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[Cites 10, Cited by 0]

Delhi District Court

Sh. Ashok Kumar Bhatnagar vs Sushila Devi Gulati on 13 July, 2012

                IN THE COURT OF SH BALWANT RAI BANSAL  
                 ADDITIONAL RENT CONTROLLER (SOUTH),
                                  SAKET COURTS, NEW DELHI


Eviction Petition No.              122/10


Sh. Ashok Kumar Bhatnagar
S/o Late Sh. G.K. Bhatnagar
R/o G­16, Hauz Khas Enclave,
New Delhi ­ 110016
                                                                     .........Petitioner.

                                   Versus


       1. Sushila Devi Gulati
          W/o Late Sh. Mulak Raj
          R/o C­193, Sarvodya Enclave,
          New Delhi
       2. Sh. Yash Pal Gulati
          S/o Late Sh. Mulak Raj
          R/o 52/84, C.R. Park, 
          New Delhi­110019
                                                                      .........Respondents.
ORDER:

­

1. Vide this order I shall dispose of an application for leave to defend moved by the respondent no. 1.

2. The present petition has been filed by the petitioner u/s 14 (1) (e) r/w Section 25­B of DRC Act against the respondents on the ground of bonafide requirement in respect of one shop bearing Shop No. 1 measuring 21.5' x Eviction Petition No. E­122/10 Page 1 of 22 12.6'x12.6' approximately on the ground floor in property No. G­16, Hauz Khas Enclave, New Delhi. It is stated by the petitioner that his father Sh. G.K. Bhatnagar was the owner of the aforesaid property and he had executed a Will dated 8.11.1982 in his favour in respect of the said property. After the death of his father, the petitioner became the owner of the property in question by virtue of Will dated 18.11.1982 and property has also been mutated in his name in the records of MCD. It is further stated that shop in question was let out by the father of the petitioner to the husband of respondent no. 1 and father of respondent no. 2 late Sh. Mulak Raj and after the death of Sh. Mulak Raj, the respondents became the tenants and they have been paying the rentals to the petitioner after the death of the father of the petitioner.

3. It is further averred that the petitioner is a medical Physiotherapist and was working under Central Government Health Scheme, New Delhi. He retired from the said services in September, 2005 and started his private practice from October, 2005 in shop No. 3 in the aforesaid property No. G­16, Hauz Khas Enclave, New Delhi. It is further stated that Dr. Alok Bhatnagar who is son of the petitioner has completed his BDS in 2005 and now he is going to complete his MDS in July, 2010 and intends to start his practice as a dental surgeon. The son of the petitioner is also going to be married to a lady who is also BDS and the petitioner as well as his son and would be daughter­ in­law intend to start their own clinic and for this purpose all the shops situated on the ground floor of the aforesaid property including the shop in question is Eviction Petition No. E­122/10 Page 2 of 22 required by the petitioner bonafide for his own benefits and requirements along with his family members for running the clinic. The petitioner has also stated that he and his dependent family members do not have any other alternative accommodation to establish a clinic to earn their livelihood and the need of the petitioner is bonafide. Therefore, present petition has been filed seeking eviction of the respondents from the suit premises.

4. The respondent no. 1 filed leave to defend application along with affidavit contending that present petition is not maintainable since Section 14 (1) (e) is meant for the premises if required bonafide by the landlord for occupation as a residence for himself or for any member of his family dependent on him and same has not been claimed in the petition. Therefore, present petition is without any cause of action and is liable to be rejected u/o 7 rule 11 CPC. It is further contended that the late father of the petitioner namely Sh. G.K. Bhatnagar was not the owner of the premises in dispute and the petitioner is only a rent collector collecting rent after the death of Sh. G.K. Bhatnagar. It is also contended that the petitioner has not placed on record NOC as well as alleged Wills dated 18.11.1982 or 08.11.1982 executed by his father in his favour. It is stated that suit premises are not required by the petitioner for his residence or for residence of any member of his family dependent on him and even the premises is not required by the petitioner for running a clinic by himself or any member of his family.

5. It is also averred by the respondent no. 1 that the petitioner has not Eviction Petition No. E­122/10 Page 3 of 22 given the complete details of existing construction at G­16, Hauz Khas, New Delhi. It is further stated that the petitioner has not filed any certificate to show that he is a physiotherapist and further has not filed any document to show that Dr. Alok Bhatnagar is his son and he has completed his BDS in 2005. It is also stated that the petitioner has not given the name of the lady to whom Dr. Alok Bhatnagar is going to get married. It is further averred that the petitioner has not given the details of what are the properties available to him.

6. The respondent no. 1 has further contended that the petitioner is having sufficient accommodation at ground floor of the aforesaid property i.e. a shop which is being referred as shop No. 3 and there is another shop adjoining the said shop which has been shown as shop in between the staircase. Apart from this, there is one another shop which has been shown as a covered courtyard in the site plan. As such, even as per the site plan filed by the petitioner, he is having 3 shops and toilet on the ground floor and the complete area of these 3 shops and toilet would be more than 700 sq. ft which is sufficient for the need of the petitioner and his family. It is further stated that the petitioner is also having mezzanine floor over the shop No. 2, 3 and stairs and the covered area of mezzanine floor would be more than 400 sq. feet and this premises is approved for commercial use and the petitioner can use the same for physiotherapist or BDS clinic.

7. It is further averred that the petitioner is also having complete first floor having construction about 1000 sq. feet along with open courtyard and Eviction Petition No. E­122/10 Page 4 of 22 the second floor with construction about 1000 sq. feet and as such the petitioner is having sufficient accommodation available to him on the ground floor, mezzanine floor, first floor and second floor.

8. It is also stated that the petitioner has filed an eviction petition against Shyam Nath, Pan Seller for the premises which in fact a show window of 6 ft. x 4 ft. only and is of no use for the petitioner to be used as clinic without reconstruction and this only goes to show his malfide intention. It is further stated that in 2007, the petitioner started a multi­facility clinic in the name of Ansh where the petitioner used to provide the service of himself as consultant physiotherapist, service of Dr. Alok Bhatnagar as dental surgeon and of Dr. Nidhi Bhatnagar as Audiologist and speech language pathologist. All these 3 doctors were comfortably accommodated at the space available in G­16, Hauz Khas Enclave, New Delhi. However, Dr. Nidhi is no more there and so the space occupied by her is also available to the petitioner. It is also stated that the building in question is in the corner of the market and it is being planned by the owner of this building to construct a complete shopping complex and to let out the same at a very higher rent. Therefore, the petitioner has no bonafide need of the shop in question and he is only interested either the premises to be vacated to let out the same at higher rent or the respondent should pay a very high rent which is unreasonable. The respondent no. 1 has prayed for grant of leave to contest the petition.

9. The petitioner has filed the reply to the leave to defend application Eviction Petition No. E­122/10 Page 5 of 22 along with counter affidavit denying the contention of the respondent that his father late Sh. G.K. Bhatnagar was not the owner of the suit property. It is stated by the petitioner that after the death of his father, the respondents have been paying the rentals to him and property has also been mutated in his name in MCD record on the basis of Will dated 18.11.1982 after no objection from the other legal heirs. The petitioner has denied that he is having sufficient accommodation at his disposal at ground, mezzanine, first and second floor of the property in question.

10. It is stated by the petitioner that the property in question bearing No. G­16, Hauz Khas, New Delhi is about 163 sq. yds. and is constructed upon 2 ½ floor. The ground floor has shops, toilet and staircase to go on the first floor and is being used for the commercial purpose and the other floors are under the possession of the petitioner and are used for residential purpose by the petitioner and his family members. The mezzanine floor on the shops No. 2 & 3 which is in 'L' shape is used by the son of the petitioner as his bedroom and study room which in fact is not suitable and comfortable as study room, but due to non­availability of alternative accommodation, the son of the petitioner is using the said floor as his bedroom and study room. The first floor having an area of 737 sq. feet consists of two rooms, one kitchen, one bathroom and one latrine and petitioner is using one room as his bed room, while other room is used as drawing cum dining room. The second floor having an area of 417 sq. ft. is a Barsati floor which consists of a small room and is used as a Eviction Petition No. E­122/10 Page 6 of 22 store room. It is further stated that all the rooms are not sufficient for the family members of the petitioner as per their status, but there is no other accommodation and hence the petitioner and his family members are adjusting in the said rooms.

11. The petitioner has denied that the mezzanine and first floor can be used for the purpose of clinic by the petitioner. It is stated that the petitioner started a physiotherapy clinic under the name and style of Ansh Multi Specialty Clinic on 14.10.2007 in shop No. 3 in the property No. G­16, Hauz Khas Enclave, New Delhi and till date petitioner is working in said clinic, but at present the space is not sufficient because with the passage of time, the needs have changed and now the petitioner wants to extend and expand his clinic with latest modern equipments and gadgets. Further, the son of the petitioner after completing his Master of Dental surgery in 2010 wants to start his clinic and, therefore, they both require separate rooms for their personal office, conference room, waiting room of their patients, medicines store, washroom for themselves and for their patients etc. for which more space is required and, therefore, the entire ground floor adjoining the shop No. 3 is required by the petitioner bonafide. The other contents of leave to defend application are stated to be wrong and denied and the petitioner has prayed for dismissal of the application.

12. Rejoinder has been filed by the respondent no. 1 to the reply of the petitioner in which averments made in leave to defend application have been Eviction Petition No. E­122/10 Page 7 of 22 reiterated and re­affirmed and those made in reply to leave to defend application have been controverted.

13. I have heard the Ld. Counsel for the parties and perused the entire material available on record.

14. The present petition has been filed u/s 14 (1) (e) read with section 25­B of DRC Act and in order to succeed in such a petition, petitioner has to prove (i) ownership over the suit premises; (ii) no alternative accommodation and (iii) bonafide requirement.

15. The respondent no. 1 has contended that father of the petitioner late Sh. G.K. Bhatnagar was not the owner of the premises in dispute and the petitioner is only a rent collector after the death of Sh. G.K. Bhatnagar and, therefore, petitioner is not the owner of the suit property. The respondent has also contended that the petitioner has not placed on record NOC as well as alleged Wills dated 18.11.1982 or 08.11.1982 executed by his father in his favour by which the petitioner is claiming ownership over the property in question.

16. On the other hand, petitioner has claimed that property bearing No. G­16, Hauz Khas Enclave, New Delhi was owned by his father Sh. G.K. Bhatnagar and he had executed a Will dated 18.11.1982 by which property in question was bequeathed by his father in his favour and thus he became the lawful owner of the property in question after the death of his father in the year 1986. The petitioner has also claimed that property has also been mutated in his name in the records of MCD and the respondent has also been paying the Eviction Petition No. E­122/10 Page 8 of 22 rentals to him since 1986.

17. Though, the respondent no. 1 has disputed the ownership of Sh. G.K. Bhatnagar, father of the petitioner over the suit premises, but she has not disputed the fact that her husband was inducted in the suit premises by late Sh. G.K. Bhatnagar. The respondent no. 1 has also not disputed the fact that petitioner is son of Sh. G.K. Bhatnagar and after the death of Sh. G.K. Bhatnagar, she has been paying the rentals in respect of the suit premises to the petitioner since 1986. The petitioner has also placed on record the photocopy of rent receipts to show that respondent has been paying the rent in respect of the suit premises to him. The said rent receipts have not been disputed by the respondent. Hence, by virtue of Section 116 of Indian Evidence Act, the respondent no. 1 is estopped from challenging the ownership of Sh. G.K. Bhatnagar or of the petitioner.

18. The respondent no. 1 has also not disclosed that if Sh. G.K. Bhatnagar or petitioner is not the owner of the suit premises then who else is the owner of the suit premises and why she has been making the payment of rentals to the petitioner. Hence, there is no merit in the contention of the respondent that Sh. G.K. Bhatnagar, father of the petitioner was not the owner of the property in question and the petitioner is only a rent collector after the death of Sh. G.K. Bhatnagar.

19. The contention of the respondent no. 1 that present petition is liable to be rejected u/o 7 rule 11 CPC since Section 14 (1) (e) is meant for the Eviction Petition No. E­122/10 Page 9 of 22 premises if required bonafide by the landlord for occupation as a residence for himself or for any member of his family dependent on him which is not claimed in the petition is also without any merit. There is no dispute that the suit premises was let out to the predecessor­in­interest of the respondents for commercial purposes and in view of the pronouncement of Hon'ble Apex Court in Satyawati Sharma Vs. Union of India III (2008) SLT 553, the eviction petition on the ground of bonafide requirement is also maintainable in respect of the commercial premises.

20. The respondent no. 1 has also taken a plea that the petitioner has not given the complete details of existing construction at G­16, Hauz Khas, New Delhi and has also not given the details of the properties available to him. However, in the present petition, the petitioner has pleaded the requirement of the ground floor of the property bearing No. G­16, Hauz Khas, New Delhi for commercial purposes and as per the petitioner upper floors are being used for residential purposes. Therefore, the petitioner was not required to give the complete details of the property bearing No. G­16, Hauz Khas, New Delhi.

21. Furthermore, in reply to leave to defend application, the petitioner has categorically stated that property in question bearing No. G­16, Hauz Khas, New Delhi is about 163 sq. yds. and is constructed upon 2 ½ floor. The ground floor has shops, toilet and staircase to go on the first floor and is being used for the commercial purpose. The mezzanine floor on the shops No. 2 & 3 which is in 'L' shape is used by the son of the petitioner as his bedroom and study room Eviction Petition No. E­122/10 Page 10 of 22 due to non­availability of alternative accommodation and the first floor consists of two rooms, one kitchen, one bathroom and one latrine and petitioner is using one room as his bed room, while other room is used as drawing cum dining room. The second floor is a Barsati floor which consists of a small room and is used as a store room.

22. In view of aforesaid averments made in reply to leave to defend application, it cannot be said that the petitioner has not given the complete details of property bearing No. G­16, Hauz Khas, New Delhi. So far the contention of the respondent no. 1 that the petitioner has not disclosed the other properties available to him is concerned, the petitioner has categorically stated in the petition itself that the petitioner and his dependent family members do not have any other alternative accommodation to establish a clinic to earn their livelihood. The respondent no. 1 has not disclosed any other alternative commercial property which is available to the petitioner and only a vague and frivolous plea has been raised by the respondent that petitioner has not disclosed the other properties available to him and no triable issue would raise on this plea.

23. The respondent no. 1 has also contended that the petitioner has not filed any certificate to show that he is a physiotherapist and has not filed any document to show that Dr. Alok Bhatnagar is his son and said Dr. Alok Bhatnagar has completed his BDS in 2005. It is also contended that the petitioner has not given the name of the lady to whom Dr. Alok Bhagnagar is Eviction Petition No. E­122/10 Page 11 of 22 going to get married.

24. The aforesaid pleas of the respondent no. 1 are self contradictory because in the latter part of her leave to defend application, the respondent no. 1 herself has conceded that in the year 2007 the petitioner started a multi­ facility clinic in the name of 'Ansh' where the petitioner used to provide the service of himself as consultant physiotherapist, service of Dr. Alok Bhatnagar as dental surgeon and of Dr. Nidhi Bhatnagar as Audiologist and speech language pathologist. Moreover, the petitioner has placed on record photocopy of Certificate of Registration issued by The Delhi Council for Physiotherapy and Occupational Therapy (Statutory Body under Ministry of Health, Govt. Of NCT, Delhi) to the effect that he has been duly registered as Physiotherapist in the register of Physiotherapy Practitioners under the Delhi Council for Physiotherapy and Occupational Therapy Act 1997. The petitioner has also placed on record the photocopy of certificate issued by Delhi Dental Council to the effect that Dr. Alok Bhatnagar is duly registered as Dental Surgeon under the provision of the Dentists Act, 1948 showing his qualification as BDS in 2005 and MDS in 2010.

25. In view of aforesaid documents placed on record by the petitioner, there can be no doubt that petitioner is a physiotherapist and Dr. Alok Bhatnagar has completed his BDS in 2005. So far the contention of the respondent no. 1 regarding non­disclosure of name of lady to whom Dr. Alok Bhagnagar is going to get married is concerned, the petitioner has explained in Eviction Petition No. E­122/10 Page 12 of 22 reply to leave to defend application that his son was going to marry a dentist but as she is still interested in higher Education, the said marriage has not materialized for the time being and has been deferred.

26. The main contention of the respondent no. 1 is that the petitioner is having at his disposal sufficient accommodation at ground floor of property bearing No. G­16, Hauz Khas Enclave, New Delhi as he is having 3 shops and toilet on the ground floor and the complete area of these 3 shops and toilet would be more than 700 sq. ft which is sufficient for the need of the petitioner and his family.

27. The petitioner has placed on record the site plan showing the ground floor of the property bearing No. G­16, Hauz Khas, New Delhi. A perusal of the site plan filed by the petitioner shows that the petitioner is running his clinic in a shop measuring 23'­9 "x 10'­1 ½" ft. The petitioner has also shown three other shops which are under the possession of the tenants including the suit shop in red colour under the possession of the respondents. Apart from this, adjacent to the shop in which the petitioner is running his clinic, the petitioner has shown a small shop under the staircase and a covered courtyard measuring 23'­0"x 11'­9" ft. along with a toilet under his possession to which the respondent is referring as three shops under the possession of the petitioner.

28. As per the respondent no. 1, the complete area of three shops and toilet under the possession of the petitioner on the ground floor is more than Eviction Petition No. E­122/10 Page 13 of 22 700 sq. ft. which is sufficient for the petitioner and his family. On the other hand, categorical case of the petitioner is that the shop under his possession in which he is running his clinic is not sufficient as with the passage of time, the needs have changed and now he wants to extend and expand his clinic with latest modern equipments and gadgets and further the son of the petitioner who is a dental surgeon also wants to start his own clinic for which huge space is required and therefore, the entire ground floor adjoining the shop No. 3 is required by the petitioner bonafide.

29. The petitioner also wants to expand his clinic with modern equipments and both the petitioner and his son require separate rooms for their offices, separate waiting rooms for their patients, separate reception area, wash rooms, medicine stores etc. for which huge space is required. As such, the small shop shown by the petitioner adjacent to his clinic beneath the staircase as well as the covered courtyard cannot be said to be a space available to the petitioner for the purpose of running a clinic by himself and by his son. At the most, the said shop and covered courtyard can be combined with the clinic under the possession of the petitioner to make more space for expanding his clinic as well as for running a separate dental clinic by his son. Even after combining the said small shop and covered courtyard, the requirement of the petitioner of huge space is not fulfilled and he requires more space for expanding his clinic as well as for running separate dental clinic by his son. As such, even the contention of the respondent no. 1 that the petitioner is having Eviction Petition No. E­122/10 Page 14 of 22 three shops on the ground floor is taken to be true, it cannot be said that the petitioner is having sufficient space available to him on the ground floor for his requirement. The petitioner being the landlord cannot be compelled to run his clinic in a small, dingy and congested space when more space is available to him and respondent being the tenant cannot dictate the landlord to restrict his requirement in a lesser accommodation in order to accommodate him. It has been held in Sudesh Kumar Soni & Ano. Vs. Smt Prabha Khanna & Ano. 2008 IX, AD (Delhi) 657 that, "The law does not command or compel the landlord to squeeze himself tightly into lesser premises protecting the tenants occupancy".

30. The respondent no. 1 has also taken a plea that the petitioner is also having mezzanine floor having the covered area of more than 400 sq. feet which is approved for commercial use and the petitioner can put to use the same for physiotherapist or BDS clinic. The respondent no. 1 has also contended that the petitioner is also having complete first floor having construction about 1000 sq. feet along with open courtyard and the second floor with construction about 1000 sq. feet and as such the petitioner is having sufficient accommodation available to him on the ground floor, mezzanine floor, first floor and second floor which is more than sufficient to meet the residential and clinic needs of the petitioner and his family.

31. On the contrary, petitioner has claimed that the upper floors of the Eviction Petition No. E­122/10 Page 15 of 22 property in question is being used for residential purposes by the petitioner and his family. The mezzanine floor which is in 'L' shape is used by the son of the petitioner as his bedroom and study room due to paucity of accommodation and the first floor having an area of 737 sq. feet consists of two rooms, one kitchen, one bathroom and one latrine and petitioner is using one room as his bed room, while other room is used as drawing cum dining room. The second floor having an area of 417 sq. ft. is a barsati floor which consists of a small room and is used as a store room.

32. In the rejoinder affidavit, the respondent no. 1 has claimed that mezzanine floor referred by the petitioner is in fact a regular floor having one big hall with toilet and can be used as two rooms by putting a wooden partition or as one big hall for all purposes, residential or commercial. Similarly, the first floor is having three rooms, kitchen, bathroom & latrine along with big courtyard and the barsati floor referred by the petitioner consist of big rooms of sufficient measurement and a toilet and could be used for any purpose including for the purpose of running the clinic.

33. It may be noted that the respondent no. 1 has not placed on record any counter site plan to show that mezzanine floor has one big hall or the first floor consists of three rooms or second floor or barsati floor is having big rooms. So far the contention of the respondent no. 1 that mezzanine floor can be used for commercial purposes is concerned, the petitioner has stated that upper floors including the mezzanine floor are being used by him and his Eviction Petition No. E­122/10 Page 16 of 22 family members for residential purposes. As such, the petitioner cannot be forced to disturb his private life by running the clinic at mezzanine floor, even if same is approved for commercial purposes in order to accommodate the respondent in the suit premises.

34. It is a common knowledge that the ground floor is more suitable and convenient for the purpose of running a clinic in terms of attending the patients as well as in providing medical facilities in urgent and emergent situations. Therefore, the upper floors cannot be said to be suitable and convenient for running the clinic by the petitioner and his son, more so in view of the fact that upper floors are being used by the petitioner and his family for residential purposes. It has been held in Sudesh Kumar Soni & Anr. Vs. Prabha Khanna & Anr., 153 (2008) DLT 652 that, "It is not for tenant to dictate terms to landlord as to how else he can adjust himself without getting possession of tenanted premises - suitability has to be seen for convenience of landlord and his family members and on the basis of circumstances including their profession, vocation, style of living, habit and background." It is also a settled law that landlord is the master of his choice and tenant cannot suggest the landlord how he should use the space available with him. It has been held in Sait Nagjee Purushotham and Company Ltd. Vs. Vimalabai Prabhulal and others, 2005 8 SCC 252 by the Hon'ble Apex Court that, "It is not tenant who can dictate terms to landlord and advice him what he should do and what he Eviction Petition No. E­122/10 Page 17 of 22 should not­It is always the privilege of landlord to choose the nature and place of business."

35. The next contention of respondent no. 1 is that in 2007, the petitioner started a multi­facility clinic in the name of Ansh where the petitioner used to provide the service of himself as consultant physiotherapist, service of Dr. Alok Bhatnagar as dental surgeon and of Dr. Nidhi Bhatnagar as Audiologist and speech language pathologist and all these 3 doctors were comfortably accommodated at the space available in G­16, Hauz Khas Enclave, New Delhi, however Dr. Nidhi is no more there and so the space occupied by her is also available to the petitioner. Again, there is no merit in this contention of the respondent no. 1 because admittedly, the petitioner is running a physiotherapy clinic under the name and style of Ansh Multi Specialty Clinic in shop No. 3 measuring 23'­0"x11'.9" on the ground floor in the property No. G­16, Hauz Khas Enclave, New Delhi and on leaving of one of the doctor from Ansh Multi Specialty being run by the petitioner, it cannot be said that the petitioner is having sufficient space on the ground floor for running his clinic as the space occupied by Dr. Nidhi is also available to the petitioner. The fact of the matter remains that petitioner is running his physiotherapy clinic in a small shop measuring 23'­0"x11'.9" and if one of the doctor has left the said clinic it does not increase the area of the shop available to the petitioner on the ground floor.

36. The Ld. Counsel for the respondent has also submitted that son of the petitioner has got employment in ITS CDSR Dental College and Hospital at Eviction Petition No. E­122/10 Page 18 of 22 Muradnagar, Distt. Ghaziabad, UP where he has also been allotted the staff quarter and, therefore, need of the son of the petitioner ceased to exist.

37. The aforesaid fact has not been disputed by the petitioner, but the Ld. Counsel for the petitioner has vehemently argued that son of the petitioner is not supposed to remain idle till the suit premises is vacated by the respondent and he has to earn his livelihood by engaging himself somewhere else and he cannot wait till the premises are vacated. He has further argued that the employment of the son of the petitioner does not dilute the bonafide requirement of the petitioner for starting a clinic by his son.

38. There is substance in the argument of the Ld. Counsel for the petitioner. Dr. Alok Bhatnagar, who is son of the petitioner has completed his BDS in 2005 and MDS in 2010 in Dental Surgery is not supposed to sit idle and to wait to start his practice till the premises are vacated by the respondent. He has to do some job in order to earn his livelihood and to live a dignified life. Therefore, the respondent cannot take a plea that since the son of the petitioner has been employed at ITS CDSR Dental College and Hospital at Muradnagar, Distt. Ghaziabad, UP and has also been allotted a staff quarter, the requirement of the petitioner for additional space for starting a dental clinic by his son who is a dental surgeon has diminished.

39. Another contention of the respondent no. 1 is that the petitioner has also filed an eviction petition against Shyam Nath, Pan Seller for the premises which in fact a show window of 6 ft. x 4 ft. only and is of no use for the Eviction Petition No. E­122/10 Page 19 of 22 petitioner to be used as clinic without reconstruction and it shows malafide intention of the petitioner in filing the present petition. Again, this contention is devoid of any substance. The petitioner wants to expand and extend his physiotherapy clinic which he is running in a shop on the ground floor and further his son Dr. Alok Bhatnagar who is a dental surgeon also wants to start his clinic and they both require their personal office, conference room, waiting room of their patients etc. and, therefore, he requires the entire ground floor of the property in question. If the petitioner wants to expand his clinic with latest equipments etc. or wants additional space for starting a separate clinic for his son who is a dental surgeon, no malafide can be attributed to the petitioner in doing so.

40. In view of foregoing discussions, the space available with the petitioner on the ground floor cannot be said to be sufficient for the requirement of the petitioner for running clinic by him and by his son and a huge space is required by the petitioner for the same. The show window measuring 6"x4" occupied by other tenant Sh. Shyam Nath being situated on the ground floor can be combined by the petitioner with the other shops on the ground floor to make a huge space for expanding his clinic as well as for dental clinic to be run by his son. Therefore, it cannot be said that the show window measuring 6"x4" occupied by other tenant Shyam Nath is of no use for the petitioner or present petition is malafide.

41. So far the contention of the respondent no. 1 that the petitioner is Eviction Petition No. E­122/10 Page 20 of 22 only interested in getting the premises vacated to let out the same at higher rent or to force the respondent to pay very high rent is concerned, first of all there is nothing on record that the petitioner has ever asked the enhancement of rentals from the respondent. Moreover, Section 19 of the DRC Act takes care of this apprehension of the respondent no. 1 that the petitioner wants to let out the suit premises at higher rentals as by virtue of Section 19 of DRC Act, the landlord cannot re­let or sell the premises at higher prices before expiry of 3 years from getting eviction order and in case the landlord after the eviction order re­let or sell the same, the tenant has right to re­enter the suit premises.

42. In the light of aforesaid discussions, the respondent no. 1 has miserably failed to raise any triable issue in leave to defend application. On the other hand, petitioner has established that he requires the suit premises bonafide for expanding his clinic as well as for starting a separate clinic by his son who is a dental surgeon. The respondent no. 1 has also failed to show that the petitioner or his son is having any other suitable alternative commercial accommodation except the property in question for running their clinic.

43. Accordingly, the application seeking leave to defend the petition moved by the respondent no. 1 is dismissed and an eviction order is passed u/s 14 (1) (e) r/w Section 25­B of DRC Act in favour of the petitioner and against the respondents in respect of one shop bearing Shop No. 1 measuring 21.5' x 12.6'x12.6' approximately on the ground floor in property No. G­16, Hauz Eviction Petition No. E­122/10 Page 21 of 22 Khas Enclave, New Delhi, more specifically shown in red colour in site plan Ex. C­1 (exhibited today while passing the order). However, it is made clear that the petitioner shall not be entitled to get the eviction order executed before expiry of 6 months running from today. No order as to cost.

File be consigned to Record Room. 

Announced in the open court                          (Balwant Rai Bansal)
on 13th  July, 2012                             ARC(South), Saket, New Delhi  




Eviction Petition No. E­122/10                                             Page 22 of 22
 E. No. 122/10

13.07.2012
                    Present: Petitioner in person.
                             None for the respondents.

Vide my separate order dictated and announced in the open Court, the leave to defend application filed by the respondent no. 1 is dismissed.

The respondent no. 2 has not filed leave to defend application despite due service of summons. As per section 25­B (4) of DRC Act, if the tenant does not file an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant.

Accordingly, an eviction order u/s 14 (1) (e) r/w section 25­B of DRC Act is passed in favour of the petitioner and against the respondents in respect of the suit premises.

However, it is made clear that the petitioner shall not be entitled to get the eviction order executed before expiry of 6 months running from today. No order as to costs.

File be consigned to Record Room.

(B.R. Bansal) CCJ/ ARC/ ACJ(South), New Delhi 13.07.2012 Eviction Petition No. E­122/10 Page 23 of 22