Delhi District Court
Sh. Ashok Kumar Bhatnagar vs Sh. Shyam Nath on 5 January, 2012
IN THE COURT OF SH BALWANT RAI BANSAL
ADDITIONAL RENT CONTROLLER (SOUTH),
SAKET COURTS, NEW DELHI
Eviction Petition No. 120/10
Sh. Ashok Kumar Bhatnagar
S/o Late Sh. G.K. Bhatnagar
R/o G16, Hauz Khas Enclave,
New Delhi 110016
.........Petitioner.
Versus
Sh. Shyam Nath
S/o Late Sh. Bhagwati Prasad
R/o H2, FF, Panchsheel Vihar,
Malviya Nagar, New Delhi
Also at:
Shukla Pan Corner
Show Window, G16,
Hauz Khas Enclave, New Delhi 16
.........Respondent.
ORDER:
1. Vide this order I shall dispose of an application for leave to defend moved by the respondent.
2. The brief facts necessary for disposal of application are that the Eviction Petition No. E120/10 Page 1 of 25 petitioner has filed the present eviction petition u/s 14 (1) (e) r/w Section 25 B of DRC Act against the respondent on the ground of bonafide requirement in respect of one shop on the ground floor in property No. G16, Hauz Khas Enclave, New Delhi shown in red colour stating that the said property was originally owned by Sh. G.K. Bhatnagar, the father of the petitioner who executed a Will dated 18.11.1982 in favour of the petitioner in respect of the said property. The father of the petitioner Sh. G.K. Bhatnagar expired on 26.07.1986 and, thereafter, the petitioner became the legal and lawful owner of the property in question by virtue of Will dated 18.11.1982 executed by his father in his favour and said property has also been mutated in the name of the petitioner in the records of MCD. It is further stated that the premises in question i.e. Shop widow was given on rent by the father of the petitioner to the respondent and after the death of the father of the petitioner, the respondent has been paying the rent to the petitioner. It is further averred that the petitioner is a medical Physiotherapist and was working under Central Government Health Scheme, New Delhi and he retired from the said services in September, 2005 and started his private practice from October, 2005 in shop No. 3 in the aforesaid property No. G16, Hauz Khas Enclave, New Delhi. It is further stated that the son of the petitioner Dr. Alok Bhatnagar who has completed his BDS in 2005 and now he is going to complete his MDS in July, 2010 intends to start his practice as a dental Eviction Petition No. E120/10 Page 2 of 25 surgeon. It is further stated that the son of the petitioner is also going to be married to a lady who is also BDS and the petitioner as well as his son and would be daughterinlaw intend to start their own clinic and for this purpose all the shops situated on the ground floor of the aforesaid property including the shop in question is required by the petitioner bonafide for his own benefits and requirements along with his family members for running the clinic. It is further stated that the petitioner and his dependent family members do not have any other alternative accommodation for the purpose to establish a clinic to earn their livelihood and the need of the petitioner is bonafide. Hence, the present petition. It has been prayed that an eviction order may be passed in favour of the petitioner and against the respondent in respect of the suit premises.
3. The respondent has filed the leave to defend application along with affidavit contending that present petition filed u/s 14 (1) (e) of DRC Act is not maintainable since Section 14 (1) (e) is meant for the premises if required bonafide by the landlord for occupation as a residence for himself or for any member of his family dependent on him which is not claimed in the petition and, therefore, present petition is without any cause of action and is liable to be rejected u/o 7 rule 11 CPC. It is further contended that the late father of the petitioner namely Sh. G.K. Bhatnagar was not the owner of the premises in dispute and the petitioner is only a rent collector collecting Eviction Petition No. E120/10 Page 3 of 25 rent after the death of Sh. G.K. Bhatnagar. It is also contended that the petitioner has not placed on record NOC as well as alleged Wills dated 18.11.1982 or 08.11.1982 executed by his father in his favour. The respondent has further contended that the premises in dispute are not required by the petitioner for his residence or for residence of any member of his family dependent on him and even the premises is not required by the petitioner for running a clinic by himself or any member of his family. It is contended that the petitioner has not given the complete details of existing construction at G16, Hauz Khas, New Delhi. It is further contended that the petitioner has not filed any certificate to show that he is a physiotherapist and further has not filed any document to show that Dr. Alok Bhatnagar is his son and said Dr. Alok Bhatnagar has completed his BDS in 2005. It is also contended that the petitioner has not given the name of the lady to whom Dr. Alok Bhatnagar is going to get married. It is further contended that the petitioner has not given the details of what are the properties available to him. It is stated that the petitioner is having at his disposal sufficient accommodation at ground floor of G16, Hauz Khas Enclave, New Delhi i.e. a shop which he is referring as shop No. 3, there is another shop adjoining the said shop which he is showing as shop in between the staircase and there is one another shop which he is showing as a covered courtyard in the site plan and as such as per the site plan filed by the petitioner himself, he is having 3 Eviction Petition No. E120/10 Page 4 of 25 shops and toilet on the ground floor and the complete area of these 3 shops and toilet would be more than 700 sq. ft which is sufficient for the need of the petitioner and his family. It is further stated that the petitioner is also having mezzanine floor over the shop No. 2, 3 and stairs and the covered area of mezzanine floor would be more than 400 sq. feet and this premises is approved for commercial use and even if the petitioner wants to use it for physiotherapist or BDS clinic, he has sufficient accommodation in this premises. It is further averred that the petitioner is also having complete first floor having construction about 1000 sq. feet along with open courtyard and the second floor with construction about 1000 sq. feet and as such the petitioner is having sufficient accommodation available to him on the ground floor, mezzanine floor, first floor and second floor which is more than sufficient to meet the residential and clinic needs, if any of the petitioner and his family. It is further stated that in 2007, the petitioner started a multifacility clinic in the name of Ansh where the petitioner used to provide the service of himself as consultant physiotherapist, service of Dr. Alok Bhatnagar as dental surgeon and of Dr. Nidhi Bhatnagar as Audiologist and speech language pathologist. All these 3 doctors were comfortably accommodated at the space available in G16, Hauz Khas Enclave, New Delhi. Dr. Nidhi is no more there and so the space occupied by her is also available to the petitioner. It is also stated that the building in Eviction Petition No. E120/10 Page 5 of 25 question is in the corner of the market and it is being planned by the owner of this building to construct a complete shopping complex and to let out the same at a very higher rent and, therefore, the petitioner has no bonafide need of the shop in question and he is only interested either the premises to be vacated to let out the same at higher rent or the respondent should pay a very high rent which is unreasonable. Therefore, the respondent has prayed for grant of leave to contest the petition.
4. The petitioner has filed the reply to the leave to defend application along with counter affidavit in which it has been denied that the father of the petitioner late Sh. G.K. Bhatnagar was not the owner of the suit property. It is stated that the respondent in previous litigation filed by him against the father of the petitioner has admitted the father of the petitioner as owner and landlord and the respondent has been paying the rent to the petitioner after the death of his father Sh. G.K. Bhatnagar from the year 1986 and at no stage challenged the authority of the petitioner and, therefore, now the respondent cannot state that petitioner is not the owner of the property in question. It has been further denied that the petitioner is having sufficient accommodation at his disposal at ground, mezzanine, first and second floor of the property in question. It is stated that the property in question bearing No. G16, Hauz Khas, New Delhi is about 163 sq. yds. and is constructed upto 2 ½ floor. The ground floor has shops, toilet and staircase to go on the Eviction Petition No. E120/10 Page 6 of 25 first floor and is being used for the commercial purpose and the other floors are under the possession of the petitioner and are used for residential purpose by the petitioner and his family members. The mezzanine floor on the shops No. 2 & 3 which is in 'L' shape is used by the son of the petitioner as his bedroom and study room which in fact is not suitable and comfortable as study room, but due to nonavailability of alternative accommodation, the son of the petitioner is using the said floor as his bedroom and study room. The first floor having an area of 737 sq. feet consists of two rooms, one kitchen, one bathroom and one latrine and petitioner is using one room as his bed room, while other room is used as drawing cum dining room. The second floor having an area of 417 sq. ft. is a Barsati floor which consists of a small room and is used as a store room . It is further stated that all the rooms are not sufficient for the family members of the petitioner as per their status, but there is no other accommodation and hence the petitioner and his family members are adjusting in the said rooms. It has been denied that the mezzanine and first floor can be used for the purpose of clinic by the petitioner. It is stated that the petitioner started a physiotherapy clinic under the name and style of Ansh Multi Specialty Clinic on 14.10.2007 in shop No. 3 in the property No. G16, Hauz Khas Enclave, New Delhi and till date petitioner is working in said clinic, but at present the space is not sufficient because with the passage of time, the Eviction Petition No. E120/10 Page 7 of 25 needs have changed and now the petitioner wants to extend and expand his clinic with latest modern equipments and gadgets. Further, the son of the petitioner after completing his Master of Dental surgery in 2010 wants to start his clinic and, therefore, they both require separate rooms for their personal office, conference room, waiting room of their patients, medicines store, wash room for themselves and for their patients etc. for which more space is required and, therefore, the entire ground floor adjoining the shop No. 3 is required by the petitioner bonafide. The other contents of leave to defend application are stated to be wrong and denied and the petitioner has prayed for dismissal of the application.
5. Rejoinder has been filed by the respondent in which averments made in leave to defend application have been reiterated and reaffirmed and those made in reply to leave to defend application have been controverted.
6. I have heard the Ld. Counsel for the parties and perused the entire material available on record.
7. The present petition has been filed u/s 14 (1) (e) read with section 25B of DRC Act and in order to succeed in such a petition, petitioner has to prove (i) ownership over the suit premises; (ii) no alternative accommodation and (iii) bonafide requirement.
8. The respondent has disputed the ownership of the petitioner over the property in question and has contended that late father of the petitioner Eviction Petition No. E120/10 Page 8 of 25 namely Sh. G.K. Bhatnagar was not the owner of the premises in dispute and the petitioner is only a rent collector after the death of Sh. G.K. Bhatnagar. It is also contended that the petitioner has not placed on record NOC as well as alleged Wills dated 18.11.1982 or 08.11.1982 executed by his father in his favour by virtue of which the petitioner is claiming ownership over the property in question. On the other hand, case of the petitioner is that property in question bearing No. G16, Hauz Khas Enclave, New Delhi was owned by his father Sh. G.K. Bhatnagar who executed a Will dated 18.11.1982 in his favour and after the death of his father, in the year 1986, he became the legal and lawful owner of the property in question and said property has also been mutated in the name of the petitioner in the records of MCD and the respondent has also been paying the rentals to him since 1986.
9. Though, the respondent has disputed the ownership of Sh. G.K. Bhatnagar, father of the petitioner over the property in question, but the respondent has not disputed the fact that Sh. G.K. Bhatnagar had inducted him in the suit premises. Therefore, the respondent cannot challenge the ownership of Sh. G.K. Bhatnagar over the property in question. It is also not in dispute that petitioner is son of Sh. G.K. Bhatnagar and after the death of Sh. G.K. Bhatnagar, the respondent has been paying the rentals in respect of the suit premises to the petitioner since 1986. The petitioner has also placed Eviction Petition No. E120/10 Page 9 of 25 on record the photocopy of rent receipts issued to the respondent in respect of the tenanted premises in which name of owner has been shown as Sh. A. K. Bhatnagar, petitioner herein. The said rent receipts also bears the signature of respondent and have not been disputed by the respondent. Therefore, the respondent cannot be heard saying that the petitioner is only a rent collector collecting rent after the death of Sh. G.K. Bhatnagar. When the respondent himself admits the relationship of landlord and tenant between the parties, he is estopped from disputing the title of Sh. G.K. Bhatnagar and after his death of the petitioner over the property in question. It has been held in Ramesh Chand Vs. Uganti Devi, 157 (2009) DLT 450 by the Hon'ble High Court of Delhi that, "It is settled preposition of law that in order to consider the concept of ownership under Delhi Rent Control Act, the Court has to see the title and right of the landlord qua the tenant. The only thing to be seen by the Court is that the landlord had been receiving rent for his own benefit and not for and on behalf of someone else. If the landlord was receiving rent for himself and not on behalf of someone else, he is to be considered as the owner howsoever imperfect his title over the premises may be. The imperfectness of the title of the premises cannot stand in the way of an eviction petition under Section 14 (1) (e) of the DRC Act, neither the tenant can be allowed to raise the plea of imperfect title or title not vesting in the landlord and that too when the tenant has been Eviction Petition No. E120/10 Page 10 of 25 paying rent to the landlord. Section 116 of the Evidence Act creates estoppels against such a tenant. A tenant can challenge the title of landlord only after vacating the premises and not when he is occupying the premises. In fact, such a tenant who denies the title of the landlord, qua the premises, to whom he is paying rent, acts dishonestly." Hence, there is no merit in the contention of the respondent that Sh. G.K. Bhatnagar, father of the petitioner was not the owner of the property in question and the petitioner is only a rent collector after the death of Sh. G.K. Bhatnagar.
10. The respondent has also contended in leave to defend application that present petition filed u/s 14 (1) (e) of DRC Act is not maintainable and is liable to be rejected u/o 7 rule 11 CPC since Section 14 (1) (e) is meant for the premises if required bonafide by the landlord for occupation as a residence for himself or for any member of his family dependant on him which is not claimed in the petition. There is no dispute that the suit premises was let out to the respondent for commercial purposes. However, in view of the pronouncement of Hon'ble Apex Court in Satyawati Sharma Vs. Union of India III (2008) SLT 553, the purpose of letting is no more an issue since the word 'residential' has been deleted from the Section 14 (1) (e) of DRC Act and purpose of letting has lost its significance and the petition is also maintainable in case of bonafide requirement in respect of commercial premises also. Hence, there is no merit in the contention of the Eviction Petition No. E120/10 Page 11 of 25 respondent that present petition is not maintainable as same has been filed in respect of commercial premises.
11. The respondent has further contended that the petitioner has not given the complete details of existing construction at G16, Hauz Khas, New Delhi and has also not given the details of the properties available to him. First of all, the requirement of the petitioner in the present petition is of the ground floor of the property bearing No. G16, Hauz Khas, New Delhi for commercial purposes and as per the petitioner upper floors are being used for residential purposes. Therefore, the petitioner was not required to give the complete details of the property bearing No. G16, Hauz Khas, New Delhi. Moreover, in reply to leave to defend application, the petitioner has categorically stated that property in question bearing No. G16, Hauz Khas, New Delhi is about 163 sq. yds. and is constructed upon 2 ½ floor. The ground floor has shops, toilet and staircase to go on the first floor and is being used for the commercial purpose. The mezzanine floor on the shops No. 2 & 3 which is in 'L' shape is used by the son of the petitioner as his bedroom and study room due to nonavailability of alternative accommodation and the first floor consists of two rooms, one kitchen, one bathroom and one latrine and petitioner is using one room as his bed room, while other room is used as drawing cum dining room. The second floor is a Barsati floor which consists of a small room and is used as a store room. Eviction Petition No. E120/10 Page 12 of 25
12. Therefore, it cannot be said that the petitioner has not given the complete details of property bearing No. G16, Hauz Khas, New Delhi. So far the contention of the respondent that the petitioner has not disclosed the other properties available to him is concerned, the petitioner has categorically stated in the petition itself that the petitioner and his dependent family members do not have any other alternative accommodation for the purpose to establish a clinic to earn their livelihood. The respondent has not been able to disclose any other alternative commercial property available to the petitioner except the property in question and only vague and frivolous plea has been raised by the respondent that petitioner has not disclosed the other properties available to him and no triable issue would raise on this aspect.
13. Next contention of the respondent is that the petitioner has not filed any certificate to show that he is a physiotherapist and further has not filed any document to show that Dr. Alok Bhatnagar is his son and said Dr. Alok Bhatnagar has completed his BDS in 2005. It is also contended that the petitioner has not given the name of the lady to whom Dr. Alok Bhagnagar is going to get married. Though, the aforesaid pleas taken by the respondent are self contradictory as in the latter part of his leave to defend application the respondent himself has conceded that in 2007 the petitioner started a multifacility clinic in the name of Ansh where the petitioner used to Eviction Petition No. E120/10 Page 13 of 25 provide the service of himself as consultant physiotherapist, service of Dr. Alok Bhatnagar as dental surgeon and of Dr. Nidhi Bhatnagar as Audiologist and speech language pathologist. Moreover, the petitioner has placed on record photocopy of Certificate of Registration issued by The Delhi Council for Physiotherapy and Occupational Therapy (Statutory Body under Ministry of Health, Govt. Of NCT, Delhi) to the effect that he has been duly registered as Physiotherapist in the register of Physiotherapy Practitioners under the Delhi Council for Physiotherapy and Occupational Therapy Act 1997. The petitioner has also placed on record the photocopy of certificate issued by Delhi Dental Council to the effect that Dr. Alok Bhatnagar is duly registered as Dental Surgeon under the provision of the Dentists Act, 1948 showing his qualification as BDS in 2005 and MDS in 2010. Therefore, it cannot be said that the petitioner has not placed on record any certificate to show that he is a physiotherapist and further that he has not filed any document to show that Dr. Alok Bhatnagar has completed his BDS in 2005. So far the nondisclosure of name of lady to whom Dr. Alok Bhagnagar is going to get married is concerned, the petitioner has categorically stated in reply to leave to defend application that his son was going to marry a dentist but as she is still interested in higher Education, the said marriage has not materialized for the time being and has been deferred. As such, when the marriage of son of the petitioner has yet not been Eviction Petition No. E120/10 Page 14 of 25 materialized, the petitioner is not required to disclose the name of lady to whom his son is going to marry.
14. However, the main contention of the respondent in leave to defend application is that the petitioner is having at his disposal sufficient accommodation at ground floor of property bearing No. G16, Hauz Khas Enclave, New Delhi as he is having 3 shops and toilet on the ground floor and the complete area of these 3 shops and toilet would be more than 700 sq. ft which is sufficient for the need of the petitioner and his family.
15. The petitioner has placed on record the site plan showing the ground floor of the property bearing No. G16, Hauz Khas, New Delhi. A perusal of the site plan filed by the petitioner shows that the petitioner is running his clinic in a shop measuring 23'.9" x 10' 1 ½" ft. The petitioner has also shown three other shops which are under the possession of the tenants including the suit shop in red colour under the possession of the respondent. Apart from this, adjacent to the shop in which the petitioner is running his clinic, the petitioner has shown a small shop measuring 8'0''x 4'6" ft under the staircase and a covered courtyard measuring 23'0" x 11'9" ft. along with a toilet under his possession to which the respondent is referring as three shops under the possession of the petitioner. As per the respondent, the complete area of the three shops and toilet under the possession of the petitioner on the ground floor is more than 700 sq. ft. Eviction Petition No. E120/10 Page 15 of 25 which is sufficient for the petitioner and his family. On the other hand, categorical case of the petitioner is that the shop under his possession in which he is running his clinic is not sufficient as with the passage of time, the needs have changed and now he wants to extend and expand his clinic with latest modern equipments and gadgets and further the son of the petitioner who is a dental surgeon also wants to start his own clinic for which huge space is required and therefore, the entire ground floor adjoining the shop No. 3 is required by the petitioner bonafide. The petitioner also wants to expand his clinic with modern equipments and both the petitioner and his son require separate rooms for their offices, separate waiting rooms for their patients, separate reception area, wash rooms, and medicine store etc. for which huge space is required. As such, the small shop measuring 8'0''x 4'6" shown by the petitioner adjacent to his clinic beneath the staircase as well as the covered courtyard cannot be said to be a space available to the petitioner for the purpose of running a physiotherapy clinic by himself and a dental clinic by his son. At the most, the said shop and covered courtyard can be combined with the clinic under the possession of the petitioner to make more space for expanding his clinic as well as for running a separate dental clinic by his son. Even after combining the said small shop and covered courtyard, the requirement of the petitioner of huge space is not fulfilled and he requires more space for expanding his clinic as Eviction Petition No. E120/10 Page 16 of 25 well as for running separate dental clinic by his son. As such, even the contention of the respondent that the petitioner is having three shops on the ground floor is taken to be true, it cannot be said that the petitioner is having sufficient space available to him on the ground floor for his requirement. The petitioner being the landlord cannot be compelled to run his clinic in a small, dingy and congested space when more space is available to him and respondent being the tenant cannot dictate the landlord to restrict his requirement in a lesser accommodation in order to accommodate him. It has been held in Sudesh Kumar Soni & Ano. Vs. Smt Prabha Khanna & Ano. 2008 IX, AD (Delhi) 657 that, "The law does not command or compel the landlord to squeeze himself tightly into lesser premises protecting the tenants occupancy"
16. Although, the respondent has also taken a plea that the petitioner is also having mezzanine floor having the covered area of more than 400 sq. feet which is approved for commercial use and even if the petitioner wants to use it for physiotherapist or BDS clinic, he has sufficient accommodation in this premises. It is also contended by the respondent that the petitioner is also having complete first floor having construction about 1000 sq. feet along with open courtyard and the second floor with construction about 1000 sq. feet and as such the petitioner is having sufficient accommodation available to him on the ground floor, mezzanine floor, first floor and second Eviction Petition No. E120/10 Page 17 of 25 floor which is more than sufficient to meet the residential and clinic needs, if any of the petitioner and his family.
17. On the other hand, as per the petitioner the upper floors of the property in question is being used for residential purposes by the petitioner and his family. The mezzanine floor which is in 'L' shape is used by the son of the petitioner as his bedroom and study room due to paucity of accommodation and the first floor having an area of 737 sq. feet consists of two rooms, one kitchen, one bathroom and one latrine and petitioner is using one room as his bed room, while other room is used as drawing cum dining room. The second floor having an area of 417 sq. ft. is a barsati floor which consists of a small room and is used as a store room.
18. In the rejoinder affidavit, the respondent has claimed that mezzanine floor referred by the petitioner is in fact a regular floor having one big hall with toilet and can be used as two rooms by putting a wooden partition or as one big hall for all purposes, residential or commercial. Similarly, the first floor is having three rooms, kitchen, bathroom & latrine along with big courtyard and the barsati floor referred by the petitioner consist of big rooms of sufficient measurement and a toilet and could be used for any purpose including for the purpose of running the clinic.
19. First of all, the respondent has not placed on record any counter site plan to show that mezzanine floor is having one big hall or the first Eviction Petition No. E120/10 Page 18 of 25 floor consists of three rooms or second floor or barsati floor is having big rooms. Further, the respondent has taken a plea that mezzanine floor is approved for commercial purposes and as such can be used for clinic. As per the petitioner, upper floors including the mezzanine floor are being used by him and his family members for residential purposes. As such, the petitioner cannot be forced to disturb his private life by running the clinic at mezzanine floor, even if same is approved for commercial purposes as alleged by the respondent, which as per the petitioner is being used for residential purposes by his son just to accommodate the tenant in the suit premises.
20. Further, it is a common knowledge that the ground floor is more suitable and convenient for the purpose of running a clinic in terms of attending the patients as well as in providing medical facilities in urgent and emergent situation. Therefore, the upper floors cannot be said to be suitable and convenient for running the clinic by the petitioner and his son, more so in view of the fact that upper floors are being used by the petitioner and his family for residential purposes. It has been held in Sudesh Kumar Soni & Anr. Vs. Prabha Khanna & Anr., 153 (2008) DLT 652 that, "It is not for tenant to dictate terms to landlord as to how else he can adjust himself without getting possession of tenanted premises - suitability has to be seen for convenience of landlord and his family members and on the basis of Eviction Petition No. E120/10 Page 19 of 25 circumstances including their profession, vocation, style of living, habit and background." It is also a settled law that landlord is the master of his choice and tenant cannot suggest the landlord how he should use the space available with him. It has been held in Sait Nagjee Purushotham and Company Ltd. Vs. Vimalabai Prabhulal and others, 2005 8 SCC 252 by the Hon'ble Apex Court that, "It is not tenant who can dictate terms to landlord and advice him what he should do and what he should notIt is always the privilege of landlord to choose the nature and place of business." Similarly, it has been held by the Hon'ble Punjab & Haryana High Court in M/s Bajaj Associates & Ors. Vs. Vinod Kumar & Ors, 2008 (4) CCC 442 that, "It is not for the tenant to dictate to landlord as to how he has to run or adjust his business."
21. It is also contended by the respondent that in 2007, the petitioner started a multifacility clinic in the name of Ansh where the petitioner used to provide the service of himself as consultant physiotherapist, service of Dr. Alok Bhatnagar as dental surgeon and of Dr. Nidhi Bhatnagar as Audiologist and speech language pathologist and all these 3 doctors were comfortably accommodated at the space available in G16, Hauz Khas Enclave, New Delhi, however Dr. Nidhi is no more there and so the space occupied by her is also available to the petitioner. Again, I do not find any Eviction Petition No. E120/10 Page 20 of 25 merit in this contention of the respondent. Admittedly, the petitioner is running a physiotherapy clinic under the name and style of Ansh Multi Specialty Clinic in shop No. 3 measuring 23'9"x 10'1 ½" on the ground floor in the property No. G16, Hauz Khas Enclave, New Delhi and even if one of the doctor has left the Ansh Multi Specialty being run by the petitioner, it cannot be said that the petitioner is having sufficient space on the ground floor for running his clinic as the space occupied by Dr. Nidhi is also available to the petitioner. The fact of the matter remains that petitioner is running his physiotherapy clinic in a small shop measuring 23'9"x 10'1 ½" and if one of the doctor has left the said clinic it does not increase the area of the shop available to the petitioner on the ground floor.
22. The Ld. Counsel for the respondent has also submitted that son of the petitioner has got employment in ITS CDSR Dental College and Hospital at Muradnagar, Distt. Ghaziabad, UP where he has also been allotted the staff quarter and, therefore, need of the son of the petitioner ceased to exist. The aforesaid fact has not been disputed by the petitioner, but the Ld. Counsel for the petitioner has vehemently argued that son of the petitioner is not supposed to remain idle till the suit premises is vacated by the respondent and he has to earn his livelihood by engaging himself somewhere else and he cannot wait till the premises are vacated. He has further argued that the employment of the son of the petitioner does not Eviction Petition No. E120/10 Page 21 of 25 dilute the bonafide requirement of the petitioner for starting a clinic by his son.
23. I find considerable substance in the argument of the Ld. Counsel for the petitioner. The son of the petitioner Dr. Alok Bhatnagar who has completed his BDS in 2005 and MDS in 2010 in Dental Surgery is not supposed to sit idle and to wait to start his practice till the premises are vacated by the respondent. He has to do some job in order to earn his livelihood and to live a dignified life. Therefore, the respondent cannot be heard saying that since the son of the petitioner has been employed at ITS CDSR Dental College and Hospital at Muradnagar, Distt. Ghaziabad, UP and has also been allotted a staff quarter, the requirement of the petitioner for additional space for starting a dental clinic by his son who is a dental surgeon has diminished.
24. The Ld. Counsel for the respondent has also argued that let out portion to the respondent is only a small show window and this space is of no use for the petitioner to be used as a clinic and hence the present petition is malafide. Again, I do not find any merit in this contention. The categorical case of the petitioner is that he wants to expand and extend his physiotherapy clinic which he is running in a shop on the ground floor and further his son Dr. Alok Bhatnagar who is a dental surgeon also wants to start his clinic and they both require their personal office, conference room, Eviction Petition No. E120/10 Page 22 of 25 waiting room of their patients etc. and, therefore, he requires the entire ground floor of the property in question. If the petitioner wants to expand his clinic with latest equipments etc. or wants additional space for starting a separate clinic for his son who is a dental surgeon, it cannot be said that the petitioner has any malafide intention in doing so. As discussed herein above, the space available with the petitioner on the ground floor is not sufficient for the requirement of the petitioner for running the physiotherapy clinic by him and a dental clinic by his son for which a huge space is required by the petitioner. The suit premises which is a show window measuring 6'8" x 4"6" being situated on the ground floor can be combined by the petitioner with the other shops on the ground floor to make a huge space for expanding his clinic as well as for dentist clinic to be run by his son. The petitioner has also initiated eviction proceedings against the other two tenants who are occupying the shops on the ground floor. Therefore, it cannot be said that the suit premises being a small portion is of no use to the petitioner or present petition is malafide.
25. So far the contention of the respondent that the petitioner is only interested either the premises to be vacated to let out the same at higher rent or the respondent should pay a very high rent which is unreasonable is concerned, first of all there is nothing on record that the petitioner has ever asked the enhancement of rentals from the respondent. Moreover, Section 19 Eviction Petition No. E120/10 Page 23 of 25 of the DRC Act takes care of this apprehension of the respondent that the petitioner wants to let out the suit premises at higher rentals as by virtue of Section 19 of DRC Act, the landlord cannot relet or sell the premises at higher prices before expiry of 3 years from getting eviction order and in case the landlord after the eviction order relet or sell the same, the tenant has right to reenter the suit premises.
26. In view of aforesaid discussions, the respondent has miserably failed to raise any triable issue in leave to defend application. On the other hand, petitioner has established that he requires the suit premises bonafide for expanding his clinic as well as for starting a separate clinic by his son who is a dental surgeon. The respondent has also failed to show that the petitioner or his son is having any other suitable alternative commercial accommodation except the property in question for running their clinic. Accordingly, the application seeking leave to defend the petition moved by the respondent is dismissed and an eviction order is passed u/s 14 (1) (e) r/w Section 25B of DRC Act in favour of the petitioner and against the respondent in respect of one shop on the ground floor in property No. G16, Hauz Khas Enclave, New Delhi, more specifically shown in red colour in site plan Ex. C1 (exhibited today while passing the order). However, it is made clear that the petitioner shall not be entitled to get the eviction order executed before expiry of 6 months running from today. No Eviction Petition No. E120/10 Page 24 of 25 order as to cost.
File be consigned to Record Room.
Announced in the open court (Balwant Rai Bansal) on 5th January, 2012 ARC(South), New Delhi Eviction Petition No. E120/10 Page 25 of 25 E. No. 120/10 05.01.2012 Present: Petitioner in person. Respondent with counsel.
Vide my separate order dictated and announced in the open Court, the leave to defend application filed by the respondent is dismissed and an eviction order u/s 14 (1) (e) r/w section 25B of DRC Act is passed in favour of the petitioner and against the respondent in respect of the suit premises.
However, it is made clear that the petitioner shall not be entitled to get the eviction order executed before expiry of 6 months running from today. No order as to costs.
File be consigned to Record Room.
(B.R. Bansal) CCJ/ ARC/ ACJ(South), New Delhi 05.01.2012 Eviction Petition No. E120/10 Page 26 of 25