Delhi District Court
Smt. Shakuntla vs Salim on 23 December, 2021
IN THE COURT OF MS. SNIGDHA SARVARIA,
ACJ-cum-CCJ-cum-ARC, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI.
ARC No : 297/2018
Smt. Shakuntla
W/o Sh. Jai Singh
R/o A-3/39, Kabir Nagar,
Shahdara, Delhi-94 ......... Petitioner
Versus.
Salim
S/o Late Mehmood
Shop No. 3, Ground Floor,
A-40, New No. A-7/1,
Main 100 Foota Road,
Kabir Nagar, Shahdara, Delhi-93 ......... Respondent
Order on application under S. 25 (B) of The Delhi Rent Control Act, 1958 seeking leave to defend
1. Vide this order I shall decide the application under S. 25 (B) of The Delhi Rent Control Act, 1958 (DRC Act) seeking leave to defend filed by the respondent.
2. The brief facts of the case are that the petitioner has filed the present eviction petition under S. 14 (1) (e) r/w Section 25 (b) of the Delhi Rent Control Act seeking eviction of respondent in respect of premises i.e. Shop No. 3 at Ground Floor, in property bearing No. A-40, New No. A-7/1, Main 100 Foota Road, Kabir Nagar, Shahdara, Delhi- 93 on the grounds that the petitioner, who is the owner of the property in question, requires the aforesaid tenanted premises for running a boutique therein for herself and there is no other reasonable accommodation available to the petitioner for the same. It is stated that petitioner had purchased the above mentioned property from her father-in-law (since deceased) namely Sh. Kashi Ram vide registered sale deed dated 16.04.12 for a consideration of Rs.27,50,000/- and the respondent was tenant under the tenancy of Sh. Kashi Ram. Sh. Kashi Ram instructed the respondent to pay the rent in future to the petitioner but the respondent did not comply with the same. The petitioner requested ARC No : 297/2018 Smt. Shakuntla Vs. Salim 1 of 12 respondent on several occasions to vacate the aforesaid shop but the respondent lingered the matter by giving false assurances of vacating the same and even did not pay any rent to her. It is stated that petitioner served a legal notice dated 17.07.15, through her counsel, upon the respondent terminating the tenancy, for making payment of arrears of rent and calling him to vacate the aforesaid shop, to which respondent sent reply dated 06.08.15 to the petitioner. Thereafter, Sh. Kashi Ram served a legal notice dated 24.03.16 re-intimating the respondent that he has sold the property, in which the respondent's shop is situated, to the petitioner vide registered sale deed dated 16.04.12. It is stated that respondent has not paid the rent of the shop in his occupation w.e.f. April, 2012 till date. The petitioner's family consists of her husband, two sons namely Pardeep and Sandeep and one daughter, who has been married and is residing at her matrimonial home. Pardeep is living separately from the family, whereas, Sandeep is running a milk/sweet shop bearing no. 1 at the ground floor in the aforesaid property. It is stated that the husband of the petitioner is going to be retired from his job within less than one year or so and the income of her son Sandeep is not sufficient to meet the expenses of his own family consisting of his wife and children, therefore, the petitioner is constrained to open/run a boutique and earn so that the expenses of the family may be met out and for running a boutique, she has no other reasonable accommodation except the aforesaid shop which is under the occupation of respondent. It is prayed that eviction order may be passed in favour of the petitioners and against the respondent qua the aforesaid property/shop.
3. The respondent was summoned vide order dated 20.08.2018 and were served with the summons of this petition on 17.09.2018, thereafter, affidavit seeking leave to defend under S. 25 B of the DRC Act was filed by the respondent on 26.09.2018 and the petitioner filed reply to it on 07.05.2019.
4. In the affidavit seeking leave to defend under S. 25 B of the DRC Act, the respondent has denied the contents of the petition and stated that there is no bonafide requirement to the petitioner and she is well settled and having sufficient space/property/rooms for her need. Petitioner is earning handsome rent from shop no. 2, at Ground Floor, in property bearing No. A-40, New No. A-7/1, Main 100 Foota Road, Kabir Nagar, Shahdara, Delhi-93. It is stated that the petitioner cannot claim the ARC No : 297/2018 Smt. Shakuntla Vs. Salim 2 of 12 premises in question for commercial purpose under the provision of 14 (1) (e) of DRC Act, hence, petition is liable to be rejected. The respondent has been paying rent as well as other charges to the previous landlord without any default. The respondent has been using the tenanted premises to earn his livelihood.
5. The petitioner denied the averments made in the affidavit seeking leave to defend under S. 25 B of the DRC Act of the respondent. It is stated that the respondent has various other properties in the same vicinity viz. Plot no. A7/7, Link Gali, Behind Kashi Ram Doodh Wala, Shahdara and H. No. 10/1, New No. 39, Main Gali No. 1, Kabir Nagar, Shahdara and is having good rental income therefrom.
6. I have heard counsel for the parties, perused the record and have gone through the relevant provisions of the law.
7. The Supreme Court had in "Inderjeet Kaur Vs.Nirpal Singh", [2000]Supp 5 SCR 707, laid down the following guidelines to be followed by the Courts while deciding the applications for leave to contest filed by the tenants under Section 25(4) of the Delhi Rent Control Act,1958:-
"11. As is evident from Section 25B(4) & (5) of the Act, 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) of the proviso to Section 14(1) of the Act, with which we are concerned in this case, are good enough to grant leave to defend.
12................................"
13. We are of the considered view 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. It would not be right approach to say that 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 25B(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 a landlord to recover possession of the premises from a tenant under Clause (e) of the proviso to Sub-section (1) of Section 14, when as a matter of fact the requirement may not be bona fide. 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. 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 were either frivolous, untenable or most unreasonable. Take a case when a possession is sought on the ground of personal requirement, a landlord has to establish his need ARC No : 297/2018 Smt. Shakuntla Vs. Salim 3 of 12 and not his mere desire. The ground under Clause (e) of the proviso to Sub- section (1) of Section 14 enables a landlord to recover possession of the tenanted premises on the ground of his bona fide requirement. This being an enabling provision, essentially the burden is on the landlord to establish his case affirmatively. 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. At the stage of granting leave the real test should be whether facts disclosed in the affidavit filed seeking leave to defend prima facie show that the landlord would be disentitled from obtaining an order of eviction and not whether at the end defence may fail. It is well to remember that when a leave to defend is refused, serious consequences of eviction shall follow and the party seeking leave is denied an opportunity to test the truth of the averments made in the eviction petition by cross-examination. It may also be noted that even in cases where leave is granted provisions are made in this very Chapter for expeditious disposal of eviction petitions. Section 25B(6) states that where leave is granted to a tenant to contest the eviction application, the Controller shall commence the hearing of the application as early as practicable. Section 25B(7) speaks of the procedure to be followed in such cases. Section 25B(8) bars the appeals against an order of recovery of possession except a provision of revision to the High Court. Thus a combined effect of Section 25B(6), (7) and (8) would lead to expeditious disposal of eviction petitions 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.
"14. This Court in Charan Dass Duggal v. Brahma Nand (1983)1SCC301 while dealing with the question in the matter of granting leave to defend to contest the eviction petition filed on the ground of personal requirement, in para 5 has stated thus:
"5. What should be the approach when leave to defend is sought for? 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 (see Santosh Kumar v. Bhai Mool Singh). At the stage of granting the leave parties rely in support of their rival contentions on affidavits and assertions and counter- assertions on affidavits may not afford such incontrovertible evidence to lead to an affirmative conclusion one way or the other. Conceding that when possession is sought for on the ground of personal requirement, an absolute need is not to be satisfied but a mere desire equally is not sufficient. It has to be something more than a mere desire. And being an enabling provision, the burden is on the landlord to establish his case affirmatively. If as it appears in this case, the landlord is staying at Pathankot, that a house is purchased, may be in the name of his sons and daughters, but there may not be an apparent need to return to Delhi in his old age, a triable issue would come into existence and that was sufficient in our opinion to grant leave to defend in this case."
15. In the same judgment, in para 7 it is further observed:
"7. The genesis of our procedural laws is to be traced to principles of natural justice, the principal amongst them being that no one shall suffer civil or evil or pecuniary consequence at his back without giving him an adequate and effective opportunity to participate to disprove the case against him and provide his own case. Summary procedure does not clothe an authority with power to enjoy summary dismissal. Undoubtedly wholly frivolous defence may not entitle a person leave to defend. But equally a triable issue raised, enjoins a duty to grant leave: May be in the end the defence may fail. It is necessary to bear in mind that when leave to defend is refused the party seeking leave is denied an opportunity to test the truth of the averments of the opposite party by cross-examination and rival affidavits may not furnish reliable evidence for concluding the point one way or the other. It is not for a moment suggested that leave to defend must be granted on mere asking but it is equally improper to refuse to grant leave though triable issues are raised and the controversy can be properly adjudicated after ascertainment of truth through cross-
examination of witnesses who have filed their affidavits........................................................."
ARC No : 297/2018 Smt. Shakuntla Vs. Salim 4 of 12
8. Same view has been reiterated by the Supreme Court in a judgment in "Rachpal Singh and Ors.Vs. Gurmit Kaur and Ors.", (2009)15 SCC 88, in para no.12 which is re-produced below:-
"12. If some triable issues are raised then the controversy can be properly adjudicated after ascertainment of truth through cross-examination of witnesses who have filed their affidavits and other material documents. Burden is on the landlord to prove his requirements and his assertion is required..........................."
9. In the present case, eviction petition has been filed under Ss. 14 (1) (e ) r/w S. 25- B of the Delhi Rent Control Act.
10. Proviso (e) to Section 14(1) is a special provision which has been enacted by the legislature for the class of landlords who require the premises genuinely and their requirement is bona-fide and they do not have any suitable accommodation. The essential ingredients for attracting the proviso (e) of the Section 14(1) are : -
a) there exists landlord tenant relationship;
b) the premises were let out for residential or commercial purpose;
c)The said premises are bona-fide required by the landlord either for himself or for his dependant family member.
d) The landlord or the dependant family member has no other reasonable suitable accommodation.
11. The thresholds hereinabove are to be satisfied conjunctively in order to attract the provisions of Section 14(1)(e) and the absence of even one of the said ingredients clearly makes the said provision inapplicable.
12. For the purposes of leave to defend, the respondent had to show some defence which would disentitle the petitioner of the relief claimed.
13. In the case at hand, the landlord tenant relationship is not disputed. It is admitted by the respondent that he was initially tenant under the previous owner Sh. Kashi Ram and after purchase of premises in question by the petitioner under her and he has been regularly paying rent to the petitioner but no rent receipt has been issued till date.
ARC No : 297/2018 Smt. Shakuntla Vs. Salim 5 of 12
14. There is no dispute to the fact that the premises in question were let out for commercial purposes. The respondent-tenant has taken various defences including that premises was let out for commercial purpose and the petitioner now wants it under S. 14 (1) (e) DRC Act, thus this petition is not maintainable. Letting of premises for commercial use is concerned, the issue is squarely covered by a judgment of Hon'ble Supreme Court in Satyawati Sharma v. Union of India reported in 148 (2008) DLT 705 (SC). The observations of Hon'ble Supreme Court are reproduced hereinbelow for ready reference:
"38. In view of the above discussion, we hold that Section 14(1)(e) of the 1958 Act is violative of the doctrine of equality embodied in Article 14 of the Constitution of India insofar as it discriminates between the premises let for residential and non- residential purposes when the same are required bona fide by the landlord for occupation for himself or for any member of his family dependent on him and restricts the latter's right to seek eviction of the tenant from the premises let for residential purposes only.
39. However, the aforesaid declaration should not be misunderstood as total striking down of Section 14(1)(e) of the 1958 Act because it is neither the pleaded case of the parties nor the learned Counsel argued that Section 14(1)(e) is unconstitutional in its entirety and we feel that ends of justice will be met by striking down the discriminatory portion of Section 14(1)(e) so that the remaining part thereof may read as under:
"That the premises are required bona fide 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."
While adopting this course, we have kept in view well recognized rule that if the offending portion of a statute can be served without doing violence to the remaining part thereof, then such a course is permissible R.M.D. Chamarbaugwalla v. Union of India, AIR 1957 SC 628, and Bhawani Singh v. State of Rajasthan, 1996 (3) SCC 105.As a sequel to the above, the explanation appearing below Section 14(1)
(e) of the 1958 Act will have to be treated as redundant."
15. In view of the foregoing discussions, the defence that tenanted premises was let out for commercial purpose and so now petitioner cannot seek eviction under S. 14 (1) (e ) of the Delhi Rent Control Act is irrelevant and untenable in law.
16. For S. 14 (1) ( e) DRC Act it has to be shown that premises are bona-fide required by the landlord either for herself or for his dependant family member and that the landlord or the dependant family member has no other reasonable suitable accommodation.
17. In order to evaluate whether the need of the petitioner is bonafide or not, let us understand the legislative and judicial connotation of the term, ' bonafide'. In landmark case Deena Nath v. Pooran Lal, (2001) 5 SCC 705 wherein the Supreme Court observed ARC No : 297/2018 Smt. Shakuntla Vs. Salim 6 of 12 thus:
"The Legislature in enacting the provision has taken ample care to avoid any arbitrary or whimsical action of a landlord to evict his tenant. The statutory mandate is that there must be first a requirement by the landlord which means that it is not a mere whim or a fanciful desire by him; further, such requirement must be bonafide which is intended to avoid the mere whim or desire. The 'bonafide requirement' must be in presenti and must be manifested in actual need which would evidence the Court that it is not a mere fanciful or whimsical desire. The legislative intent is made further clear by making the provision that the landlord has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. This requirement lays stress that the need is pressing and there is no reasonably suitable alternative for the landlord but to get the tenant evicted from the accommodation. Similar statutory provision is made in subsection (e) of Section 12(1) of the Act in respect of accommodation let for residential purposes. Thus, the legislative mandate being clear and unambiguous, the Court is dutybound to examine not merely the requirement of the landlord as pleaded in the eviction petition but also whether any other reasonably suitable nonresidential accommodation in his occupation in the city/town is available. The judgment/order of the court/authority for eviction of a tenant which does not show that the court/authority has applied its mind to these statutory requirements cannot be sustained and the superior court will be justified in upsetting such judgment/order in appeal/second appeal/revision. Bonafide requirement, on a first look, appears to be a question of fact. But in recording a finding on the question the court has to bear in mind that statutory mandate incorporated in Section 12(1)(f). If it is found that the court has not applied the statutory provisions to the evidence on record in its proper perspective then the finding regarding bonafide requirement would cease to be a mere finding of fact, for such erroneous finding illegally arrived at would vitiate the entire judgment."
Chambers 20th Century Dictionary defines bona fide to mean "in good faith and genuine". Requirement is not a mere desire. The degree of intensity contemplated by "requires" is much more higher than in mere desire. The phrase "required bonafide" is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of the landlord and its bonafides would be capable of successfully withstanding the test of objective determination by the court. In short, the concept of bonafide need or genuine requirement needs a practical approach instructed by the realities of life. 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 meaning of "bonafide" in the context appears to be in two folds. (a) the need of the landlord must be a genuine one and not a frivolous one. (b) landlord is not motivated by extraneous considerations in trying to recover the possession from the tenant with a view to let it out again to another tenant at a higher rent.
18. The Apex Court in the case of Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta reported in SCFBRC 1999 Page 330, has observed as under:
"In Prativa Devi (Smt.) v. 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.
Reverting back to the case at hand, the landlord has been living on the ground floor of the Defence Colony house. It was conceded at the Bar that as on the day the family of the landlord consists of the landlord himself (a practicing doctor), his son (again a practicing doctor), the daughter-in-law and two grand children who are gradually growing in their age. Looking at the size of the family, available of three ARC No : 297/2018 Smt. Shakuntla Vs. Salim 7 of 12 bed rooms in the premises in which the landlord may live, is a requirement which is natural and consistent with the sense of decency-not to talk of comfort and convenience. There is nothing unreasonable in a family with two practicing doctors as members thereof needing a room or two or a room with a verandah to be used as a residential-clinic divided into a consultation room and a waiting place for the patients. A drawing room, a kitchen, a living room and a garage are bare necessities for a comfortable living. The landlord has been living in Defence Colony locality for more than 35 years. The first floor which was let out to the tenant in the year 1978 as being an accommodation surplus with the landlord has with the lapse of time become a necessity for occupation by the landlord and his family members. More than ten years by now have been lost in litigation. The death of the wife of the landlord and the death of landlord's mother-in-law, are events which have hardly any bearing on the case of felt need of the landlord, The need as pleaded and proved by the landlord is undoubtedly natural sincere and honest and hence a bona fide need. There is no material available on record to doubt the genuineness of such need. It continues to subsist inspite of the two deaths. It is not the case of the tenant- appellant that while seeking eviction of the tenant the landlord is moved by any ulterior motive or is guided by some other thing in his mind. It will be most unreasonable to suggest that the landlord may continue to five on the ground floor of the Defence Colony house and some members of the family may move to Sarvodaya Enclave House if the whole family cannot be conveniently and comfortably accommodated as one unit in the Defence Colony house. It would be equally unreasonable to suggest that the entire family must shift to Sarvodaya Enclave House which is admittedly situated at a distance of about 7-8 kms. from Defence Colony. The landlord and his family are used to living in Defence Colony where they have developed friends and acquaintances, also familiarity with the neighbourhood and the environment. The patients usually visiting or likely to visit the residential clinic know where their doctor would be available. Shri Arun Jaitley, learned Senior Counsel for the respondent, has very rightly submitted that it could not have been the intendment of the Rent Control Law to compel the landlord in such facts an circumstances to shift to a different house and locality so to permit the tenant to continue to live in the tenanted premises. 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 rightly into lesser premises protecting the tenant's occupancy."
19. Further, in another landmark case of Sarla Ahuja v. United India Insurance Co. Ltd ., reported as AIR 1999 SUPREME COURT 100, whereby it was 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 is 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 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....".
20. As regards alternate accommodation in Sarwan Dass Bange vs. Ram Prakash
-2010 IV AD (Delhi) 252, observations made by Supreme Court in Baldev Singh Bajwa V Monish Saini MANU/SC/1239/2005 (2005) 12SCC 778, have been quoted as under :
ARC No : 297/2018 Smt. Shakuntla Vs. Salim 8 of 12 It was held that the legislative intent is of expeditious disposal of the application for ejectment of tenant filed on the ground of requirement by the landlord of the premises for his own occupation; a special category of landlords requiring the premises for their own use has been created; if there is any breach by the landlord, the tenant is given right of restoration of possession; the landlord who evicts the tenant on the ground of his own requirement is not only prohibited from letting out the premises or disposing of the same but also required to use the same for his own residence only. It was held that these restrictions and conditions inculcate inbuilt strong presumption that the need of the landlord is genuine;the restrictions and conditions imposed on the landlord make it virtually improbable for the landlord to approach the court for ejectment of tenant unless his need is bonafide no unscrupulous landlord in all probability, under this section, would approach the court for ejectment of the tenant considering the onerous conditions imposed on him. It was further held that his inbuilt protection in the Act for the tenants implies that whenever the landlord would approach the court his requirement shall be presumed to be genuine and bonafide. It was further held that a heavy burden lies on the tenant to prove that the requirement is not genuine. The tenant is required to give all necessary facts and particulars supported by documentary evidence if available to prove his plea in the affidavit itself so that the controller will be in a position to adjudicate and decide the question of genuine or bonafide requirement of the landlord; a mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine.
21. In Adarsh Electricals & Ors. Vs Dinesh Dayal - MANU/DE/2782/2010, it was held that " the concept of alternate accommodation means that accommodation which is reasonably suitable for the landlord, and the court would not expect the landlord to sacrifice on his own comforts and requirements merely on the ground that the premises is with a tenant . The problem had to be approached from the point of view of a reasonable man and not that of a whimsical landlord. The court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need."
22. In the case at hand, the petitioner has stated that the petitioner's family consists of her husband, two sons namely Pardeep and Sandeep and one daughter. The daughter of the petitioner is married and is residing at her matrimonial home. Petitioner's son Pardeep is living separately with his family. Petitioner's son Sandeep is running his business in the name and style of M/s Kashi Ram Doodh Bhandar and running milk and sweet shop in shop bearing no. 1 at the ground floor in the aforesaid property. Also, he is dependant on the petitioner for the shop and is occupying shop no. 1 and backside of shop no. 2 and is residing on the first floor and running a guest house in a room on the second floor of property bearing No. A-40, New No. A-7/1, Main 100 Foota Road, Kabir Nagar, Shahdara, Delhi-93. Shop no. 2 in property bearing No. A-40, New No. A-7/1, Main 100 Foota Road, Kabir Nagar, Shahdara, Delhi-93 is under another tenant who is doing business of mobile accessories. It is stated that the husband of the petitioner is ARC No : 297/2018 Smt. Shakuntla Vs. Salim 9 of 12 going to be retired from his job in Delhi Police within less than one year or so and the income of her son Sandeep is not sufficient to meet the expenses of his own family consisting of his wife and children, therefore, the petitioner is constrained to open/run a boutique and earn so that the expenses of the family may be met out and for running a boutique, she has no other reasonable accommodation except the aforesaid shop which is under the occupation of respondent. It is stated that shop no. 3 occupied by the respondent is on main 100 ft road which is more favorable for the boutique business required by the petitioner.
23. The respondent has merely raised a defence that he is running his business for past 40 years and would suffer if he is evicted from the tenanted premises. It is no more res integra that a landlord cannot be compelled to squeeze himself rightly into lesser premises protecting the tenant's occupancy. In the instant case, the petitioner requires to work and run a boutique shop as she has to support her son Sandeep's family as well as since her husband was about to retire when the present petition was filed. In the absence of any material having been brought on record by the respondent in this regard it cannot be assumed that the requirement of the petitioner is not bonafide.
24. The other plea is that the petitioner is earning handsome rent from shop no. 2 but what amount is being earned or what is the rent of shop no. 2 is not stated by the respondent to show that the need of the petitioner is not bonafide. It is well settled that the tenant is required to give all necessary facts and particulars supported by documentary evidence if available to prove his plea in the affidavit itself so that the controller will be in a position to adjudicate and decide the question of genuine or bonafide requirement of the landlord; a mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine. (See: Sarwan Dass Bange V. Ram Prakash 2010 IV AD (Delhi) 252)
25. Another plea of the respondent is that the children of the petitioner are well settled and thus her story set out in the petition is concocted and has no bonafide requirement. Also, It is well settled that it is no concern of the Courts or the tenant to dictate to the landlord how, and in what manner, he should live. In the absence of any material having ARC No : 297/2018 Smt. Shakuntla Vs. Salim 10 of 12 been brought on record by the respondent in this regard it cannot be assumed that the requirement of the petitioner is not bonafide. (See: Sarwan Dass Bange V. Ram Prakash 2010 IV AD (Delhi) 252)
26. Thus, the bona fide requirement of petitioner is made out and clearly, the respondent has failed to raise any triable issue qua bona fide requirement.
27. The respondent has not raised any plea against the submission of the petitioner that she has no other reasonable suitable accommodation. Thus, it is deemed to be admitted that the petitioner has no other reasonable suitable accommodation for running her boutique business.
28. From the aforesaid, there is nothing on record to doubt the bona fide of the petitioner and that the petitioner has no other sufficient alternative accommodation.
29. The pleas of the respondent qua payment of rent to the petitioner and petitioner not issuing rent reciept and of the petitioner qua non payment of rent are not relevant for present case filed under S. 14 (1) (e ) DRC Act.
30. As discussed herein above no triable issue or prima facie case is made out in favour of the respondent so the he decisions Charan Dass Duggal vs Brahma Nana- (1983) 1 SCC 301; Inderjeet Kaur vs Nirpal Singh - (2001) 1 SCC 706; Precision Engg. Steel Works vs Prem Deva Niranjan Deva Tayal- (1982) 3 SCC 270; Rakesh Kumar vs Pawan Khanna- 195 (2012) DLT 34; Mohd. Jafar & Ors. Vs Nasra Begum- 191 (2012) DLT 401; SK Seth & Sons vs Vijay Bhalla-1991 (2012) DLT 401 & Santosh Devi Soni vs Chand Kiran - JT 2003 SC 397 and Mattu Lal vs Radhe Lal - AIR 1974 SC 1596, relied upon by the respondents is of no assistance to the respondents as it has been decided on different fact situation and cannot be applied like a Euclid's theorem.
31. In view of the above discussion and the documents filed by the parties, there is no triable issue between the parties which entitles the respondent for leave to contest the present application for eviction. The application for leave to contest is without merits and is dismissed.
ARC No : 297/2018 Smt. Shakuntla Vs. Salim 11 of 12 32. Conclusion:
Since leave to defend is dismissed, and considering the petitioner has shown bonafide and fulfilled the requisites of S. 14 (1) (e) DRC Act, petitioner has become entitled to eviction. Consequently, eviction order is liable to be passed against the respondent u/s Section 25 B (4) of the Act. In these circumstances, the applications for leave to defend filed by the respondents is dismissed and the respondent Salim is liable to be evicted from the tenanted premises i.e. Shop No. 3 at Ground Floor, in property bearing No. A-40, New No. A-7/1, Main 100 Foota Road, Kabir Nagar, Shahdara, Delhi-93 as shown in red colour in the site plan filed with the present petition by the petitioner (now marked as Ex P1). Accordingly, the petition filed by the petitioner u/S. 14 (1) (e) r/w S. 25B of the DRC Act is allowed, subject to provisions u/s 19 of the DRC Act. However, the petitioner would not be entitled to initiate execution proceedings for recovery of possession of the tenanted premises before expiration of six months from today in view of provisions given in Section 14 (7) of the Act. No orders as to costs.
Digitally signed by SNIGDHA SNIGDHA SARVARIA
SARVARIA Date: 2021.12.13
10:45:24 +0530
Announced in open Court (SNIGDHA SARVARIA)
on 23rd Day of December, 2021. ACJ/ARC/CCJ
[This judgment contains 12 pages.] (SHAHDARA) KKD, DELHI.
ARC No : 297/2018 Smt. Shakuntla Vs. Salim 12 of 12