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Delhi District Court

Sh. Bhupinder Singh Suri vs Sh. Yogesh Malik on 24 November, 2022

   IN THE COURT OF MS. SWATI GUPTA: ARC/ACJ/CCJ:
         PATIALA HOUSE COURTS: NEW DELHI

                                                          RC ARC No. 5624/16
                                                  CNR No.DLND03-000207-2010



Sh. Bhupinder Singh Suri,
(Deceased through LR Ms. Guljeet Kaur Suri)
Sole Proprietor of M/s Suri Properties,
Having its office at 3rd Floor,
Block C, Regal Building Annexe,
Behind Regal Cinema,
Connaught Place, New Delhi-110001.      .......... Petitioner


                                                 Vs.
Sh. Yogesh Malik,
S/o Sh. Kewal Krishan Malik,
Quarter No. 8, Block C,
First Floor, Regal Building Annexe,
Behind Regal Cinema,
New Delhi-110001.

Also at: 38-B, Hanuman Road,
New Delhi-110001.                                             ........... Respondent



 PETITION UNDER SECTION 14(1)(e) THE DELHI RENT
              CONTROL ACT, 1958.
             Date of Institution of the petition       :14.09.2010(more than 10 years old)
             Date on which Judgment was reserved       :27.10.2022
             Date of Pronouncement of Judgment         :24.11.2022
             Decision                                  : Allowed


                                               JUDGMENT

Sh. Bhupinder Singh Suri Vs Sh. Yogesh Malik

1. Petitioner has filed the present petition u/S 14(1)(e) of The Delhi Rent Control Act 1958 (in short 'Act') against the respondent in respect of property bearing quarter no. 8, Block-C, First Floor, Regal Building Annexe, Behind Regal Cinema, New Delhi-110001(hereinafter referred to as 'tenanted premises').

2. Briefly stated, case of the petitioner is that he is the owner/landlord of the tenanted premises, which was let out to respondent as a single tenant. As per the petitioner the rent of the said premises is Rs.610/- per month. It is the case of the petitioner that the petitioner's daughter Ms. Kamleen Kaur Suri, after finishing her professional studies in astrology, is looking to set up her office for practicing astrology and thus, the tenanted premises are bonafidely required by the petitioner for setting up an office of his daughter. The said daughter is stated to be dependent upon the petitioner. In addition, it is also averred in the petition as follows-

(i) that the respondent is using the tenanted premises as workshop for the preparation of sweets, chole bhatura, samosa etc. by using big and hazardous gas burners.

(ii) that the respondent is in collusion with his father Sh. K.K. Malik who is also a tenant under the petitioner in respect of adjoining premises i.e. quarter no. 9, Block-C, First Floor, Regal Building Annexe, Behind Regal Cinema, New Delhi-110001. As per the petitioner the respondent has caused substantial damage to the tenanted premises by removing the common load bearing partition between quarter no. 8 RC ARC No. 5624/16 Page No. 2 of 16 Sh. Bhupinder Singh Suri Vs Sh. Yogesh Malik and quarter no. 9.

(iii) that the respondent is a habitual defaulter in the payment of rent.

3. In response to the aforesaid petition, respondent was given notice and consequently he filed an application for leave to defend, which was allowed by the Court vide order dated 30.11.2011.

4. Subsequently, written statement was filed by respondent. In the said written statement, respondent denied the case set up by the petitioner. It is interalia stated in the written statement that the Quarter No.8, Regal Building, New Delhi was let out for commercial purpose and the same is also being used for commercial purpose only. It is also stated in the written statement that the petitioner has deliberately not disclosed the accommodation which is vacant and available to him in the Regal Building; that the requirement of the petitioner is not bonafide as the petitioner has sufficient suitable alternate accommodation available to him and that the petitioner has failed to make any ground for bonafide need. The respondent has also denied allegations of breaking of common load bearing wall between Quarter No.8 & 9; allegations of non payment of rent and allegations of the use of premises for preparation of chana bhatura, pakora etc. As regards the suitable alternative accommodation, the respondent has relied upon, the following site plan:

Sh. Bhupinder Singh Suri Vs Sh. Yogesh Malik RC ARC No. 5624/16 Page No. 4 of 16 Sh. Bhupinder Singh Suri Vs Sh. Yogesh Malik

5. It is the case of the respondent that following premises are vacant and very much available with the petitioner for alleged need of his daughter:-

(i) portion marked A in the site plan on the ground floor of the building measuring approximately 1500 sq.ft.;

(ii) premises in the occupation with the wine shop has been vacated during the pendency of the eviction petition;

(iii) shop no.3 & 4 on the ground floor are also vacant;

(iv) portion marked A1 in the site plan has been let out to Lal Pathology during the pendency of the petition;

(v) portion marked B in the site plan on the first floor which is approximately 900 sq.ft.;

(vi) portion marked C on the second floor which is approximately 500 sq.ft.;

(vii) LGF No.6 in Mohan Singh Palace, which is also vacant; and

(viii) Property on Link Road, Jungpura, Near Rajdoot Hotel having approximately 30 rooms.

6. Rejoinder was also filed by the petitioner to the written statement of the respondent. In the rejoinder, petitioner reiterated his case and denied the contents of written statement. As regards the availability of suitable alternative accommodation, as per the above site plan filed by the respondent, the petitioner has explained as follows:

Sh. Bhupinder Singh Suri Vs Sh. Yogesh Malik

(i) portion marked A is stated to be not vacant;

(ii)&(iii) It is admitted that wine shop was got vacated during the pendency of the present proceedings but the same is stated to be not suitable for being used as office by the daughter of the petitioner as the area of the shop is very less. It is also stated that there is no water connection in the said wine shop area but in the tenanted premises water connection is installed. Also the building is situated in a busy commercial area of Connaught Place and there is no footpath separating the building from the road and the road is being used for parking, thus, the entrance of the shop/ office on the ground floor where people usually park their car are obstructed causing extreme inconvenience and thus, not suitable for petitioner's daughter. Further, office/ shop area on the ground floor of the building is situated in the low lying area and the same gets flooded during the rainy season and thus, the same are not suitable for the petitioner's daughter. As per petitioner, tenanted premises is also stated to be more suitable for the reason they are on first floor and it has opening on both the sides, giving proper cross ventilation. On the other hand, the space available on the ground floor are blocked from the back side and do not have proper ventilation;

(iv) it is denied that portion marked A1 in the site plan has been let out to Lal Pathology during the pendency of the petition;

Sh. Bhupinder Singh Suri Vs Sh. Yogesh Malik

(v) portion marked B in site plan is stated to be not vacant;

(vi) portion marked C in site plan is stated to be the office of petitioner being used as office of M/s Suri Properties for last several years;

(vii) LGF No.6, Mohan Singh Place is stated to be not vacant or available with the petitioner as the same is being used as an office of M/s BHL Forex and Finlease Ltd.;

(viii) Property No.2, Mathura Road, Jungpura-B, near Rajdoot Hotel, Delhi is stated to be a residential property where the petitioner is residing with his family.

7. After completion of pleadings, matter was fixed for petitioner's evidence.

8. Petitioner examined one witness in support of his case. Firstly, petitioner examined himself as PW-1 and tendered his affidavit Ex. PW-1/A, reiterated his case, as mentioned above. In addition to that PW-1 also relied upon site plan of tenanted premises Ex. PW-1/1; voter ID card of Ms. Kamleen Kaur Suri Ex. PW-1/2; bio data of Ms. Kamleen Kaur Suri Ex. PW-1/3; testimonials of Ms. Kamleen Kaur Suri Ex. PW-1/4 to Ex.PW-1/17; and legal notice, postal receipts and AD card Ex. PW-1/18 to PW1/20. However, the said witness could not appear for cross examination due to his terminal illness and at the request of counsel for petitioner his evidence was allowed to be replaced with the evidence of daughter of petitioner. Thus, as petitioner did not appear for cross examination, his evidence cannot be read. Further, RC ARC No. 5624/16 Page No. 7 of 16 Sh. Bhupinder Singh Suri Vs Sh. Yogesh Malik Ms. Kamleen Suri, daughter of petitioner was thereafter examined as PW1 and tendered her affidavit of evidence Ex.PW-1/A and supported the case of the petitioner as well as relied upon the documents already relied upon by her father/petitioner Sh. Bhupinder Singh Suri which are Ex.PW1/1 to Ex.PW1/18. She was duly cross examined and discharged. No other witness was examined and PE was closed.

9. During the course of proceedings, petitioner expired in December 2015 but due to failure to take steps u/O 22 CPC, the petition was abated vide order dated 24.08.2016. Thereafter, an application u/O 47 Rule 1 r/w Section 151 CPC was moved on behalf of petitioner and the same was allowed vide order dated 11.02.2019 and the matter was restored. Thereafter, vide order dated 20.03.2021, wife of the petitioner Smt. Guljeet Kaur Suri was substituted in place of petitioner u/O 22 Rule 2 CPC.

10. In defence evidence, respondent examined himself as DW-1. He tendered his evidence by way of affidavit Ex.DW-1/A and relied upon documents site plan as Ex. PW- 1/D-1 and certified copy of affidavit & cross examination of petitioner in petition E-No. 30/2010 as Ex. PW-1/D-2. In his evidence by way of affidavit he reiterated the stand taken by him in his written statement, already mentioned above. The said witness was not cross examined by counsel for petitioner despite opportunity.

11. Final arguments were addressed by counsel for respondent but despite opportunity no arguments were addressed by counsel for petitioner. No written submissions RC ARC No. 5624/16 Page No. 8 of 16 Sh. Bhupinder Singh Suri Vs Sh. Yogesh Malik are also filed despite opportunity.

12. It is settled that, in order to succeed in a petition for eviction filed u/S 14(1) (e) DRC Act, the petitioner must establish that :-

(a) He is the owner/ landlord in respect of the tenanted premises;

(b) The premises are required bonafide by him for himself or for any member of his family dependent upon him ; and

(c) He has no other reasonably suitable accommodation.

13. As regards the first requirement, it is not the case of the respondent that he is not the tenant in the tenanted premises or that the petitioner is not the landlord thereof. That is to say, landlord-tenant relationship between the petitioner and the respondent is not disputed. Even the rate of rent is not disputed.

14. It is also not disputed by the respondent that the daughter of the petitioner is qualified in astrology or that she is practicing astrology or that she needs a premises to open an office for her practice of astrology i.e. the need of the petitioner's daughter is also not disputed. It has also come in the cross examination of PW1 that she is a graduate and she has done her astrology course from Bhartiya Vidya Bhawan and she is involved in practicing astrology and has the clients who visit her home as per appointment. PW1 also stated in her cross examination that she was running the said practice for the last nine years from her home and at times she took accommodation on rent for running the said practice. She further deposed that her said rented accommodation included cabins in Kalkaji at California Hypnosis Institute of India. She RC ARC No. 5624/16 Page No. 9 of 16 Sh. Bhupinder Singh Suri Vs Sh. Yogesh Malik further deposed that at times, she also did her said practice by sitting in Cafe Coffee Day. None of the said deposition is controverted by the respondent either in the remaining cross examination of PW1 or in the evidence of respondent. Thus, the educational qualification of the daughter of petitioner/PW1, her practice as astrologer, her need for a premises to run her astrology practice and her dependency on her father for the same are sufficiently proved.

15. The main defence of the respondent is that the need of the petitioner is not bonafide in as much as the petitioner has several other suitable alternate accommodation available which can be used for running the astrology practice of petitioner's daughter. In this regard, the petitioner has mentioned several properties in respect of which specific explanation has been given by the petitioner in his rejoinder. After going through the pleadings of the parties and evidence on record, my findings on the aspect of availability of suitable alternate accommodation to the petitioner are as under:-

(a) As regards portion marked A in the site plan Ex.PW1/D1 on the ground floor of the building measuring approximately 1500 sq.ft.,firstly, it may be noted that the respondent has marked two portions as A in site plan Ex.PW1/D1 without specifying the specific area of each of the two portions and further one of the said portion is government run wine and beer shop. As per the petitioner in his rejoinder, the said portion A is not vacant. In addition, the petitioner has also clarified that the building is situated in a busy commercial RC ARC No. 5624/16 Page No. 10 of 16 Sh. Bhupinder Singh Suri Vs Sh. Yogesh Malik area of Connaught Place and there is no footpath separating the building from the road and the road is being used for parking which means that the entrance of the shop/ office on the ground floor is obstructed by cars parked causing extreme inconvenience and thus, not suitable for petitioner's daughter. Petitioner also explained in his rejoinder that office/ shop area on the ground floor of the building is situated in the low lying area and the same gets flooded during the rainy season and thus, the same are not suitable for the petitioner's daughter. Also, tenanted premises are stated to be more suitable for the reason that the same are better ventilated than the shops on the ground floor. In the cross examination of PW1 also, she has denied the suggestion that the portion marked A shown in red colour in the site plan Ex.PW1/D1 is lying vacant.

Further, she has also stated that the said portion is under the tenancy of Dilwali Traders. The respondent in his evidence has not brought on record any material to show that the said portion marked A is lying vacant or that the same is more suitable than the tenanted premises which are situated on the first floor.

(b) As regards the submission of the respondent that the premises in the occupation of the wine shop has been vacated during the pendency of the eviction petition, it may be noted that firstly the same is included in portion marked as A in red colour in site RC ARC No. 5624/16 Page No. 11 of 16 Sh. Bhupinder Singh Suri Vs Sh. Yogesh Malik plan Ex.PW1/D1, for which the PW1 has already denied the suggestion in the cross examination that the same is lying vacant. Further and more importantly as per the case of respondent himself, the said premises were vacated during the pendency of the present eviction petition. As per settled law, the bonafide need of the petitioner and availability of the suitable alternate accommodation has be considered as on the date of filing of the petition. Subsequent changes to the same during the pendency of the petition cannot be considered as otherwise there will not be any end to the dispute. Reference in this regard may also be made to the judgment of Hon'ble High Court of Delhi in the case of Anil Jain vs Bhagwan Shankar Khanna reported in 2014, SCC Online Del 3855, wherein the Hon'ble Court further referred to the judgments of Hon'ble Supreme Court in the case of Dinesh Kumar vs Yusuf Ali, AIR 2010 SC 2679 and of Hon'ble High Court of Delhi in the case of Anand Swaroop Vohra vs Bhim Sen Bahri (CRP 777/1999 decided on 01.06.2012) and held that " the need of the landlord is to be examined on the date of institution of the eviction petition, an incident too remote therefrom would not be a relevant consideration".

(c) As regards shop no.3 & 4 on ground floor which are stated to be vacant, it may be noted that these two are not separately marked in the site plan Ex.PW1/D1 by the respondent. Thus, the said RC ARC No. 5624/16 Page No. 12 of 16 Sh. Bhupinder Singh Suri Vs Sh. Yogesh Malik allegedly vacant properties cannot even be identified in the site plan Ex.PW1/D1. Further, no specific question with respect to shop no.3 & 4 on the ground floor is put to PW1 in her cross examination. Rather, non suitability of shops on ground floor has already been discussed herein above.

(d) As regards the portion marked A1 in the site plan on ground floor let out to Lal Pathology during the pendency of petition, the same is denied by the petitioner in his rejoinder. PW1 in her cross examination denied the suggestion that Dr. Lal Patholocial Lab and Diagnostic Center is running in the area adjoining the wine shop (which is marked as A1 in Ex.PW1/D1). She has also stated that the said area is the back of Dr. Lal Path Lab which is running since last 2-3 years approximately. Again, the same portion is also on the ground floor in respect of which the reasons for its non suitability have already been discussed above.

(e) As regards portion marked B on first floor which is approximately around 900 sq.ft., firstly the same is stated to be not vacant by petitioner in his rejoinder. Further, in the site plan Ex.PW1/D1, there are three different portions which are marked as B and their respective size is not mentioned. It cannot be said that all the three portions each are measuring 900 sq.ft. or whether their combine size is 900 sq.ft. Further, in the cross examination of PW1, the said portions are marked as X,Y & Z. PW1 stated that the RC ARC No. 5624/16 Page No. 13 of 16 Sh. Bhupinder Singh Suri Vs Sh. Yogesh Malik portion marked as Z is not vacant. As regards the portion marked as X & Y, PW1 stated that she was not sure whether the said portion were vacant or not. Even assuming that the portion marked as X & Y are vacant, there is no material to show that the same were vacant as on the date of filing of the petition or that the same is more suitable than the tenanted premises.

(f) As regards portion marked C on second floor which is approximately measuring around 500sq.ft., the same is stated to be not vacant by the petitioner in his rejoinder. Rather, it is stated to be the office space of the petitioner and that the same is being used for the office of M/s Suri Properties since last many years. Even though, PW1 in her evidence has stated that she did not have any knowledge as to whether portion marked as C is lying vacant or not but she has also stated that on the ground floor & on the second floor, no quarter was lying vacant as on the date of her examination except the wine shop. No material is brought on record by the respondent to show that the said portion C was not being used by the petitioner for his office by running the office of M/s Suri Properties at the time of filing of the petition.

(g) As regards LGF No.6, Mohan Singh Place, the same is stated to be not vacant and is further stated to be under use by M/s BHL Forex & Finlease Ltd. PW1 has also corroborated the same in her cross RC ARC No. 5624/16 Page No. 14 of 16 Sh. Bhupinder Singh Suri Vs Sh. Yogesh Malik examination and no contrary material on record has been brought on record by the respondent.

(h) As regards the property no.2, Mathura Road, Jungpura B near Rajdoot Hotel, the same is stated to be the residential property of petitioner in her rejoinder. It is also corroborated by PW1 in her cross examination and no material to the contrary has been brought on record by the respondent.

16. It is also the case of respondent in his affidavit that Quarter No.6 on the first floor and Quarter No.10 on the first floor are also lying vacant and both these quarters have been vacated during the pendency of the present eviction petition. In this regard, it may again be reiterated that availability of the suitable alternate accommodation has be considered as on the date of filing of the petition. Subsequent changes to the same during the pendency of the petition cannot be considered as otherwise there will not be any end to the dispute.

17. Further and more importantly, as regards the case of the respondent that suitable accommodation are available to the petitioner as shown by him in the site plan above, it is well settled law that the tenant cannot dictate the terms to the landlord as to how he should adjust himself without getting the possession of the tenanted premises and landlord is the best judge of his requirement and that it is prerogative of the landlord to determine the suitability of the land/space available with him for the need espoused. It is not for the tenant to dictate to or instruct the landlord as to how and which property of the landlord should be used for which purpose. Reference in this regard may be made to the RC ARC No. 5624/16 Page No. 15 of 16 Sh. Bhupinder Singh Suri Vs Sh. Yogesh Malik judgment of Hon'ble Delhi High Court in the case of Sanjiv Gupta(DR) & Anr. vs Sh. S. S. Verma passed in RC Rev 158/2020 dated 30.03.2022. Any contrary opinion would result in an unjustified situation where a landlord having given several properties on rent would suffer only because all his tenants are of the opinion that the other one should be evicted or that the landlord is unable to evict the tenant despite his bonafide need for the tenanted premises only because the tenant thinks that the other properties with the landlord are more suitable for his need.

18. In view of the aforesaid discussion, it is clear that the respondent has not raised any dispute to the landlord- tenant relationship or the need of the daughter of the petitioner to open her office for her astrology practice in the tenanted premises. The only ground on which the present petition is opposed pertains to the bonafide nature of the need of the petitioner on the ground that several alternative suitable premises are available to him. In my opinion considering the pleadings and material on record and legal position, the said ground neither survives factually nor legally. Thus, in my opinion all the three ingredients of Section 14 (1) (e) DRC Act are sufficiently proved by the petitioner and the present petition deserves to be allowed and the same is accordingly allowed. Respondents are given six months time to vacate the tenanted premises.

19. File be consigned to record room after necessary compliance.

Announced in open Court (SWATI GUPTA) on 24.11.2022. ARC/ACJ/CCJ,NDD, PHC RC ARC No. 5624/16 Page No. 16 of 16 Sh. Bhupinder Singh Suri Vs Sh. Yogesh Malik