Delhi District Court
Suman Jain vs Sudarshan Kumari on 29 April, 2024
IN THE COURT OF ACJ-cum-CCJ-cum-ARC, SOUTH
DISTRICT COURTS COMPLEX, SAKET, DELHI
- Presided by: PARAS DALAL, D.J.S.
RC ARC No. 27/2021
CNR No. DLST03-001247-2021
Suman Jain
W/o Late Sh. Ramesh Chand Jain
R/o Shop no.15, First Floor, Main Market,
Malviya Nagar, New Delhi
............... Petitioner
versus
Sudarshan Kumari
W/o Late Sh. Prem Nath
R/o Shop no.15, Private no.1 & 2, Main Market,
Malviya Nagar, New Delhi
.......... Respondent
ORDER ON LEAVE TO DEFEND APPLICATION
1. Vide this order, I shall dispose of an application filed on behalf of the respondent seeking leave of the Court to defend an eviction petition filed by the petitioner under the provisions of Section 14 (1) (e) read with Section 25B of the Delhi Rent Control Act, 1958 (hereinafter referred as "DRC Act").
Petitioner's Case
2. Petitioner has set out the case of bona fide requirement in respect of the tenanted portion comprising of a shop no. 15, private no. 1 & 2, Main Market, Malviya Nagar, New Delhi (hereinafter referred to as "tenanted premises") shown as red in the site plan annexed with the petition. It is averred that the tenanted RC ARC 27 of 2021 Pages 1 of 16 Suman Jain v. Sudarshan Kumari premises were let out to the respondent for carrying of business at the rate of rent of Rs. 709/- per month for outer portion and Rs.531.43/- per month for inner portion exclusive of water and electricity charges.
3. Petitioner is the landlord/owner of the entire property Shop no.15, Main Market, Malviya Nagar, New Delhi ad-measuring 81 sq. Yds. Comprises of ground floor which was originally in occupation of 10 tenants including the respondent herein who are using the same to run their respective shops from the said premises. The first floor of the said property is used for residence by the petitioner and second floor and barsati on the third floor of the said property is residential property.
4. It is stated that the tenanted premises is actually two shops which were let to respondent's husband Sh. Prem Nath in the year 1978, but he demolished the common wall between the two shops and joined both into one bigger shop. The petitioner alleged that respondent runs a garment business in the name of M/s. Neelam Cloth House, admeasuring 27'x12'. The petitioner alleged that respondent's husband Sh. Prem Nath was paying rent and even filed DR 80/2017 and DR 86/2017 during his lifetime. Earlier the petitioner filed eviction petition for bonafide requirement against Sh. Prem Nath, but since he expired, the petition was withdrawn. Subsequently another petition 3/2019 was filed against son of respondent Sh. Rajeev Kumar who was tendering rent in favour of the petitioner. In the said petition, the Sh. Rajeev Kumar objected the landlord tenant relationship since on death of Sh. Prem Nath the tenancy devolved upon the respondent being widow of Sh. Prem Nath. The petitioner withdrew the said petition and now the present petition has been filed.
5. Petitioner has stated that she is an enterprising lady who has vast experience is running and handling seasonal/ festive time kiosks which she sets up all around the year including but not restricted to switching, knitting, mehndi work, selling RC ARC 27 of 2021 Pages 2 of 16 Suman Jain v. Sudarshan Kumari of artificial ornament, accessories, etc. to earn her livelihood and has been setting up the same for many years now. Petitioner averred that it is too tedious work for her to set up temporary kiosks and thus she wants to put her experience in small time trading/ business to set up a cosmetics showroom in the ground floor of the aforesaid shop bearing no.15, Malviya Nagar, New Delhi which was originally occupied by 10 tenants including respondent. The petitioner avers that she needs the entire ground floor for her bonafide requirement ad-measuring 91 sq. Yds. Petitioner further avers that she has no other suitable alternate commercial space/ property to set up aforesaid business as the said shop in question is ideal for the business requirement of the petitioner as the same is situated in middle of the Malviya Nagar main market and have high number of footfall of general public which is ideal for the cosmetics and artificial jewellery business which the petitioner wishes to set up in the said premises.
6. Petitioner states that her daughters are happily married and her only son is a Manager in IT Company in Pune, Maharashtra and petitioner needs the tenanted premises to set up the aforesaid business to earn her livelihood with grace and dignity instead of setting up seasonal stalls/ kiosks on the market road during various festivities.
Respondent's Leave of Defend
7. Respondent has opposed the petition and has challenged the bonafide requirement of petitioner since both her daughters are settled and her son does not require the premises. The respondent states herself to be tenant, however the relationship has been disputed by the respondent. The respondent stated that petitioner made bald averment about her being an enterprising lady having vast experience in running and handling seasonal/ festive time kiosks as there is not proof/ permission from any authority. The respondent avers that petitioner despite evicting eight other tenants, has not commenced any business of RC ARC 27 of 2021 Pages 3 of 16 Suman Jain v. Sudarshan Kumari accessories, sewing, knitting or the mehndi word and the sole purpose of eviction is to reconstruct the property for sale or for higher rewards of rent from new tenancy therein. The respondent further contests that petitioner has other alternate suitable accommodation as she owns double story property bearing no.790/5, Chirag Delhi admeasuring about 100 sq. yds. The same is alleged to be commercial property with two big shops at the ground floor. The respondent also refers to first, second and third floor of the shop no.15, Malviya Nagar, Main Market which are all available for the purpose of the petitioner.
8. The respondent next challenged the bonafide of the petitioner. It was averred that the petitioner was earning rents from commercial space of property bearing no. 790/5, Chirag Delhi ad-measuring about 100 sq. Yds. It is also averred that the petitioner earns rental income of Rs.50,000/- (approximately) from AKG Advertising being run at first floor of Shop no.15, Main Market, Malviya Nagar, New Delhi. Respondent also alleged that the petitioner earns Rs.25,000/- (approximately) from Indus Towers Vodafone with ID no. 5827. The respondent alleged that petitioner herself claimed before her that she was earning Rs.1,05,000/- as rental income per month.
9. As opposed to petitioner, the respondent alleged that the tenanted shop left to her by her husband is the only source of income for her since 1978 and there is no other source of livelihood. Respondent claimed that she has employed one attendant in the shop and her son also works in the same shop, although she does not enjoy all cordial relationship with her son.
Petitioner's Reply to Leave to Defend
10.The petitioner in reply to the leave to defend reiterated her averments and requirements. The petitioner alleged that the defence as to non-existence of relationship was only taken for sake of defending. It was alleged that the RC ARC 27 of 2021 Pages 4 of 16 Suman Jain v. Sudarshan Kumari respondent admits the tenancy in favour of her husband and even in earlier petitioner her son had defended that tenancy devolved upon the respondent after the death of Sh. Prem Nath. The petitioner side alleged that the respondent has not contended true facts as it was know to the respondent herself that petitioner was setting up kiosks since long. The petitioner also replied that she has already stated that she requires the entire 91 sq. Yds of shop no.15, Main Market, Malviya Nagar, New Delhi to set up her business of ornament, etc. The petitioner stated that the other tenants have already vacated and none were granted liberty to defend on similar set of pleas. It is replied that since petitioner wants to start the business in entire ground floor, unless she gets all shops in possession, she cannot start the same and in any case the petitions by four tenants in the Hon'ble High Court is still pending. The petitioner further stated that she has specifically averred that she wants to start her business on the ground floor for it is situated in main market and first, second or third floor of same property cannot reap same benefits. The petitioner further alleged that the property in Chirag Delhi was in joint name of her husband and his brother, which is in exclusive possession of her husband's brother and she has no share/ interest in the said property out of mutual settlement between her husband and his brother since long before. The petitioner admitted receiving rent of Rs.11,000/- per month from Indus Tower Ltd. and denied receiving any rent from AKG Advertising. Infact petitioner stated that AKG Advertising was company of her son in-law who uses the first floor of Shop no.15, First Floor, Main Market, New Delhi for correspondence and communication purposes, although she is residing in the first floor itself. Petitioner denied receiving any rent from her son in-law qua running of his correspondence address from the said first floor.
11.I have heard the learned counsels for the parties and gone through the record as well as the judgments relied upon by both sides.
RC ARC 27 of 2021 Pages 5 of 16 Suman Jain v. Sudarshan Kumari Requirement under Section 14(1)(e) of the DRC Act
12.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 owner/ landlord of the suit premises;
(ii) the suit premises are required bonafide by the landlord for himself or any of his family members dependent upon him; and
(iii) the landlord or such other family members has no other reasonable suitable accommodation.
13. Thus the foremost condition which the landlord has to prove is her bonafide requirement. Further she has to prove that there is no other alternate accommodation available. Thus there are twin requirements which are to be satisfied conjunctively in order to attract the provisions of the Section 14(1)(e) of the Act i.e the bonafide requirement coupled with the reasonably suitable accommodation, which means that both are to be satisfied together and collectively. While deciding the question of grant of leave, the court has to consider whether the tenant has raised any triable point/ issue, the decision of which may disentitle the landlord from recovering possession of the premises.
14. In Precision Steel and Engineering Works v. Prem Deva Niranjan Deva Tayal, AIR 1982 SC 1518 the Hon'ble Supreme Court having discussed the relevant provisions of Act 59 of 1958 held as follows:-
"The Controller has to confine himself to the affidavit filed by the tenant under sub-sec. (4) and the reply if any. On perusing the affidavit filed by the tenant and the reply if any filed by landlord the Controller has to pose to himself the only question, `Does the affidavit disclose, not prove, facts as would disentitle the landlord from obtaining an order for RC ARC 27 of 2021 Pages 6 of 16 Suman Jain v. Sudarshan Kumari the recovery of possession on the ground specified in cl. (e) of the proviso to Section 14 (1)?' The Controller is not to record a finding on disputed questions of facts or his preference of one set of affidavits against the other set of affidavits. That is not the jurisdiction conferred on the Controller by sub-sec. (5) because the Controller while examining the question whether there is a proper case for granting leave to contest the application has to confine himself to the affidavit filed by the tenant disclosing such facts as would prima facie and not on contest disentitle the landlord from obtaining an order for recovery of possession. At the stage when affidavit is filed under sub- sec.(4) by the tenant and the same is being examined for the purpose of sub-sec.(5) the Controller has to confine himself only to the averments in the affidavit and the reply if any and that become manifestly clear from the language of sub- sec. (5) that the Controller shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from recovering possession etc. The jurisdiction to grant leave to contest or refuse the same is to be exercised on the basis of the affidavit filed by the tenant. That alone at that stage is the relevant document and one must confine to the averments in the affidavit. If the averments in the affidavit disclose such facts which, if ultimately proved to the satisfaction of the Court, would disentitle the landlord from recovering possession, that by itself makes it obligatory upon the Controller to grant leave. It is immaterial that facts alleged and disclosed are controverted by the landlord because the stage of proof is yet to come. It is distinctly possible that a tenant may fail to make good the defence raised by him. Plausibility of the defence raised and proof of the same are materially different from each other and one cannot bring in the concept of proof at the stage when plausibility has to be shown."
RC ARC 27 of 2021 Pages 7 of 16 Suman Jain v. Sudarshan Kumari
15. In Sarwan Dass Bange v. Ram Prakash, 2010 IV AD (Delhi) 252, it has been observed by the Hon'ble Delhi High Court as follows:
"...However, merely because the tenant so disputes and controverts the pleas of the landlord does not imply that the provisions of summary procedure introduced in the Act with respect to ground of eviction on the ground of requirement is to be set at naught. The Controller is required to sift/comb through the application for leave to defend and the affidavit filed therewith and to see whether the tenant has given any facts/particulars which require to be established by evidence and which if established would disentitle the landlord from an order of eviction. The test is not of the tenant having controverted/denied the claim of the landlord and thus disputed questions of fact arising; the test is to examine the pleas of facts and then to determine the impact thereof."
16.Thus while deciding the question of leave, the controller is not required to conduct a full fledged trial but only to see from the affidavit of the tenant, as to whether any triable point / issue the decision of which may disentitle the landlord from recovering the possession of the premises is disclosed. The Controller is not required to seek the proof of the defence of the tenant but only to see whether any triable issue is raised by the tenant or not.
As regards landlord and tenant relationship
17. As regards the question of petitioner being the owner / landlord and the relationship of landlord and tenant between the parties is concerned, the respondent at one point has contested the existence of such relationship. The petitioner on the other hand has relied on the admission in form of earlier petitions. It is averred that respondent's husband Sh. Prem Nath was paying rent and even filed DR 80/2017 and DR 86/2017 during his lifetime. Earlier also the petitioner filed eviction petition for bonafide requirement RC ARC 27 of 2021 Pages 8 of 16 Suman Jain v. Sudarshan Kumari against Sh. Prem Nath, but since he expired, the petition was withdrawn. Subsequently another petition 3/2019 was filed against son of respondent Sh. Rajeev Kumar, but since on death of Sh. Premnath (original tenant) the tenancy devolved upon her widow/ spouse i.e. Smt. Sudarshan Kumari/ respondent herein, the earlier petition failed.
18. The respondent has not denied earlier petitions filed. The respondent has also not claimed any title/ ownership of the tenanted premises. The respondent has not even set out any defence to the rent receipts filed by the petitioner. The respondent in her averment has even mentioned that the premises was rented to her husband in the year 1978.
19. The respondent merely for the sake of opposition, cannot deny the landlord tenant relationship. The leave to defend must raise clear and triable issue and mere peace-meal reasons cannot be allowed. The respondent's husband was the original tenant in the demised property. After death of Sh. Prem Nath, the tenancy devolved upon the respondent as per provisions of the DRC Act. There has been admission by the respondent of premises being first rented to her husband Sh. Prem Nath. There has also been no denial to the rent receipt, earlier petitions filed by the petitioner and even to the deposit of rent petitions filed by Sh. Prem Nath himself. Non-denial or evasive denial is nothing but a form of admission. There being no material denying the landlord-tenant relationship, thus there is no triable issue as to landlord tenant relationship and said requirement stands satisfied.
RC ARC 27 of 2021 Pages 9 of 16 Suman Jain v. Sudarshan Kumari As regards bonafide requirement of the landlord and suitable alternate accommodation
20. Now coming to the other aspect as to whether the premises is bonafide required by the petitioner and as to whether he has any other suitable alternate accommodation. These are twin requirements which are to be satisfied conjunctively in order to attract the provisions of Section 14(1) (e) of the Act i.e the bonafide requirement coupled with the reasonably suitable accommodation, are to be satisfied together and collectively.
21. The petition is filed by petitioner and her own bonafide requirement has been pleaded to start her business of ornaments, jewellery, etc. The petitioner has alleged that she is unable to do the tedious work of setting up kiosks and as such wants to set up a big showroom in the entire ground floor of shop no.15. There can be no age limit to start any business and respondent can certainly not challenge the petitioner's will and intent to start a whole new business at this age. The respondent at one end denied that petitioner had any experience of setting up kiosks and at very same breathe argues that the petitioner used to allow vendors around her shop and used to collect rent/ fee from them. This averment of the respondent itself shows that the petitioner has experience on dealing with setting up of kiosks and now the averment of petitioner to start business of ornaments, etc. inside all the ground floor shop stands supported. It is settled law that for bonafide need of landlord/ petitioner, respondent/ tenant cannot insist that the landlord/ petitioner need to have prior experience. The respondent cannot dictate the petitioner as to how she should manage her affairs or living.
RC ARC 27 of 2021 Pages 10 of 16 Suman Jain v. Sudarshan Kumari
22. The respondent claimed that the petitioner's daughters being married and her son being employed at reputable post with a company in Maharashtra and thus her requirement not being genuine. The respondent even stated that petitioner claimed before her that her monthly rental income was Rs.1,05,000/-. The respondent however has not submitted any proof of the same. The petitioner claimed that she has no income from property in Chirag Delhi, as the same was in possession of her husband's brother, who is enjoying all rights and interest as per mutual understanding since long between her husband and his brother. The petitioner has also admitted that her son in-law uses first floor of shop no.15 for communication, however he pays no rent. The petitioner also admitted that he was earning Rs.11,000/- per month from the Indus Tower Ltd. Respondent has shown no proof to support that petitioner was earning Rs.1,05,000/- per month for her rental income.
23. Be that as it may, mere earning cannot be a ground to disregard ones bonafide requirement. One's intent and willingness to start a new business is not only to earn money, but can be for one mental satisfaction, self independence and even pure will or zeal. The respondent/ tenant cannot direct the petitioner/ landlord what income per month is sufficient for her. The bonafide requirement has to be seen in context of the petitioner's claim and mere increased monetary gains cannot be sufficient to disregard bonafide requirement. The respondent even filed certain videographs to show the conduct of the petitioner and to claim that petitioner creates usual ruckus for the sole purpose that respondent vacates the tenanted premises. Although the petitioner's action may attract criminal consequences and respondent can even file application/ petition before Rent Controller or RC ARC 27 of 2021 Pages 11 of 16 Suman Jain v. Sudarshan Kumari may even prefer civil suit for injunction, however same videos can be seen to show how active the petitioner is even at the age of 75+ years.
24. Nevertheless, this Court does not doubt the petitioner's intention to start a new business at this age. This Court further does not doubt the petitioner intent to start a big business in the entire ground floor of the shop no.15, main market, Malviya Nagar. Nevertheless, there are other provisions available to respondent, if petitioner re-lets the tenanted property after seeking eviction under present petition. The respondent also cannot dictate the petitioner what income is sufficient for her or what business is apt for her. The respondent ought to show that petitioner has no bonafide requirement as alleged and premises under occupation of respondent is not apt for the alleged bonafide requirement.
25. The photographs relied by the respondent itself shows there has been kiosks in the same area before where ornaments, artificial jewellery, mehni works, etc have been set up in the past and thus the petitioner can very well plead her bonafide requirement to set up same business in entire ground floor of tenanted premises. The said photographs also show that petitioner's claim of bonafide requirement of ornaments, artificial jewellery, etc. is bonafide since there have been other business of same articles in the market. The petitioner has been categorical that as and when the entire ground floor comes in her possession she would be better suited to start her business and she is also awaiting the Orders of the Hon'ble High Court of Delhi on petitions of other tenants.
RC ARC 27 of 2021 Pages 12 of 16 Suman Jain v. Sudarshan Kumari
26. The requirement of petitioner being bonafide. The only requirement now which remains to be seen is if any other suitable property is available. The claim of the petitioner is reminded her that she wants to set up her business in ground floor and same is suited due to greater footfall being in the main market of Malviya Nagar. Also petitioner is residing in same property at first floor. The petitioner claims that due to higher foot fall at main Market, Malviya Nagar the shop no. 15 is better suited to her and that too at ground floor, since she is residing in first floor, which is also used for correspondence of his business AKG Advertising Ltd. by her son in-law. The respondent argues that the joint property admitted by the petitioner is one such alternate accommodation available to the petitioner. The petitioner has denied any right or interest in the said property, however the property at Chirag Delhi cannot be a suitable alternate in view of the requirement of the petitioner. The petitioner wants to run business in main Market, Malviya Nagar and by no means the respondent can direct petitioner to open shop in other market. The respondent has not stated the exact distance between main Market Malviya Nagar and Chirag Delhi property, however by common knowledge, there is sufficient distance between the two that not all customers would cover the two markets in one go. Also the purpose stated by petitioner would not be fulfilled if she uses the Chirag Delhi, even if available when her requirement is to open business to tap the footfall and demand of Malviya Nagar main market.
27. The respondent also argued that first floor, second floor and third floor/ barsati is also available to the petitioner. The petitioner has alleged that both first and second floor are used for residence alongwith barsati over third floor. The petitioner has sought not just present two shops but other eight shops to run her business in the ground floor. The petitioner wants to RC ARC 27 of 2021 Pages 13 of 16 Suman Jain v. Sudarshan Kumari use the ground floor and same or any other property at first floor or any other floor cannot be suitable alternative. The respondent cannot possibly justify that first floor would have same footfall at the ground floor for the business sought to be started by the petitioner.
28. It is settled law that only the petitioner is the best judge of her needs and requirement and tenant cannot dictate the petitioner how she should run her business or from where. The petitioner wanting to use ground floor of her property even if first and second floor can be altered and used would be amending her need and requirement. A petitioner cannot be faulted if she wants to tap better footfall and access to customer available at ground floor. The respondent has placed photographs on record to show that there are other properties in the same market being run at first and second floor as well. The respondent side wants to show that being commercial property, the petitioner can very well use first and second floor. However, the respondent has not been able to show that the first floor and second floor commercial business have same suitability and demand as that on ground floor.
29. Be that as it may, the petitioner even if available with first and second floor, cannot be dictated to start business in those floor when she is a liberty under law to chose to start her business in ground floor. The respondent has failed to show that petitioner has suitable alternate accommodation then the demised property. None of the other property/ alternate accommodation argued by the respondent are on ground floor or in main market, Malviya Nagar.
RC ARC 27 of 2021 Pages 14 of 16 Suman Jain v. Sudarshan Kumari
30. In Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta, 1999 (6) SCC 222 it has been observed that:
"The judge of facts should place himself in the arm chair 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 positive, the need is bonafide. The failure on the part of 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 is 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"
31. In Smt. Kamla Soni V Rup Lal Mehra, 1969, RLR 1017 it has been held that:
"a mere assertion that the landlord requires the premises occupied by the tenant for his personal occupation is not decisive. It is for the court to determine the truth of the claim, and also to determine whether the claim is bonafide. In determining whether the claim is bonafide, the Court is entitled and indeed bound to consider whether it is reasonable. A claim founded on abnormal predilections of the landlord may not be regarded as bonafide"
32. In Deena Nath V. Pooran Lal, V (2001) SLT 195 (2001) 5 SCC 705, it has been held that:
"the statutory mandate is that there must be first a requirement by the landlord which means that it is not a mere whim or fanciful desire by him; further such requirement must be bonafide which is intended to avoid a RC ARC 27 of 2021 Pages 15 of 16 Suman Jain v. Sudarshan Kumari mere whim or desire. The bonafide requirement must be in present and must be manifested in actual need which would evidence the court that it is not a mere fanciful or whimsical desire."
33. On weighing the pleading and arguments and considering the law developed qua the Act, in the present case the leave to defend application is therefore rejected. It is directed that the respondents be evicted, and the petitioner Suman Jain be put in possession of premises i.e. Shop no. 15, Private no.1 & 2, Main Market, Malviya Nagar, New Delhi, as shown in red colour in the site plan filed along with the petition.
34.It is clarified that in view of Section 14(7) of the DRC Act, this order shall not be enforceable for a period of six months from today.
35.Accordingly, the application for leave to defend is rejected and petition for eviction is allowed.
Digitally
signed by
PARAS PARAS DALAL
Date:
DALAL 2024.04.29
16:15:14
+0530
Announced in the open Court (PARAS DALAL)
on 29.04.2024 ACJ-CCJ-ARC/South,
Saket Court/Delhi
RC ARC 27 of 2021 Pages 16 of 16 Suman Jain v. Sudarshan Kumari