Delhi District Court
Rc Arc No. 153/2016 Shaina Aftab & Ors. vs . Mohd. Irfan on 10 April, 2023
RC ARC No. 153/2016 Shaina Aftab & Ors. Vs. Mohd. Irfan
IN THE COURT OF MS. BABITA PUNIYA,
RENT CONTROLLER, NORTH-EAST DISTRICT
KARKARDOOMA COURTS COMPLEX, NEW DELHI
RC ARC No. 153/2016
CNR No. DLNE03-001144-2016
In the matter of :
1. Ms. Shaina Aftab
D/o late Sheikh Aftab Ahmed
2. Ms. Uorosa Aftab
D/o late Sheikh Aftab Ahmed
3. Mr. Zeeshan Ahmed
S/o late Sheikh Aftab Ahmed
All R/o
H. No. 1156, Haveli Hissamuddin
Haider Balimaran, Delhi-110006.
....Petitioners
Versus
Sh. Mohd. Irfan
S/o Sh. Mohd. Mian
C/o Dawat-E-Chaman,
In property No. 5051/3-4-Neatji Subhash Marg,
Darya Ganj, New Delhi-110002
Also at
Khasra No. 318-319/4-5 (Old)
New 12A/102/D, Gali No. 1,
Mauj Pur, Shahdara, Delhi
....Respondent
Page No. 1 of 30
RC ARC No. 153/2016 Shaina Aftab & Ors. Vs. Mohd. Irfan
Date of Institution : 07.09.2016
Date of Decision : 10.04.2023
Final Decision : Application for leave
to defend is dismissed and
eviction order passed.
Application for Leave to Defend moved on behalf of
respondent/tenant in Eviction Petition under section 14 (1) (e)
of the Delhi Rent Control Act, 1958
ORDER
1. Vide this order, I shall decide if the affidavit filed by the tenant discloses such facts as would dis-entitle the landlord/s from obtaining an order for the recovery of possession of the premises.
2. Briefly stated, the petitioners have filed this eviction petition under section 14 (1)(e) r/w section 25-B of the Delhi Rent Control Act, 1958 (herein after referred to as the Act) seeking eviction of the tenant on the ground that premises is bona fide required by petitioner no. 1 and 2 for themselves for opening of a boutique/showroom of ladies garments.
3. Respondent Sh. Mohd. Irfan is the tenant in respect of Shop bearing No. 4 & 5 situated on the ground floor of property bearing no. 318-319/4-5 (New No. 12A/102/D, Mauj Pur, Gali No. 1, Shahdara, Delhi) (herein after referred to as the tenanted Page No. 2 of 30 RC ARC No. 153/2016 Shaina Aftab & Ors. Vs. Mohd. Irfan premises) at the monthly rent of Rs. 1,500/-.
4. Vide order dated 07.09.2016, the learned predecessor Judge issued notice of the petition to the respondent in Form specified under Third Schedule of the Act.
5. The notice was served upon the respondent by ordinary process on 23.09.2016 and by the registered post on 04.10.2016.
Thereafter, on 05.10.2016, he applied for leave to appear and contest the eviction case on the following grounds:-
(a) that the eviction petition is not maintainable, being for partial eviction of the tenanted premises; and
(b) that for successful maintaining an eviction petition under section 14(1)(e) of the Act, a petitioner must necessarily be the owner of the suit property. However, the petitioners have not filed any document to show their title over the suit property; and
(c) that the petitioners are very rich people. They are evicting old tenants and inducting new tenants after receiving huge pugree/security; and
(d) that other alternate accommodations by way of other properties available for carrying out the business of the petitioners as such the need is not bona fide and that the Page No. 3 of 30 RC ARC No. 153/2016 Shaina Aftab & Ors. Vs. Mohd. Irfan landlords have concealed the premises available to them from court ; and
(e) that a dispute is pending between the petitioners and the second wife of late Sheikh Aftab Ahmed, father of the petitioners;
and
(f) that the husband of petitioner no. 1 is very rich and affluent person; and
(g) that the mother of the petitioner was a Pakistani national, therefore, she could not have owned and maintained the property in India. Thus, according to the tenant the property was enemy property; and
(h) that equally efficacious remedy is available to the petitioners- petition is barred under section 41 (h) of the Specific Relief Act.
6. The petitioners filed reply to leave to defend application denying the contents of the application. An objection was taken by the petitioners that the application for leave to defend was time barred since it was filed beyond 15 days of the service of summons.
They stated that they are seeking eviction qua one shop only and it has been wrongly typed as two shops in para no.18 a.
Page No. 4 of 30RC ARC No. 153/2016 Shaina Aftab & Ors. Vs. Mohd. Irfan They further stated that late Nawab Rehamatullah was the owner of the property, who executed a Will on 12.06.1981 in favour of his daughter-in-law Saba Aftab. After the death of Nawab Rehamatullah, she became the owner of the property. She died on 16.09.1997 and after her death, the petitioners started realizing rent from the respondent as they had become owner on the basis of Will executed by their mother late Smt. Saba Aftab. They stated that property in question is not an enemy property because the petitioners are Indian citizens. They denied having concealing the other shops from the court. They reiterated that petitioner no.1 and 2 require the tenanted shop under the possession of the tenant bonafide for themselves for running a boutique.
7. I have heard the learned counsel for both the parties and have also perused the file carefully.
8. In a petition for bonafide necessity under section 14 (1)(e) of the Act, the following ingredients are required to be established by the petitioner/s:-
(i) that he/they is/are the owner(s)/landlord(s) of the tenanted premises;
and
(ii) that the premises are let out for
residential purposes; and
(iii) that they require the premises bonafidely for use of themselves and their family members, Page No. 5 of 30 RC ARC No. 153/2016 Shaina Aftab & Ors. Vs. Mohd. Irfan and
(iv) that they have no other alternative suitable accommodation.
It is pertinent to note that the ingredient of section 14(1)
(e) of the Act with respect to letting purpose being for residential purpose, has now become immaterial in view of the judgment of the Hon'ble Supreme Court in the case of Satyawati Sharma (dead) by LRs vs. Union of India & Anr reported as (2008) 5 SCC 287 which holds that even if premises are let out for a commercial purpose, a bona-fide necessity eviction petition under Section 14 (1)(e) of the Act can be filed in Delhi.
Therefore, in the case in hand, the petitioners have to show existence of only three ingredients i.e. (i), (iii) and (iv).
Procedure
9. The procedure envisaged under the provisions of section 14 (1)(e) read with Section 25 B of the Act is a summary procedure. The Hon'ble High Court of Delhi in the case of Frank Anthony Public School vs Amar Kaur 1984 (6) DRJ 47 held as under:-
(23) The legislature has devised a ''special procedure for the disposal of Page No. 6 of 30 RC ARC No. 153/2016 Shaina Aftab & Ors. Vs. Mohd. Irfan the application for eviction on the ground of bonafide requirement". It is modelled on Order XXXVII of the Code of Civil Procedure. The object is to reduce delays in litigation. The object is to introduce a "summary trial" in place of full length trial.
Whether leave to defend application was time barred ?
10. Before proceeding further, I would like to deal with the objection taken by the petitioners that the application for leave to defend was time barred since it was filed beyond 15 days of the service of summons.
11. As per the record, the notice sent to first address was duly served on 23.09.2016 while notice sent to second address received back unserved. The respondent filed leave to defend application on 05.10.2016.
12. It was argued on behalf of the respondent that period is to be counted from second service which was 04.10.2016. He placed reliance on the judgments passed by the Hon'ble Delhi High Court in the cases of Frank Anthony Public School v Amar Kaur reported as 1984 (6) DRJ 47 and Shyam Kishore & Anr vs. Ganeshi Lal & Ors decided on 17 April 2012. Relevant para of Shyam Kishore's judgment reads as under:-
Page No. 7 of 30RC ARC No. 153/2016 Shaina Aftab & Ors. Vs. Mohd. Irfan "3. Further contention of the learned counsel for the petitioner on this count is that because of these different views expressed by the different Benches of this Court, there is a confusion in the subordinate courts and the matter should be rested by referring the issue to a larger Bench.
4 The judgment of Kamal Bhandari (supra) had been distinguished in the case of Frank Anthony Public School (supra). The learned single Judge in the later judgment of Frank Anthony Public School (supra) had in para 24 distinguished the judgment on the ground that the reasoning of Kamal Bhandari (supra) has been based on the premise that service is to be effected only once and if there is a second service it is of no value; the words in section 25-B (3)(a) had not been highlighted.
The judgment of Frank Anthony Public School (supra) was delivered on the premise holding that where there are two modes of service and both have been executed, the second service cannot be ignored and the 15 days period had to be counted from the date of the second service. This judgment of Frank Anthony Public School (supra) has been followed thereafter consistently and was reiterated in the case of 46 (1992) DLT 356 Durga Devi Vs. S. Kumar. In this case, the Court in the context of computing period of limitation for filing an application for leave to defend had inter-alia noted as under:-
"Two modes of services are provided under section 25 (B) of the Act and if the respondent is served by both the modes, limitation would be calculated from the latter dated on which service was effected."Page No. 8 of 30
RC ARC No. 153/2016 Shaina Aftab & Ors. Vs. Mohd. Irfan 5 This view having been consistently followed by this Court right from 1984 onwards, the trial Court had rightly noted that the period of 15 days for filing an application seeking leave to defend has to be counted from the date of second service".
13. Another Bench of the Hon'ble Delhi High Court in the case of Ashok Kumar vs Purshotam Lal Verma considering the divergent opinions on the issue referred the matter to larger Bench for consideration. The Hon'ble Division Bench vide judgment dated 22 September 2016 answered the reference in the following terms:-
12. In view of the above discussion, the reference is answered in the following terms:
1. Both modes of service are mandated and have to be resorted to simultaneously by the Controller. However, if service through one mode is completed or successful, that is deemed sufficient, irrespective of whether the other mode is successful or not.
2. In case the tenant is served by both the modes, the period of 15 days for filing the leave to defend has to be counted from the first date of service. Time, for the purpose of filing leave to defend, does not depend on the second service of summons.
14. In view of the above, it is clear that the period of 15 days Page No. 9 of 30 RC ARC No. 153/2016 Shaina Aftab & Ors. Vs. Mohd. Irfan for filing an application seeking leave to defend has to be counted from the date of first service. The fifteen days will commence from 24.09.2016. Counting in this way the application was made on the 12th day i.e. 05.10.2016. Thus, the leave to defend application was well within time.
Partial eviction
15. It was argued on behalf of the respondent/tenant that the eviction petition is bad as it seeks partial eviction of the tenant from the rented premises.
In support of his contention, he drew the attention of the court towards para 1 of the petition wherein it is mentioned "one shop" and para 18(a) wherein it is mentioned as ".....respondent is tenant of two shops at ground floor...".
16. In reply, it was submitted by the learned counsel for the petitioners that it is only one shop and "two" has inadvertently been mentioned. He stated that it was a typographical error and does not change the nature of the petition. He stated that premises in occupation of the tenant has been correctly shown in the site plan attached with the petition. He also drew the attention of the court towards replication filed by the tenant wherein he has not disputed that it was a typographical error.
17. To my mind, the objection taken by the tenant has no Page No. 10 of 30 RC ARC No. 153/2016 Shaina Aftab & Ors. Vs. Mohd. Irfan force. In the eviction petition itself, in para 18 (a), the petitioners have clearly mentioned that eviction is being sought in respect of the portion shown in red colour in site plan annexed with the petition. In the red colour one shop bearing no. 4 & 5 is shown as "disputed". The tenant has not specifically disputed the area/shop mentioned in the site plan. It is also not his case that he is in possession of two shops. I am of the view that a typographical error in para 18(a) of the petition will not vitiate the proceedings as has been urged by the learned counsel for the tenant. Further, having perused the file, I found that the parties are not at variance regarding the fact that eviction is being sought from the whole of the premises in possession of the tenant.
18. Now let us examine if the petitioners have been able to satisfy the ingredients of section 14 (1)(e) of the Act.
Relationship of Landlord and Tenant
19. Foremost contention of the tenant was that petitioners are not the owners of the suit shop and as such are not entitled to a decree for eviction under sec. 14 (1) (e) of the Act.
20. The word "owner" has not been defined in the Act. This word in reference to section 14 (1) (e) came up for consideration before the Hon'ble Delhi High Court in T. C. Rekhi vs. Smt. Usha Gujral reported in [1971] Rent Control Journal 322 wherein it was held as under:-
Page No. 11 of 30RC ARC No. 153/2016 Shaina Aftab & Ors. Vs. Mohd. Irfan "..........I consider it proper before passing on to the next challenge to point out that the word "owner" as used in clause (e) in section 14 (1) does not postulate absolute ownership in the sense that he has an absolutely unrestricted right to deal with the property as he likes. To describe some one as owner, and perhaps even as an absolute owner, of property is to say two things: it is to assert that his title to the property is indisputable and that he has all the rights of ownership allowed by the legal system in question. Rights of ownership may, therefore, be limited by special provisions of law and include in those provisions such as are in force in New Delhi according to which citizens are granted long leases of sites for constructing buildings thereon. Now, the words of a statute, though normally construed in their ordinary meaning, may contain inherent restrictions due to their subject- matter and object and the occasion on which and the circumstances with reference to which they are used. They call for construction in the light of their context rather than in what may be either their strict etymological sense or their popular meaning part from the context (See Halsbury's Laws of England Third Edition Vol. 36 Paragraph 843 P. 394). The meaning of the word "owner" in clause (e) is influenced and controlled by its context and the appellant's construction is unacceptable because it seems to be quite clearly contrary to the reasonable operation of the statutory provi- sion."Page No. 12 of 30
RC ARC No. 153/2016 Shaina Aftab & Ors. Vs. Mohd. Irfan
21. The Hon'ble Supreme Court in the case of Shanti Sharma & Ors vs. Ved Prabha & Ors reported in AIR 1987 SC 2028 noted that the ownership is not to be understood as absolute ownership but only a title better than the tenant. Relevant para of the judgment reads as under:-
"14. .......................In this context, what appears to be the meaning of the term 'owner' is vis-a-vis the tenant i.e. the owner should be something more than the tenant.......... "
22. In the light of the above legal position, the petitioners are not required to prove their absolute ownership to the tenanted premises but only a title better than the tenant i.e., the respondent.
23. The petitioners have placed on record the rent receipts showing them as the landlords. These rent receipts are not disputed by the tenant/respondent. Further, the defendant, neither in leave to defend application not in the affidavit, has specifically disputed the "landlord-tenant" relationship between the parties. Thus, he has played safe.
However, in para 18 of the leave to defend application he has stated that the premises was let out to him after evicting one Mohd. Nadeem. This tantamount to an admission.
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24. It was also argued on behalf of the respondent that petitioners have not filed any title documents to show ownership.
25. The definition of "landlord" in section 2 (e) of the Act is "a person who, for the time being is receiving or is entitled to receive, the rent of the premises". It is irrelevant for this definition whether in fact such a person is also the owner of the property.
26. At the cost of repetition I may note that the tenant has not disputed the rent receipts which show that he used to pay rent to the petitioners.
27. In view of above, when the respondent has been making the payment of rent to the petitioners, he is stopped from disputing the title of the petitioners over the property in question by virtue of Section 116 of Indian Evidence Act. In case Ramesh Chand vs. Uganti Devi, 157 (2009) DLT 450 the Hon'ble High Court of Delhi held as under:-
"It is settled preposition of law that in order to consider the concept of ownership under Delhi Rent Control Act, the Court has to see the title and right of the landlord qua the tenant. The only thing to be seen by the Court is that the landlord had been Page No. 14 of 30 RC ARC No. 153/2016 Shaina Aftab & Ors. Vs. Mohd. Irfan receiving rent for his own benefit and not for and on behalf of someone else. If the landlord was receiving rent for himself and not on behalf of someone else, he is to be considered as the owner, howsoever imperfect his title over the premises may be. The imperfectness of the title of the premises cannot stand in the way of an eviction petition under section 14 (1) (e) of the DRC Act, neither the tenant can be allowed to raise the plea of imperfect title or title not vesting in the landlord and that too when the tenant has been paying rent to the landlord. Section 116 of the Evidence Act creates estoppels against such a tenant. A tenant can challenge the title of landlord only after vacating the premises and not when he is occupying the premises. In fact, such a tenant who denies the title of the landlord, qua the premises, to whom he is paying rent, acts dishonestly......"
28. In view of the above discussion, I am of the view that the relationship of landlord and tenant exists between the parties and the petitioners are owners/landlords of the property in question and the tenant cannot raise the plea of title not vesting in the landlord as he himself has derived possession of the tenanted property from the petitioners as tenant.
29. It was further argued on behalf of the respondent that there are disputes between the second wife of late Sheikh Aftab Ahmed and the petitioners, children of first wife of late Sheikh Aftab Ahmed regarding the title.
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30. In my opinion, this argument is misconceived because as per Section 116 of the Evidence Act, a tenant cannot dispute the title of his landlord.
It is settled law that eviction petition can be filed even by a co-owner and even if there is a dispute amongst co-owners about their rights in the property that is their inter-se matter and tenant cannot take advantage of the same. It is not for the tenant to challenge the inter-se arrangement of owners as to how they should manage the property.
31. Next, it was argued on behalf of the respondent that property in question is "enemy property" under the the Enemy Property Act, 1968.
It is denied by the petitioners. They stated that they are Indian Citizens and their mother was granted Indian citizenship. They also placed reliance on the judgment passed by the Hon'ble Supreme Court of India in the case of Abid-Ul-Islam vs. Inder Sain Dua, Civil Appeal No. 9444 of 2016 decided on 7 April 2022 wherein the order of learned Rent Controller that the embargo under the Enemy Property Act would not be made applicable to the properties in question and that the title of the landlord cannot be questioned was upheld by the Hon'ble Supreme Court.
32. The Hon'ble Supreme Court of India in the case of Union Page No. 16 of 30 RC ARC No. 153/2016 Shaina Aftab & Ors. Vs. Mohd. Irfan Of India & Another vs Raja Mohammed Amir Mohammad Khan decided on 21 October, 2005 while dealing with the issue of enemy property held as under:-
"The question that falls for determination is whether the properties in question after its inheritance by the respondent who is a citizen of India can be said to be enemy property.
It is not in dispute that respondent was born in India and is an Indian citizen . His late father migrated to Pakistan in the year 1957 and become a citizen of Pakistan. After the breaking of the hostilities between India and Pakistan in the year 1965 the property of his father located in India got vested in the Custodian. After the coming into force of the Enemy Property Act in the year 1968 the properties of late Raja continued to be vested with the Custodian till he died on 14.10.1973 in London. After the death of his father respondent who is a citizen of India inherited the property being the sole heir and successor of his father. Can he be termed as enemy or enemy subject within the meaning of Section 2(b) or can the property of an Indian citizen be termed as enemy property within the meaning of Section 2 (c)? Answer is emphatic No. The definition of enemy provided under Section 2(b) excludes citizens of India as an enemy, or enemy subject or enemy firm. Under the circumstances, the respondent who was born in India and his Indian citizenship not being in question cannot by any stretch of imagination be held to be enemy or enemy subject under Section 2(b). Similarly, under Section 2(c) the property belonging to an Indian could not be termed as an enemy property.Page No. 17 of 30
RC ARC No. 153/2016 Shaina Aftab & Ors. Vs. Mohd. Irfan
33. In view of the judgments of the Hon'ble Supreme Court in the case of Abid-Ul-Islam and Raja Mohammed Amir Mohammad Khan (supra), the argument is rejected being devoid of any merit.
Alternative Accommodations
34. It is stated by the learned counsel for the respondent that petitioners have following other properties;
(a) Big commercial hall cum shop on the ground floor which is three times larger to the shop of the respondent; &
(b) big basement; &
(c) big commercial hall and shops on the 1st floor; &
(d) two big commercial rooms on 2nd floor; &
(e) big commercial hall on the 3rd floor.
In reply, it was submitted by the learned counsel for the petitioners that the big commercial hall/s is/are not required for the purpose of Boutique. Nor the rooms/shops situated on the 1st, 2nd or 3rd floor as stated by the respondent. He stated that the petitioners have no other alternative suitable property to carry out the business of ladies clothes except the tenanted shop/premises which is situated on the Ground Floor. He stated that they, thus, need the tenanted shop bonafidely for establishing their business Page No. 18 of 30 RC ARC No. 153/2016 Shaina Aftab & Ors. Vs. Mohd. Irfan jointly in the tenanted shop.
He further stated that the landlord is the best Judge to determine as to what is his requirement and what is the proper place of his business. He stated that a tenant cannot force the landlord to carry out his business in the property not suitable for the business.
35. It is the case of the petitioners that the tenanted shop is required bonafide by petitioner no.1 and 2 for themselve for opening of a boutique. The shop is admittedly situated on ground floor. Thus, the availability of the accommodation on the first to third floors is not relevant since the petitioners are seeking possession of the shop situated at ground floor, which, admittedly, is more suitable for the business purposes than shops on the upper floors. The Hon'ble Delhi High Court while dealing with a similar contention in the case of Deepak Gupta vs Raghubir Kaur decided on 30 September, 2015 held as under:-
"11. With regard to the law of bonafide requirement it is no more res integra that it is not open for the tenant to dictate the terms to the landlord as to how she has to use the premises which is available at her disposal. By appreciating the plea of the present petitioner that the respondent-landlady should use two halls on the first floor for the purpose of boutique is giving a direction as to how the respondent-landlady is to conduct her affairs which is not permissible because of the catena of authorities of the Apex Court. In addition to this, seeing the proper Page No. 19 of 30 RC ARC No. 153/2016 Shaina Aftab & Ors. Vs. Mohd. Irfan perspective, the opening of boutique on the first floor cannot have the same impact which it will have in case it is open on the ground floor. The ground floor boutique is found to be more profitable as compared to the boutique which will be opened on the first floor by the learned ARC. With no stretch of imagination, it cannot be said that the accommodation which is available on the first floor is an alternative suitable accommodation to the nature of business which is intended to be run by the daughter- in-law of the respondent- landlady. In addition of this, admittedly, it is not the case of the petitioner-tenant that the said two halls are available to the respondent-landlady. On the contrary, it has been prima facie established that both these rooms have been let out as to be used as a godown. Under these circumstances, the availability of both these rooms to the respondent-landlady is also in doubt and therefore, could not be considered to be an alternative accommodation...."
36. In Ragavendra Kumar vs. Firm Prem Machinary and Co. reported in AIR 2000 SC 534 the Hon'ble Supreme Court repelling the contention that even if in evidence the landlord states that he has number of other shops and houses belonging to him but in a categorical statement being made that the said house and shops were not vacant and were not suitable and the suit premises was suitable for his business purpose, the Courts will not interfere because the landlord is the best Judge of his requirement for residential or business purpose and he has got complete freedom in the matter.
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37. As the requirement of the petitioners is for opening of boutique, the other properties mentioned by the respondent in his leave to defend application cannot said to be alternative suitable accommodation available to the petitioners. Consequently, it cannot be said that there was a suppression of material facts by the petitioners which would dis-entitle them for any relief of eviction.
38. In view of the above discussions, it is established that the petitioners have no other alternate "suitable" accommodation with them for opening of boutique.
39. It was argued on behalf of the respondent that petitioner no.1 has now shifted to Pakistan after getting married. Thus, according to learned counsel for the respondent that petition has become infructuous.
40. Though the learned counsel for the petitioners has not disputed the factum of marriage of petitioner no. 2, he stated that the bona fide need still exists. He stated that shop in question requires for opening of a Boutique. He drew the attention of the court towards last para of page 6 of his petition wherein it is mentioned that petitioner no. 2 wants to open boutique with the help of petitioner no. 1 and that the income of the petitioners is not sufficient for their livelihood from the business of optical being run by petitioner no. 3. He stated that marriage of Page No. 21 of 30 RC ARC No. 153/2016 Shaina Aftab & Ors. Vs. Mohd. Irfan petitioner no. 2 does not extinguish the need. He also placed reliance on a judgment passed by the Hon'ble Supreme Court in the case of Nidhi vs. Ram Kripal Sharma (2017) 5 SCC 640 wherein it was held that the marriage of landlady during the pendency of eviction proceedings does not extinguish her requirement. It was held, "being married and shifting to other place does not automatically result in extinguishing of bona fide requirement".
41. In the case of Pratap Rai Tanwani & Anr vs Uttam Chand & Anr reported as (2004) 8 SCC 490, the Hon'ble Supreme Court held as under:
"8. We cannot forget that while considering the bona fides of the need of the landlord the crucial date is the date of petition. In Ramesh Kumar v. Kesho Ram a two-Judge Bench of this Court (M.N. Venkatachalia, J., as he then was, and N.M. Kasliwal, J.) pointed out that the normal rule is that rights and obligations of the parties are to be determined as they were when the lis commenced and the only exception is that the court is not precluded from moulding the reliefs appropriately in consideration of subsequent events provided such events had an impact on those rights and obligations. What the learned Chief Justice observed therein is this "6. The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to Page No. 22 of 30 RC ARC No. 153/2016 Shaina Aftab & Ors. Vs. Mohd. Irfan relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a 'cautious cognizance' of the subsequent changes of fact and law to mould the relief."
9. The next three-Judge Bench of this Court which approved and followed the above decision, in Hasmat Rai v. Raghunath Prasad has taken care to emphasise that the subsequent events should have "wholly satisfied" the requirement of the party who petitioned for eviction on the ground of personal requirement. The relevant passage is extracted below:
"Therefore, it is now incontrovertible that where possession is sought for personal requirement it would be correct to say that the requirement pleaded by the landlord must not only exist on the date of the action but must subsist till the final decree or an order for eviction is made. If in the meantime events have cropped up which would show that the landlord's requirement is wholly satisfied then in that case his action must fail and in such a situation it is incorrect to say that as decree or order for eviction is passed against the tenant he cannot invite the court to take into consideration subsequent events."
42. In the case in hand, the factum of marriage of petitioner no. 2 was not disputed by the learned counsel for the petitioners. Therefore, we have to see whether with the marriage of petitioner no. 2, the requirement of the tenanted premises gets extinguished.
43. The Hon'ble Supreme Court in Ramesh Kumar vs Kesho Ram reported as AIR 1992 SC 700 has observed that the normal Page No. 23 of 30 RC ARC No. 153/2016 Shaina Aftab & Ors. Vs. Mohd. Irfan rule is that the issue of bonafide need of the landlord has to be considered as on the date of filing of the eviction petition and only cautious cognizance should be taken of subsequent events. Subsequent events must be such which completely and totally wipe away the cause of action (Ref: Gaya Prasad vs. Sh. Pradeep Srivastava AIR 2001 SC 803).
44. It was the case of the landlords that the tenanted premises was required as petitioner no. 2 wanted to open a boutique with the help of petitioner no.1. Thus, it was contended that the tenanted premises was not only required for petitioner no. 2, but was required for petitioner no. 1 as well. Further, as submitted, petitioner no. 2 is still an Indian citizen and occasionally visit Pakistan.
45. This petition was filed in the month of September, 2016. During the pendency of the petition, situation underwent a change and petitioner no. 2 got married to a Pakistani national. Though she is married but she is an Indian national. Petitioner no. 1 is resident of Delhi. Therefore, the bona fide requirement cannot be said to have ended as she wanted the premises not just for herself but for petitioner no.1.
46. The present case is therefore not a case where the complete need is wiped out with the marriage of petitioner no. 2 as it was a natural event, and therefore, notice of subsequent events need not be taken as held by the Hon'ble Supreme Court Page No. 24 of 30 RC ARC No. 153/2016 Shaina Aftab & Ors. Vs. Mohd. Irfan especially Gaya Prasad's (supra) case.
Whether the premises is required bonafidely?
47. It was submitted on behalf of petitioner no.1 and 2 that the premises is required bonafide for themselves. He also refered a judgment of the Hon'ble Supreme Court passed in the case of Sarla Ahuja v. United India Insurance Co Ltd. Reported as VIII (1998) SLT 374 to advance the proposition that 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.
48. Per contra, it was submitted on behalf of the tenant that mere assertion on the part of the landlord that he requires the premises in the occupation of the tenant for the purpose of starting his own business is not enough but he has to satisfy the court that it is bona fide. He stated that it is merely a tool to get the property vacated for ulterior motives.
49. It is the case of the petitioners that the premises is required for the purpose of starting the business of Boutique. The desire to do so cannot be termed as fake as it is well settled that it is for the landlord to make his own choice and it will not be for the tenant to contend that the premises are not required bonafide for use of the petitioners on the ground that they are married in Page No. 25 of 30 RC ARC No. 153/2016 Shaina Aftab & Ors. Vs. Mohd. Irfan rich families.
Merely because the in-laws are rich, the requirement cannot be said to be mala-fide. Everyone has a right to stand on his or her own legs and set up his/her business.
50. The Hon'ble Supreme Court in the case of Nidhi vs Ram Kripal Sharma (D) through LRs (supra) held that being married does not automatically result in extinguishing of bona fide requirement of the landlord as being the owner of property, she alone is to decide what she wants to do with her property.
51. The Hon'ble Delhi High Court in Aero Traders Pvt. Ltd. vs Mohan Singh & Anr decided on 2 January, 2014 held as under:-
13. Financial status of the landlord not relevant In Shamshed Ahmad & Ors. vs. Tilak Raj Bajaj (deceased), 152 (2008) DLT 301 (SC), the Supreme Court affirmed the order of the trial court which was reversed by the HC, that "The requirement of section 14(1)(e) is 'bonafide requirement' and it has to be seen as per the requirement of the petitioner(landlord), even if the petitioner is very rich and having other properties at different places that does not affect his requirement of the premises, as alleged in the petition." And the leave to defend application was dismissed.Page No. 26 of 30
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52. Further, the petitioners have stated that they want to increase the monthly income of their family by starting a Boutique.
53. In Tarsem Singh vs. Gurvinder Singh, RCR 137/2010, it was observed that "If the landlord wants to start his own business in the premises owned by him then by no stretch of imagination, it can be said that the requirement of the landlord for the premises is neither bonafide nor genuine" (Ref:
AeroTraders Pvt. Ltd).
54. Hence, the need of the petitioners to increase the monthly income of their family by starting their own Boutique appears to be genuine and bona fide.
55. The Hon'ble Delhi High Court in the case of Sarwan Dass Bange vs. Ram Prakash reported as 167 (2010) DLT 80 after taking into consideration the judgment rendered by the Hon'ble Apex Court in the case of Baldev Singh Bajwa vs. Monish Saini (2005) 12 SCC 778 held as under:-
"...the landlord who evicts a tenant on the ground of 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 in built strong presumption that the need of the landlord is genuine; the Page No. 27 of 30 RC ARC No. 153/2016 Shaina Aftab & Ors. Vs. Mohd. Irfan conditions and restrictions imposed on the landlord make it virtually improbable for the landlord to approach the Court for ejectment of tenant unless his need is bona fide - 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 this 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 bona fide. It was further held that a heavy burden lies on the tenant to prove that the requirement is not genuine.."
Apprehension of the tenant
56. The apprehension of the respondent/tenant that the present petition is a tool to get the tenanted shop vacated has been taken care of by section 19 (1) of the Act which empowers the respondent to claim re-possession of the tenanted premises in case the same is not used for the purpose for which it is being sought. It reads as under:
"19(1) Recovery of possession for occupation and re-entry - Where a landlord recovers possession of any premises from the tenant in pursuance of an order made under clause (e) of the proviso to sub-section (1) of section 14 (or under sections 14-A, 14-B, 14- C, 14-D 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 Page No. 28 of 30 RC ARC No. 153/2016 Shaina Aftab & Ors. Vs. Mohd. Irfan possession, and in granting such permission, the Controller may direct the landlord to put such evicted tenant in possession of the premises."
57. The Hon'ble Supreme Court in the case of Smt. Vidhya Dhari Bhagat vs Allahabad Law Journal Co. Ltd reported as AIR 1990 SC 1015, held as under:-
"This sub-section again operates in favour of the tenant who has suffered an order of eviction under section 14(1)(e) or under section 14-A to 14-D and 21...".
Conclusion
58. This Court is, therefore, of the opinion that the respondent/tenant has miserably failed to raise any important triable issue, that could merit grant of leave to defend, whereas the petitioner no.1 and 2 have succeeded in proving their bonafide requirement of the tenanted shop for the purpose of setting up a boutique and have proved beyond doubt that they have no other suitable property in their possession which could be utilized by them.
59. Consequently, the application of the respondent/tenant for leave to defend is dismissed and eviction order is passed in favour of the petitioners and against the respondent/tenant in respect to the shop no. 4 & 5 situated on the ground floor of Page No. 29 of 30 RC ARC No. 153/2016 Shaina Aftab & Ors. Vs. Mohd. Irfan property bearing no. 318-319/4-5 (New No. 12A/102/D, Mauj Pur, Gali No. 1, Shahdara, Delhi) more specifically shown in red colour in the site plan.
60. However, in view of section 14 (7) of the Act, the landlord shall not be entitled to obtain possession of the premises in dispute before the expiry of period of six months from the date of the order.
Digitally signedAnnounced in open Court BABITA by BABITA PUNIYA on 10th day of April 2023 PUNIYA Date: 2023.04.10 15:53:57 +0530 (Babita Puniya)
Rent Controller, North-East District Karkardooma Courts, Delhi/10.04.2023 This judgment contains 30 pages and each page bears my signature. Digitally signed by BABITA BABITA PUNIYA PUNIYA Date:
2023.04.10 15:54:04 +0530 (Babita Puniya) Rent Controller, North-East District Karkardooma Courts, Delhi/10.04.2023 Page No. 30 of 30