Delhi District Court
Sh. Ranjit Singh Ahluwalia vs Sh. Naresh Goswami on 19 July, 2016
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR SENIOR
CIVIL JUDGE/ RENT CONTROLLER (E), KKD COURTS, DELHI
Ev. No.795/16
In the matter of :
Sh. Ranjit Singh Ahluwalia
S/o Late Sh. Tuhi Ram
R/o IX/1232 Multani Mohalla
Gandhi Nagar, Delhi110031
.....Petitioner
Versus
Sh. Naresh Goswami
S/o Sh. Babu Ram Goswami
Address:
R/o IX/119, Shyam Block
Kailash Nagar
Delhi110031
.....Respondent
O R D E R
1. By this order, the application under section 25 B (4 & 5) of the Delhi Rent Control Act (in short, 'DRC Act') as filed by the respondent seeking leave to contest the present eviction petition u/s 14 (1) (e) of the DRC Act shall be disposed of. Reply is filed by the petitioner.
2. The petitioner has submitted that his age is about 68 years who is owner/landlord of the suit premises bearing municipal no.1232, Ev. No.795/16 Ranjit Singh Ahluwalia v. Naresh Goswami Page no.1 of 17 SubhashRoad (Multani Mohalla) and Municipal No. IX/1232, Gandhi Nagar, Delhi31 hereinafter referred as suit property. Petitioner had given on rent shop no.15 combined measuring about 6'3" X 3'4"
approximately having one shutter on ground floor of suit property. Petitioner is staying at 2nd floor of the said property as shown in green colour in the site plan. Petitioner is senior citizen who is retired Government Servant, Hypertensive and Tensorial Meningioma patient and under treatment at RML Hospital, Delhi. The wife of the petitioner is Smt. Rashmi is aged about 58 years and patient of acute Asthama. Both petitioner and his wife are not able to climb stairs due to their old age and ill health. They have one unmarried daughter namely Ms Bhavna who is permanently physically handicapped and aged about 28 years. She is also patient of 'SpA' which is a painful, progressive and incurable disease and without support of a person she is not able to climb stairs. She cannot travel without support. Copies of medical certificates are filed. Petitioner submits that the ground floor is required by petitioner, his wife and daughter for the purpose of residential accommodation as they do not have any other property at the ground floor. It is submitted that the respondent is carrying the business of vegetable/fruit/dairy items in the trade name of Balaji in Azadpur Market, New Delhi. It is submitted that respondent is habitual defaulter in payment of rent. Accordingly, the petitioner has submitted that the leave to defend application of the respondent may be dismissed and the Ev. No.795/16 Ranjit Singh Ahluwalia v. Naresh Goswami Page no.2 of 17 present eviction petition may be allowed.
3. In the leave to defend application to the petition it is submitted by the respondent that he is in occupation as tenant of shop no.15 part of property no. 9/1232, Subhash Road, Gandhi Nagar, Delhi 31 which is suit property. It is submitted by the respondent that the need of landlord is not bonafide. It is submitted that petitioner wants to let out the suit property at higher rent that is why they want to get vacated the suit property. There are total 16 shops at the ground floor and case is not filed against shop no.8, 14 & 12. The cases are filed against shop no.9, 10 & 11, shop no.4, 5 & 6, shop no.7, shop no.1, shop no. 2 & 3 and perhaps against shop no.15 & 16, all situated near suit property. It is submitted that the suit property is let out for commercial purpose including other properties by the petitioner himself and not for residential purpose. The site plan of suit property filed by the petitioner is at page 13 and the suit shop is shown in red colour. It is a commercial area and all shops at the ground floor and at the first floor of almost all nearby properties and it is commercial area. It is difficult to use it as residence. The suit property is known as Bhavna Market which was earlier known as Ahluwalia Market. It is situated in the area Jurabmandi. For the said reason petitioners are not seeking eviction from the first floor from where he is earning good monthly rental. The petitioner cannot change the ground floor into residential without demolishing the entire structure including the first floor and therefore, Ev. No.795/16 Ranjit Singh Ahluwalia v. Naresh Goswami Page no.3 of 17 the present petition is malafide. In routine working days it takes about 30 minutes to reach from the place of conveyance parking to the suit property. The present monthly rent of the respondent is Rs.207/. No planning of converting the ground floor into residential is filed. No report of Architect or technical person is filed. It is submitted that the petitioner is not a chronic patient and he got light treatment at hospital due to his old age. It is submitted that wife of petitioner owns first second floor of roof of property no.11/96, Geeta Colony, Delhi. The list of properties available with the petitioner is filed under para 13 of the application for leave to defend and they are available with the petitioner for residential purpose. It is submitted that the daughter of the petitioner is suffering from the disease since her birth and now she is about 28 years of age who is practicing lawyer in Delhi Courts and living as normal human being. She is able to climb stairs for last more than 20 years and it is not a sudden disease. The petitioner with malafide intention had declined to receive rent from the respondents so that he can make a false case against the respondent. It is prayed by the respondent that leave to defend application may be allowed.
4. Petitioner by filing his reply to the leave application of the respondents countered the claims as false and incorrect and reiterated the averments of the eviction petition. Rejoinder to the reply was filed by the respondents therein again reiterating the averments of the leave application. It is submitted that petition for eviction of tenant in respect Ev. No.795/16 Ranjit Singh Ahluwalia v. Naresh Goswami Page no.4 of 17 of shop no.1, 2, 3 and shop no. 4, 5 & 6, shop no.7, shop no.9, 10 & 11, shop no.13, shop no.15 and shop no.16 are pending before the present court. The reason for non filing eviction petition against shop no.8, 14 & 12 is that earlier tenant Sh. Vijay Jain had vacated the shop about four months ago. After obtaining possession of the said shop the shop is not relet out nor shop no.14 is let out in April, 2015 and nor rent at the rate of Rs.14,000/ per month is received since last two years. It is denied that the other shop are giving rental below Rs.1,000/ per month. It is submitted that the property is residential in nature as per MPD 2021 and question of converting into residential use does not arise. It is submitted that petitioner is using second floor as residence in the same area and in the same suit property then time require for travelling from vehicle conveyance area to suit property will be same. It is submitted that the first floor and second floor property is not a suitable accommodation to the petitioner for the purpose of residence of which title deed in copy is already filed. They are not suitable for the same reason for which the present petition is filed and for the same medical reason. It is submitted that the petitioner has never refused the rent from the respondents and it is therefore prayed that present petition may be allowed and leave to defend application may be dismissed.
5. Parties heard and record perused. Common arguments are submitted by both the Ld. Counsels in all the eviction petitions.
6. Proviso (e) to Section 14 (1) of the DRC Act is a special Ev. No.795/16 Ranjit Singh Ahluwalia v. Naresh Goswami Page no.5 of 17 provision which has been enacted by the legislature for the class of landlords who require the premises genuinely and their requirement is bonafide and they do not have any suitable accommodation. The essential ingredients for attracting the proviso (e) of the Section 14 (1) of the DRC Act are:
(a) The said premises are bonafide required by the landlord either for himself or for his family member;
(b) The landlord or the family member has no other reasonable suitable accommodation.
Both the requirements under law are to be satisfied conjunctively in order to attract the provisions of Section 14 (1) (e) of the Act. The absence of even one of the said ingredients makes the said provision inapplicable.
7. Further, it is wellsettled that in order to obtain leave to defend and contest the eviction petition, the tenant is required to file affidavit disclosing such facts which would disentitle the landlord from obtaining the eviction order. Such facts must be material and substantial and they must be bonafide. Also, it has to be seen that allegations of facts are not meant to delay the disposal of the eviction petition. It is well settled that mere denials for the sake of denials are no ground in the eyes of law and if there is no ground or plea, eviction order has to be passed against the tenant whereas if the facts disclosed by the tenant in his affidavit raises triable issues, then he is entitled for Ev. No.795/16 Ranjit Singh Ahluwalia v. Naresh Goswami Page no.6 of 17 the grant of leave to defend and contest the eviction petition.
8. Now, coming on to the facts of the present case, the plea raised by the tenantrespondent that it is a commercial area thereby the petitioner cannot be able to stay there for residential purpose as it takes over 30 min. from the place of parking the vehicle to the suit property and therefore it is not suitable. It is not denied that at present the petitioner are staying at second floor of the same suit property and that too since long. Therefore, the time which is taken for the purpose of reaching to the place of conveyance will be same as being taken today with the petitioner. Therefore, this plea of the tenant cannot be sustained. Further the plea is not denied that as per MPD2021 the area is notified for residential purpose. It is established law that tenant cannot dictate terms to the landlord that where he should reside. It is submitted by the respondent that the landlord can decide to reside at other property available and for the said purpose the three properties residential in nature are mentioned in para 13 of leave to defend application. One property is at the first floor and another property at the second floor and the third property is at the third floor. When the petitioner is already staying at the second floor, then there is no reason for him to get second and third floor at other situated property and the plea of staying at the first floor is rebutted by the petitioner on the ground that his difficulty remains the same as that of staying at the second floor. On this account the respondent has failed to raise a Ev. No.795/16 Ranjit Singh Ahluwalia v. Naresh Goswami Page no.7 of 17 tenable plea. For the said purpose following citation is relied upon:
Amar Singh Vs. Mohammad Sayeed RC. Rev. No. 485/2011 Decided On: 28.10.2013 = MANU/DE/3897/2013
12. In Prativa Devi (Smt) vs. T.V. Krishnan, (1996) 5 SCC 353, this Court has held that in considering the availability of alternative accommodation, not availability merely but also whether the landlord has the legal right to such accommodation has to be considered. If the landlord wishes to live with comfort in a house of his own, the law does not command or compel him to squeeze himself tightly into lesser premises protecting the tenant's occupancy.
13. In Sarla Ahuja vs. United India Insurance Co. Ltd., 1998 (8) SCC 119, this Court has held that the Rent Controller should not proceed on the assumption that the landlord's requirement is not bonafide. When the landlord shows a prima facie case a presumption that the requirement of the landlord is bonafide is available to be drawn. It is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without giving possession of the tenanted premises. While deciding the question of bonafides of the requirement of the landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself.
Ev. No.795/16 Ranjit Singh Ahluwalia v. Naresh Goswami Page no.8 of 17 Krishan LalVs.R.N. BakshiRc. Rev. No. 117/2010 and CMs Nos. 937980/2010 =MANU/DE/1460/2010
7. Learned Counsel for the petitioner/tenant has been heard and the documents placed on the record, perused. This Court need not delve into the other contentions raised in the leave to defend application filed by the petitioner/tenant in view of the limited grounds urged to assail the impugned order, as set out in the foregoing para. The submissions made on behalf of the petitioner/tenant with regard to the availability of the garage to the respondent/landlord for being put to use as a shop, has been dealt with by the learned Additional Rent Controller in para 12 of the impugned order. It was observed that the tenant could not dictate to the landlord the manner in which he was to use the space available with him and further, that no space would be left for ingress and egress into the house, if the car is parked in the drive way. For arriving at the said conclusion, the learned Additional Rent Controller relied on the following judgments:
1. Sarla Ahuja v. United India Insurance Co. Ltd. MANU/SC/0665/1998 : (1998) 8SCC 119;
2. Rishi Kumar Govil v. Maqsoodan 2007 (1) RCR (Rent)
405.
3. Sudesh Kumari Soni v. Prabha Khanna 2008 (2) RCR(Rent) 534; and Ev. No.795/16 Ranjit Singh Ahluwalia v. Naresh Goswami Page no.9 of 17
4. Mahendra Trivedi v. Jai Prakash Verma 157 (2009) DLT 690
8. It is settled law that it is not for a tenant to dictate the terms to the landlord as to how and in what manner he should adjust himself, without calling upon the tenant to vacate a tenanted premises. While deciding the question of bonafides of requirement of landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted. When the landlord shows a prima facie case, a presumption that the requirement of the landlord is bonafide, is available to be drawn. It is also settled position of law that the landlord is the best judge of his requirement for residential or business purpose and he has got complete freedom in the matter and it is no concern of the courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own. The tenant cannot compel a landlord to live in a particular fashion and method until and unless the requirement shown is totally mala fide or not genuine. In this regard, a few decisions, apposite on this point may be referred to:
1. Prativa Devi v. T.V. Krishnan MANU/SC/0811/1987:
(1996) 5 SCC 353
2. Sarla Ahuja v. United India Insurance Co. Ltd.
MANU/SC/0665/1998 : AIR 1999 SC 100
3. K.K. Ohri v. Dr. Balraj Seth and Ors.
MANU/DE/0444/2000 : 82 (1999) DLT 906 Ev. No.795/16 Ranjit Singh Ahluwalia v. Naresh Goswami Page no.10 of 17
4. Ragavendra Kumar v. Firm Prem Machinery & Co. (2001) 1 SCR 77
5. Deep Chandra Juneja v. Smt. Lajwanti Kathuria (Dead) through LRs MANU/SC/2844/2008 : AIR 2008 SC 3095
6. Smt. Sudesh Kumari Soni and Anr. v. Smt. Prabha Khanna and Anr. MANU/DE/1458/2008 : 153 (2008) DLT 652.
9. In the present case, the question of testing the bona fides of the landlord merely on the ground raised by the petitioner/tenant that the space available to him and being put to use for parking his vehicle, can be utilized for running a shop, does not arise. The foundation on which this argument has been laid, is itself fallacious. The petitioner/tenant is under a misconceived conception that it is for him to choose as to how the respondent/landlord ought to live and put to use his premises. The submission of the counsel for the petitioner/tenant that the drive way can be put to permanent use by the respondent/landlord as a garage is held to be devoid of merits. Merely because the respondent/landlord has on some occasions used the drive way to park his vehicle, cannot be a ground to urge that he should park his car in the drive way on a permanent basis.
RC. Rev. No.185/2013 Page 14 of 16 iv) Sudesh Kumar Soni & Anr. v. Prabha Khanna & anr. 153 (2008) DLT 652 it was observed that it is not for the tenant to dictate the terms to the Ev. No.795/16 Ranjit Singh Ahluwalia v. Naresh Goswami Page no.11 of 17 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 circumstances including their profession, vocation, styles of living, habit and background.
v) Mohd. Ayub Vs. Mukesh Chand, (2012) 2 SCC 155 it was observed that the hardship Appellants would suffer by not occupying their own premises would be far greater than the hardship the Respondent would suffer by having to move out to another place. We are mindful of the fact that whenever the tenant is asked to move out of the premises some hardship is inherent. We have noted that the Respondent is in occupation of the premises for a long time. But in our opinion, in the facts of this case that circumstance cannot be the sole determinative factor. That hardship can be mitigated by granting him longer period to move out of the premises in his occupation so that in the meantime he can make alternative arrangement.
vi) Naresh Kumar Sharma Vs. Bengali, RC Rev. 227/2012 (Date of Judgment 21.05.2012) it was observed that The need of the landlord visvis tenant, if balanced, would show that the need of the landlord is much greater which even otherwise is not to be taken into account while dealing with Ev. No.795/16 Ranjit Singh Ahluwalia v. Naresh Goswami Page no.12 of 17 an eviction petition under Section 14 (1)(e) of the DRCA; comparative hardship of the tenant is of little consequence.
vii) P.S.Pareed Kaka & Ors. Vs. Shafree Ahmed Saheb, AIR 2004 SC 2049, the Apex Court had in fact held that the comparative hardship of the tenant is of little consequence."
9. The plea of the tenant is that petitioners are not seeking eviction from the tenants at first floor because he is earning good monthly income from the said floor. The petitioner has submitted that the reason for not getting vacated the first floor is same as he cannot stay at the second floor of the suit property and as submitted in the petition and already referred above which are not repeated herein for the sake of brevity. It is not denied that to climb upto first floor the stairs are to be used by petitioner again to climb upto first floor and also by their daughter. Supporting documents as to thereto is filed on record. Other than this it is admitted fact that the petitioner is a senior citizen and in old age. He cannot be expected to have much exertion. His wife is also in old age and the above facts are not denied. When the petitioner cannot take advantage of his assets at the late stage of life then those assets does not have much meaning for him when he has to stand as a spectator to see others using his property but not he when he is in need of it. The plea of the tenant is that the petitioner seeks to have much higher rent therefore, he wants to get vacated the tenant. However, the said exigency is covered u/s 25 of Delhi Rent Control Act Ev. No.795/16 Ranjit Singh Ahluwalia v. Naresh Goswami Page no.13 of 17 and even when at later stage it is found that the petitioner has not used the premises as per the order then tenant is at liberty to invoke Sec. 19 of Delhi Rent Control Act. For the said purpose, following citation is relied upon:
Lalit Kumar vs Saroj Kumari on 24 March, 1969 Equivalent citations: 5 (1969) DLT 408 (6) The next question is whether she required the premises "bona fide". The meaning of "bona fide" in this context appears to be twofold. Firstly, her need must be a genuine one and nto a frivolous one. It cannto be disputed that she genuinely needs her own house to reside in it. She cannto be blamed if she prefers to live in her own house rather than in a rented house. The second aspect of the bona fides is that the landlord is nto motivated by extraneous considerations in trying to recover the possession from the tenant with a view to let it out again to another tenant on a. higher rent. The provision made in Section 19 of the Act for the restitution of the possession to an evicted tenant in such a case would bring out this meaning of bona fide. There is nothing to show that the landlord intends to relate to a tenant on a higher rent. For, the standard rent of the premises has already been fixed and she cannto now think that she can get a higher rent by relating the same premises. The bona fides of the landlord is also to Ev. No.795/16 Ranjit Singh Ahluwalia v. Naresh Goswami Page no.14 of 17 be determined objectively by these considerations. The mere fact that the relations between the parties were strained or that the tenant had applied for the fixation of standard rent would nto deprive the requirement of the premises by the landlord of its bona fides. The motives of the landlord are nto relevant in this connection. It is the hard objective need and the legitimacy of the purpose which have to be seen. It is clear, therefore, that the premises are needed by the landlord bona fide.
10. It is admitted case of the petitioner that they are tenants as much old ranging from 5 to 25 years. They have used the premises for such a long time. The landlord himself has not shown to have raised rent at such interval when the maximum permissible rent was Rs.3,500/ under Delhi Rent Control Act then the said argument that the landlordpetitioner is a greedy person and therefore, he wants to get vacated the suit premises is not tenable and thereby the plea raised is held not a tenable plea. It is further submitted by the respondent that landlord has not submitted the building sanction plan and design by Architect. At this stage when landlord himself is not knowing that whether building would be available for him for construction or not then it is too premature for the landlord to get prepared plan of Architect for the purpose of construction. The plea of the respondent is that the illness suffered by daughter of the petitioner is since childhood.
Ev. No.795/16 Ranjit Singh Ahluwalia v. Naresh Goswami Page no.15 of 17 According to respondent when the daughter of petitioner can bear illness for about 24 years then she can bear it further also. The relevant medical certificate as to certificate of illness is filed from RML Hospital dated 30.08.2010 which mentions 50% impairment in relation to body of the daughter of petitioner vide certificate no.1309/2010 RMLH(MH)1131 issued by Chairman Medical Board, Orthopaedics. If the above plea is accepted then what has to be finally proved by respondent to be successful is that the daughter of the petitioner can continue with the residence at second floor with her illness to show more strength to continue to bear with her suffering as she has done for last 24 years. A person went into hardship cannot be a ground force upon her to sustain her hardship further and hence the present plea is also not found tenable. The shop no.8 is submitted to be not re let out by the petitioners at the alleged rent of Rs.10,000/ to any person and it is also denied that one Ram Babu had got inducted the respondent on payment of Rs.50,000/ as advance rent other than Rs.2,40,000/. No receipt or withdrawal of money is shown by respondent even at prima facie level and only bald averment is made.
11. In such circumstances of the case, it is held that the respondent has failed to raise tenable plea for grant of leave to defend and accordingly the application for leave to defend is dismissed and the petition is allowed.
12. Consequently, an eviction order is passed in favour of the Ev. No.795/16 Ranjit Singh Ahluwalia v. Naresh Goswami Page no.16 of 17 petitioner and against the respondent. Respondent is directed to hand over the vacant and peaceful possession of the tenanted shop which is shop no.15 combined measuring about 6'3" X 3'4" approximately having one shutter on ground floor of suit property bearing municipal no.1232, Subhash Road (Multani Mohalla) and Municipal No. IX/1232, Gandhi Nagar, Delhi31 and more specifically as shown in red in the site plan filed with the eviction petition. For the purpose of identification the site plan is marked as Ex.P1. However, in terms of Section 14 (7) of the DRC Act, petitioner shall not be entitled to obtain possession of the tenanted shop before the expiration of a period of six months from the date of this order. The eviction petition under Section 14 (1) (e) r/w section 25B DRC Act is accordingly disposed off. No order as to costs.
File be consigned to Record Room.
Announced in the open court (Joginder Prakash Nahar) Dated:19.07.2016 Senior Civil Judge/Rent Controller (East) Karkardooma Courts, Delhi Ev. No.795/16 Ranjit Singh Ahluwalia v. Naresh Goswami Page no.17 of 17