solid work / business". In the same breath petitioner stated in eviction petition that she requires shop in question so that her sons can do their business / livelihood by doing business of readymade garments. The said bonafide need projected by petitioner indicated that her son Kashif Naqi was not earning comfortable monthly income for meeting out the expenses of his family. The non explanation regarding financial status of Kashif Naqi by PW1 as such did not remove the airs regarding the financial status of Kashif Naqi. As such I have no yardstick to appreciate and decide the bonafide need of Kashif Naqi over premises in question.
27. PW1, being son of petitioner deposed in his testimony that he requires shop in question. He deposed that he was doing business of cosmetics in partnership with Bhasker Bawa since 2016 in property no. 11411142, Ward no.3, Baradari Gali Teliyan, Fatak Habaskhan, Tilak Page 19 of 23 Bazar, Delhi. He also deposed that said properties were residential in nature and in support thereof he filed documents Ex.A1 to Ex.A7. Those documentary proofs included copies of electricity bills showing that electricity tariffs at domestic rate in property no. 11411142, Ward no.3, Baradari Gali Teliyan, Fatak Habaskhan, Tilak Bazar, Delhi were charged by BSES. Those documents also included copy of receipt Ex.A3 regarding gas connection and ID proofs of petitioner and his sons Atif Naqi, Bilal Ahmed, Mohd. Talha Ex.A4 to A7.
28. On one hand, PW1 deposed that properties no. 114142, Ward no.3, Baradari Gali Teliyan, Fatak Habaskhan, Tilak Bazar, Delhi were residential in nature and had filed aforesaid documents. On the other hand, PW1 deposed in his testimony that he was doing business of cosmetics in partnership with Bhasker Bawa from 2016 in property no. 114142, Ward no.3, Baradari Gali Teliyan, Fatak Habaskhan, Tilak Bazar, Delhi. It means that properties no. 114142, Ward no.3, Baradari Gali Teliyan, Fatak Habaskhan, Tilak Bazar, Delhi were utilized by PW1 for running business. If that is so, then those properties cannot be seen as exclusive properties for residence. They seemed to be properties which fell in mixed land use. In other words, properties no. 114142, Ward no.3, Baradari Gali Teliyan, Fatak Habaskhan, Tilak Bazar, Delhi can be utilized by son of petitioner i.e. PW1 for running his business.
29. PW1 further deposed that 3rd son of petitioner namely Mohd. Saad is doing the work of commission agent of footwear from last 5 years but he could not furnish any documentary proof in support thereof.
Page 20 of 2330. Petitioner also claimed that 4th son Bilal Ahmed aged 27 years and 5th son Mohd. Talha aged 20 years are unemployed.
31. PW1 failed to explain as to how sons of petitioner Mohd. Saad, Bilal Ahmed and Mohd. Talha were able to maintain themselves, as on date. Son of petitioner namely Mohd. Saad, as per PW1 is married having two kids and his wife is also not working. In such a situation PW 1 should have explained the details of work profile of Mohd. Saad through documentary proof. He did not do so.
32. The net result is that PW1 through his testimony failed to support the cause of petitioner regarding unemployment of sons of petitioner. In other words, PW1 through his testimony failed to project the picture as mentioned by petitioner in eviction petition to the effect that all the sons of petitioner require shop in question for running business of readymade garments for earning their livelihood.
33. PW1 further deposed that business of Madras General Store from shop no. 397/1, Gali Juteywali near Masjid Kalan, Sadar Bazar, Delhi was earlier done by his father and after death of his father, said business has stopped. As such he did not file any documentary proof regarding the status of said business which existed at that time when his father was alive and after the death of his father. Non filing of any documentary proof in this regard created doubt regarding the bonafide need of petitioner.
Page 21 of 2334. PW1 further deposed that M/s. Alliance Marketing Associates which is a firm is registered at his residential address in which PW1 is partner with Bhasker Bawa. Said admission on part of PW1 shows that PW1 is not unemployed as stated in eviction petition. PW1 is doing his business from a property which belongs to petitioner and therefore bonafide need projected by petitioner in eviction petition was not correct.
35. There is another way of seeing the bonafide need of petitioner, which is that after purchasing shop in question in 2004 vide sale deed dated 19.08.2004 Ex. PW1/3 petitioner claimed that she never received rent from respondents. I failed to understand as to why petitioner did not file any litigation against respondents since 2013 when she filed this petition, for nonpayment of rent by respondents. Her non filing of case based on nonpayment of rent or any other ground till 2013 and her shying away from the court for giving evidence indicated that there is something fishy. The said conclusion becomes more concrete when PW 1 deposed in his crossexamination that petitioner did not turn up in court as she is ill and cannot speak. He further deposed that petitioner is suffering from depression and cannot understand what she is speaking. In support thereof PW1 did not file any documentary proof regarding the physical and mental health of petitioner. It seems that PW1 somehow wanted to hide petitioner with some ulterior motives. Said possibility cannot be ruled out. The net result is that petitioner failed to prove her bonafide need based on preponderance of probabilities.
Page 22 of 2336. PW1 thus failed to depose reliable and trustworthy facts. His testimony is therefore not believed by me to be trustworthy and I discarded it.
37. The net result is that petitioner failed to prove the ingredients of absence of alternative suitable accommodation and presence of bonafide need in her pleadings and evidence. Therefore, ingredients of Sec. 14(1)(e) DRC Act are not proved by petitioner. Petition accordingly stands dismissed.
38. File be consigned to Record Room after necessary compliance.
Announced in open court (Prashant Sharma)
Dated 30th October, 2019 SCJCumRC (Central)
Tis Hazari Courts: Delhi
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