Delhi District Court
Through Her Attorney vs Smt. Nirmal Verma on 5 February, 2019
IN THE COURT OF SH. AJAY NAGAR, COMMERCIAL CIVIL
JUDGE-CUM-ADDITIONAL RENT CONTROLLER (WEST),
TIS HAZARI COURTS, DELHI.
ARC No.- 26088/2016
Smt. Avinash Wadhwa,
Wd/o Late M.R. Wadhwa
Through her attorney
Sh. Ajay Wadhwa,
S/o Late M.R. Wadhwa,
R/o B-55, Sharda Puri,
Ramesh Nagar,
New Delhi-110018. ...Petitioner
VERSUS
Smt. Nirmal Verma
Wd/o Late Parmatma Verma,
R/o B-26, Double Storey,
Ramesh Nagar,
New Delhi-110015.
Second Address:-
Nav Bharat Electricals
WZ-17, Basai Darapur,
New Delhi-110015. ...Respondent
Date of Filing : 20.11.2015
Date of Order : 05.02.2019
ORDER ON LEAVE TO DEFEND
1. Present petition U/Sec. 14 (1) (e) of Delhi Rent Control Act, 1958 (hereinafter referred to as "DRC Act") has been filed by the ARC No. 26088/16 Smt. Avinash Wadhwa Vs Smt. Nirmal Verma Page 1 / 15 petitioner for eviction of the respondent from the shop i.e. Shop bearing Pvt. No.3 in property No. WZ-17, Basai Darapur, Ramesh Nagar, New Delhi-110015 more conspicuously shown within red lines in the site plan annexed with the petition (hereinafter referred to as 'tenanted premises') in favour of the petitioner and against the respondent.
2. It is averred by the petitioner that the petitioner is owner/landlady of the tenanted premises. It is further averred that the property bearing No.WZ-17, Basai Darapur, New Delhi which was purchased by the father-in-law of the petitioner vide registered sale deed. And tenanted premises was let out to Late Parmatma Verma, husband of the respondent at a monthly rent of Rs.400/-. However, father in law of the petitioner expired on 27.12.1983. Thereafter, all his legal heirs i.e. sons Sh. Ram Prakash, Bhagwan Dass, Mulkh Raj (M.R. Verma) husband of the petitioner, Prem Wadhwa, Subhash Chander, Kishan Kumar orally divided the property. And the tenanted premises with back portion fell to the share of Sh. M.R. Wadhwa and since Sh. M.R. Wadhwa expired in 2003, Late Parmatma Verma husband of the respondent started paying the rent to the petitioner.
That the monthly rent was Rs.400/- at the time of letting but on mutual understanding, the rent was agreed to be paid as Rs. 15,000/- per month since March, 2013 and the petitioner after terminating the tenancy vide notice dated 08.03.2014 filed a civil suit no. 344/2014 for decree of ejectment, recovery of rent and damages, wherein the defendant took plea that the monthly rent is Rs. 400/- per month. Hence, court had no jurisdiction. In these circumstances in order to avoid the delay in decision of the case, petitioner chose to withdraw the said suit which has been dismissed as withdrawn vide ARC No. 26088/16 Smt. Avinash Wadhwa Vs Smt. Nirmal Verma Page 2 / 15 order dated 16.11.2015 but it is maintained that in the said suit also plaintiff has categorically mentioned that the tenanted premises is required bonafide to the petitioner and her dependent family members but despite several requests, the respondent neither agreed nor vacated the shop and in these circumstances, the petitioner had been advised to file the present petition before this court for bonafide requirement.
That the petitioner bonafidely requires the tenanted premises for herself and dependent family members and she has no other alternative commercial shop available in Delhi. That the petitioner owns a factory building bearing property no. NE-74, building of 140 sq. Yards in Village Khayala, now known as Vishnu Garden, New Delhi which is being used by her son Sh. Vinay Kumar Wadhwa, who is fabricating palana/jjula for the infants, under the name and style of M/s Sat Kartar Steel Furniture. Similarly, the other son of the petitioner Sh. Ajay Wadhwa is also involved in the fabrication work in another property NE-119C, Khayala, Vishnu Garden, New Delhi which is owned by him. The petitioner has another property bearing No.B-66, (Old No.A-18), Sharda Puri, Delhi which is also residential premises and she does not own and possess any other property which can be used for commercial purposes for opening the show room/shop.
That Sh. Yatin Wadhwa S/o Sh. Ajay Wadhwa i.e. grand son of the petitioner is not very well in studies who has attained the age of majority and in fact has very bad results in Class-12 examination and got compartment in examination of 2015, therefore, he has decided to involve himself in the business as he does not have capacity taking studies for senior classes. The petitioner, thus requires the shop in question for settling her grandson Sh. Yatin Wadhwa bonafidely for running a show room of the fabricated goods ARC No. 26088/16 Smt. Avinash Wadhwa Vs Smt. Nirmal Verma Page 3 / 15 by his father and uncle which will be more convenient to him and in these circumstances as the petitioner has no other suitable alternative commercial premises available and certainly in properties as explained above, the show room can not be opened as those are not in the market area whereas the shop in question situates in the market area where customers are coming from all over India and thus, it is more suitable for the said purpose and need of the petitioner is not only bonafide but urgent in nature and as such, respondent is required to be evicted from the tenanted premises for the bonafide requirement.
3. Notice of this eviction petition was sent to the respondent in the prescribed format which was duly served on the respondent. In response to which the respondent/tenant filed leave to defend application accompanied by affidavit raising various pleas.
4. Reply to leave to defend filed by the petitioner inter-alia contending that the affidavit of the respondent does not disclose any defence or triable issue which entitle respondent to contest the eviction petition and disentitle the petitioner for obtaining an order for eviction. It is also contended that the defence taken by the respondent is moon shine and bogus which requires no trial in the matter.
5. It is expedient to discuss certain guidelines in respect of leave to defend before dealing with the present case which is as under:-
THE LAW:
It is well settled that burden placed on a tenant is light and limited in that if the affidavit filed by him discloses such facts as ARC No. 26088/16 Smt. Avinash Wadhwa Vs Smt. Nirmal Verma Page 4 / 15 would disentitle the landlord from obtaining an order for the recovery of the possession of the premises on the ground specified in clause
(e) are good enough to grant leave to defend.
It is further well settled that at a stage when the tenant seeks leave to defend, it is enough if he prima-facie makes out a case by disclosing such facts as would disentitle the landlord from obtaining an order of eviction. Unless the tenant at that stage itself establishes a strong case as would non-suit the landlord leave to defend should not be granted when it is not the requirement of Section 25 B(5). A leave to defend sought for cannot also be granted for mere asking or in a routine manner which will defeat the very object of the special provisions contained in Chapter IIIA of the Act, leave to defend cannot be refused where an eviction petition is filed on a mere design or desire of landlord to recover possession of the premises from a tenant. Refusing to grant leave in such a case leads to eviction of a tenant summarily resulting in great hardship to him and his family members, if any, although he could establish if only leave is granted that a landlord would be disentitled for an order of eviction.
It is also well settled at the stage of granting leave to defend, parties rely on affidavits in support of the rival contentions. Assertions and counter assertions made in affidavits may not afford safe and acceptable evidence so as to arrive at an affirmative conclusion one way or the other unless there is a strong and acceptable evidence available to show that the facts disclosed in the application filed by the tenant seeking leave to defend where either frivolous, untenable or most unreasonable.
It is also well settled that when a possession is sought on the ground of personal requirement, a landlord has to establish his need and not his mere desire.
ARC No. 26088/16 Smt. Avinash Wadhwa Vs Smt. Nirmal Verma Page 5 / 15In short and substance wholly frivolous and totally untenable defence may not entitle a tenant to leave to defend but when a triable issue is raised a duty is placed on the rent controller by the statute itself to grant leave. It would expeditious disposal of eviction petition so that a landlord need not wait and suffer for long time. On the other hand, when a tenant is denied leave to defend although he had fair chance to prove his defence, will suffer great hardship. In this view a balanced view is to be taken having regard to competing claims.
There appears to be a mistaken belief that unless the tenant at that stage makes out such a strong case as would non-suit the landlord, leave to defend cannot be granted. This approach is wholly improper. When leave to defend is sought for, the tenant must make out such a prima facie case raising such pleas that a triable issue would emerge and that in our opinion should be sufficient to grant leave. The test is the test of a triable issue and not the final success in the action.
6. I have carefully and minutely gone through the petition, leave to defend application accompanied by affidavit, reply, written submissions, documents and material on record and case law relied upon.
7. It is expedient to reproduce the Section 14 (1)(e) of DRC Act which is as under:
"Section-14. Protection of tenant against eviction- (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by ARC No. 26088/16 Smt. Avinash Wadhwa Vs Smt. Nirmal Verma Page 6 / 15 court or any controller in favour of the landlord against a tenant:
Provided that the controller may, on an application made to him in the prescribed manner, make an order for recovery of possession of the premises on one or more of the following grounds only, namely:-
"That the premises are required bonafide by the landlord for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation."
8. Perusal of record shows that the respondent has sought the leave to defend on several grounds.
It is contended by the respondent that petitioner had filed a suit in April, 2014 and a vacant shop was let out by the petitioner on 01.01.2014 @ Rs. 11,000/- per month. It is further claimed that if the need of the petitioner had been bonafide, the petitioner would not have let out aforesaid premises.
It is further contended that it is claimed by the petitioner that requirement of her grandson arose in the month of May, 2015 but keeping in mind her previous conduct, the need put forth by the petitioner cannot be believed to be true. It is further contended that the petitioner has concealed the facts that property No. B-66, Shardapuri, New Delhi is actually a residential-cum-commercial area. As per the claim of the respondent, it is a better place to open a showroom of steel fabricated furniture rather than the tenanted premises. That the area where the tenanted premises are situated is ARC No. 26088/16 Smt. Avinash Wadhwa Vs Smt. Nirmal Verma Page 7 / 15 not residential but infact it is in industrial area where manufacturing units are situated and also it is an area which is not frequented by people other than those who are residing there.
On the other hand, the petitioner has denied these facts of the respondent stating that the petitioner is neither the owner of any other shop as claimed by the respondent nor having any shop which is vacant or available. Moreover, the petitioner is in possession only one shop which is tenanted one and back portion of the said shop is also tenanted which is admitted by respondent in the application. It is denied that the petitioner let out any vacant shop or any shop was vacant. There is only one shop in the property and there is some back portion having entry from the backside i.e. service road and is not suitable for any business purposes and thus, the same was let out for godown only and this fact is duly disclosed in the eviction petition that the said portion cannot be said to be suitable for a showroom. Whereas the tenanted premises is in main market surrounded by shops having very wide road.
In Shiv Sarup Gupta Vs Dr. Mahesh Chand Gupta AIR 1999 SC 2507, at pg-2512 in para 14 & 15, the Hon'ble Supreme Court held that:-
"14. The availability of an alternate accommodation with the landlord i.e. an accommodation other than the one in occupation of the tenant wherefrom he is sought to be evicted has a dual relevancy. Firstly, the availability of another accommodation, suitable and convenient in all respects as the suit accommodation, may have an adverse bearing on the finding as to bonafides of the landlord if he unreasonably refuses to occupy the available premises to satisfy his alleged need. Availability of such circumstance would enable the Court drawing an inference that the need of the landlord was not a felt need or the state of mind of the landlord was not honest, sincere, and natural. Secondly, another ARC No. 26088/16 Smt. Avinash Wadhwa Vs Smt. Nirmal Verma Page 8 / 15 principal ingredient of Clause (e) of Sub-section (1) of Section 14 which speaks of non- availability of any other reasonably suitable residential accommodation to the landlord, would not be satisfied. Wherever another residential accommodation is shown to exist as available than the court has to ask the landlord why he is not occupying such other available accommodation to satisfy his need. The landlord may convince the court that the alternate residential accommodation though available is still of no consequence as the same is not reasonably suitable to satisfy the felt need which the landlord has succeeded in demonstrating objectively to exist. Needless to say that an alternate accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction. Convenience and safety of the landlord and his family members would be relevant fact Ors. While considering the totality of the circumstances, the court may keep in view the profession or vocation of the landlord and his family members, their style of living, their habits and the background wherefrom they come."
In the case titled as Metropolitan Book Company Ltd. vs. Ajay Rastogi & Ors. Passed in RC. Rev. No. 484/2013, the Hon'ble High Court of Delhi observed as under:-
"Even assuming the other properties available, and which actually they are not as stated below, these other properties situated far from the present residence of respondent no. 1 and his family members cannot be considered as alternative suitable accommodation."
In the case titled as Ragavendra Kumar Vs Firm Prem Machinery AIR 2000 SC 534, it was observed as under:-
"It is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter, (See: Prativa Devi (Smt.) v. T.K Krishnan, [1996] 5 SCC 353. In the case in hand the plaintiff-landlord wanted eviction of the tenant from the suit premises for starting his business as it ARC No. 26088/16 Smt. Avinash Wadhwa Vs Smt. Nirmal Verma Page 9 / 15 was suitable and it cannot be faulted."
9. In my view, such plea of the respondent does not have any merit. It is well settled proposition of law that to rule out the benefit of Sec. 14(1)(e) of D.R.C. Act, the petitioner/ landlord should have the alternative reasonably suitable accommodation. It is not sufficient for the respondent to prove that the petitioner is having the alternative accommodation. It should also be reasonably suitable accommodation and if the petitioner is having the alternative accommodation with her but that is not suitable for the petitioner, it cannot be said that the petitioner is having alternative reasonably suitable accommodation and the fact whether the alternative accommodation is suitable and convenient or not, is to be determined from the point of view of the petitioner/ landlord and not from the point of view of the tenant.
10. In the present case the respondent has claimed that the petitioner is having another shop but the contention of the petitioner is that the aforesaid shop is in the service lane whereas the tenanted premises is in the main market.
In my view, the tenant cannot dictate the terms to the petitioner to use the particular premises to save his own tenanted premises. Even it is assumed for the sake of arguments that aforesaid shop exists, in my view, that shop will not be suitable and convenient and profitable for the purpose as sought by the landlord/ petitioner.
11. As such, this plea of the respondent is not a triable issue which could dis-entitle the petitioner to obtain an eviction order against the respondent.
ARC No. 26088/16 Smt. Avinash Wadhwa Vs Smt. Nirmal Verma Page 10 / 1512. As per the contention of the respondent, the tenanted premises are a small tiny room measuring 10X7 ft. and the height of the roof of the tenanted premises is 9 ft. with a small entry door. As such, in view of claim of respondent, the tenanted premises cannot be used for the purpose as claimed by the petitioner.
On the other hand, it is contended by the petitioner that it is not necessary that showroom should be big and the tenanted premises is having the sufficient space for the purpose as sought by the petitioner.
13. In my view, this contention of the respondent is also does not have any force as the respondent/ tenant cannot dictate terms to the petitioner/landlord.
14. It is further contended that grandson is not dependent upon his grandmother for any purpose whatsoever. Instead petitioner is dependent upon her sons for each and everything.
On the other hand, the petitioner has contended that grandson is dependent upon the petitioner for the purpose of the premises.
In "Labhu Lal Vs. Sandhya Gupta" [2011(1) RCR,(Rent) 231 (Delhi)], it has been held by this Court that the children are very much dependent on the landlord for the purpose of setting up their business and such a requirement is a bonafide one.
The moral duty of a father to help establish his son was also recognized by the Apex Court in "Joginder Pal Singh Vs. Naval Kishore Behal" [AIR 2002 SC 2256] in the following words:
"24........Keeping in view the social or socio-ARC No. 26088/16 Smt. Avinash Wadhwa Vs Smt. Nirmal Verma Page 11 / 15
religious milieu and practices prevalent in a particular section of society or a particular region, to which the landlord belongs, it may be obligation of the landlord to settle a person closely connected with him to make him economically independent so as to support himself and/or the landlord. To discharge such obligation the landlord may require the tenancy premises and such requirement would be the requirement of the landlord. If the requirement is of actual user of the premises by a person other than the landlord himself the Court shall with circumspection inquire : (i) whether the requirement of such person can be considered to be the requirement of the landlord, and (ii) whether there is a close inter-relation or identify nexus between such person and the landlord so as to satisfy the requirement of the first query. Applying the overlaid tests to the facts of the present case it is clear that the tenancy premises are required for the office of the landlord's son who is a chartered accountant. It is the moral obligation of the landlord to settle his son well in his life and to contribute his best to see him economically independent."
In the case titled as Rishal Singh vs Bohat Ram & Ors. (2014) 144 DRJ 633; wherein the Hon'ble High Court of Delhi observed as under:-
"It was vehemently argued by Mr. K. Sunil, counsel for the tenant that the grandson of the landlord, who is said to be living separately from the landlord, is not a dependent and hence an eviction petition cannot be sought for him. However, Mr. J.K. Jain counsel for the respondent submitted that the son and the grandson of the landlord with their family are living with the landlord and it would be incorrect to state that the landlord has no concern with the grandson. Counsel for the respondent further submitted that an unemployed grandson of the landlord is wholly dependent upon him, therefore, he falls within the ambit of Section 14(1)
(e) of the Act. The grandson is currently unemployed. Learned counsel Mr. Sunil denied the scope of the section to be as wide as to include grandson in an eviction petition for bona fide requirement and relies upon Delhi Cloth and General Mills Co. Ltd v. Sri. T. S. Bhatia 1977 AIRCJ (Delhi) 902 to state that questions of whether son of ARC No. 26088/16 Smt. Avinash Wadhwa Vs Smt. Nirmal Verma Page 12 / 15 any member of the family of the landlord is a dependent is a question of fact which would require evidence to be lead which in conclusion would mean that the leave to defend application must be allowed. The counsel relied on the abovementioned judgment to further state that such controversies cannot be decided by virtual findings and that they necessarily need to be out to trial. However, counsel for the respondent relied on another judgment of this Court in Om Prakash Bajaj v. Chander Shekhar (2003)1 RCR 332 wherein the Court included sons‟ family of the landlord in the meaning of dependent.
The Court held that the need of any member including the son; the wife, sons‟ wife and children are to be treated as the need for the landlord. The impugned order also relied on the same judicial pronouncement to arrive at a conclusion. This Court finds such a decision to be more at par with the intent of the Act that the judicial precedent mentioned by the counsel for the tenant. The law, on this point, has evolved to extent where it is accepted position that a grandson is included in dependents of the landlord."
15. As such in view of settled proposition of law this plea of the respondent also does not raise any triable issue which could dis- entitle the petitioner to obtain an eviction order against the respondent.
16. It is also contended that as per site plan by petitioner there are total number of seven shops on the ground floor, out of which one is the tenanted premises and remaining are in the joint possession of the petitioner and other children of late father in law of the petitioner. The petitioner is telling a lie that she is in possession of only two shops.
On the other hand, the petitioner has denied this fact. Perusal of record shows that the respondent has not mentioned the details of shops which are owned by the petitioner and also available.
ARC No. 26088/16 Smt. Avinash Wadhwa Vs Smt. Nirmal Verma Page 13 / 1517. As such, this plea of the respondent is also a vague plea unsupported by any document.
18. It is further contended that the petitioner and her family are having sufficient source of income. On the other hand, the respondent has no source of income.
In the case titled as Raj Kumar Khanna vs. Parduman Singh passed in RC Rev. No. 548/2012 and C.M. No. 18936/2012 on 04.10.2013; the Hon'ble High court of Delhi observed as under:-
"17. In the case of Mohd. Ayub vs. Mukesh Chand (2012) 2 SCC 155 it was observed that the hardship appellants would suffer by not occupying their own premises would be far greater than the hardship the respondent would suffer by having moved out to another place. We are mindful of the fact that whenever the tenant is asked to move out of the premises some hardship is inherent. We have noted that respondent is in occupation of the premises for a long time. But in our opinion, in the facts of this case that circumstance cannot be sole determinative factor."
19. In my view this plea of the respondent certainly attracts the sympathy of this court but it is well settled that in deciding the present eviction proceeding, this kind of plea need not be weighed by the court.
CONCLUSION:
20. In view of the above discussion, I find no triable issue in the leave to defend application of the respondent which could dis-entitle the petitioner/landlady to obtain an eviction order in her favour. The application for leave to defend filed by the respondent is thus, ARC No. 26088/16 Smt. Avinash Wadhwa Vs Smt. Nirmal Verma Page 14 / 15 dismissed.
21. Hence, as a consequence thereof, an eviction order is passed U/s. 14 (1) (e) of DRC Act in favour of petitioner and against the respondent in respect of Shop bearing Pvt. No.3 in property No. WZ-17, Basai Darapur, Ramesh Nagar, New Delhi-110015 more conspicuously shown within red lines in the site plan annexed with the petition which is marked as Mark- P1 (Put by the court for the purpose of identification).
22. However, this order shall not be operative before the expiry of six months from today keeping in view Sec. 14(7) of D.R.C. Act.
File be consigned to the Record Room after due compliance.
Digitally signedAnnounced in the open Court AJAY by AJAY NAGAR Date:
on 5th February, 2019. NAGAR 2019.02.05
17:02:10 +0530
(This order contains 15 pages)
(AJAY NAGAR)
Commercial Civil Judge-Cum
Additional Rent Controller,
West District, THC, Delhi.
ARC No. 26088/16 Smt. Avinash Wadhwa Vs Smt. Nirmal Verma Page 15 / 15