Delhi District Court
Smt. Santosh Kumari Bhatt vs Sh. Krishan Kumar on 23 January, 2019
IN THE COURT OF SH. AJAY NAGAR, COMMERCIAL CIVIL
JUDGE-CUM-ADDITIONAL RENT CONTROLLER (WEST),
TIS HAZARI COURTS, DELHI.
ARC No- 192/2017
Smt. Santosh Kumari Bhatt
Wd/o Late Sh. Om Prakash Bhatt
R/o A-6, Hari Nagar,
New Delhi-110064.
....Petitioner
VERSUS
Sh. Krishan Kumar
S/o Shri Ram Prakash
Shop in Property No.A-6,
Shop No. 3, Hari Nagar,
New Delhi-110064.
.... Respondent
Date of filing : 12.12.2017
Date of order : 23.01.2019
ORDER ON LEAVE TO DEFEND
1. The present petition U/Sec. 14 (1) (e) of Delhi Rent Control Act, 1958 (hereinafter referred to as 'DRC Act') has been filed by the petitioner against the respondent in respect of shop measuring 8 ft x 8 ft in property bearing no. A-6, Hari Nagar, New Delhi-110064, more conspicuously shown within red lines in the site plan attached with the petition (hereinafter referred to as 'tenanted premises') on the ground of bonafide requirement.
ARC No. 192/17 Santosh Kumari Bhatt Vs Krishan Kumar Page 1 /202. It is stated that property bearing No. A-6, Hari Nagar, New Delhi- 110064 (hereinafter referred to as 'suit property') is a single story property measuring 220 sq. yds. which was purchased by Late Sh. Om Prakash Bhatt from Sh. Diwan Swaroop Mal vide registered sale deed dated 06.01.1951 thereafter Late Sh. Om Prakash Bhatt constructed a single storey house having shops and residence.
That Late Sh. Om Prakash Bhatt died on 23.06.2012 at Delhi leaving behind his widow, i.e. the petitioner and three sons Sh. Raj Kamal Bhatt, Shri Ashok Kumar Bhatt and Sh. Mukesh Kamal Bhatt and one daughter Smt. Kamlesh Khanna. After the demise of Late Sh. Om Prakash Bhatt, all the sons and daughter executed a relinquishment deed dated 25.09.2014 and thus petitioner became absolute owner thereof.
That the premises occupied by the respondent/tenant is required by the petitioner bonafide for using the same by his son Sh. Raj Kumar Bhatt who is a retired Engineer and wants to open his office of consultancy as he has no other place to open his office for consultancy. That Sh. Raj Kumar Bhatt is already working as a consultant with various companies and it is very difficult to handle with those companies without office.
That the premises measuring being used by Sh. Raj Kumar Bhatt for his office is very small in size and as such adjoining tenanted premises is required to have proper office which is 8ft. X 11 ft. That the petitioner is unable to appoint any employee to assist him to work on computer as many of the drawings etc. are to be drawn on computer and in the proper absence of the space, the petitioner is unable to run his consultancy office properly. That the petitioner shall remove the intervening walls to have appropriate office for her son.
That there are six shops in the suit property and the rest of the ARC No. 192/17 Santosh Kumari Bhatt Vs Krishan Kumar Page 2 /20 portion is a residential. One shop is being used by grandson of the petitioner measuring 8 ft. x 11 ft. as a garment shop and one of the shops measuring 13 ft. x 11 ft. is also being used as a boutique cum garment shop by the daughter in law of the petitioner Smt. Kiran Bhatt and one shop measuring 8 ft. x 11 ft. is being used by Sh. Raj Kumar Bhatt for his small office and the other three shops are in occupation of the tenants. The petitioner has sought vacation of all the three tenants for her three sons who are retired. One of the sons Sh. Raj Kamal Bhatt requires it as regular office and the other son Sh. Ashok Kumar Bhatt has retired from MTNL and Sh. Mukesh Kumar Bhatt has retired as Photo Journalist.
Lastly, it is prayed by the petitioner to pass an eviction order in respect of the tenanted premises.
3. Notice of this eviction petition was sent to the respondent in the prescribed format which was duly served on the respondent. In response to which the respondent/tenant filed leave to defend application accompanied by affidavit raising various pleas.
4. Reply to leave to defend filed by the petitioner inter-alia stating that the affidavit of the respondent does not disclose any defence or triable issue which entitle him to contest the eviction petition and disentitle the petitioner for obtaining an order for eviction. It is also submitted that the defence taken by the respondent is moon shine and bogus which requires no trial in the matter.
5. It is expedient to discuss certain guidelines in respect of leave to defend before dealing with the present case which is as under:-
ARC No. 192/17 Santosh Kumari Bhatt Vs Krishan Kumar Page 3 /20THE LAW:
It is well settled that burden placed on a tenant is light and limited in that if the affidavit filed by him discloses such facts as would disentitle the landlord from obtaining an order for the recovery of the possession of the premises on the ground specified in clause (e) are good enough to grant leave to defend.
It is further well settled that at a stage when the tenant seeks leave to defend, it is enough if he prima-facie makes out a case by disclosing such facts as would disentitle the landlord from obtaining an order of eviction. Unless the tenant at that stage itself establishes a strong case as would non-suit the landlord leave to defend should not be granted when it is not the requirement of Section 25 B(5). A leave to defend sought for cannot also be granted for mere asking or in a routine manner which will defeat the very object of the special provisions contained in Chapter IIIA of the Act, leave to defend cannot be refused where an eviction petition is filed on a mere design or desire of landlord to recover possession of the premises from a tenant. Refusing to grant leave in such a case leads to eviction of a tenant summarily resulting in great hardship to him and his family members, if any, although he could establish if only leave is granted that a landlord would be disentitled for an order of eviction.
It is also well settled at the stage of granting leave to defend, parties rely on affidavits in support of the rival contentions. Assertions and counter assertions made in affidavits may not afford safe and acceptable evidence so as to arrive at an affirmative conclusion one way or the other unless there is a strong and acceptable evidence available to show that the facts disclosed in the application filed by the tenant seeking leave to defend ARC No. 192/17 Santosh Kumari Bhatt Vs Krishan Kumar Page 4 /20 where either frivolous, untenable or most unreasonable.
It is also well settled that when a possession is sought on the ground of personal requirement, a landlord has to establish his need and not his mere desire.
In short and substance wholly frivolous and totally untenable defence may not entitle a tenant to leave to defend but when a triable issue is raised a duty is placed on the rent controller by the statute itself to grant leave. It would expeditious disposal of eviction petition so that a landlord need not wait and suffer for long time. On the other hand, when a tenant is denied leave to defend although he had fair chance to prove his defence, will suffer great hardship. In this view a balanced view is to be taken having regard to competing claims.
There appears to be a mistaken belief that unless the tenant at that stage makes out such a strong case as would non-suit the landlord, leave to defend cannot be granted. This approach is wholly improper. When leave to defend is sought for, the tenant must make out such a prima facie case raising such pleas that a triable issue would emerge and that in our opinion should be sufficient to grant leave. The test is the test of a triable issue and not the final success in the action.
6. I have carefully and minutely gone through the petition, leave to defend application accompanied by affidavit, reply, documents and material on record as well as the written submissions and case law relied upon.
7. It is expedient to reproduce the Section 14 (1)(e) of DRC Act which is as under:
ARC No. 192/17 Santosh Kumari Bhatt Vs Krishan Kumar Page 5 /20"Section-14. Protection of tenant against eviction- (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by court or any controller in favour of the landlord against a tenant:
Provided that the controller may, on an application made to him in the prescribed manner, make an order for recovery of possession of the premises on one or more of the following grounds only, namely:-
"That the premises are required bonafide by the landlord for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation."
As such, followings are the ingredients of Section 14 (1)(e) of D.R.C. Act:-
(i) There should be relationship of landlord and tenant between the petitioner and respondent.
(ii) Landlord should be the owner of the tenanted premises.
(iii) That the premises are required bonafide by the landlord for himself/herself or for any member of his/her family dependent upon him/her.ARC No. 192/17 Santosh Kumari Bhatt Vs Krishan Kumar Page 6 /20
(iv) Landlord should not have other reasonable suitable accommodation.
8. Let us discuss the ingredients of Sec. 14(1)(e) of D.R.C. Act:-
(i) & (ii). Landlordship and Ownership:-
9. One of the pleas of the respondent is that the petitioner is not the owner of the tenanted premises and he has also claimed that the actual owner of the property was Sh. Om Prakash Bhatt, who let out the tenanted premises to the respondent's father Sh. Ram Prakash in 1974 and after the death of father of respondent, the owner of the tenanted premises issued rent receipts to the respondent Sh. Krishan Kumar.
On the other hand, petitioner has replied that tenanted premises was let out by the husband of the petitioner to the father of respondent in 1974.
Perusal of record shows that the respondent has admitted the landlordship as well as ownership of husband of the petitioner, but the respondent has not admitted the ownership and landlordship of the petitioner. Perusal of record also shows that the respondent has admitted that after the death of her husband, the owner of tenanted premises issued rent receipts to the respondent.
In case titled as Jiwan Lal Vs. Gurdial Kaur & Ors. 1995 RLR 162 a Bench of Hon'ble High Court of Delhi while dealing with the concept of ownership in a pending eviction petition under Section 14(1)(e) of the DRC Act had noted as follows:
"There is a tendency on the part of tenants to deny ownership in cases under Section 14(1)(e). To test the substance of such a plea on the part of the tenants the ARC No. 192/17 Santosh Kumari Bhatt Vs Krishan Kumar Page 7 /20 Courts have insisted that they should state who else is the owner of the premises if not the petitioner. In the present case it is not said as to who else is the owner. Further these cases under Section 14(1)(e) are not title cases involving disputes of title to the property. Ownership is not to be proved in absolute terms. The respondent does not claim the owner of the premises."
Further, in the case titled as Smt. Shanti Sharma & Ors. Vs Smt Ved Prabha & ors 1987 AIR 2028, the Hon'ble Supreme Court observed : -
"That the meaning of term 'owner' is vis a vis the tenant i.e. the owner should be something more than the tenant."
10. It is also well settled that the petitioner should be something more than the tenant and the petitioner need not prove her ownership in absolute terms. It is sufficient for the petitioner to prove or to show that she is something more than a tenant. Moreover, the petitioner has placed on record relinquishment deed executed by her family members in her favour which is a registered document. In my view, the petitioner has been able to prove that she is something more than the respondent.
As such, this contention of the respondent in respect of ownership and landlordship of the petitioner does not raise any triable issue which disentitle the petitioner to obtain the eviction order.
(iii) & (iv). BONAFIDE REQUIREMENT AND ALTERNATIVE ACCOMMODATION:-
11. It is expedient to discuss some case laws before dealing with these ingredients which are as under:-
ARC No. 192/17 Santosh Kumari Bhatt Vs Krishan Kumar Page 8 /20In the case titled as "Mittar Sain Vs Rajesh Kumar" passed in RC Revision 196/2013 and CM 8431/2013 passed by the Hon'ble High Court of Delhi, the relevant portion is as under:-
"14. On the issue of alternate accommodation, this court is of the view that the reliance by the tenant on the cases of S.M. Mehra, Santosh Devi Soni and Liaq Ahmad (Supra) are misplaced. This court is of the view that decision in the said cases were given in the peculiar set of facts and such decisions would not be applicable to the present case as the facts are entirely different. Moreover, as has been relied upon by the Ld. Counsel for the landlord, in the case of Madan Lal Gupta (Supra) the Hon'ble Supreme Court has held that neither Santosh Devi Soni (Supra) nor Liaq Ahmad (Supra) laid down any principle of law, it was further observed in these cases, certain orders were passed on the facts arising in them."
In the case titled as Madan Lal Gupta Vs Ravinder Kumar passed in SLP (Civil) 10729/2000 passed by the Hon'ble Apex Court, the Hon'ble Apex Court inter-alia observed as under:-
"However, the learned Counsel for the petitioners sought to rely upon two decisions of this court in Santosh Devi Soni Vs Chand Kiran, J.T 2000 (3) SC 397, and Liaq Ahmad ORS Vs Shri Habeeb Ur Rehman, JT 2000 (5) SC 611. Neither of these two decisions set down any principle of law so as to call for interference by us. In these two cases on the facts arising in the case certain orders have been passed by this court."
In the case titled as Sudesh Kumar Soni & Ors. Vs. Prabha Khanna & Ors. 153 (2008) DLT 652 it was observed that:-
"24. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona ARC No. 192/17 Santosh Kumari Bhatt Vs Krishan Kumar Page 9 /20 fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself.
25. Suitability has to be seen from the convenience of the landlord and his family members and on the basis of the circumstances including their profession, vocation, style of living, habits and background. Landlord is the best judge of his residential requirement".
In the case titled as Ragavendra Kumar Vs Firm Prem Machinery AIR 2000 SC 534, it was observed as under:-
"It is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter, (See: Prativa Devi (Smt.) v. T.K Krishnan, [1996] 5 SCC
353. In the case in hand the plaintiff-landlord wanted eviction of the tenant from the suit premises for starting his business as it was suitable and it cannot be faulted."
In the case titled as Sarla Ahuja Vs United India Insurance Co. Ltd. AIR 1999 SC 100 , the Hon'ble Supreme Court has held that:
"The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord in bona fide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to ARC No. 192/17 Santosh Kumari Bhatt Vs Krishan Kumar Page 10 /20 make an endeavour as to how else the landlord could have adjusted himself."
In Shiv Sarup Gupta Vs Dr. Mahesh Chand Gupta AIR 1999 SC 2507, at pg-2512 in para 14 & 15, the Hon'ble Supreme Court held that:-
"14. The availability of an alternate accommodation with the landlord i.e. an accommodation other than the one in occupation of the tenant wherefrom he is sought to be evicted has a dual relevancy. Firstly, the availability of another accommodation, suitable and convenient in all respects as the suit accommodation, may have an adverse bearing on the finding as to bonafides of the landlord if he unreasonably refuses to occupy the available premises to satisfy his alleged need. Availability of such circumstance would enable the Court drawing an inference that the need of the landlord was not a felt need or the state of mind of the landlord was not honest, sincere, and natural. Secondly, another principal ingredient of Clause (e) of Sub-section (1) of Section 14 which speaks of non- availability of any other reasonably suitable residential accommodation to the landlord, would not be satisfied. Wherever another residential accommodation is shown to exist as available than the court has to ask the landlord why he is not occupying such other available accommodation to satisfy his need. The landlord may convince the court that the alternate residential accommodation though available is still of no consequence as the same is not reasonably suitable to satisfy the felt need which the landlord has succeeded in demonstrating objectively to exist. Needless to say that an alternate accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction. Convenience and safety of the landlord and his family members would be relevant fact Ors. While considering the totality of the circumstances, the court may keep in view the profession or vocation of the landlord and his family members, their style of living, their habits and the background wherefrom they come."ARC No. 192/17 Santosh Kumari Bhatt Vs Krishan Kumar Page 11 /20
In the case titled as Metropolitan Book Company Ltd. vs. Ajay Rastogi & Ors. Passed in RC. Rev. No. 484/2013, the Hon'ble High Court of Delhi observed as under:-
"Even assuming the other properties available, and which actually they are not as stated below, these other properties situated far from the present residence of respondent no. 1 and his family members cannot be considered as alternative suitable accommodation."
In the case titled as Ragavendra Kumar Vs Firm Prem Machinery AIR 2000 SC 534, it was observed as under:-
"It is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter, (See: Prativa Devi (Smt.) v. T.K Krishnan, [1996] 5 SCC 353. In the case in hand the plaintiff-landlord wanted eviction of the tenant from the suit premises for starting his business as it was suitable and it cannot be faulted."
12. As such, in view of the observations made by the Hon'ble Superior Courts, it is not mandatory for the Rent Controller to grant the leave to defend in each and every case where additional accommodation is sought by the petitioner/landlord.
13. Moreover, the contention of respondent/tenant does not have any merit in stating that the aforesaid properties are more suitable for the petitioner as the landlord is the best judge of his requirement and the tenant can not dictate the terms to the petitioner to use a particular property and in a particular manner.
ARC No. 192/17 Santosh Kumari Bhatt Vs Krishan Kumar Page 12 /2014. Perusal of record shows that the respondent has alleged a number of properties available with the petitioner. On the other hand, petitioner has not given any exhaustive and specific details of such properties alleged to be owned by the petitioner. However, the perusal of record clearly shows that shop/ premises available with the petitioner is either already in the possession of tenants or other family members. It is well settled that the properties should be available with the landlord/petitioner to be used and if the property even if, it is owned by the landlord/petitioner but not available with the petitioner/landlord for any reasons cannot be said to be available with the petitioner/landlord for fulfillment of bonafide requirement. And in such sort of cases, it cannot be said that the petitioner/landlord is having alternative reasonably suitable accommodation. It is also pertinent to mention that if the petitioner/landlord is having the residential premises but he has filed the eviction petition for commercial premises under bonafide requirement, it cannot be said that the petitioner is having the alternative reasonably suitable commercial premises. Moreover, the property/ premises should be reasonably suitable for the purposes of satisfying the bonafide requirement as mentioned in the eviction petition. And the petitioner/landlord is the best judge to determine his requirement and the respondent/ tenant does not have any right to dictate the landlord/petitioner to use a particular property in a particular manner.
15. Keeping in view the material on record and well settled proposition of law, this court is of the considered view that the petitioner is not having alternative reasonably commercial accommodation to satisfy the bonafide requirement as mentioned in the eviction petition.
ARC No. 192/17 Santosh Kumari Bhatt Vs Krishan Kumar Page 13 /2016. The other issue raised by the respondent /tenant is that the present petition has been filed U/Sec. 14(1)(e) D.R.C. Act and bonafide requirement U/Sec. 14(1)(e) D.R.C Act is not applicable to the commercial premises.
On the other hand, the reply to aforesaid issue has been placed on record by the petitioner.
Perusal of record shows that it is well settled proposition of law that the eviction petition can be filed U/Sec. 14(1)(e) of D.R.C. Act even for commercial premises as definition of 14(1)(e) was partially struck down by the Hon'ble Supreme Court in Satyawati Sharma (10) by LRs Vs. Union of India Appeal (Civil) 1897 of 2003 on 16 th of April, 2008 and now the definition of 14(1)(e) is as under:-
"that the premises are required bonafide by the landlord for himself or for any member of his family dependent upon him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation."
As such, perusal of definition manifestly shows that residential word has been taken away from the definition of 14(1)(e) D.R.C. Act. Hence, this contention of the respondent does not raise any triable issue.
17. One of the contentions of the respondent is that the petitioner in her petition has not stated how much space she needs for her residence and for her family members and she has also not given the reasons that the accommodation already available is not suitable than the tenanted premises. That the tenanted premises is a very small shop and remaining five commercial shops available with the petitioner are bigger.
ARC No. 192/17 Santosh Kumari Bhatt Vs Krishan Kumar Page 14 /20Heard. It is well settled proposition of law that the landlord is the best judge of his/her requirement and the respondent/tenant cannot dictate the terms to the petitioner/landlord and the respondent/ tenant cannot direct the landlord to use a particular premises in a particular manner.
18. Next contention of the respondent is that in case of additional requirement, liberty should be given to the respondent to contest the matter.
I have perused the reply as well as the well settled proposition of law. In my view, this contention of the respondent does not have any force as it is well settled proposition of the court that the court need not give the permission to contest the petition in all cases where additional accommodation is sought.
As such, this contention of the respondent does not have any merits.
19. Next contention of the respondent /tenant is that there is malafide and not bonafide in filing such eviction petition. That respondent /tenant further claims that the intention behind filing such eviction petition is merely to evict the tenant/respondent.
On the other hand, petitioner has submitted that there is no malafide on the part of petitioner in respect of eviction from the tenanted shop and the petitioner needs this tenanted premises bonafide. In my considered view, the apprehension of the respondent is baseless as there is always Sec. 19 on the statute for the rescue of respondent in case petitioner does not occupy the tenanted shop after eviction.
"19. Recovery of possession for occupation and re-entry. -
(1) Where a landlord recovers possession of any premises ARC No. 192/17 Santosh Kumari Bhatt Vs Krishan Kumar Page 15 /20 from the tenant in pursuance of an order made under clause (c) of the proviso to sub-section (1) of section 14 [or under sections 14A, 14B, 14C, 148 and 21], the landlord shall not, except with the permission of the Controller, obtained in the prescribed manner, re-let the whole or any part of the premises within three years from the date of obtaining such possession, and in granting such permission, the Controller may direct the landlord to put such evicted tenant in possession of the premises. (2) Where a landlord recovers possession of any premises as aforesaid and the premises are not occupied by the landlord or by the person for whose benefit the premises are held, within two months of obtaining such possession, or the premises having been so occupied are, at any time within three years from the date of obtaining possession, re-let to any person other than the evicted tenant without obtaining the permission of the Controller under sub-
section (1) or the possession of such premises is transferred to another person for reasons which do not appear to the Controller to be bona fide, the Controller may, on an application made on him in this behalf by such evicted tenant within such time as may be prescribed, direct the landlord to put the tenant in possession of the premises or to pay him such compensation as the Controller thinks fit."
In the case titled as Ramesh Kumar & Ors. vs. Smt. Neelam Dawar & Ors. Passed in RC (Rev.) 44/2014, C.M. Application 1313- 14/2014, the Hon'ble High Court of Delhi inter-alia observed as under:-
"The tenant's apprehension that upon eviction the tenanted premises would be let out at a higher rent was found to be baseless and prematured since such contigency has been taken care of U/Sec. 19 of the Act."
As such, statute clearly lays down that the petitioner/ landlord has to occupy the vacated tenanted premises within two months and the landlord cannot re-let to any person other than the evicted tenant within three years ARC No. 192/17 Santosh Kumari Bhatt Vs Krishan Kumar Page 16 /20 from the date of obtaining possession and in case he does so, the evicted tenant may approach the Rent Controller seeking direction to the landlord to put the tenant in possession of the premises.
20. In my considered view, the apprehension of the respondent no.1/tenant does not have any merit at all as such Section 19 of DRC Act is always there for rescue of respondent no.1/tenant in case petitioner does not occupy the tenanted shop within two months and in case petitioner re- let it to another tenant within three years. As such, this issue also can not be treated as triable issue.
21. One of the pleas of the respondent is that the son of the petitioner for whom the petitioner is seeking tenanted premises is not unemployed and he is a retired Engineer from Government service and getting the government pension and the son of the petitioner is working in WAPCOS Ltd.
In my view, this contention of the respondent also does not have any force in view of settled proposition of law.
In the judgment of Hon'ble Supreme Court in case titled as Raghunath G. Panhale (dead) through L.Rs. Vs. Chagan Lal Sundarji & Co. (1999) 8 SCC 1 wherein it was held that:-
"It will be seen that the trial court and the appellate court had clearly erred in law. They practically equated the test of "need or requirement" to be equivalent to "dire or absolute or compelling necessity". According to them, if the plaintiff had not permanently lost his job on account of the lockout or if he had not resigned his job, he could not be treated as a person without any means of livelihood, as contended by him and hence not entitled to an order for possession of the shop. This test, in our view, is not ARC No. 192/17 Santosh Kumari Bhatt Vs Krishan Kumar Page 17 /20 the proper test. A landlord need not lose his existing job nor resign it nor reach a level of starvation to contemplate that he must get possession of his premises for establishing a business. The manner in which the courts have gone into the meaning of "lockout" in the Industrial Disputes Act, 1947 appears to us to be nothing but a perverse approach to the problem. One cannot imagine that a landlord who is in service should first resign his job and wait for the unknown and uncertain result of a long- drawn litigation. If he resigned his job, he might indeed end up in utter poverty. Joblessness is not a condition precedent for seeking to get back one's premises. For that matter assuming the landlord was in a job and had not resigned it or assuming that pending the long-drawn litigation he started some other temporary water business to sustain himself, that would not be an indication that the need for establishing a grocery shop was not a bona fide or a reasonable requirement or that it was motivated or was a mere design to evict the tenant".
22. In view of observations made by Hon'ble Supreme Court; it is well settled that a person is not supposed to remain unemployed till the disposal of the eviction petition. Furthermore, this Court is of the opinion that there is nothing malafide if the son of the petitioner wants to start/expand his own office to the tenanted premises. Rather, the said requirement seems to be bonafide as he wants to earn his livelihood and the tenant cannot stop the landlord/family member of landlord from starting any business/office for livelihood. The bonafide requirement of a landlord does not become malafide just because he wants to expand his office for his livelihood. The consequent hardship to tenant from eviction order could also not convert otherwise bonafide requirement into malafide requirement. Furthermore, even it is presumed for the sake of arguments that son of the petitioner is already working somewhere independently, it does not show the malafide on the part of petitioner or her son as it is a right of every person to excel in his/her life and a person is not supposed to be remained ARC No. 192/17 Santosh Kumari Bhatt Vs Krishan Kumar Page 18 /20 unemployed or in the same position till the disposal of the eviction petition.
As such, it is not a triable issue.
23. The another contention of the respondent is that he is an old tenant in the tenanted premises and carrying on his business therein which is only source of his livelihood.
In the case titled as Raj Kumar Khanna vs. Parduman Singh passed in RC Rev. No. 548/2012 and C.M. No. 18936/2012 on 04.10.2013; the Hon'ble High court of Delhi observed as under:-
"17. In the case of 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 moved 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 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 sole determinative factor."
24. In my view this plea of the respondent certainly attracts the sympathy of this court but it is well settled that in deciding the present eviction proceeding, this kind of plea need not be weighed by the court.
CONCLUSION:
25. In view of the above discussion, I am of the considered opinion that no purpose would be served, even if, the petitioner is compelled to appear in the witness box the position would be no different than it is today. For ARC No. 192/17 Santosh Kumari Bhatt Vs Krishan Kumar Page 19 /20 this reason also, I find no triable issue in the leave to defend application of the respondent. The application for leave to defend filed by the respondent is thus, dismissed.
26. Hence, as a consequence thereof, an eviction order is passed U/s. 14 (1) (e) of DRC Act in favour of petitioner and against the respondent in respect of shop measuring 8 ft x 8 ft in property bearing no. A-6, Hari Nagar, New Delhi-110064, more conspicuously shown within red lines in the site plan attached with the petition which is marked as Mark- P1 (Put by the court for the purpose of identification).
27. However, this order shall not be operative before the expiry of six months from today keeping in view Sec. 14(7) of D.R.C. Act.
File be consigned to the Record Room after due compliance.
Announced in the open Court
on 23rd January, 2019 Digitally
signed by
(This order contains 20 pages)
AJAY AJAY NAGAR
Date:
NAGAR 2019.01.23
16:55:04
+0530
(Ajay Nagar)
Commercial Civil Judge-Cum
Additional Rent Controller,
West District, THC, Delhi.
ARC No. 192/17 Santosh Kumari Bhatt Vs Krishan Kumar Page 20 /20