Delhi District Court
Anil Kumar Jain vs Subhash Chand Chawla on 17 April, 2023
IN THE COURT OF MS. SHEETAL CHAUDHARY PRADHAN
SENIOR CIVIL JUDGECUMRENT CONTROLLER
NEW DELHI DISTRICT, PATIALA HOUSE COURT
RC ARC 5509/2016
Anil Kumar Jain
S/o Late Shri Sumat Pershad Jain
N96 (2nd floor), Munshi Lal Building
Connaught Circus, New Delhi110001.
.... Petitioner
VERSUS
Subhash Chand Chawla
(@ Subhash Chander Chawla)
S/o Late Shri Ishwar Dass Chawla,
Shop No. N18, Munshi Lal Building
Connaught Circus, New Delhi110001.
.... Respondent
EVICTION PETITION U/SEC. 14 (1) (e) OF DELHI
RENT CONTROL ACT, 1958
Date of Institution : 12.05.2010
Date of reserve for judgment : 27.01.2023
Date of pronouncement : 17.04.2023
Final judgment : Petition dismissed.
JUDGMENT
1. Brief facts of the case are that Sh. Anil Kumar Jain filed an eviction petition U/s 14 (1) (e) of Delhi Rent Control Act, 1958 (DRC Act) for eviction of the respondent from the tenanted premise i.e. Shop No. N18, Mulshi Lal Building, Connaught Digitally signed by SHEETAL RC ARC No. 5509/2016 Anil Kumar Jain Vs. Subhash Chand Chawla Page No. 1SHEETAL of 26 CHAUDHARY CHAUDHARY Date:
2023.04.17 16:33:15 +0530 Circus, New Delhi110001. The respondent was allowed to defend the eviction petition by granting the leave to defend vide order dated 04.06.2011.
2. Written statement was filed by the defendant denying the allegations as contained in the plaint. In his leave to defend respondent has taken the plea that petitioner has not come to the court with clean hands and has suppressed the material facts. That the averments made by the petitioner are vague and evasive as petitioner has not disclosed the name of his family members dependent upon him or for persons for whose benefits the said premises is being held by the petitioner for commercial purpose and for whom he has filed the present eviction petition and thus, the petitioner does not require the premises for bonafide use and filed the present petition just to evict the respondent who has been regularly paying rent.
3. It is stated that the property is owned by petitioner himself and was leased to his family members and number of portions in Munshi Lal Building in his possession had been sold to different persons. It is stated that on 2nd August, 2006, Sh. Sachin Jain S/o Sh. Ashok Kumar Jain, Sh. Abhishek Jain and Sh. Abhinav Jain both sons of Sh. Anil Kumar Jain and Sh. Anil Kumar Jain S/o Sh. Sumit Prasad Jain entered into an agreement to sell, which was duly registered vide registration no. 17056 book no.1, volume no. 2163, page 144156 on 02.08.2006 and by virtue of the said agreement to sell had sold large area in favour of M/s Central Court Hotel at a consideration of Rs.5,14,000/. Further, a large area had been surrendered by M/s Central Court Hotel in favour of the petitioner and his sons being properties no. N63, RC ARC No. 5509/2016 Anil Kumar Jain Vs. Subhash Chand Chawla Page No. 2 of 26 Digitally signed by SHEETAL CHAUDHARY SHEETAL CHAUDHARY Date:
2023.04.17 16:34:18 +0530 N64 and N64B on first floor and numbers 96, 97 and 98 on second floor. Further, out of the said area ad measuring 4048 Sq. ft., on first floor being property no. N64 and 64B was let out by the petitioner and his son Sh. Abhinav Jain in favour of M/s. Narula Corners House Pvt. Ltd. by virtue of registered lease deed dated 03.11.2006 and as per said lease M/s. Narula Corners House Pvt. Ltd. has been paying a sum of Rs.8,00,000/ per month as rent with 16% increase every three years to the petitioners. It is stated that the factum of having leased the aforesaid area to M/s. Narula Corners House Pvt. Ltd. has not been disclosed by the petitioners. It is stated that an area of more than 2000 sq. ft. in property no. N63, First floor which was surrendered by Central Court Hotel and another area admeasuring 6000 to 7000 sq. ft. in property bearing no.N96, 97 and 98 on second floor, Munshi Lal Building is in the possession of petitioner and his sons. That the petitioner has a small office on the second floor and rest of the area has been lying vacant for use by the petitioner and members of his family. It is stated that premises no. N33/4, Inner Circle, Connaught Place was vacated by the Hindustan Times Ltd. and an area admeasuring about 1500 sq. Ft on ground floor and 1000 sq. ft on mezzanine floor is in possession of the petitioner and his family members. That the petitioner has suppressed the facts with respect to accommodation of himself and his family members. That the petitioner filed an affidavit with the NDMC that he was owner of the said premises and that it required repairs and by way of the said affidavit, the said property got vacated from the Hindustan Digitally signed by SHEETAL Times Ltd. SHEETAL CHAUDHARY CHAUDHARY Date:
2023.04.17 16:34:36 RC ARC No. 5509/2016 Anil Kumar Jain Vs. Subhash Chand Chawla Page No. 3 of 26 +0530
4. It is stated that premises no. 33/1, 33/2 and 33/3 premises no. 33/1, 33/2 and 33/3 (garages) have been rented and no details thereof have been given by the petitioner. It is further stated that the petitioner has served notice for eviction against the occupants of shop no. 19 M/s Amber Restaurant and similarly notice for eviction has been served by the petitioner on M/s Siya Ram Bros. occupying shop no.22, likewise, the petitioner has served notice for eviction on M/s Banaras House occupying shop no.13 and M/s Amrit Books Company, N21, Munshi Lal Building, Connaught Place, New Delhi. It is also stated that the shop no.20 on ground floor was got vacated by the petitioner from M/s Das Motors and that it was rented to Sh. Sameer Chalwla and Smt. Nigam Chawla vide agreement dated 10.06.1990. That similarly shop no. N12, ground floor, Munshi Lal Building, Connaught Place, New Delhi after having vacated by the petitioner was sold vide an agreement to sell dated 30.10.2002. It is stated that the petitioner got vacated shop no. N16 from previous tenant and sold the same to Sh. Advani.
5. It is stated that petitioner alongwith other owners namely Abhishek Jain, Meenu Jain and M/s Panche Food & Beverages on 21.06.2012 executed Sublease in favour of BARBEQUENATION HOSPITALITY LTD for a period on 12 years w.e.f. 26.05.2012, thus, the need of the petitioner is not bonafide. It is stated that the petitioner has sufficient accommodation available for him which is lying vacant and unoccupied and the present eviction petition filed by the petitioner is malafide. Respondent has admitted the service of legal notice dated 03.08.2009 upon them. Rest of the contents Digitally signed RC ARC No. 5509/2016 Anil Kumar Jain Vs. Subhash Chand Chawla Page No. 4 of 26 SHEETAL by SHEETAL CHAUDHARY CHAUDHARY Date:
2023.04.17 16:34:48 +0530 were duly denied by the respondents. Thus, on the above said grounds the defendants prayed that the eviction petition be dismissed alongwith exemplary costs.
6. Replication to the amended written statement filed by the respondent denying the preliminary objections and other averments as contained in the amended written statement. Averments as contained in the petition were once again reiterated by way of the replication. Thereafter, matter was fixed for petitioner's evidence.
7. In order to prove his case, the plaintiff examined himself as PW1 by tendering his evidence by way of an affidavit Ex.PW1/A and relied upon following documents:
1. Site Plan Ex.PW1/1.
2. Agreement dated 19.06.1978 Ex.PW1/2 (OSR)
3. Perpetual Lease dated 09.05.1938 is Ex.PW1/3 (OSR).
4. Mutation Letter dated 06.02.1980 issued by L&DO is Ex.PW1/4 (OSR).
5. Decree of partition in suit no.505/1975 is Ex.PW1/5.
6. Judgment passed in suit no.505/1975 is Ex.PW1/6.
7. Order dated 05.02.1974 passed in FAO No.92D/1961 is Ex.PW1/7.
8. Order dated 10.09.1974 is not on record Ex.PW1/8.
9. Carbon Copy of legal notice dated 03.08.2009 Ex.PW1/9.
10. Postal receipt is Ex.PW1/10.
11. AD card is Ex.PW1/11.
12. UPC slip is Ex.PW1/12.
13. Letter dated 06.11.2013 is Ex.PW1/13.
14. Letter dated 06.08.2012 is Ex.PW1/14. Digitally signed by SHEETAL RC ARC No. 5509/2016 Anil Kumar Jain Vs. Subhash Chand Chawla PageSHEETAL No. 5 of 26 CHAUDHARY CHAUDHARY Date:
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15. Photocopies of various judgements/orders of the cases decided amongst Shri Sachin Jain, Sh. Abhishek Jain and Sh. Abhinav Jain are Ex.PW1/15A to D (colly).
16. Document Ex.PW1/16 filed by the defendant and further deposed that fitness first is not his building. Central Court Hotel and Sachin Jain are the owners of Fitness First and they have vacated the property due to loss. N33/4 is a garage which has been sealed by NDMC.
8. During cross examination PW1 deposed that he did not know if para no.2, 3 & 5 of his affidavit were beyond in petition. Approximate size of shop no.N18 is 4000 Sq. Ft. and the same is situated on ground floor, in which restaurant by the name of "Blues" is being carried out and "Taste of China" from the mezzanine floor. Further, his family consists of his wife, two married sons with their wives and children. Further, he can identify the signature of his family members. PW1 further deposed that he wanted to use the tenanted shop for his bonafide purpose only. N96, Second Floor was not a residence and no portion of MunShi Lal Buidling, Connaught Place was his residence. Shop No.N19 is in possession of United Dairies. N21 is in possession of Amrit Book company. N22 is in possession of Siyaram Brothers. N33/1 is a garage and is in possession of United Diaries. N33/2 and N33/3 are also garages under Banaras House Limited. N33/4, is a garage under Panache Food and Beverages. N63, is a flat which is in tenancy of Abhinav jain and Arti Jain. Abhinav Jain and Arti jain are his son and daughter in law. N64 & 64B, are the flats at first floor under the tenancy of Abhinav Jain and Arti Jain. Flat No.N02 is Digitally RC ARC No. 5509/2016 Anil Kumar Jain Vs. Subhash Chand Chawla Page No. 6 of 26 signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date:
2023.04.17 16:35:37 +0530 under the tenancy of M/s Crescent Agencies Pvt. Ltd. N96, is under the tenancy of Panache Food and beverages. N97 and N98 are under the tenancy of Abhishek Jain and Meenu Jain. Meenu Jain is his wife. Further, some litigation is going on qua property no.N19 and Flat no.102. Shop no.N20, is in possession of the respondent Subhash Chand Chawla and Nigam Chawla and Samir Chawla. There is no other property except already stated, under his ownership or under the ownership of his children in Connaught Place or in any other place in Delhi. Further that there was no property owned by PW1 alongwith his nephew Sh. Sachin Jain. Mezzanine of property no.N12, N13, N14, N15 & N17 and 3 Kothis alongwith passage at the back side of the building is owned by sons of PW1 alongwith Sh. Sachin Jain. Mr. Kapil Advani is the owner of property No.N16. N12 is in possession of respondent, N13 is in the possession of Banaras House since inception, the front of N14 is in possession of Sh. Jai Kishan, whereas the back side is in possession of Banaras House. PW1 did not know if N14 is in possession of Delsey Bags and Beds. N15, is in possession of Dass Book Company. PW1 did not know if N16, is in possession of Star Bucks. PW1 admitted that his children had entered into an agreement to sell with Central Court Hotel and it was correct that he was a confirming party to the said agreement. Flat No.61 (half), Flat No.62, 63, 64, 64B (First Floor), 94 (Half), 95, 96, 97, 98 were surrendered by Central Court Hotel to PW1 and his children including his nephew Sachin Jain. PW1 did not know the total area of all the aforesaid properties. Property no.N63, 64, & 64 B came to his possession and remained for his Digitally RC ARC No. 5509/2016 Anil Kumar Jain Vs. Subhash Chand Chawla Page No. 7 of 26 signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date:
2023.04.17 16:35:52 +0530 possession for one or two months and thereafter he had 'let' them to tenants as they were not of use to him. He did not know the total area of the aforesaid property. They were let out to Sh. Abhinav Jain and Arti Jain on 01.11.2006. It was correct that Sh. Abhinav Jain and Arti Jain were given the power to sub let or part with possession of these properties. It was correct that these properties were sub let to Narula's by his children and wherein he was the confirming party. It was correct that the lease deed dated 01.11.2006 of the aforesaid premises was further extended by Abhinav Jain and Arti Jain. Further, he did not know whether Arti Jain and Abhinav Jain further let out the property to J V Restaurant on 08.07.2023. PW1 could not identify the signatures of Abhinav Jain and Arti Jain on certified copy of lease deed which was Mark A4. It was correct that the restaurant namely 'Town Hall' is being run from property no.N63, 64, & 64B. N33/4 was given on rent for the first time to Silk Emporium in the year 2002 and the same was run by Ms. Meenu Jain being the wife of PW1. She remained in possession of the said property for 45 years and thereafter the same was let out to Panache Food and Beverages. He did not know the area of property No.N33/1. Panache Food and beverages is a partnership firm. Subsequently, the same was converted into a proprietorship firm and he did not know the date of the same. It was correct that Cusine King is the nick name of Panache Food and Beverages. He did not remember whether right to sub let and part with possession was given to the tenant at the time of creating lease of N334. He did not know whether Panache Food and Beverages had sub let the property to Maagh RC ARC No. 5509/2016 Anil Kumar Jain Vs. Subhash Chand Chawla Page No. 8 of 26 Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date:
2023.04.17 16:36:08 +0530 Entertainment. The lease deed of the same Mark A5. He did not know the total area of N96 (Second Floor). He did not remember if the lease deed for property no.N96 which was executed on 25.09.2007 was further extended to 25.05.2012. He did not remember whether right to sublet and part with possession was given to the tenant at the time of creating lease of N96 He did not remember whether lease deed for property N96 which was executed on 25.09.2007 was further extended on 25.05.2012. He did not remember whether his daughter in law has sublet N96 A to Belgique Choclates Pvt. Ltd. The lease deed of the same was Mark A6. Remaining portion of N96 was in occupation of Panache Food and Beverages. He did not remember the area of N96, which is in possession of Wiser Miser Restaurant right to sub let. He did not know the total area of N97 and N98 (Second Floor). He did not remember whether the lease deed qua N97 and N98 was executed on 18.01.2010 and was extended on 25.05.2012. It was correct that the said property was sub let to Barbeque Nation. The sub lease was Mark A7. He did not remember if the aforesaid sub lease was created on 21.06.2012. PW1 further deposed that there was only one lift in the Munshi Lal Building which is in his name. PW1 admitted that he had granted permission to the respondent to regularize the mezzanine floor in the suit property and he did not remember that the respondent incurred any expenses for the said regularization. It was correct that subsequent to the aforesaid consent, the mezzanine floor was regularized by L&DO and MCD. It was correct that there is separate entrance to the mezzanine floor from outside and the said mezzanine floor is part RC ARC No. 5509/2016 Anil Kumar Jain Vs. Subhash Chand Chawla Page No. 9 of 26 Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date:
2023.04.17 16:36:34 +0530 of shop no.N18 and therefore, there is no separate rent for the mezzanine floor. He admitted that the judgment Ex. RW1/P1 was passed in the suit titled Anil Kumar Jain Vs. United Dairies and certified copy of petition was Ex. RW1/P2 and Ex. RW1/P3.
9. During trial a separate statement of petitioner Anil Kumar Jain was recorded in which he admitted documents Mark A (agreement dated 02.08.2006), site plan Mark A2 & A3, sub lease dated 08.07.2013, 24.02.2016, 12.09.2013, 25.05.2012, lease deed dated 03.11.2006, lease deed dated 17.02.2009, letter dated 12.07.2017 and 14.06.2011, affidavit attested on 17.02.2009 and letter dated 05.09.2007 and the same were exhibited at Ex. P1 to Ex. P12.
10. Thereafter, petitioner evidence was closed.
11. Respondent on the other hand, examined two witnesses including himself. Respondent Sh. Subhash Chand Chawla as RW1 tendered his evidence by way of an affidavit Ex.RW1/A and relied upon documents viz. Photocopy of lease deed dated 3.11.2006 Mark AA, Photocopy of lease deed dated 17.09.2009 Mark BB, Photocopy of affidavit arrested dated 17.09.2009 Mark CC, Photocopy of application for permission dated 05.09.2007 Mark DD. Respondent has also examined Sh. Suni Kumar, Senior Secretariat Assistant from Land and Development Office, Nirman Bhawan, New Delhi as RW2.
12. RW1 during his cross examination deposed that he was tenant in the present suit premises since 1963. He further deposed that petitioner had sold N16 and First Floor and Second Floor of Central Court Hotel and N12. Central Court Hotel was Digitally signed by SHEETAL RC ARC No. 5509/2016 Anil Kumar Jain Vs. Subhash Chand Chawla Page No. 10SHEETAL of 26 CHAUDHARY CHAUDHARY Date:
2023.04.17 16:36:53 +0530 a tenant in the first and second floor. He did not know the owner of Narula House Corner. Further the property bearing no.N33/4, is in the middle circle and he did not know if the said property falls in the back side of Munshi Lal Building however, it was situated on the ground floor. He did not remember the area of the said property. He admitted that N33/4, had been sealed by NDMC. The property which has been let out to J V Restaurant is on the first floor having an area of 8000 Sq. Ft. As on date J V Restaurant was not running on the said property. He did not remember if J V Restaurant had left the said property. The property in possession of Belgique Chocolates Pvt. Ltd. is on the second floor ad measuring 1500 Sq. Ft. and the same is lying vacant. RW1 was not ready to take this property in lieu of the premises in question. It was correct that the property in possession of Barbeque Nation hospitality limited was on the second floor and was functional. United Dairy Pvt. Ltd. Was situated on the ground floor and he did not know the area of the same. N63 first floor had been handed over by Central Court hotel to the petitioner. He did not know the area of N33/1, N33/2 and N33/3. He did not know if any of these properties were occupied by the tenants. RW1 refused to take N33/1, N33/2 and N33/3 in lieu of the tenanted premises. Shop no.20 which was earlier in possession of Dass Motors was later let out to respondent and his wife and sons. Shop No.16 was sold by the sons of the petitioner. It is correct that the sons of the petitioner were coowners in N16 alongwith Sh. Sachin Jain. Further, RW1 stated that he was not ready to take any property referred to in his affidavit on tenancy in lieu of the premises in question Digitally RC ARC No. 5509/2016 Anil Kumar Jain Vs. Subhash Chand Chawla Page No. 11 of 26 signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date:
2023.04.17 16:37:05 +0530 on any of the floor if given an option. He did not know of any property on the ground floor which was lying vacant in possession of the petitioner or which could be used by petitioner for his requirement. Further, that the petitioner was involved in the property business. He did not know whether the permitted use of N63 and N64 First Floor is residential or commercial as per the NDMC. Further, that RW1 was the part her with his son was partner in running the restaurant by the name of Regiend Restaurant. N12 and N18 and N20 were in the name of his family members. He did not know if all the properties in Munshi Lal building were occupied by the tenants. He did not know whether the petitioner was working or not.
13. Both these witnesses were duly crossexamined by the Ld. Counsel for the petitioner. Thereafter, respondent closed his evidence.
14. It is argued by Ld. Counsel for petitioner that petitioner requires the premises in question for the bonafide need of himself and others family members depended upon him. It is further argued that in the eviction petition that petitioner has no other reasonable suitable accommodation elsewhere in Connaught Place area and the shop in question is suitable for the petitioner. It is further argued that in the properties of the petitioner situated in Munshi Lal Building are already occupied by different tenants since long and certain properties are jointly owned by sons of the petitioner alongwith other coowners Sh. Sachin Jain, who is nephew of the petitioner but not on good terms and good relations and not in cooperation with the petitioner and/or his son and those properties cannot be easily got vacated on account of RC ARC No. 5509/2016 Anil Kumar Jain Vs. Subhash Chand Chawla Page No. 12 of 26 Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date:
2023.04.17 16:37:24 +0530 opposition of Sh. Sachin Jain. It is further argued by Ld. Counsel for petitioner that respondent has not been able to prove even a single property on record which is situated on the ground floor and lying vacant or sold or let out by the petitioner. It is further argued by Ld. Counsel for petitioner that it is clear when the specific suggestion was given to the witness to take out any of the property as mention in his affidavit filed in examination in chief he categorically denied that he will not take any property mentioned by him in his own affidavit in lieu of the tenanted premises.
15. It is further argued by Ld. Counsel for petitioner that the ground floor is most suitable for running the commercial business and if the tenant refused to accept any of the property as disclosed by him lying vacant or available to the petitioner then the adverse inference is to be drawn against the respondent. Ld. Counsel for petitioner has relied upon the following judgments:
1. Anil Bajaj & Anr. Vs. Vinod Ahuja 2014 LAWSUITS (SC) 396,
2. A.K. Woolen Industries & Ors. Vs. Narain Gupta, 2017 LAWSUITS (DEL) 5217.
3. Uday Shankar Upadhyay and Ors. Versus Naveen Maheshwari 2009 LAWSUITS (SC) 1929
4. Jai Gopal & Ors. Vs. Vikas Bansal 2016 LAWSUIT (DEL) 6672
5. M C Goyal Vs. Sardar mehar Singh, 2015 LAWSUIT (DEL) 610
6. Surinder Singh Vs. Sh. Jasbir Singh, 2010 VIII AD (DELHI) 471 Digitally signed by SHEETAL RC ARC No. 5509/2016 Anil Kumar Jain Vs. Subhash Chand Chawla Page No. 13 of 26 SHEETAL CHAUDHARY CHAUDHARY Date:
2023.04.17 16:37:34 +0530
7. Kishan Lal Vs. R.N. Bakshi (2010) DLT 769. Hon'ble Supreme Court of India DB in case titled
16. It is further argued by Ld. Counsel for petitioner that respondent has not been able to prove even a single property which is in the possession of the petitioner at at ground floor, on the front side of the building facing main road of Connaught place having covered verandah of 10' to 12' wide in front of shop or which is suitable to meet out the bonafide need and requirements of the petitioner. The details of properties situated at ground floor on front side of the building apart from the suit property as under 1. N19 - Under tenanted possession of United Diaries Pvt. Ltd. Since 1971 who is running restaurant namely Amber Restaurant on ground floor and mezzanine floor respectively of the same property.
2. N20 - Initially rented to Dass Motors which was vacated in 1990. Since 1990 till present, the property remains under tenanted possession of defendant Shri Subhash Chand Chawla
3. N21 - under tenanted possession of Amrit Book Company since more than 30 years.
4. N22 - Under tenanted possession of Siyaram Brothers since more than 30 years.
17. It is further argued by Ld. Counsel for petitioner that execution of various lease deed, sublease deeds by the petitioner and his family members, pertains to the premises which are situated for the first and second floor of the property and that ground floor is more suitable to run commercial activities and the shops situated at ground floor can fetch more customers. The respondent has not been able to point out even a single lease Digitally signed by RC ARC No. 5509/2016 Anil Kumar Jain Vs. Subhash Chand Chawla Page No. 14 of 26 SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date:
2023.04.17 16:37:43 +0530 deed/sublease deed executed either by petitioner or any of his family members qua the ground floor of the said property and thus, the execution of lease deed/sublease deed qua upper floors are not relevant for adjudication of the present petition. It is further argued by Ld. Counsel for petitioner that all premises disclosed in the written statement filed by the respondent are shown either on first floor and second floor and the respondent has given specific reason in examination in chief said shop being not suitable being situated at first and second floor. The premises no.N33/4 is situated at the back side of the shop situated at outer circle. Two different businesses were tried one for handicraft and second for restaurant by the petitioner's family members but could not succeed due to not suitability of location Since, 1938 premises no.N33/4 is shown as garage in NDMC record and was sealed in 2018 and the same is sealed till date.
18. It is further argued by Ld. Counsel for petitioner that all the alternative properties disclosed by the respondent in his written statement i.e. property No.N63, 64 and 64B situated at First Floor, N96 is situated at Second Floor and similarly none of the property disclosed by the respondent is lying vacant or in possession of the petitioner at ground floor and those properties were not suitable to meet out commercial need that is why the respondent offered to take out any of the property pointed out by him in his written statement and in his evidence by way of affidavit in lieu of tenanted premises, he categorically refused so during the course of cross examination. The premises noN96 is at second floor and is lying vacant since 2018 and no one has approached for taking on rent because the area is too small, RC ARC No. 5509/2016 Anil Kumar Jain Vs. Subhash Chand Chawla Page No. 15 of 26 Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date:
2023.04.17 16:37:53 +0530 situated at second floor and not suitable. Similarly premises no. N63, 64 and 64 B were sublet to narula's in the year 2006 who occupied the same till 2012 and left the premises in 2012 due to huge loss and only in the year 2013 premises no. N63, 64 and 64B were sublet to J.V. Restaurant who due to heavy loss went for bankruptcy under order 10 of IBC Act in NCLT Delhi and did not pay the rent inspite of passing of order by Hon'ble High Court of Delhi in the year 2019. it is further argued by Ld. Counsel for petitioner that the premises no.63, 64 and 64B which are situated at First Floor and N96 at Second floor are lying vacant since 201819 as no tenant approaching the petitioner due to there location.
19. It is argued on behalf of Ld. Counsel for respondent that the petitioner has not given in his petition details of other properties owned by him or such other persons, unless it was pointed out by the respondent by way of his WS and only upon being pointed out petitioner has reaffirmed the details of the properties owned by him and his family although he has stated that those properties are not suitable to him. It is argued that he has also not disclosed the name of persons or relations for whose benefit the said shop is being required by him for commercial purpose. He has also not given the details of the properties which according to him have not been reasonably suitable for commercial purpose. It is argued that respondent has mentioned in detail in the written statement as well as in his evidence about the various properties owned and occupied by the petitioner and his family members including his wife, both sons and daughterinlaw to which petitioner has filed detailed replication RC ARC No. 5509/2016 Anil Kumar Jain Vs. Subhash Chand Chawla Page No. 16 of 26 admitting the existence of those properties. Petitioner and his sons live in the same house and have common kitchen. It is further argued that perusal of the documents which were marked in the cross examination of the petitioner were later on exhibited in a statement made by the petitioner on 05.01.2019. The perusal of those documents makes it apparent that petitioner had leased out the properties to his above referred family members whereby right to sublet or part with possession was given by the petitioner to his family members and thus the various properties had been subleased or parted with, and possession was given by the petitioner to his family members and thus the various properties had been subleased to different persons. It is argued that the premises of which petitioner had given right to sublet to his family members are being used for the business of hotel/restaurant by the sublessee. Even in the area of CP first and second floors are being used for running business of hotel/ restaurant but since neither petitioner nor his family members depend upon him, and therefore, the need shown by the petitioner was not bonafide, as they went on subletting the various properties one after another at enhanced rent running into lakhs which are evident from Ex. PW1/1 to Ex. PW1/10 and has with malafide intention filed the present eviction petition thereby showing self created paucity of accommodation which cannot be made basis of relief under Section 14 (1) (e) of DRC Act. He further relied in judgment "Puran Chand Vs. Yashpal" 113 (2014) DLT 421 in para no.4 at page 423 passed by Hon'ble High Court of Delhi. Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date:
2023.04.17 RC ARC No. 5509/2016 Anil Kumar Jain Vs. Subhash Chand Chawla Page No. 17 of 26 16:38:10 +0530
20. It is further argued on behalf of respondents that the petitioner had filed three eviction petitions in May 2010. The present petition is dated 11.05.2010 wherein petitioner has stated in para 18 (a) (i) that he requires the tenanted premises i.e. the shop bearing no.N18, for himself or for members of the family depend upon him or for persons for whose benefit the said shop is held by the petitioner for bonafide requirement as he wishes to carryout his business as he or such other persons have no other reasonably suitable commercial accommodation elsewhere in Connaught Place. It is further argued that petitioner filed another eviction petition against M/s United Diaries Pvt. Ltd. Ex. RW1/P2 on 21.05.2010 pertaining to Amba Restaurant (Shop No.N19) which is verbatim on the same bonafide need as in the present case in para 18 (a) (i). In the third case filed by petitioner against M/s Crescent Agencies Pvt. Ltd. (Shop No. N102) (Private No.N90) (Ex. RW1/P3) dated 26.04.2010 petitioner has taken the same ground of his bonafide need as taken in the present petition. Petitioner has not mentioned in either of the petitions that if either of the shop is got vacated then whose bonafide need would remain. He has also not given details about his family members for whose bonafide need these three shops would be required. The averments made by the petitioner are vague and evasive and the manner in which the petitioner and the persons dependent upon him has been letting out the properties one after another on enhanced rent for a period of not less than 7 years itself shows that petitioner has no bonafide need for self or for his other family members. It is argued that further giving right to sub let the property to his family members RC ARC No. 5509/2016 Anil Kumar Jain Vs. Subhash Chand Chawla Page No. 18 of 26 Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date:
2023.04.17 16:38:27 +0530 itself further strengthens the case of the respondent that the bonafide need of petitioner is artificial and not genuine. Had it been bonafide petitioner would not have given to sub let in the lease deed itself executed by the petitioner himself in favour of his family members. It is further argued that from the additional affidavit filed by the respondent on subsequent event it shows that despite of number of shops having got vacated, petitioner or any of his family member is not ready to use it for bonafide need. Offering respondent in his cross examination as an alternative shop which petitioner have got vacated and has its vacant possession would not show that the bonafide need of the petitioner is genuine as this offer would have been made by the petitioner earliest when his family members had been sub letting the various properties. Such an offer is merely an eye wash for the name sake and would not in any circumstances prove the bonafide need of the petitioner. Since subsequent events have taken place, the same require to be taken into consideration as has been held in the case title M/s Variety Emporium Vs. V R M Mohd. Ibrahim Naina reported in ARIR 1985 SC in para 16 at page 210 and also in another case Sobti Furniture Mart Pvt. Ltd. Vs. Ravinder Kumar Suri reported in 228 (2016) DLT 8 in paras 78 at page 9.
21. I have heard the contentions of both the sides and also gone through the record carefully.
22. The essential ingredients which a landlord/ petitioner is required to prove for the purpose of getting an eviction order for bona fide needs are (i) the petitioner is the owner/ landlord of the Digitally signed by SHEETAL RC ARC No. 5509/2016 Page No. 19CHAUDHARY Anil Kumar Jain Vs. Subhash Chand Chawla SHEETAL of 26 CHAUDHARY Date:
2023.04.17 16:38:39 +0530 suit premises (ii) the suit premises are required bona fide by the landlord for himself or any of his family members dependent upon him (iii) the landlord or such other family members has no other reasonable suitable accommodation.
23. Ownership as well as existence of landlordtenant relationship : The petitioner has stated himself to be the owner of the property on the aforesaid fact has not disputed the landlordtenant relationship between the petitioner and himself. Therefore, the Court holds that the petitioner is owner of the tenanted premises and he is the landlord in respect of the tenanted premises, qua the respondent.
24. Nonavailability of reasonably suitable alternative accommodation in Delhi AND Bonafide Requirement The contention of the respondent that the petitioner is not carrying out any business activity from the shop on the ground floor which is already available with him having number N33/4, Middle Circle Connaught Place, New Delhi, since, the earlier businesses carried out by the petitioner and his family members had to be shut down since they were not profitable due to the location of the shop and the contention raised by the respondent in respect to the aforesaid property available with the respondent on the ground floor has been vaguely denied by the petitioner without giving any substantial answer. It has been admitted by the petitioner that he is the owner of several properties situated in Connaught Place, which are either rented out by him to some tenants, or are on the first and second floor and are not suitable Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date:
RC ARC No. 5509/2016 Anil Kumar Jain Vs. Subhash Chand Chawla Page No. 20 2023.04.17 of 26 16:38:51 +0530 for carrying out the business of running a restaurant or a food join. It is further seen that petitioner on several occasions has rented out his properties to his own son and daughterinlaw who had further sublet the properties after seeking his permission on rent to tenants who are running restaurants even on first and second floor and the aforesaid properties are generating a rent of Rs.7 to Rs.15 Lakhs per month. Furthermore, the present petition has been filed by petitioner for running a business of restaurant alongwith his family members who are allegedly dependent on him but from the documents placed on record by the respondent Ex.P1 to Ex. P12 demonstrate that petitioner has been renting out his other properties only with the intention to gain higher rent by clouding it in the name of his son and daughterinlaw. Further, during cross examination PW1 has conveniently given evasive answer by even refusing to identify the signatures of his family members. Further, the present petition has been filed by the petitioner by claiming to have bonafide requirement for himself and his family members, however, upon perusal of record it is evident that the family members of the petitioner despite having opportunity to run the business or take up any business in several other premises owned by the petitioner have conveniently sublet the same, since, the properties are fetching higher rental income and therefore, the petitioner has not been able to show the bonafide requirement for himself or for any of his family members. Further, it is an admitted fact that the upper floors of the tenanted premises are in possession of petitioner and the petitioner in his crossexamination has specifically admitted that the entire suit property is commercial, RC ARC No. 5509/2016 Anil Kumar Jain Vs. Subhash Chand Chawla Page No. 21 of 26 Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date:
2023.04.17 16:39:02 +0530 despite that he has failed to show that as to why the upper floors are not suitable to meet his alleged bonafide requirement. Respondent has failed to place on record any document to show that the need of a bonafide requirement or the fact that he is not in possession of any alternative suitable property. However, the document placed on record on behalf of respondent have clearly depicted that leave aside Delhi, the respondent has a suitable property in the same vicinity of the tenanted premises and the same cannot be treated to be less suitable being the commercial market area like Connaught Place. Further, it is fact known that the aforesaid market area is having several restaurants and businesses flourishing on almost all floors. Thus, the defence raised by the respondent is more probable than the contention of the petitioner.
25. It is settled principle of law that one who seeks equity must approach the Court with clean hands. Therefore, the Court is of considered opinion that the petitioner has been failed to establish that he does not have any reasonably suitable alternative accommodation in Delhi for himself as well as for his family members to carryout business activities, except the tenanted premises.
26. It would be useful to quote what the Hon'ble Supreme Court has observed on a genuine and bonafide requirement, which is prerequisite for a landlord to succeed in an eviction petition under Section 14 (1) (e) of the DRC Act, 1958 : "12. A perusal of Section 14 of the Act shows that the law has imposed restrictions on the recovery of possession, of any premises by landlord from a tenant notwithstanding RC ARC No. 5509/2016 Anil Kumar Jain Vs. Subhash Chand Chawla Page No. 22 of 26 Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date:
2023.04.17 16:39:23 +0530 any law or contract to the contrary. However, an order for recovery of possession is permissible on one or more of the specified ground. One such ground is the premises let for residential purposes being required bonafide by the landlord for occupation as residence for himself or for any member of his family dependent on him. What is a bonafide requirement is not defined in the Act. The words 'need' and 'require' both denote a certain degree of want with a thrust within demanding fulfilment. 'Need' or 'requirement' qualified by word 'bonafide' or 'genuine' preceding as an adjectiveis an expression often used in Rent Control Laws. 'Bonafide or genuine need' of the landlord or that the landlord 'genuinely requires' or "requires bonafide" an accommodation for occupation by or use for himself is an accepted ground for eviction and such expression is often employed by Rent Control legislation draftsman. The two expressions are interchangeable in practice and carry the same meaning."
13. Chambers 20th Century Dictionary defines bonafide to mean "in good faith: genuine". The word 'genuine' means 'natural; not spurious; real" pure: sincere'. In Law Dictionary, Mozley and Whitley defines bonafide to mean 'good faith, without fraud or deceit'. Thus the term bonafide or genuinely refers to a state of mind. 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 outcome of RC ARC No. 5509/2016 Anil Kumar Jain Vs. Subhash Chand Chawla Page No. 23 of 26 Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date:
2023.04.17 16:39:43 +0530 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 a 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 bona fides would be capable of successfully withstanding the test of objective determination by the Court. The judge of the facts should place himself in the armchair of the landlord and then ask the question to himself - whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. The failure on the part of the landlord to substantiate the pleaded need, or in a given case, positive material brought on record by the tenant enabling the Court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant would be enough to persuade the Court certainly to deny its judicial assistance to the landlord. Once the Court is satisfied of the bona fides of the need of the landlord for the premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available RC ARC No. 5509/2016 Anil Kumar Jain Vs. Subhash Chand Chawla Page No. 24 of 26 Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date:
2023.04.17 16:39:55 +0530 to the landlord, his subjective choice shall be respected by the Court. The Court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be more 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. In short, the concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. An approach either too liberal or too conservative or pedantic must be guarded against."
27. Admittedly, shop no.N33/4, Middle Circle, Connaught Place, Delhi ad measuring 1500 sq. Ft on ground floor and 1000 sq. ft on mezzanine floor is a suitable alternative accommodation which is in the possession of petitioner, which is also near the tenanted premises. Further, in the present matter petitioner by making averments have only created an artificial scarcity for himself and his family members i.e. when all of them had access to the premises which they purposely rented out for seeking higher rental income. Hence, bonafide need for which the present petition was filed does not subsist. It is to be noted that petitioner never amended his petition to assert that the vacant shop no.33/4, Middle Circle, Connaught Place, Delhi was not sufficient for running the business, i.e. when even the aforesaid property is a commercial space and not a garage which is evident from the witnesses examined by the respondent. The petitioner, thus failed to establish the bonafide need. Per contra, the respondent RC ARC No. 5509/2016 Anil Kumar Jain Vs. Subhash Chand Chawla Page No. 25 of 26 Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date:
2023.04.17 16:40:05 +0530 established the existence of suitable alternative accommodation. Reliance being placed upon judgment in case titled as Maqboolunnisa Vs. Mohd. Saleh Qureshi, (1989) 9 SCC 585.
28. In view of the abovestated discussions, the undersigned is of the considered opinion that the petitioner has failed to prove that the tenanted premises is required bonafidely by him for himself and his family members for running business of a restaurant.
29. Accordingly, the present petition is dismissed. Parties to bear their own costs.
30. File be consigned to Record Room after due compliance. Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY Date:
2023.04.17 16:40:16 +0530 [Sheetal Chaudhary Pradhan] Announced in the open court SCJCUMRC on 17.04.2023 New Delhi Distt, PHC, Delhi RC ARC No. 5509/2016 Anil Kumar Jain Vs. Subhash Chand Chawla Page No. 26 of 26