Delhi District Court
Sh. Radhey Shyam Tiwari vs Sh. Raja Ram on 10 August, 2016
IN THE COURT OF GAURAV RAO, SENIOR CIVIL JUDGECUMRENT
CONTROLLER, SOUTH EAST DISTRICT, SAKET COURT COMPLEX,
NEW DELHI
No. 5024/2016 (E. 73/2015 old)
CNR No. DESE030000502015
Sh. Radhey Shyam Tiwari
S/o Sh. Vishwa Nath Tiwari
R/o House No. D43,
Lal Kuan, Chungi No. 3,
Badarpur, New Delhi. ....Petitioner
Versus
Sh. Raja Ram
S/o Sh. Munna Lal
R/o D0189, Lal Kuan,
Chungi No. 3, Badarpur,
New Delhi - 110044. ....Respondent
Date of institution : 03.11.2015
Date of conclusion of arguments : 10.08.2016
Date of order : 10.08.2016
ORDER
1. The present petition has been filed u/s 14 (1) (e) r/w section 25B of Delhi Rent Control Act 1958 for eviction and recovery of possession of one shop/room situated in property no. No. D43, E No. 5024/2016 Radhey Shyam Tiwari Vs. Raja Ram Page 1 of 32 Chungi No. 3, Khasra No. 313, Lal Kuan, Badarpur, New Delhi, as shown in red colour in the site plan filed along with the petition (hereinafter referred as tenanted premises).
Amended Petition (vide orders dated 03.12.2015)
2. The version of the petitioner is that he is the absolute owner of property bearing no. D43, Chungi no. 3, out of Khasra No. 313, Lal Kuan, Badarpur, New Delhi measuring around 80 sq. yards and he had purchased the same from Sh. Mahngi Ram S/o Sh. Nibar on 18.09.1998.
2.1 It is further his case that he let out one room/shop i.e. the tenanted premises out of the above property to the respondent at a monthly rent of Rs. 2000/ on 17.01.2013.
2.2 It is further his case that the respondent has failed to pay rent since the month of June 2013 despite repeated requests and accordingly he is in arrears of rent since June 2013. 2.3 It is further his case that respondent has violated the terms and conditions as orally agreed between the respondent and the E No. 5024/2016 Radhey Shyam Tiwari Vs. Raja Ram Page 2 of 32 petitioner with malafide and dishonest intention to cause wrongful loss to the petitioner and wrongful gain to himself. 2.4 It is further his case that the tenanted premises is required for his bonafide need as he is a government employee, having a meager salary and insufficient accommodation for his entire family i.e. petitioner himself, his wife, two sons, who are now major, of marriageable age and are unemployed and thus dependent upon the petitioner. It is further averred that the petitioner requires the tenanted premises to rebuilt it and to use it for his bonafide need of residential cum commercial purpose. It is further averred that he requires four independent rooms and two shops for starting business of his unemployed sons and he wants to rebuild the same however he cannot do the same unless the respondent vacates the tenanted premises. It is further averred that he is unable to perform the marriage of his two sons because of insufficient accommodation.
2.5 It is further his case that the tenanted premises was let out to the respondent for a limited period of time, which has already expired and despite his undertaking he has failed to vacate the premise and therefore, the petitioner seeks eviction of the respondent from the tenanted premises.
E No. 5024/2016 Radhey Shyam Tiwari Vs. Raja Ram Page 3 of 32 Leave to defend
3. In the application seeking leave to defend filed by the respondent which is accompanied with his affidavit, it is pleaded that the petition is misconceived, false and baseless.
3.1 It is pleaded that the petitioner is neither the landlord nor the owner of the tenanted premises. It is further pleaded that the respondent and petitioner being neighbours had good relationship and on 19.08.2001 the petitioner sold a shop/room measuring 10' X 10' out of property bearing no. 43A, Lal Kuan, New Delhi to the wife of the respondent namely Smt. Munny Devi for the valuable consideration of Rs. 20,000/ in the presence of 56 people and the possession of the shop was given to the respondent by the petitioner on the very same day i.e. on 19.08.2001. It is further pleaded that on the very same day the petitioner had assured the wife of the respondent to execute proper sale documents in her favour in the near future however till date the petitioner has not executed the sale documents. It is further pleaded that the same has been knowingly and deliberately not done by the petitioner as it is now come to the knowledge of the respondent that the petitioner is not the owner of the suit property (tenanted premises) and same belongs to the government.
E No. 5024/2016 Radhey Shyam Tiwari Vs. Raja Ram Page 4 of 32 3.2 It is further pleaded that the petitioner also extorted the hard earned money of the respondent and his wife to the tune of Rs. 1,30,000/ in the first week of January 2005 on the pretext of getting job of a Driver for their son in Delhi Jal Board as the petitioner was also working in the same department. It is further pleaded that till date the petitioner has neither returned the said amount of Rs. 1,30,000/ nor has he inducted the son of the respondent in Delhi Jal Board as a Driver.
3.3 It is further pleaded that in the month of March 2015 the petitioner threatened the respondent and his family to vacate the premises and asked him to forget the money given to him by the respondent i.e. Rs. 20,000/ and Rs. 1,30,000/ else he will face dire consequences. It is further pleaded that the petitioner also tried to evict the respondent from the suit premises by force but he did not succeed in his illegal design and passed caste related remarks to the respondent and his wife and harassed the respondent and his family members. It is further pleaded that the respondent and his wife made several complaints to the Home Minister on 17.07.2015 at PS Pul Prahladpur on 18.07.2015 vide DD No. 37B, 29.07.2015 vide DD No. 58B, and also lodged a complaint to the police and called on Number 100 on 30.07.2015 at about 11:30 a.m, thereafter again called the PCR on 02.08.2015 at about 2:28 p.m, then again lodged a complaint on 03.08.2015 vide DD No. 61 B, another complaint filed on 08.08.2015 and even to the office of the petitioner on 28.08.2015.
E No. 5024/2016 Radhey Shyam Tiwari Vs. Raja Ram Page 5 of 32 3.4 It is further pleaded that the respondent belongs to Schedule Caste Community and is running a small shop of selling and repairing bags etc which they purchased from the petitioner on 19.08.2001 for a consideration of Rs. 20,000/.
3.5 It is further pleaded that there does not exist any relationship of landlord and tenant between the parties in respect of the suit premises. It is further pleaded that the respondent never paid or tendered any rent to the petitioner nor the same was ever demanded by him from the respondent and the respondent is using the premises as owner and not as tenant since 19.08.2001. It is pleaded that the petitioner has not filed any rent agreement or rent receipt in respect of the suit property and in fact the respondent is in possession of the same since 2001 as owner.
3.6 It is further pleaded that the petitioner or the alleged Sh. Mahngi Ram (alleged previous owner) is not the owner of the tenanted premises. It is further pleaded that the petitioner has no right, title or interest in the tenanted premises and the documents filed by the petitioner along with petition does not confirm the ownership right in favour of the petitioner, the documents are neither properly stamped nor registered. It is further pleaded that the police verification filed by the petitioner is a forged document and procured by the petitioner without the knowledge of the E No. 5024/2016 Radhey Shyam Tiwari Vs. Raja Ram Page 6 of 32 respondent and had taken the photo of the respondent on the pretext of giving bail on summons. It is further pleaded that the respondent has not taken any money from the petitioner for vacating the suit premises. 3.7 It is further pleaded that the premises was never let out to the respondent on 17.01.2013 by the petitioner at a monthly rent of Rs. 2000/ excluding electricity and water charges for a limited period as alleged in the petition.
3.8 It is pleaded that the petitioner has nowhere prayed that the tenanted premises is required by him for bonafide need. It is further pleaded that the petitioner has failed to show as to how much accommodation is available to him and he has not disclosed the age of the alleged dependent persons/sons. It is further pleaded that on the one hand the petitioner is alleging to rebuild the tenanted premised and on the other hand he is claiming that both his sons are unemployed and are of marriageable age and hence, the allegations made by the petitioner are false and denied. It is further pleaded that both the sons of the petitioner are earning handsomely and are not dependent upon the petitioner. 3.9 It is further pleaded that the petitioner is having sufficient accommodation for himself and his family members and apart from the suit premises, the petitioner is owner of 23 other plots which he has grabbed E No. 5024/2016 Radhey Shyam Tiwari Vs. Raja Ram Page 7 of 32 being government land. It is pleaded that he is also having another property bearing no. D52, lal Kuan, New Delhi in which the petitioner's nephew (bhanja) is residing at present.
Reply to leave to defend
4. In the reply filed by petitioner to the application seeking leave to defend, he has reiterated and reaffirmed the averments made in the petition while simultaneously denying the contentions as raised in the leave to defend application.
4.1 In addition it is averred that the tenanted premises belongs to the petitioner and the same is not a government land. It is further averred that the tenanted premises was never sold on 19.08.2001 to the respondent nor any assurances made for execution of sale documents in this regard as alleged. It is further averred that the petitioner has not taken any amount from the respondent or his wife for getting respondent's son employed as a driver.
4.2 It is denied that the petitioner's sons are not dependent upon him or that they are employed and earning handsomely. It is denied that the petitioner is having sufficient accommodation or that he is owner of 23 other plots or any other property.
E No. 5024/2016 Radhey Shyam Tiwari Vs. Raja Ram Page 8 of 32
5. Heard the Ld. Counsels for the parties and perused the records.
Findings
6. In order to succeed in a petition for eviction filed under section 14(1)(e) of the Delhi Rent Control Act the petitioner must establish that:
1. He is the landlord and owner in respect of the tenanted premises.
2. That he requires the premises bonafide for himself or for any member of his family dependent upon him.
3. That he has no other reasonably suitable accommodation.
6.1 Furthermore the scope of the section has been enlarged in view of the judgment of the Hon'ble Supreme Court titled as "Satyawati Sharma v. Union of India" reported as AIR 2008 SUPREME COURT 3148 so as to include premises let out for commercial purposes also within the scope and ambit of a petition under section 14(1)(e) of DRC Act.
6.2 As far as application for leave to defend is concerned while deciding the question of grant of leave, the court has to consider E No. 5024/2016 Radhey Shyam Tiwari Vs. Raja Ram Page 9 of 32 whether the tenant has raised any triable point / issue, the decision of which may disentitle the landlord from recovering possession of the premises or not. The Controller is not required to conduct a full fledged trial but only to see from the affidavit of the tenant, as to whether any triable point / issue the decision of which may disentitle the landlord from recovering the possession of the premises is disclosed. The Controller is not required to seek the proof of the defence of the tenant but only to see whether any triable issue is raised by the tenant or not. (Precision Steel and Engineering Works v. Prem Deva Niranjan Deva Tayal, AIR 1982 SC 1518 ).
6.3 In the judgment titled as Nem Chand Daga v. Inder Mohan Singh Rana reported as 94 (2001) DLT 683 the Hon'ble High Court of Delhi held:
".....That before leave to defend is granted, the respondent must show that some triable issues which disentitled the applicant from getting the order of eviction against the respondent and at the same time entitled the respondent to leave to defend existed. The onus is prima facie on the respondent and if he fails, the eviction follows........"
6.4 Ram In the judgment titled as Sarwan Dass Bange Vs. Prakash reported as 167 (2010) DLT 80 the Hon'ble High Court of Delhi referring to the judgment of Baldev Singh Bajwa v. Monish E No. 5024/2016 Radhey Shyam Tiwari Vs. Raja Ram Page 10 of 32 Saini reported as (2005) 12 SCC 778 held as under:
".......that the legislative intent is of expeditious disposal of the application for ejectment of tenant filed on the ground of requirement by the landlord of the premises for his own occupation; a special category of landlords requiring the premises for their own use has been created; if there is any breach by the landlord, the tenant is given a right of restoration of possession; the landlord who evicts a tenant on the ground of own requirement is not only prohibited from letting out the premises or disposing of the same but also required to use the same for his own residence only. It was held that these restrictions and conditions inculcate in built strong presumption that the need of the landlord is genuine; the conditions and restrictions imposed on the landlord make it virtually improbable for the landlord to approach the Court for ejectment of tenant unless his need is bona fide no unscrupulous landlord in all probability, under this Section, would approach the Court for ejectment of the tenant considering the onerous conditions imposed on him. It was further held that this inbuilt protection in the Act for the tenants implies that whenever the landlord would approach the court his requirement shall be presumed to be genuine and bona fide. It was further held that a heavy burden lies on the tenant to prove that the requirement is not genuine.."
Landlord/owner
7. The foremost requirement for a petitioner to succeed in a petition under section 14 (1) (e) is that he has to prove that he is the landlord and that there is a relationship of landlord and tenant between the parties and that he is the owner of the tenanted property/premises.
7.1 In the case at hand, the petitioner has claimed that he had E No. 5024/2016 Radhey Shyam Tiwari Vs. Raja Ram Page 11 of 32 let out the tenanted premises to the respondent at a monthly rent of Rs. 2000/ on 17.01.2013. It is the case of the petitioner that there was no rent agreement executed at the time of letting out the premises as it was an oral tenancy and also no rent receipts were ever issued by him. To establish his status as a landlord the petitioner has placed on record one tenant verification form as was filed with the Delhi Police wherein the respondent has been shown as tenant in the tenanted premises. The form bears the photograph of the respondent and has a receiving/stamp of 17.01.2013 of P.S. Pulprahlad Pur. 7.2 The respondent has disputed the above document and has claimed that the same is forged one. To base his claim the respondent is relying upon one information purportedly received by him under the Right to Information Act. I have gone through the said information/RTI reply dated 29.03.2016. At the outset the copy of the application dated 12.02.2016 whose alleged/above RTI reply the respondent is relying upon has not been filed by him. In the absence of application, contents of same, the RTI reply cannot be related to the tenant verification form as filed by the petitioner. The RTI reply is a copy and does not bear the stamp or seal of the concerned authority. If indeed the respondent intended to prima facie establish that the tenant verification form filed by the petitioner is forged he ought to E No. 5024/2016 Radhey Shyam Tiwari Vs. Raja Ram Page 12 of 32 have filed copy of the application dated 12.02.2016 seeking the necessary information so as to connect the RTI reply with his allegations of forgery/forged form. In the absence of same the RTI reply looses its entire significance. The respondent should have filed the copy of the application along with his leave to defend application. Non filing of the same is fatal to his claim. Furthermore if indeed the form filed by the petitioner is a forged or fabricated one and which knowledge/information the respondent gained in February 2016 I fail to understand what stopped the respondent to initiate appropriate action against the petitioner before the appropriate forum despite lapse of almost 6 months.
7.3 The form in question bears the photograph of the respondent. The respondent has claimed in para 10 of his leave to defend application that the photograph was taken by the petitioner on the pretext that he requires the same for some bail matter. The details of the alleged bail matter and other particulars i.e. FIR number, Police Station etc. are missing. It has also not been mentioned in the leave to defend application as to when the photograph was given by him to the petitioner. In the absence of these particulars the plea of the respondent does not appear plausible and does not appeal to a prudent mind in given facts and circumstances of the present case. E No. 5024/2016 Radhey Shyam Tiwari Vs. Raja Ram Page 13 of 32 7.4 The petitioner has claimed himself to be the owner and landlord of the tenanted premises and to base his claims upon the tenanted premises as the owner and thus having a right in that capacity and as the landlord he claims to have let out the property to the respondent. To establish his case of ownership the petitioner has relied upon photocopy of the General Power of Attorney, Agreement to Sell and purchase, Affidavit, Will, Possession Letter, Receipt, all dated 28.09.1998 executed in favour of petitioner by erstwhile owner namely Mahngi Ram. These documents executed in the year 1998 notwithstanding the judgment of the Hon'ble Supreme Court in Suraj Lamp & Industries (P) Ltd. (2) Vs. State of Haryana (2012) 1 SCC 656 bestow enough title in favour of the petitioner to maintain the present eviction petition. Reliance may be placed upon the law laid down in Sheela and ors Vs. Firm Prahlad Rai Prem Parkash, (2002) 3 SCC 375, Rajender Kumar Sharma vs Smt. Leela Wati reported as 155 (2008) DLT 383 and T C Rekhi Vs. Usha Gujral, 1971 RCJ 322. The law is well settled that to succeed in a petition under section 14 (1) (e) of Delhi Rent Control Act the landlord is not supposed to prove absolute ownership as required under the Transfer of Property Act. He is required to show that he is more than a tenant. E No. 5024/2016 Radhey Shyam Tiwari Vs. Raja Ram Page 14 of 32 Reliance may be placed upon the law laid down in Bharat Bhushan Vij Vs. Arti Techchandani 2008 (153) DLT 247, Sushil Kanta Chakarvarty Vs. Rajeshwar Kumar, 79 (1999) DLT 210, Meenakshi Vs. Ramesh Khanna and anr. , 60(1995) DLT 524 and Capt. Praveen Davar (Retd.) & Another Vs. Harvansh Kumari and Ors; 2010 (119) DRJ 560, High Court of Delhi.
7.5 In the judgment tiled as Ramesh Chand Vs. Uganti Devi reported as 157 (2009) DLT 450 the Hon'ble High Court of Delhi held:
"....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 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....."
7.6 The Hon'ble Supreme Court of India in Shanti Sharma and Ors. Vs. Ved Prabha and Ors 33 (1987) DLT 80 had the E No. 5024/2016 Radhey Shyam Tiwari Vs. Raja Ram Page 15 of 32 occasion to consider the import of word owner in context of section 14(1) (e) of Delhi Rent Control Act and observed as under:
"..................................................... this Act has been enacted for protection of the tenants. But at the same time it has provided that the landlord under certain circumstances will be entitled to eviction and bonafide requirement is one of such ground on the basis of which landlords have been permitted to have eviction of a tenant. In this context, the phrase "owner" thereof has to be understood, and it is clear that what is contemplated is that where the person builds up his property and lets out to the tenant and subsequently needs it for his own use , he should be entitled to an order or decree for eviction , the only thing necessary for him to prove is bonafide requirement and that he is the owner thereof. In this context what appears to be the meaning of the term "owner" is vis a vis with the tenant ie the owner should be something more than the tenant"..... It is not the concern of the tenant as to how the landlord acquired the property ."
7.7 Though the respondent denied the relationship of tenant and landlord and instead claimed that he is owner of tenanted premises however the claims of the respondent are false, frivolous and an eyewash. The respondent claimed that the property was sold to his wife by the petitioner on 19.08.2001 however respondent has not filed even a single document along with his leave to defend application to even remotely corroborate his claims. Admittedly no document was executed in favour of the respondent's wife at the time of alleged sale/transfer of property nor any agreement to sell as claimed was reduced into writing. The respondent claimed that the petitioner had agreed to execute the documents however he has not executed the documents till date. I am not at all inclined to believe and it does not E No. 5024/2016 Radhey Shyam Tiwari Vs. Raja Ram Page 16 of 32 appeal to a prudent mind that a person will purchase a property, hand over the consideration price without execution of necessary or even the basic documents. It also does not appeal to my mind or look plausible that a person would wait for 15 years for the documents to be executed and remain silent all this while.
7.8 Admittedly, neither the respondent nor his wife have filed any case till date seeking specific performance of contract that is to say agreement to sell allegedly entered between the petitioner and respondent's wife almost 15 years ago i.e. on 19.08.2001. The respondent claimed that initially the documents were not executed as the parties had cordial relations being the neighbors but from the respondent's own case set out in leave to defend application it becomes apparent that the relationship between the parties strained somewhere after 2005 i.e. after certain amount was given by the respondent to the petitioner for securing the job of his son which the petitioner did not secure till date and atleast specifically since March 2015 when the petitioner allegedly threatened the respondent to vacate the premises or face dire consequences. Numerous complaints were admittedly sent to various authorities by the respondent/ his wife, copy of which are on record in these context. Still no case for specific performance of the contract or agreement dated 19.08.2001 E No. 5024/2016 Radhey Shyam Tiwari Vs. Raja Ram Page 17 of 32 has been filed till date nor any suit was ever filed seeking the relief of declaration and injunction regarding the tenanted premises. With such inimical relation between the parties the inaction on the part of the respondent and his wife as discussed above discredits their claims. 7.9 Though it is claimed in the leave to defend application that the payment of alleged sale/purchase transaction took place in the presence of 56 persons however their names, address, particulars etc. have not been mentioned. If indeed there were persons who had witnessed any such transaction then their complete particulars should have mentioned in the leave to defend application itself. 7.10 In fact by no bound of imagination can the respondent's wife can be allowed to claim the ownership rights qua the tenanted premises on the basis of some oral understanding dated 19.08.2001 which otherwise seems frivolous. Furthermore in his leave to defend application particularly para 4 and 10 it is claimed by the respondent that the land of which the tenanted premises is a part i.e. property bearing no. D43, Chungi no. 3, Lal Kuan, Badarpur, New Delhi is a government land. At the outset apart from the bare allegations that it is a government land no document has been filed by the respondent to even prima facie establish his said claims. Nonetheless if the E No. 5024/2016 Radhey Shyam Tiwari Vs. Raja Ram Page 18 of 32 respondent denies, as he has done so, that the petitioner as well as the erstwhile owner Mahngi Ram (through whom the petitioner has claimed his title i.e. from whom he had purchased the property) are and were not the owners then I fail to understand how the respondent's wife can become the owner, if ever she can, as she is denying the right and title of her alleged predecessor in interest i.e. the petitioner.
7.11 It will also be pertinent that respondent's wife did not move any impleadment application though it is claimed that she is the owner of the property more so when till date no suit etc. has been filed by her regarding the tenanted premises to establish her title as claimed by her. Atleast after the present eviction petition was filed the respondent's wife should have initiated some action to establish her own claims and deny and controvert the claims of the petitioner. Not doing so sufficiently proves that the claims set up by the respondent is frivolous, sham and moonshine.
7.12 In addition to the above it will be worthwhile to mention that the electricity meter in the tenanted premises is in the name of petitioner and not the respondent's wife. Had the respondent or his wife been the owner or had they/she purchased the same the meter E No. 5024/2016 Radhey Shyam Tiwari Vs. Raja Ram Page 19 of 32 would be in their name and not the petitioner.
7.13 Therefore the claims of the respondent that his wife is the owner and that the petitioner is not the owner or landlord are frivolous and baseless and they do not raise any triable issue. Bonafide requirement and non availability of reasonably suitable alternate accommodation
8. The prime question to be answered is as to whether the tenanted premises is required bonafide by the petitioner and that the petitioner has no other/alternative reasonable suitable accommodation.
8.1 In the case at hand the petitioner has claimed that he requires the tenanted premises for his own use as well as for the use of his dependent children. It is the case of petitioner that he is a government employee drawing a meager salary and has a large family including unemployed sons of marriageable age and he requires the tenanted premises to establish his sons and also to provide accommodation to them for want of which he is unable to marry E No. 5024/2016 Radhey Shyam Tiwari Vs. Raja Ram Page 20 of 32 them. It is his claim that he intends to rebuilt the entire property of which tenanted premises is a part so that it can be used for residential and commercial purposes thereby providing business to his unemployed sons and accommodation as residence for them and their spouses.
8.2 As far as law regarding bonafide is concerned in Shiv Gupta v. Dr. Mahesh Chand Gupta , 1999 AIR (SC) 2507 , it was held by Hon'ble Apex Court that:
12. Chambers 20th Century Dictionary defines bonafide to mean 'in good faith : genuine'. The word 'genuine' means 'natural : not spurious : real; "
pure : sincere'. In Law Dictionary, Mozley and whitley define bonafide to mean 'good faith, without fraud or deceit'. Thus the term bonafide or genuinely refers to a state of mind. 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 outcome of whim or fancy is not taken note of by the Rent Control Legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a 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 this angle, any setting of the facts and circumstances protruding the need of landlord and its bonafides would be capable of successfully withstanding the test of objective determination by the Court. The judge of facts should place himself in the arm chair of the landlord and then ask the question to himself whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest".
8.3 The Hon'ble Supreme Court observed in Raghunath G. E No. 5024/2016 Radhey Shyam Tiwari Vs. Raja Ram Page 21 of 32 Panhale (Dead) by LRs. Vs. Chaganlal Sundarji and Co. (1999) 8 SCC 1 that:
"The word "reasonable" connotes that the requirement or need is not fanciful or unreasonable. It cannot be a mere desire. The word "requirement" coupled with the word reasonable means that it must be something more than a mere desire but need not certainly be a compelling or absolute or dire necessity. A reasonable and bona fide requirement is something in between a mere desire or wish on one hand and a compelling or dire or absolute necessity at the other end. It may be a need in praesenti or within reasonable proximity in the future."
8.4 In Jaswinder Singh Vs. Surinder Kaur, 204 (2013) DLT 716 , in para no. 14, it has been held as follows:
"14. As per law, bonafide requirement has to be seen and considered from the perspective of the landlord and tenant cannot be allowed to dictate the terms in which portion the landlord should reside."
8.5 In Sarla Ahuja Vs. United India Insurance Company Ltd. AIR 1999 SC 100, it was held that ".....The crux of the ground envisaged in Clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord in bona fide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself."
E No. 5024/2016 Radhey Shyam Tiwari Vs. Raja Ram Page 22 of 32 8.6 In Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta , 1999 (6) SCC 222 it has been observed that:
" ............ The judge of facts should place himself in the arm chair of the landlord and then ask the question to himself - whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural , real , sincere, honest . If the answer be in the positive, the need is bonafide. The failure on the part of the landlord to substantiate the pleaded need, or , in a given case, positive material brought on record by the tenant enabling the court drawing an inference that the reality was to the contrary and the landlord is merely attempting at finding out a pretence or pretext for getting rid of the tenant , would be enough to persuade the court certainly to deny its judicial assistance to the landlord."
8.7 In Sait Nagjee Purushotham & Co. Ltd. Vs. Vimlabai Prabhulal & Ors, (2005) 8 SCC 252 , it has been held in para 4 as follows:
" . It is always the prerogative of the landlord that if, he requires the premises in question for his bonafide use for expansion of business, this is no ground to say that the landlords are already having their business at Chennai and Hyderabad therefore, it is not a genuine need. It is not the tenant who can dictate the terms to the landlord and advice him what he should do or what he should not. It is always the privilege of the landlord to choose the nature of business and the place of business. ".
8.8 From the above judgments, it is evident that landlord is the best judge of his requirements. It is well settled law that the requirement or need not be fanciful or unreasonable. It cannot be a mere desire and must be something more than a mere desire but need E No. 5024/2016 Radhey Shyam Tiwari Vs. Raja Ram Page 23 of 32 not certainly be a compelling or absolute or dire necessity. It may be a need in praesenti or within a reasonable proximity in the future. 8.9 In S N Kapoor Vs Basant Lal Khatri, VII (2001) SLT 648 (2002) 1 SCC 329 it was held:
"that to contend that no material has been brought on record and no proof has been made by the tenant by any positive material that the requirement of the landlord is neither genuine nor bonafide or reasonable but a mere excuse to get ride of the tenant. Though the choice or proclaimed need cannot be whimsical or merely fanciful, yet a certain amount of discretion has to be allowed in favour of the landlady too and the courts should not impose their own wisdom forcibly upon the landlady to arrange her own affairs, according to their perception carried away by the interest or hardship of the tenant and the inconvenience that may result to him in passing an order of eviction. So far as a claim under Section 14 (1) (e) is concerned, the very requirement has to be shown not only to be bonafide but the move of the landlord/ landlady to seek eviction of the tenant must be genuine."
8.10 In the judgment titled as Ragavendra Kumar v. Firm Prem Machinary reported as AIR 2000 SUPREME COURT 534 the Hon'ble Supreme Court held that it is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter. In fact even the court cannot thrust its own choice on the needy. Reference may also be made to the judgment titled as Akhileshwar Kumar and ors Vs. Mustaqin and ors SC CA no. 3226 of 1999 dated 12.12.2002 and E No. 5024/2016 Radhey Shyam Tiwari Vs. Raja Ram Page 24 of 32 Prativa Devi (Smt) v. T.V. Krishnan reported as (1996) 5 SCC 353. 8.11 It has been held by Hon'ble Supreme Court in Rishi Kumar Govil Vs. Maqsoodan, 2007 (1) RCR (Rent) 405 "It is the choice of the landlord to choose the place for the business which is most suitable for him. He has complete freedom in the matter." 8.12 In Mohd. Ayub and anr Vs. Mukesh Chand (2012) 2 SCC 155 wherein it has been held that "........It is well settled the landlord's requirement need not be a dire necessity. The court cannot direct the landlord to do a particular business or imagine that he could profitably do a particular business rather than the business he proposes to start.........."
8.13 Therefore the petitioner is at absolute liberty to choose the premises which he intends to utilize for the purpose of carrying on the business by his sons and for use as residential accommodation. No embargo can be there on the choice of the petitioner. That is not the domain of the court or not something that the tenant can dictate. Only safeguard is that the need should be bonafide. Reliance may be placed upon the law laid down in M.L. Prabhakar Vs. Rajiv Singhal E No. 5024/2016 Radhey Shyam Tiwari Vs. Raja Ram Page 25 of 32 (2001) 2 SCC 355 and Prativa Devi Vs. T.V. Krishnan 1996 SCC
353. 8.14 In the case at hand the petitioner requires the premises for the use of his dependent sons who are unemployed and of marriageable age. He requires the tenanted premises to set up their business and to provide them reasonable accommodation after their marriage. There is no reason to doubt his bonafide or assume that his intentions are malafide. The respondent could not even remotely establish or controvert the claims of the petitioner or establish that his sons are employed or that they do not need the premises for starting a business or utilizing the same as residence.
8.15 In Joginder Pal Singh Vs. Naval Kishore Behal AIR 2002 SC 2256 it has been held as under:
"24.......... Keeping in view the social or 'socioreligious milieu and practices prevalent in a particular section of society or a particular region, to which the landlord belongs, it may be obligation of the landlord to settle a person closely connected with him to make him economically independent so as to support himself and / or the landlord. To discharge such obligation the landlord may require the tenancy premises and such requirement would be the requirement of the landlord . If the requirement is of actual user of the premises by a person other than the landlord himself the court shall with circumspection inquire: (i) whether the requirement of such person can be considered to be the requirement of the landlord, and (ii) whether there is a close interrelation or identify nexus between such person and the landlord so as to satisfy the requirement of the first query. Applying the overlaid tests E No. 5024/2016 Radhey Shyam Tiwari Vs. Raja Ram Page 26 of 32 to the facts of the present case it is clear that the tenancy premises are required for the office of the landlord's son who is a chartered accountant. It is the moral obligation of the landlord to settle his son well in his life and to contribute his best to see him economically independent."
8.16 Also in Sh. Bhupinder Singh Bawa Vs. Smt. Asha Devi, decided by Hon'ble Mr. Justice Valmiki J. Mehta in RC Rev. 245/2014, decided on 28.07.2014, it has been held as follows:
"5. So far as the aspect that the son is the Director in the family company M/s. Jayshree Granite Pvt. Ltd is concerned, this cannot mean that as a young enterprenure, the son cannot start his own business of sanitary and hardware. It is not the law that if a family member of a landlord / landlady requires the premises for starting of the business of his / her young son who is an MBA , there can be lacking bonafides for the eviction petition and that the son must continue as a director in the family company and not branch out as a young enterprenure. There is no law that a family member of the landlord can be prevented from opening a new business. Therefore, merely because the son Sh. Vaibhav Maheshwari is presently a Director in the company M/s. Jayshree Granite Pvt. Ltd., the same cannot mean that there is no need of bonafide necessity of the tenanted premises for starting of a fresh business of sanitary and hardware by the son Sh. Vaibhav Maheshwari. The argument that the Son Sh. Vaibhav Maheshwari is already a Director in a family company and therefore, there is no bonafide need of tenanted premises is a misconceived argument and the same is therefore, rejected."
8.17 It has also been held by the Hon'ble Supreme Court in Mohd Ayub Vs. Mukesh Chand 2012 (1) RCR (Rent) 56 (SC) that the Court shall consider the need of the landlord for his self employed son or married or unmarried or widowed or divorced or judicially separated daughter or a male lineal descendant as a bona fide need E No. 5024/2016 Radhey Shyam Tiwari Vs. Raja Ram Page 27 of 32 while dealing with an application for eviction under Section 21(1)(a) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.
8.18 In Kharati Ram Khanna & sons. Vs. Krishna Luthra 172 (2010) DLT 551, it was held that landlord's requirement of two separate shops for funning business by her two sons separately and independently is bona fide and genuine requirement. It is a settled law that landlord can seek eviction for bona fide need of himself or his family members. Being a father, he is under an obligation to settle his son.
8.19 In Ramkubai & Ors V Hajarimal Dhokalchand Chandak & ors. JT 1999 (5) SC 630 it was observed that :
" B was unemployed on the date of filing of the suit but in the meanwhile started some business and in that context , their lordships held that he cannot be expected to idle away the time by remaining unemployed till the case was finally decided. It was held that if the eldest son was carrying on business along with his mother, that does not mean that his need has not been established for starting his own business."
8.20 It is also no more resintegra that it is perfectly open to the landlord to choose a more suitable premises for carrying on the business by himself or his dependent and the landlord cannot be E No. 5024/2016 Radhey Shyam Tiwari Vs. Raja Ram Page 28 of 32 dictated by the tenant as to from which shop his son should start the business (Anil Bajaj & Anr. Vs. Vinod Ahuja 2014(6) SCALE 572). 8.21 Hence no triable issue could be raised by the respondent so as to challenge/contest the bonafide need raised by the petitioner. Alternative accommodation
9. As far as the availability of other/alternate reasonable suitable accommodation is concerned the petitioner categorically stated that for his bonafide needs he has no other reasonable suitable accommodation except for the tenanted premises. Though the respondent in his leave to defend application claimed that the petitioner has 23 other properties/ premises available with him however he miserably failed to give the details of the same. The allegations that the petitioner owns 23 properties in the absence of their particulars and details remains vague and baseless. Though in para 13 of the leave to defend application it was also claimed that the petitioner is having another property bearing no. D52, Lal Kuan, which the petitioner has otherwise categorically denied in his reply to the leave to defend application, however not only the respondent E No. 5024/2016 Radhey Shyam Tiwari Vs. Raja Ram Page 29 of 32 himself stated that the nephew of petitioner is residing therein meaning thereby that the premises is not available to the petitioner but apart from the vague allegations that the petitioner is having the said property the respondent has not filed any particular document i.e. ownership, title document etc. to corroborate his claim that the property belongs to and is owned by the petitioner. Moreover the respondent has not given the details of the said property i.e. accommodation available therein which can fulfill the bonafide needs of the petitioner as stated out in the petition. The respondent has not stated as to how the said property if indeed available to the petitioner can be used by the petitioner for setting up the business of his sons and also for providing them with a reasonable accommodation after their marriage. Furthermore as already discussed above the tenant cannot dictate terms to the landlord and it will be too unreasonable to expect the petitioner to get the said property (if indeed it belongs to him, as the respondent has not been able to prima facie establish the same) vacated from his nephew who is admittedly residing there to provide the same to his needy sons instead of asking the tenant to vacate the tenanted premises.
9.1 Therefore the respondent has failed to even prima facie establish that there is other/alternative reasonable accommodation E No. 5024/2016 Radhey Shyam Tiwari Vs. Raja Ram Page 30 of 32 available with the petitioner and hence no triable issue whatsoever could be raised by the respondent.
10. In case the petitioner does not use the tenanted premises for the purpose as claimed by him, the respondent can always take recourse to the provisions of Section 19 of the DRC Act. Reliance may be placed upon the law laid down in Baldev Singh Bajwa v. Monish Saini reported as (2005) 12 SCC 778 wherein it was held that:
"........ if there is any breach by the landlord, the tenant is given a right of restoration of possession............. It was held that these restrictions and conditions inculcate in built strong presumption that the need of the landlord is genuine; the conditions and restrictions imposed on the landlord make it virtually improbable for the landlord to approach the Court for ejectment of tenant unless his need is bona fide no unscrupulous landlord in all probability, under this Section, would approach the Court for ejectment of the tenant considering the onerous conditions imposed on him. It was further held that this inbuilt protection in the Act for the tenants implies that whenever the landlord would approach the court his requirement shall be presumed to be genuine and bona fide. It was further held that a heavy burden lies on the tenant to prove that the requirement is not genuine.."
11. In view of above discussion, the leave to defend application stands dismissed as no triable issues have been raised by the respondent. The petitioner is entitled to recover the possession of the tenanted premises i.e. shop/room situated in property no. D43, E No. 5024/2016 Radhey Shyam Tiwari Vs. Raja Ram Page 31 of 32 Chungi No. 3, Khasra No. 313, Lal Kuan, Badarpur, New Delhi as shown in red colour in the site plan filed along with the petition. The eviction petition is allowed accordingly. The petitioner, however shall not be entitled to obtain possession thereof before the expiration of a period of six months from the date of this order.
12. File be consigned to record room.
Announced in the open court (Gaurav Rao)
on 10th August 2016 SCJCumRC(SouthEast)
Distt.Courts, Saket, New Delhi.
E No. 5024/2016 Radhey Shyam Tiwari Vs. Raja Ram Page 32 of 32