Legal Document View

Unlock Advanced Research with PRISMAI

Integrated with over 4 crore judgments and laws — designed for legal practitioners, researchers, students and institutions

- Know your Kanoon - Doc Gen Hub - Counter Argument - Case Predict AI - Talk with IK Doc - ...
Upgrade to Premium
[Cites 10, Cited by 0]

Delhi District Court

Sunil Ahuja vs . Mithlesh Rani on 30 July, 2013

                                                                                                Sunil Ahuja Vs. Mithlesh Rani


                       IN THE COURT OF SH. VISHAL GOGNE, 
ACJ­CCJ­ARC(EAST), KARKARDOOMA COURTS, DELHI


E­161/11
Case ID No.: 02402C0331792011


Sh. Sunil Ahuja
S/o Sh. Bahadur Chand Ahuja
R/o C­26, Vikalp Apartment,
Plot No. 92, I.P. Extn., Delhi­110092                                             ... Petitioner


           VERSUS


Smt. Mithlesh Rani
W/o Late Sh. Fakir Chand Rastogi
Prop. of M/s Shakti Store
I­4/5, Main Bazar, Laxmi Nagar,
Delhi­110092


Also at:
I­15A, Durga Mandir Wali Gali,
Main Bazar, Laxmi Nagar
Delhi­110092                                                          .... Respondent


UNDER SECTION                                             :                       14(1)(e) DRC Act 
DATE OF INSTITUTION                                       :                       03.11.2011
DATE OF RESERVING THE ORDER:  08.07.2013
DATE OF DECISION                                          :                       30.07.2013




E­161/11                                                                                                   Page No. 1/13
                                                                                                 Sunil Ahuja Vs. Mithlesh Rani


JUDGMENT

1. The present petition has been filed under Section 14 (1)(e) of the Delhi Rent Control Act(hereafter referred to as the Act).

2. Vide order dated 04.04.12, the Ld. Predecessor of this Court granted the respondent leave to contest the present eviction petition on the limited ground of absence of bonafide need and alternate suitable accommodation being available to the petitioner.

3. The identical averments of the petition and the deposition of the petitioner(PW1) are as under:

(a)The respondent is a tenant of PW1 with respect to one shop (hereafter referred to as the tenanted shop) shown in red colour in the site plan Ex. PW1/A in property bearing no. I­4/5, Main Bazar, Laxmi Nagar, Delhi­110092(hereafter referred to as the premises) at monthly rent of Rs. 500/­ excluding electricity charges.
(b)PW1 is engaged in the business of sofa cloth,curtain cloth, bed cover, bed sheets and drapery rods etc. and in possession of the complete premises except the tenanted shop. A shop with a frontage of 10 feet on the ground floor and the entire first floor are used by PW1for sale of these items whereas the second floor is used as a godown for storing the said items. There also exists a room on the third floor for the residence of workers. E­161/11 Page No. 2/13

Sunil Ahuja Vs. Mithlesh Rani Stated Bonafide requirement of the petitioner

(c)That the frontage of the shop under possession of the petitioner on the ground floor of the premises, being 10 feet, is very small for displaying the drapery items. The petitioner therefore requires greater space in the form of the tenanted shop for easier display of his items for purpose of attracting a greater number of customers.

(d)PW1 stated that he did not possess any other alternate suitable accommodation for the above purpose.

4. The reply of the respondent in the form of his written statement and his affidavit in evidence as RW1 may next be summarised.(Since leave to contest was granted only in the context of the bonafide requirement and availability of alternate suitable accommodation, the averments/deposition reproduced below are limited to these grounds.)

(a)That the total area of the premises is 1210 sq. feet with 288 sq. feet being under the possession of RW1 and 922 sq. feet remaining under the possession of the petitioner on the ground floor.

(b)That the entire first floor and second floor of the premises alongwith an extension i.e. a chajja on the first floor facing the main road are available to the petitioner for attracting customers.

(c)That the frontage thus available to the petitioner is sufficient for display of drapery items.

E­161/11 Page No. 3/13

Sunil Ahuja Vs. Mithlesh Rani

(d)That the frontage available to the petitioner on the ground floor is sufficient for the ingress and egress of customers.

(e)RW1 filed a photograph of the premises during the cross­ examination of PW1(Ex. PW1/D1).

5. The Ld. Counsel for the petitioner made a three fold argument. It was firstly agitated that visibility of a commercial enterprise viz a shop was the principal tool available with the shopkeeper to attract a greater number of customers. The Counsel submitted that the amalgamation of the tenanted shop into the existing shop of PW1 would increase the frontage of the shop of the latter to about 22 feet as deposed by PW1 and enhance visibility of the products offered by him. Secondly, that the greater space thus available would increase the access of customers in the matter of entry and exit from the shop. Thirdly, that as conceded by RW1 during cross­examination, there exist numerous other handloom shops in the vicinity of the shop run by the petitioner. This circumstance was represented to be a case of enhanced competition in the market, thereby compelling the petitioner to expand his own business.

6. The following citations were filed by the Ld. Counsel for the petitioner in support of the submission that the tenant could not dictate the use of a premises by a landlord and that the Rent E­161/11 Page No. 4/13 Sunil Ahuja Vs. Mithlesh Rani Controller could not presume the stated bonafide need to not be genuine if the landlord expressed such a need and also that any business person possessed the right to expansion of business:

1. Uday Shankar Upadhyay and Ors. v.
Naveen Maheshwari 2010(1) SCC 503
2. R.K. Bansal v. Jag Pravesh Sharma 2012 (1) R.C.R.(Rent) 94
3. Royal Nepal Airlines Corporation v.

Shrishti Properties Pvt. Ltd. 2011(184) DLT 362

4. Vinod Arora v. Deepak Aggarwal 2010 (172) DLT 112

5. Balbir Kaur v. Roop Lal 2012(1) R.C.R. (Civil) 279

6. M/s Satpal Vijay Kumar v. Sushil Kumar 2011(1) R.C.R.(Rent) 160

7. Krishan Lal v. R.N. Bakshi 2010(1) R.C.R.(Rent) 550.

7. These arguments were controverted by the Ld. Counsel for the respondent on the submission that not only did the petitioner possess sufficient retail space on the ground floor and first floor but there also existed adequate advertisement of the products in the form of display of items on the first floor and the board of Laxmi Handloom(i.e. the trade name of the shop/business of the petitioner) on the ground floor and second floor of the premises. Reference was made to the cross­examination of PW1 E­161/11 Page No. 5/13 Sunil Ahuja Vs. Mithlesh Rani wherein he admitted that items for sale were displayed on the first floor and the photograph Ex. PW1/D1 was a correct depiction of his shop. The Counsel thus concluded that the existing shop and remaining area in the premises available to the petitioner negated any bonafide need for the tenanted shop or any necessity for greater visibility of the petitioner's business.

8. The Counsel for the respondent relied on decisions reported as Kishan Chand v. Jagdish Pershad & Ors. (2003) 9 SCC 151; Ranjan Gupta v. A.F.Ferguson & Company 42(1990) DLT 66 and Shiv Sarup Gupta v. Dr Mahesh Chand Gupta (1999) 6 SCC 222 in support of the argument that the stated bonafide requirement of the landlord could not be a mere desire and whim of the landlord and that it could not be used as a pretext to get rid of the tenant.

9. The Court has considered the evidence led by the parties and the well crafted arguments advanced by the respective counsels.

10. The decision of an eviction petition filed on the ground of bonafide requirement by a landlord is a tight rope exercise. On the one hand is an owner/landlord of a premises who claims to require the same for a specified purpose whereas the E­161/11 Page No. 6/13 Sunil Ahuja Vs. Mithlesh Rani tenant on the other hand seeks to dislodge the need which essentially lies in the understanding of the landlord. Undoubtedly, the weight of case law decisively settles that the landlord is the best judge of his requirement and the tenant cannot dictate terms to him in the matter of utilization of his property. However, it is equally the position of the law that the expressed need of the landlord cannot hinge on whim and fancy. The law entails the protection from eviction of a tenant who is able to establish that the stated need is not bonafide and only a contrived ploy for eviction. The Court may therefore analyze the evidence related to the bonafide requirement of a landlord to the extent that objectivity permits.

11. The contentions of the parties may be considered in light of the above understanding of the principles governing bonafide requirement of a landlord.

12. The Court may first assess whether the evidence on record justifies the claim of the petitioner that his shop suffers from lack of visibility and would benefit from greater visibility/advertisement by addition of the frontage of 10 feet from the tenanted shop.

13. The cross­examination of PW1 and the photograph of the premises(Ex. PW1/D1) are quite illustrative. E­161/11 Page No. 7/13

Sunil Ahuja Vs. Mithlesh Rani

14. PW1 admitted during cross­examination that there existed an extended portion(chajja) measuring 22 feetx4feet, covered with glasses on the first floor of the premises. He also admitted that items for sale were displayed in this portion. The photograph Ex. PW1/D1, admitted to be genuine by PW1, would reveal that a glass enclosure running along the entire length of the premises(measuring 22 feet) displays curtain cloth on the first floor of the premises. The display of these items constitutes a visible advertisement of the products offered by the petitioner. An enclosure of this dimension i.e. 22feet, projecting on to a ledge (chajja) and with a height of 8 feet and apparently lighted (admitted by PW1) would serve as a prominent and visible enticement to customers.

15. This glass enclosure on the first floor is to be seen in conjunction with the fair sized board of Laxmi Handloom affixed on the ground floor situated shop of the petitioner, which again quite conspicuously mentions the availability of Sofa clothes, curtain clothes, bed cover, bed sheets and drapery rods in the said shop. Similarly, the facade of the second floor of the premises, as apparent in Ex. PW1/D1 would reveal a big advertisement of Laxmi Handloom running across the length and height of the second floor. The petitioner did not deny the genuineness of Ex. E­161/11 Page No. 8/13

Sunil Ahuja Vs. Mithlesh Rani PW1/D1.

16. The picture which emerges is that half of the front portion of the ground floor and the entire portion of the first and second floors of the premises is available to the petitioner for advertisement and display of items and has been utilized as such. In this scenario, the stated bonafide requirement of the petitioner for increasing visibility of his business seems contrived and unreasonable. While a person may go on increasing the visibility of his business, such an exercise by the petitioner does not satisfy the specific ingredient under Section 14(1)(e) of the Act viz the existence of a bonafide requirement. The Court would refer here to an excerpt from the decision in Shiv Sarup(Supra):

"13. The word "genuine" means "natural: not spurious: real: pure:
sincere. In Law Dictionary, Mozley and Whitley define bona fide to mean "good faith, without fraud or deceit".......The phrase "required bona fide" is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation...... 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 E­161/11 Page No. 9/13 Sunil Ahuja Vs. Mithlesh Rani drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of a tenant, would be enough to persuade the court certainly to deny its judicial assistance to the landlord."

17. The combined effect of the description of the area under control of the petitioner by the petitioner in his petition itself and the description rendered by the respondent in the photograph Ex. PW1/D1 is that the stated bona fide requirement of the present petitioner does not stand established as genuine.

18. It is for this reason that the decisions in Uday Shankar; R. K. Bansal; Royal Nepal Airlines Corporation; Vinod Arora; Balbir Kaur; M/s Satpal Vijay Kumar and Krishan Lal(Supra) cited by the counsel for the petitioner are not helpful to him. When objective assessment permits only one construction inter­alia that the projected bonafide requirement is contrary to the evidence on record, eviction of the tenant cannot be ordered on this ground. In the present facts, the petitioner, possessed of the entire facade of the three storey building except half portion on ground floor, is certainly not entitled to agitate the absence of visibility for his business. The denial of relief in the present facts E­161/11 Page No. 10/13 Sunil Ahuja Vs. Mithlesh Rani is thus not a matter of the tenant or the Court dictating terms to the landlord­petitioner.

19. The Court may next take up the aspect of projected increase in customers by amalgamation of the tenanted shop in the shop of the petitioner on the ground floor.

20. It is to be noted here that save the tenanted shop with a front portion of 10 feet, the remaining portion of 10x55 feet and also 12x25 feet on the back side of the ground floor of the premises is under the possession of the petitioner(as admitted by PW1 during cross­examination). RW1 also deposed that a portion of 922 sq. feet out of a total area 1210 sq. feet on the ground floor of the premises was under the possession of the petitioner. This assertion was not controverted during cross­examination of RW1. The Court would thus conclude that about 3/4th of the area of the ground floor of the premises is under the occupation of the petitioner. It is also the own version of the petitioner that the entire first floor is also used for sale of items by him, with the second floor being used as a godown. Seen in light of this availability of space, it can be assumed that the area currently occupied by the shop of the petitioner on the ground floor and first floor is certainly not meager or cramped.

21. The Ld. Counsel for the petitioner had relied on the E­161/11 Page No. 11/13 Sunil Ahuja Vs. Mithlesh Rani decision in Uday Shankar(Supra) to argue that the Court could not dictate to the landlords to shift business on the upper floor as the business is usually conducted on the ground floor. This decision does not apply to the present facts as the petitioner is already running a shop on the ground floor and the first floor of the premises. His stated bonafide requirement fails not because the respondent expects him to shift business to the upper floors but because the business of the petitioner is already running in the pre­ dominant portion of the premises viz half of the ground floor, the entire first floor and also the second floor used as a godown.

22. The Court has already recorded that the business of the petitioner does not suffer from want of visibility. Customers attracted to the shop from the massive display boards and glass enclosure not only have access to the front portion of the ground floor shop of the petitioner but also the back portion of the ground floor and the entire first floor. The argument based on increased foot falls from addition of the area of the tenanted shop does not inspire any confidence with the Court.

23. The petitioner has failed to prove the bonafide requirement set out in the petition whereas the respondent has succeeded on the standard of probabilities in establishing that the existing area of the business of the petitioner negates the need for E­161/11 Page No. 12/13 Sunil Ahuja Vs. Mithlesh Rani expansion of his business.

24. The petition is dismissed.

25. File be consigned to Record Room.

Announced in open Court.

Delhi Dated the 30.07.2013 This Judgment contains 13 pages and each paper is signed by me.

VISHAL GOGNE ACJ­CCJ­ARC(EAST) KKD Courts/Delhi.

E­161/11 Page No. 13/13