Delhi District Court
Shiela Vanti vs Ashok Kumar on 15 November, 2016
IN THE COURT OF SH NAVJEET BUDHIRAJA: ACJcumCCJ cumARC (SOUTHWEST): DWARKA COURTS: NEW DELHI. EP No. 20/15 Shiela Vanti vs Ashok Kumar 15.11.16 ORDER:
1. By virtue of this order, application u/s 25B (5) of Delhi Rent Control Act, 1958 (henceforth referred to as 'the Act') seeking leave to defend and contest the eviction petition filed by the petitioners on the ground of bonafide requirement U/s 14 (1) (e) r/w section 25B of the Act moved on behalf of the respondent is being disposed of.
2. The brief background of the case as brought out from the petition is that petitioners are landlords ie Shiela Vanti petitioner No.1 and Narender Kumar, petitioner No. 2, of property bearing No.810, Som Bazar, Haibatpura,near Raghunath Mandir, Najafgarh, New Delhi110043, and respondent ie Ashok Kumar, Proprietor Ashok Kumar and Sons is the tenant in shop no. 6 of aforesaid property (hereinafter referred to as the tenanted premises). The present eviction petition has been filed by the petitioners against the respondent U/s 14(1) (e) read with section 25B of the Act, 1958 on the ground of bonafide requirement of the petitioners.
1 EP No.20/15Shiela Vanti vs Ashok Kumar
3. In the application for leave to defend alongwith supporting affidavit, it is stated by the respondent that Ashok Kumar and Sons is tenant in the tenanted premises and rent receipts are issued in the name of Ashok Kumar and Sons and eviction petition against the respondent alone is not maintainable as respondent is carrying on business therein alongwith his son Sh. Pardeep Arora. It is further stated that requirement of the landlord of the suit premises for residential purpose is not made out as the landlord has admitted that he has three rooms at the first floor and one room on the second floor. It is also stated that the landlord has covered veranda on both the floors. It is categorically denied that the petitioners are using one room on the first floor as a godown and it is stated that the petitioners are using all the three rooms at the first floor and one room on the second floor for their residence.
4. It is further stated that petitioner No. 1 is bed ridden lady of more than 80 years of age who uses adult diapers and it is unimaginable that she would transfer ground floor bed room alone. It is further stated that plea of the petitioners that they would accommodate the stay of visiting guests on the ground floor bed room to be created by removing the load bearing walls between shop No.5 and 6 is not believable as it is improbable that guests would be accommodated alongwith ailing petitioner no. 1. It is also stated that there is no necessity of separate room for daughter of petitioner no. 2 ie Yogita Pruthi as her 2 EP No.20/15 Shiela Vanti vs Ashok Kumar marriage is soon to be solemnized. The petitioner belongs to lower middle class family and in view of their needs and socio economic status, they have sufficient space for their residence and business.
5. It is further stated that entire property is built on load bearing walls and it is not possible to remove the intervening walls between shop no. 5,6 and 7 as the same shall result in collapse of the whole building and also cause danger to the adjoining building. It is further stated that the landlord had approached the respondent on 23.09.2015 and thereafter on several occasions requiring them to increase the rent of tenanted properties to present market rate of Rs. 12,000/ per month failing which he would file eviction petition against the tenant. It is further stated that the tenant/respondent had paid 'Pagri' to the petitioners landlord at the time of commencement of tenancy and transaction between the parties is not purely of landlord tenant but in the nature of agreement to sell alongwith delivery of possession.
6. Per contra, it is the case of the petitioners as made out from the petition as well as reply of leave to defend that in the year 1989, the tenanted suit premises as shown in yellow colour in site plan attached to the petition let out to the respondent at monthly rent of Rs. 300/ exclusive of electricity charges. Thereafter, rent was increased from time to time and 3 EP No.20/15 Shiela Vanti vs Ashok Kumar lastly the rent was increased to Rs 485/ per month in the year 2013 excluding electricity and other applicable charges. It is stated that there is admitted relationship of landlord and tenant between the petitioners and the respondent. Petitioners are owners of the property measuring about 100 sq. yard and do not have any other accommodation available with them for their bonafide requirement. The petitioners do not own any other immovable property except the present property ie 810, Som Bazar, Haibatpura, near Raghunath Mandir, Najafgarh, New Delhi110043.
7. In the grounds seeking eviction, the petitioner has stated that the ground floor of the property has eight shops in total, the details of which are as under:
a)Shop No.1, measuring 8x12'', where petitioner no. 2 is carrying business of sale purchase of plastic goods.
b) Shop No.2, measuring 8x12'', where Mukesh and Rajesh Kumar are petitioner doing cloth business.
c)Shop No.3, measuring 11x12''. Petitioner No. 2 is using said shop as go down for plastic goods being sold from shop no. 1.
d) Shop No 4, measuring 10x8'', where Rajiv Jain proprietor M/s Laxmi Jewellers is tenant of petitioners.
e)Shop No.5, measuring 8x12'', where Sant Lal is doing business of sale of foot wear in the name of Sant Lal and sons as tenant of petitioner.
f) Shop No. 6 measuring 8x12'' where Ashok Kumar (respondent herein)is doing business of foot wear in the name of Ashok Kumar & sons as tenant of petitioner.
g) Shop No.7 measuring 8x8'' where Prakash Chand is running tailor shop as tenant of petitioners.
h) Shop No. 8 measuring 2x4'' being used by petitioners to park two wheeler and bicycle.4 EP No.20/15
Shiela Vanti vs Ashok Kumar
8. The petitioners have filed eviction petition against tenants of shop No.2,4,5,6,7 separately on the ground of bonafide need of the petitioners. It is further stated that petitioner No. 1 is 80 years old lady and mother of petitioner no. 2. Petitioner no. 2 alongwith his wife Ms Deepa Pruthi and his two daughters Yogita Pruthi aged 25 years and Ms Kirti Pruthi studying in 8th class and 12 years old. All the abovesaid members are residing in the property. The petitioner No. 2 is the sole earning member of the family earning around Rs 15000/ Rs 17,000/ per month from business of selling plastic goods and want to expand his business to support for his family. Petitioner No.2 requires shop no. 2 and 4 for expanding his business as due to shortage of space, he is storing his goods at his house at the first floor ie in the room on right hand corner at the first floor. Presently, the petitioner has to sacrifice the residential space for storing of plastic goods at their house which causes harassment to the petitioners and their family members. Furthermore, the petitioners require shops no.5,6 and 7 for residential requirement to convert the shops into bed room and living room. The petitioner No. 1 being an aged lady would reside in a room on the ground floor to be converted from shop no. 5 and 6 and the same would be more convenient to her and her family as she would not be required to use the stairs. The conversion of shop no. 5 and 6 into a room is required also due to paucity of space and inconvenience caused to petitioner and their growing family which require extended residential space.
5 EP No.20/15Shiela Vanti vs Ashok Kumar At present, the petitioners and their family members are surviving in three rooms. The daughters of the petitioner no. 2 have also come of age and require separate rooms for their privacy and studies. Furthermore, the three sisters of petitioner No. 2 alongwith their husband and their children also come to visit the petitioners during the holidays and the paucity of space causes embarrassment and inconvenience to the whole family. Furthermore, in the reply to the leave to defend, the petitioners have stated that the rent receipts are being signed only by the respondent herein and by no other relatives like brothers or son etc. Furthermore, the petitioner has denied the plea of the respondent that petitioners are having covered veranda on both the floors of the suit property and stated that in any case, the same cannot be used for bonafide need of the petitioner. It is also stated that averment of respondent that walls of the suit property cannot be removed, is baseless and building can very well be constructed with the help of modern civil engineering. It is also stated that the petitioners approached the respondent requesting them to vacate the same as the same was required for bonafide need of the petitioner, but the petitioner never demanded increase in rent from the respondent. It is also stated that the respondent never paid any 'Pagri' to the petitioners.
9. Rejoinder was then filed on behalf of respondent refuting the averments of the reply reiterating the stand taken in leave to defend application.
6 EP No.20/15Shiela Vanti vs Ashok Kumar
10. During arguments on application for leave to defend, Ld counsel for the respondent has argued that triable issues have been raised in the application, the first being that petitioner has filed written site plan of the aforementioned property and that the portion of the property have not been described correctly. The dimensions of the aforementioned eight shops are also stated to be mentioned incorrectly in the petition and site plan. It is also submitted that landlords petitioners have sufficient space for the entire family on the first floor and the second floor of the suit property and there is no bonafide requirement of shop No.5, 6 and 7 for residential purpose of the petitioners and their family. It is submitted that the affidavit in support of application for leave to defend discloses sufficient facts as would disentitle the landlord from the order of recovery of possession of tenanted premises u/s 14 (1) (e) of the Act. In view of the above, application for leave to defend may be allowed. Ld counsel for respondent in support of the above averments has relied upon the following judgments.
i). Santosh Devi Soni vs. Chand Kiran, 2000 Law Suit (SC) 106.
ii).John Impex Pvt. Ltd. vs Dr. Surender Singh, 135 (2006) DLT 265.
iii).Abdul Malik vs. Shashi Bhalla, RC Revision 536 of 2011 decided by Hon'ble High court of Delhi on 23.12.2011.
11. On the other hand, Ld counsel for the petitioners has referred to the documents and photographs of the suit property placed on record and asserted that there is bonafide requirement of shops No.5,6,7 of the suit property for 7 EP No.20/15 Shiela Vanti vs Ashok Kumar residential purpose of the family of the petitioners. He has reiterated the grounds stated in the eviction petition and the reply to the application for leave to defend. On the basis of same, he prays for dismissal of application for leave to defend. Ld counsel for petitioner has relied upon the following judgments.
i). Raghvendra Kumar vs. Firm Prem Machinary, AIR 2000 SC 534.
ii).Prativa Devi vs T.V.Krishnan, (1996) 5 SCC 353.
iii)Sarla Ahuja vs. United India Insurance Co. Ltd., AIR 1999 SC 100.
iv)Shiv Sarup Gupta vs Dr. Mahesh Chand Gupta, AIR 1999 SC 2507.
v)John Impex Private Limited vs Dr. Surinder Singh, 135 (2006) DLT 265.
vi)Abdul Malik vs. Shashi Bhalla, RC. Rev.536 of 2011 decided by Hon'ble High Court of Delhi on 23.12.11.
vii) Girdhari Lal Goomer vs. P.P. Gambhir, RC. Rev.0607 of 2011 decided by Hon'ble High Court of Delhi on 15.02.2011.
viii)Tarseem Singh vs. Gurvinder Singh, 173 (2010) DLT 379.
ix)Adarsh Electricals vs. Dinesh Dayal, 173 (2010) DLT 518.
x) Darshan Garg vs. Kishan Das, 36 (1988) DLT 3.
xi).Satyawati Sharma vs. Union of India, AIR 2008 SC 3148.
12. I have heard the rival submissions of the parties and perused material on record.
13. Before deciding upon the question whether leave to defend ought to be allowed, it would be apposite to briefly recapitulate the underlying intendment behind adopting a summary procedure under Section 25B of the Act and the underlying philosophy behind granting leave to defend. Section 25 B provides for an efficacious and speedy remedy for the landlord who has a bonafide need for his property. Initial 8 EP No.20/15 Shiela Vanti vs Ashok Kumar burden is placed upon the landlord to prove his bonafide requirement. This burden becomes more onerous when he has other alternative accommodation in his possession. In the latter case, the court can justifiably require the landlord to justify his decision to carry on his business only from the property from where the Tenant is sought to be evicted. Though the landlord is considered to be the best judge of his own requirement and neither the court nor the tenant can dictate terms to him, whatever the landlord says cannot be treated as gospel truth.
14. It is the duty of the Landlord to demonstrate that the projected need of Tenanted premises was genuine and authentic and was not a mere wish and desire. If on the mere asking of every landlord that he needs the premises for doing his business and if he was to be the sole judge and master of his choices/decisions, the statutory provisions afforded to the Tenant would become meaningless. Dismissing the claims of the tenant at the very threshold without giving him a hearing would be contrary to the principles of natural justice.
15. Thus, whenever the tenant is able to raise triable issues, leave to defend application ought to be allowed. Ordinarily Principle requirements for grant of leave to defend have for exhaustively being laid down by Hon'ble Supreme Court in case titled as Charan Dass Duggal vs Braham Naryan (21) 1982 DLT 378 and have subsequently been reiterated in 9 EP No.20/15 Shiela Vanti vs Ashok Kumar several judicial pronouncements. When leave to defend is sought, the tenant must make out a prima facie case, thereby raising triable issues. The test is a test of triable issue and not of final success in the adjudication. While deciding a leave to defend application what is to be kept in mind is whether triable issues are being disclosed and not whether they are being conclusively proved.
16. In a bonafide necessity eviction petition u/s 14 (1)
(e) of the Act, three aspects are required to be seen by the Court for decreeing the eviction petition:
(i)Firstly, there must be relationship of landlord and tenant between the parties and the landlord must be the owner of the tenanted premises.
(ii)Second aspect which has to be seen is whether the landlord requires the tenanted premises for his bonafide need and/or the need of his family members.
(iii)Thirdly, it has to be seen whether the landlord has alternative suitable accommodation.
17. So far as the first aspect that there must be relationship of landlord and tenant between the parties and landlord is the owner of the tenanted premises, there has not been any remonstrance on the part of the respondent. Petitioner has claimed that the tenanted premises was previously owned by her husband and after the demise of her husband, both the petitioners became the landlord/owner of the premises and respondent has been paying the rent of the same to the petitioner. Respondent on the other hand in their affidavit for 10 EP No.20/15 Shiela Vanti vs Ashok Kumar leave to contest the eviction petition has affirmed that 'M/s Ashok Kumar and sons' is the tenant in the tenanted premises and the landlord accepts the rent and issue rent receipts. Thus, the relationship of landlord and tenant is not under challenge.
18. It is, however, pertinent to note that the respondent in the later part of the leave to defend application had claimed that since he had paid Pagri to the landlord at the time of commencement of the tenancy, therefore, transaction between the parties cannot be said to be purely of landlord tenant nature but in the nature of agreement to sell with delivery of possession. This pleading of the respondent is nothing but an abject failure as it is totally at variance with his earlier pleading that he has been occupying the premises in the capacity of tenant and has been paying rent to the petitioner. Otherwise also, there is no such agreement to sell filed on record. This self serving pleading in the form of bald assertion is accordingly rejected.
19. To fortify my abovesaid view, reliance is placed upon judgment of Hon'ble Delhi High Court in Manjeet Singh vs Vani Jain, 2015 (1) RLR 331, para 6 of the judgment is germane which is reproduced as below:
''In the leave to defend application the petitioner has not denied paying rent to the respondent for the last about 26 years as shared by the respondent in the eviction petition. The claim is that the respondent is not the owner of the 11 EP No.20/15 Shiela Vanti vs Ashok Kumar premises as no legal title has devolved upon her in respect of the premises as her father was not the registered owner of the premises nor any memorandum of gift was executed in her favour. It is trite law that in a petition under section 14(1)(e) DRC the landlord is not required to prove absolute ownership and is only required to prove that he has a claim on property better than that of the tenant. The factum of the petitioner paying rent to the respondent for the last about 26 years is not denied in the leave to defend application and hence the claim of the petitioner that the petitioner has raised a triable issue that the respondent is not the owner falls to the ground.......''.
20. Ld counsel for respondent has also argued that the petition filed against Sh Ashok Kumar is not maintainable in the eyes of law in as much as 'M/s Ashok Kumar and sons' has been operating as tenant from the tenanted premises which comprises of Sh Ashok Kumar and his son Sh Pardeep Arora and since Sh Pardeep Arora has not been made party to the present petition, the petition is bad for non joinder of necessary party. This argument is based on the premised that the rent receipts have been issued in the name of 'Ashok Kumar and sons'. In my considered opinion, this plea of ld counsel for respondent also does not pass any muster as he has not placed on record any material to demonstrate that Sh Pardeep Arora has also been involved in the business of 'M/s Ashok Kumar and sons'. Petitioner has claimed 'M/s Ashok Kumar and sons' to be the proprietorship firm whose proprietor is respondent Ashok Kumar. No documentary material has been filed on record on 12 EP No.20/15 Shiela Vanti vs Ashok Kumar behalf of respondent to evince any partnership firm being carried on by respondent Ashok Kumar and his son Pardeep Arora. Thus, in the absence of any contrary evidence on record, mere denial of the claim of the petitioner that 'M/s Ashok Kumar and sons' is not the proprietorship firm will not come to the rescue of the respondent.
21. Now delving into the aforenoted second aspect of bonafide requirement of the landlord. While Section 14 does not give an exhaustive illustration of what may constitute 'bonafide requirement' there is a plethora of cases to show which illustrate bonafide requirement. The Supreme Court in Shiv Sarup Gupta vs. Mahesh Chand Gupta (Dr.), 80 (1999) DLT 731 (SC) =VI (1999) SLT 163=(1999) 6 SCC 222 held:
"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 define 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 bona fide' 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 13 EP No.20/15 Shiela Vanti vs Ashok Kumar 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 angel, 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 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 a 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."
22. In the present petition, it is the case of the landlord/ petitioner that the space available to him was insufficient bearing in mind the size of the family. Petitioner has claimed the bonafide requirement of the tenanted premises (shop no. 6) 14 EP No.20/15 Shiela Vanti vs Ashok Kumar and other shops no.5 & 7 in the same premises on the ground of converting the same into bed room and living room for petitioner no.1 who is 80 years of age (shop no.5 & 6 ie tenanted premises required for converting the same into bed room for petitioner no.1 and shop no. 7 alongwith shop no. 8 which is already in possession of the petitioner, to be used as adjoining living room). It is further the submission of the petitioner that due to the old age of petitioner no.1, it becomes quite difficult to bring her down from the first floor to take her to doctor and other purposes, therefore, there is a bonafide requirement of shop no. 5 & 6 ie the tenanted premises and shop no. 7.
23. It has not been demurred by the respondent that petitioner no.1 is 80 years old. Thus, it would be quite obvious that petitioner no.1 must be finding it onerous to come down to ground floor to visit the doctor or to any other place. Therefore, this requirement of the petitioner can not be doubted. Respondent has opposed this requirement by stating that petitioner no.1 is bed ridden and not able to stand up and also uses adult diapers and it would be unimaginable to shift her to ground floor bedroom alone. Ld counsel for respondent has also referred to the improvement made on behalf of the petitioner with respect to the providing of bathroom along side the bed room for petitioner no.1. To this objection of respondent, it is stated that although petitioner has not 15 EP No.20/15 Shiela Vanti vs Ashok Kumar specifically spoken about any other attendant to be housed alongwith petitioner no.1 on the ground floor but given the fact that petitioners have already stated in their petition that the tenanted premises i.e Shop no.7 & 8 will be converted into a living room, omission to mention of any attendant being permanently shifted to the said living room will not be fatal to the case of the petitioner.
24. Otherwise also, petitioner has cited the requirement of shop no. 5 & 6 ie tenanted premises and shop no. 7 for the bonafide requirement of their family consisting of petitioner no.1 (mother), petitioner no.2(son), wife Mrs Deepa Pruthi and two daughters namely Ms Yogita Pruthi (25 years old) and Ms Kirti Pruthi (12 years old). Respondent has controverted its requirement of petitioner by stating that petitioners have three rooms on the first floor and one room at second floor at their disposal and also covered verandahs at both the floors, therefore, the requirement pleaded being of additional accommodation, respondent is entitled to leave to defend. Respondent has also brought to the notice of the court that Ms Yogita Pruthi had been engaged and was scheduled to be married in February 2016 which fact has also not been denied by the petitioner.
25. This court finds that there is a bonafide requirement when the landlord claims that the space available on the first 16 EP No.20/15 Shiela Vanti vs Ashok Kumar floor and the second floor is not sufficient for a family to live comfortably given the size of the family which is not challenged. There is also no merit in the contention that since one of the daughters Ms Yogita Pruthi has been settled in her respective matrimonial home, she could not need any accommodation in her father's home. In Tilak Raj vs Krishan Lal, 1982 RLR 33 it was held that the married daughter keep on visiting their father's home and are well entitled to some accommodation (guest room) and hence landlord was entitled to say that he wanted some accommodation for their use also. In the present petition, the landlord is asking for space to accommodate all members of his family. In Shiv Sarup Gupta (supra) the Supreme Court held:
"It could not have been the intendment of the rent control law to compel the landlord in such facts and circumstances to shift to a difference house and locality so as 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 doe not command or compel him to squeeze himself tightly into lesser premises protecting the tenant's occupancy."
26. It would be rather unjust to expect the landlord to accommodate himself as per the wishes of his tenant especially when she bonafidely requires the tenanted premises. To buttress my view, reliance is hereby placed upon the judgment of Delhi High Court in Bishamber Dayal Gupta vs. Naresh Kumar Sharma, 213 (2014) DLT 194. Para 16 1718 of the judgment 17 EP No.20/15 Shiela Vanti vs Ashok Kumar are reproduced herein below:
"16. A tenancy need not be suffered or protected which deprives a landlord's visiting married daughters from staying with him because of constraints or residential accommodation. A tenant can not be permitted to become the cause for denial of familial pleasures of the landlord and his family. The Supreme Court in Ram Nath vs. Rajendra Pershad, (2003) 12 SCC 127 held:
"4. Having regard to the material placed on record and looking to the findings recorded by the trial Court, it can not be said that the requirement of the appellant of the premises in question was not bona fide. The trial Court was right in passing the decree of eviction against the respondent. The first appellate Court was wrong in holding that the requirement was not bona fide taking the view that the available accommodation with the appellant was sufficient as the three daughters were married. We are of the view that the approach of the first appellate Court was not realistic. Merely because three daughters were married, it could not be said that they do not come and stay with the appellant even occasionally. The size of the family has grown and the married daughters and sonsin law of the appellant also could visit the house of the appellant occasionally."18 EP No.20/15
Shiela Vanti vs Ashok Kumar
17. The tenant cannot dictate how the property belonging to the landlord should be put to use. Once the landlord shows that there is bona fide requirement for the tenanted premises, the Court is bound to allow the eviction petition. The Supreme Court in Sarla Ahuja vs United India Insurance Co. Ltd., VIII (1998) SLT 374=(1998) 8 SCC 119, held"
"14. 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 csae, 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 bona fide of the requirement of the landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself."
18. In Sudesh Kumari Soni vs Prabha Khanna & 19 EP No.20/15 Shiela Vanti vs Ashok Kumar Anr., RC REV.44/2004, the learned Single Judge held that:
"It is very natural and consistent that the petitioner requires more space for affording at least a basic standard of living with a sense of decency. A drawing room, Pooja room an guest room are the bare necessities for a comfortable living."
27. In Smt. Rajwanti Dave vs. Sardar Amar Singh 1987 (2) Rent Control Reporter 564, It was held by Hon'ble Delhi High Court that the need for additional accommodation for the growing children is a bonafide requirement. The requirement of the petitioner for one room for herself also cnnot be termed as malafide or fanciful requirement. Merely because the petitioner is living in the drawing room due to paucity of accommodation, it can not be said that she does not require an independent room for herself. Similarly, the requirement of one room for the guest and the married daughters by the petitioner Cannot be termed as fanciful. In Smt. Prabhu vs. K,Sharma, 1997 Rajdhani Law Reporter, 242 (SC), it was held by Hon'ble Supreme Court that the requirement of the landlord for room for guests and also the requirement of drawing and dining rooms can not be termed as fanciful and the same are bonafide requirements."
28. Further in, Prabha Goyal vs Nirmal Kumari Jain, 2015 (1) RLR (Delhi) 113 it has been held that once 20 EP No.20/15 Shiela Vanti vs Ashok Kumar accommodation available to landlord is found to be insufficient as compared to number of family members of the landlord, bona fide need is the consequence.
29. The conspectus of the aforesaid judgments is that if upon considering the entire circumstances as related by the landlord/ petitioner, the residential space available to him is found to be insufficient and inconvenient considering the 80 years old aged mother and other family members, his plea of requirement of more space can not be counted as additional accommodation as alleged by ld counsel for respondent. Therefore, the judgments relied upon by the respondent are not applicable to the facts of the present case.
30. Another limb of ambitious argument of ld counsel for respondent is that shop no.5 to 8 including the tenanted premises have been constructed using iron, rafters, some 40 years back and there are no columns and beams on the roof. In the light of this, the expert has opined that if the partition wall is removed than whole building shall collapse and also create a dangerous position to the adjoining properties. To counter this arguments, ld counsel for petitioner has relied upon the judgment of High Court of Delhi in Sharrifuddin vs. Babuddin and Another decided on 24.11.2008. Ld counsel has directed the attention of the court to para 7 of the judgment wherein it has been observed that if the premises even after 21 EP No.20/15 Shiela Vanti vs Ashok Kumar being vacated can not be occupied directly and has to be given extensive repair or reconstruction, no fault can be found with the petitioner. A decree can be passed under Section 14 (1)(e) even in respect of a dilapidated premises where the landlord intends to live after repairing it.
31. In view of the aforenoted judgment relied upon by ld counsel for petitioner, the abovesaid contention of ld counsel for respondent pales into insignificance. The fact that petitioner may be required to carry out extensive repair and reconstruction of the tenanted premises or the premises may be requiring complete overhaul will not act as a stumbling block in assessing the bonafide requirement of the petitioner.
32. It is also the contention of respondent that petitioners have approached him on number of occasions for the enhancement of rent or for vacating the tenanted premises which is evident from the CD containing the conversation which has been filed on record. This contention of the respondent is also without any merit in as much as the same does not have any bearing on the issues involved in the present petition. Even if the petitioners have asked for enhanced rent or the vacation of the premises, that would not be sufficient enough to impute any malafide intention upon them. It is not to forget that when the petitioners have the right over the tenanted premises, it is their prerogative as to in what manner they would like to use 22 EP No.20/15 Shiela Vanti vs Ashok Kumar the same.
33. Last leg of argument of ld counsel for respondent is with regard to the false information with regard to the size of the shop furnished by the landlord in respect of Shop no. 8 which is in possession of the petitioners only. It is argued that the correct measurement of the shop is 6 x 8 feet and not 2 x 4 feet as claimed by the petitioners. It is noted that this argument of the respondent is inconsequential in as much as shop no. 8 is admittedly in possession of the petitioners and is not the bone of contention as far as the question of bonafide requirement in respect of other shops are concerned.
34. As regards the above noted third aspect of availability of other suitable accommodation, respondent/tenant has not raised any specific pleading. Therefore, it is assumed that respondent does not want to contest the petition on the ground of availability of any other suitable accommodation with the petitioner.
35. In the light of above, this court is of the considered view that there is a bonafide requirement of the landlord/ petitioner and the space presently available to them is insufficient for their family members. No triable issue is raised by the respondent/ tenant. The tenanted premises i.e shop no. 6 of property bearing No. 810, Som Bazar, Haibatpura, near 23 EP No.20/15 Shiela Vanti vs Ashok Kumar Raghunath Mandir, Najafgarh, New Delhi110043, is directed to be vacated and the tenant/ respondent to be evicted therefrom. However as per the statutory provision U/s 14 (7) of the Act, this eviction order would be executable only after six months.
36. File be consigned to record room.
Announced in open Court (Navjeet Budhiraja)
today i.e on 15.11.16 ACJ/CCJ/ARC (SW):ND
24 EP No.20/15
Shiela Vanti vs Ashok Kumar
Shiela Vanti vs. Ashok Kumar
15.11.16
Present: Sh Narender Kumar who states himself to be
son of petitioner Shiela Vanti.
Ld counsel Sh. Amit Kumar Singh for
respondent alongwith respondent in person. Vide separate order of even date, announced in the open court, application for leave to defend stands dismissed. The tenanted premises i.e shop no. 6 of property bearing No. 810, Som Bazar, Haibatpura, near Raghunath Mandir, Najafgarh, New Delhi110043, is directed to be vacated and the tenant/ respondent to be evicted therefrom. However as per the statutory provision U/s 14 (7) of the D.R.C.Act, this eviction order would be executable only after six months.
File be consigned to record room.
(Navjeet Budhiraja) ACJ (SW):15.11.16 25 EP No.20/15 Shiela Vanti vs Ashok Kumar