Delhi District Court
Sh. Devki Nandan Sharma vs Sh. Harish Chauhan on 5 April, 2022
IN THE COURT OF MS. SNIGDHA SARVARIA,
ACJ-cum-CCJ-cum-ARC, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI.
RC ARC No : 195/2021
Sh. Devki Nandan Sharma
S/o Sh. Roshan Lal Sharma
R/o 1449/73, Durga Puri,
Shahdara, Delhi-110093 ......... Petitioner
Versus.
Sh. Harish Chauhan
s/o Not Known
Tenant in shop no. 3 at Ground Floor
in property no. 1449/73, Shadh Market,
Durga Puri, Shahdara,
Delhi-110093 ......... Respondent
Order on application under S. 25-B of The Delhi Rent Control Act seeking leave to defend
1. Vide this order I shall decide the application under S. 25-B of The Delhi Rent Control Act (DRC Act) seeking leave to defend filed by the respondent.
2. The brief facts of the case are that the petitioner, who is a senior citizen and has retired from the Central Government, Delhi, has filed the present eviction petition under S. 14 (1) (e) r/w S. 25-B of The Delhi Rent Control Act on the grounds that the petitioner is owner and landlord of the tenanted premises i.e. shop no. 3 at ground floor in property no. 1449/73, Durga Puri, Shahdara, Delhi-110093 whose tenancy was created on 08.12.2004. The monthly rent of the tenanted premises is Rs.1180/- excluding other charges. It is stated that the tenanted shop is commercial one and since the inception of tenancy the same is being used for commercial purposes, which was let out by the petitioner to the respondent for few months. The petitioner has no other suitable commercial accommodation available with him to RC ARC No : 195/2021 Sh. Devki Nandan Sharma Vs. Sh. Harish Chauhan 1 of 14 earn his livelihood in Delhi. The petitioner has other two shops wherein the petitioner has settled his both sons namely Pravesh Sharma and Manoj Sharma, who are running their respective business from there. Both of his sons are married and having liability of their respective families. It is stated that just back side of the shops, the petitioner is residing with his family and the gate of said residential house opened in 20 feet Gali. The tenanted premises is much more suitable for the petitioner who wants to keep himself busy in the business of book shop which is related with his profession from where he has been retired. It is further stated that the petitioner has to perform his liability towards his married daughter and other visiting relatives and except the meagre pension the petitioner has no other source of income to maintain himself and his family which is dependent upon him. An oral request was made to the respondent/tenant to vacate the tenanted shop but respondent is giving false assurance to vacate the same for the last about 11 years and is not vacating the tenanted premises. The petitioner requires the tenanted premises for his bonafide use and he wants to run a book shop to earn his livelihood being unemployed and further to keep himself busy at the shop. It is prayed that eviction order may be passed in favour of the petitioner and against the respondent qua the aforesaid property/shop.
3. The respondent was summoned vide order dated 21.01.2016 and was served with the summons of this petition on 21.02.2016, thereafter, affidavit seeking leave to defend under S. 25 B of the DRC Act was filed by the respondent on 22.02.2016 and the petitioner filed reply to it on 29.02.2016.
4. In the affidavit seeking leave to defend under S. 25 B of the DRC Act, the respondent has stated that the petitioner is getting a huge pension of Rs.27,000/- per month which he has not mentioned. The petitioner has fully constructed building in the industrial area with address 8/1A/4, Site 4, Sahibabad, Ghaziabad, UP which is used for business purposes. It is stated that the petitioner has constructed the property afresh in the year 2000 and continued the tenancy of the respondent in this subject shop which has same space which was earlier there prior RC ARC No : 195/2021 Sh. Devki Nandan Sharma Vs. Sh. Harish Chauhan 2 of 14 to construction in 2000. The deposit of Rs.3 lakh was used by the petitioner in construction in continuation of previous understanding that the respondent can continue for his life, however, the money of Rs.3 lakh had been taken from the respondent for giving life long tenancy to respondent. Now the petitioner is ready to return the amount but he is denying the tenancy for the life and is creating irreparable damage to the respondent. The petitioner has not issued any receipt in writing but he has admitted this fact always in the private conversations. It is stated that the petitioner is running the business in the name of Bharat Printing Agency and his business is very big and the petitioner's needs are well satisfied out his huge pension and business income. The petitioner is also running coaching centers and study centers for various competitive examinations at first floor. The petitioner is seeking eviction for extending the business of his son or his own business. The respondent has denied that he is giving any assurance for last 11 years.
5. The petitioner in his reply to application for leave to defend denied the averments made in the affidavit seeking leave to defend under S. 25 B of the DRC Act of the respondent. It is stated that petitioner is getting a pension of Rs.20,131/- per month out of which he has to spend certain amounts upon his ailing wife and himself, while the grand children are also being financially supported. It is stated that the industrial plot no. 8/1A/4, Site 4, Sahibabad, Ghaziabad, UP is owned by Smt. Upasna Sharma w/o Sh. Manoj Sharma. The respondent has not disclosed any other commercial place in Delhi which is either in the name of petitioner or in the name of any of his family members who is dependent upon him.
6. I have heard counsel for the parties, perused the record and have gone through the relevant provisions of the law.
7. The Supreme Court had in "Inderjeet Kaur Vs.Nirpal Singh", [2000]Supp 5 SCR 707, laid down the following guidelines to be followed by the Courts while deciding the applications for leave to contest filed by the tenants under Section RC ARC No : 195/2021 Sh. Devki Nandan Sharma Vs. Sh. Harish Chauhan 3 of 14 25(4) of the Delhi Rent Control Act,1958:-
"11. As is evident from Section 25B(4) & (5) of the Act, burden placed on a tenant is light and limited in that if the affidavit filed by him discloses such facts as would disentitle the landlord from obtaining an order for the recovery of the possession of the premises on the ground specified in Clause (e) of the proviso to Section 14(1) of the Act, with which we are concerned in this case, are good enough to grant leave to defend.
12................................"
13. We are of the considered view 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. It would not be right approach to say that 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 25B(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 a landlord to recover possession of the premises from a tenant under Clause (e) of the proviso to Sub-section (1) of Section 14, when as a matter of fact the requirement may not be bona fide. 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. 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 were either frivolous, untenable or most unreasonable. Take a case when a possession is sought on the ground of personal requirement, a landlord has to establish his need and not his mere desire. The ground under Clause (e) of the proviso to Sub- section (1) of Section 14 enables a landlord to recover possession of the tenanted premises on the ground of his bona fide requirement. This being an enabling provision, essentially the burden is on the landlord to establish his case affirmatively. In 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. At the stage of granting leave the real test should be whether facts disclosed in the affidavit filed seeking leave to defend prima facie show that the landlord would be disentitled from obtaining an order of eviction and not whether at the end defence may fail. It is well to remember that when a leave to defend is refused, serious consequences of eviction shall follow and the party seeking leave is denied an opportunity to test the truth of the averments made in the eviction petition by cross-examination. It may also be noted that even in cases where leave is granted provisions are made in this very Chapter for expeditious disposal of eviction petitions. Section 25B(6) states that where leave is granted to a tenant to contest the eviction application, the Controller shall commence the hearing of the application as early as practicable. Section 25B(7) speaks of the procedure to be followed in such cases. Section 25B(8) bars the appeals against an order of recovery of possession except a provision of revision to the High Court. Thus a combined effect of Section 25B(6), (7) and (8) would lead to expeditious disposal of eviction petitions 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.
"14. This Court in Charan Dass Duggal v. Brahma Nand (1983)1SCC301 while dealing with the question in the matter of granting leave to defend to contest the eviction petition filed on the ground of personal requirement, in para 5 has stated thus:
"5. What should be the approach when leave to defend is sought for? 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 (see Santosh Kumar v. Bhai Mool Singh). At the stage of granting the leave parties rely in support of their rival contentions on affidavits and assertions and counter- assertions on affidavits may not afford such incontrovertible evidence to lead to an affirmative conclusion one way or the RC ARC No : 195/2021 Sh. Devki Nandan Sharma Vs. Sh. Harish Chauhan 4 of 14 other. Conceding that when possession is sought for on the ground of personal requirement, an absolute need is not to be satisfied but a mere desire equally is not sufficient. It has to be something more than a mere desire. And being an enabling provision, the burden is on the landlord to establish his case affirmatively. If as it appears in this case, the landlord is staying at Pathankot, that a house is purchased, may be in the name of his sons and daughters, but there may not be an apparent need to return to Delhi in his old age, a triable issue would come into existence and that was sufficient in our opinion to grant leave to defend in this case."
15. In the same judgment, in para 7 it is further observed:
"7. The genesis of our procedural laws is to be traced to principles of natural justice, the principal amongst them being that no one shall suffer civil or evil or pecuniary consequence at his back without giving him an adequate and effective opportunity to participate to disprove the case against him and provide his own case. Summary procedure does not clothe an authority with power to enjoy summary dismissal. Undoubtedly wholly frivolous defence may not entitle a person leave to defend. But equally a triable issue raised, enjoins a duty to grant leave: May be in the end the defence may fail. It is necessary to bear in mind that when leave to defend is refused the party seeking leave is denied an opportunity to test the truth of the averments of the opposite party by cross-examination and rival affidavits may not furnish reliable evidence for concluding the point one way or the other. It is not for a moment suggested that leave to defend must be granted on mere asking but it is equally improper to refuse to grant leave though triable issues are raised and the controversy can be properly adjudicated after ascertainment of truth through cross- examination of witnesses who have filed their affidavits........................................................."
8. Same view has been reiterated by the Supreme Court in a judgment in "Rachpal Singh and Ors.Vs. Gurmit Kaur and Ors.", (2009)15 SCC 88, in para no.12 which is re-produced below:-
"12. If some triable issues are raised then the controversy can be properly adjudicated after ascertainment of truth through cross-examination of witnesses who have filed their affidavits and other material documents. Burden is on the landlord to prove his requirements and his assertion is required..........................."
9. Proviso (e) to Section 14(1) is a special provision which has been enacted by the legislature for the class of landlords who require the premises genuinely and their requirement is bona-fide and they do not have any suitable accommodation. The essential ingredients for attracting the proviso (e) of the Section 14(1) are : -
a) there exists landlord tenant relationship;
b) the premises were let out for residential or commercial purpose;
c)The said premises are bona-fide required by the landlord either for himself or for his dependant family member.
d) The landlord or the dependant family member has no other reasonable suitable accommodation.
10. The thresholds hereinabove are to be satisfied conjunctively in order to attract the provisions of Section 14(1)(e) and the absence of even one of the said ingredients clearly makes the said provision inapplicable.
RC ARC No : 195/2021 Sh. Devki Nandan Sharma Vs. Sh. Harish Chauhan 5 of 14
11. For the purposes of leave to defend, the respondent had to show some defence which would disentitle the petitioner of the relief claimed.
12. The landlord tenant relationship between the parties is not disputed and thus admitted by the parties. The petitioner has filed copy of registered sale deed dated 13.05.1971 of the property in question and rent agreement dated 08.12.2004 with the respondent in this regard. Thus, petitioner is the owner and landlord of the tenanted premises in question for the purpose of proceedings in this case.
13. In order to evaluate whether the need of the petitioner is bonafide or not, let us understand the legislative and judicial connotation of the term, ' bonafide'. In landmark case Deena Nath v. Pooran Lal, (2001) 5 SCC 705 wherein the Supreme Court observed thus:
"The Legislature in enacting the provision has taken ample care to avoid any arbitrary or whimsical action of a landlord to evict his tenant. The statutory mandate is that there must be first a requirement by the landlord which means that it is not a mere whim or a fanciful desire by him; further, such requirement must be bonafide which is intended to avoid the mere whim or desire. The 'bonafide requirement' must be in presenti and must be manifested in actual need which would evidence the Court that it is not a mere fanciful or whimsical desire. The legislative intent is made further clear by making the provision that the landlord has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. This requirement lays stress that the need is pressing and there is no reasonably suitable alternative for the landlord but to get the tenant evicted from the accommodation. Similar statutory provision is made in subsection (e) of Section 12(1) of the Act in respect of accommodation let for residential purposes. Thus, the legislative mandate being clear and unambiguous, the Court is dutybound to examine not merely the requirement of the landlord as pleaded in the eviction petition but also whether any other reasonably suitable nonresidential accommodation in his occupation in the city/town is available. The judgment/order of the court/authority for eviction of a tenant which does not show that the court/authority has applied its mind to these statutory requirements cannot be sustained and the superior court will be justified in upsetting such judgment/order in appeal/second appeal/revision. Bonafide requirement, on a first look, appears to be a question of fact. But in recording a finding on the question the court has to bear in mind that statutory mandate incorporated in Section 12(1)(f). If it is found that the court has not applied the statutory provisions to the evidence on record in its proper perspective then the finding regarding bonafide requirement would cease to be a mere finding of fact, for such erroneous finding illegally arrived at would vitiate the entire judgment."
Chambers 20th Century Dictionary defines bona fide to mean "in good faith and genuine". Requirement is not a mere desire. The degree of intensity contemplated by "requires" is much more higher than in mere desire. The phrase "required bonafide" is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of the landlord and its bonafides would be capable of successfully withstanding the test of objective determination by the RC ARC No : 195/2021 Sh. Devki Nandan Sharma Vs. Sh. Harish Chauhan 6 of 14 court. In short, the concept of bonafide need or genuine requirement needs a practical approach instructed by the realities of life. It is no concern of the Courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own.
The meaning of "bonafide" in the context appears to be in two folds. (a) the need of the landlord must be a genuine one and not a frivolous one. (b) landlord is not motivated by extraneous considerations in trying to recover the possession from the tenant with a view to let it out again to another tenant at a higher rent.
14. The Apex Court in the case of Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta reported in SCFBRC 1999 Page 330, has observed as under:
"In Prativa Devi (Smt.) v. T.V. Krishnan, 1996 (5) SCC 353, this Court has held that in considering the availability of alternative accommodation, not availability merely but also whether the landlord has the legal right to such accommodation has to be considered. Reverting back to the case at hand, the landlord has been living on the ground floor of the Defence Colony house. It was conceded at the Bar that as on the day the family of the landlord consists of the landlord himself (a practicing doctor), his son (again a practicing doctor), the daughter-in-law and two grand children who are gradually growing in their age. Looking at the size of the family, available of three bed rooms in the premises in which the landlord may live, is a requirement which is natural and consistent with the sense of decency- not to talk of comfort and convenience. There is nothing unreasonable in a family with two practicing doctors as members thereof needing a room or two or a room with a verandah to be used as a residential-clinic divided into a consultation room and a waiting place for the patients. A drawing room, a kitchen, a living room and a garage are bare necessities for a comfortable living. The landlord has been living in Defence Colony locality for more than 35 years. The first floor which was let out to the tenant in the year 1978 as being an accommodation surplus with the landlord has with the lapse of time become a necessity for occupation by the landlord and his family members. More than ten years by now have been lost in litigation. The death of the wife of the landlord and the death of landlord's mother-in- law, are events which have hardly any bearing on the case of felt need of the landlord, The need as pleaded and proved by the landlord is undoubtedly natural sincere and honest and hence a bona fide need. There is no material available on record to doubt the genuineness of such need. It continues to subsist inspite of the two deaths. It is not the case of the tenant- appellant that while seeking eviction of the tenant the landlord is moved by any ulterior motive or is guided by some other thing in his mind. It will be most unreasonable to suggest that the landlord may continue to five on the ground floor of the Defence Colony house and some members of the family may move to Sarvodaya Enclave House if the whole family cannot be conveniently and comfortably accommodated as one unit in the Defence Colony house. It would be equally unreasonable to suggest that the entire family must shift to Sarvodaya Enclave House which is admittedly situated at a distance of about 7-8 kms. from Defence Colony. The landlord and his family are used to living in Defence Colony where they have developed friends and acquaintances, also familiarity with the neighbourhood and the environment. The patients usually visiting or likely to visit the residential clinic know where their doctor would be available. Shri Arun Jaitley, learned Senior Counsel for the respondent, has very rightly submitted that it could not have been the intendment of the Rent Control Law to compel the landlord in such facts an circumstances to shift to a different house and locality so 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 does not command or compel him to squeeze himself rightly into lesser premises protecting the tenant's occupancy."
15. Further, in another landmark case of "Sarla Ahuja v. United India Insurance Co. Ltd., reported as AIR 1999 SUPREME COURT 100", whereby it was held that :
RC ARC No : 195/2021 Sh. Devki Nandan Sharma Vs. Sh. Harish Chauhan 7 of 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 case 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 bonafides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself....".
16. The case of the petitioner is that he has, apart from the shop in question, other two shops wherein the petitioner has settled his both sons namely Pravesh Sharma and Manoj Sharma, who are running their respective business from there. Both of his sons are married and having liability of their respective families. It is stated that in back side of the shops, the petitioner is residing with his family and the gate of said residential house opens in 20 feet Gali. The tenanted premises in question, which is in the possession of the respondent, is much more suitable for the petitioner who wants to keep himself busy in the business of book shop which is related with his profession from where he has been retired. It is further stated that the petitioner has to perform his liability towards his married daughter and other visiting relatives and except the meagre pension the petitioner has no other source of income to maintain himself and his family which is dependent upon him. An oral request was made to the respondent/tenant to vacate the tenanted shop but respondent is giving false assurance to vacate the same for the last about 11 years and is not vacating the tenanted premises. The petitioner requires the tenanted premises for his bonafide use and he wants to run a book shop to earn his livelihood being unemployed/retired and further to keep himself busy at the shop. It is stated by counsel for the petitioner that petitioner is getting a pension of Rs.20,131/- per month out of which he has to spend certain amounts upon his ailing wife and himself, while the grand children are also being financially supported.
17. The respondent has on the other hand stated that the petitioner is getting a huge pension of Rs.27,000/- per month which he has not mentioned. It is stated that the petitioner has constructed the property afresh in the year 2000 and continued the tenancy of the respondent in this subject shop which has same space RC ARC No : 195/2021 Sh. Devki Nandan Sharma Vs. Sh. Harish Chauhan 8 of 14 which was earlier there prior to construction in 2000. The deposit of Rs.3 lakh was used by the petitioner in construction in continuation of previous understanding that the respondent can continue for his life, however, the money of Rs.3 lakh had been taken from the respondent for giving life long tenancy to respondent. Now the petitioner is ready to return the amount but he is denying the tenancy for the life and is creating irreparable damage to the respondent. The petitioner has not issued any receipt in writing but he has admitted this fact always in the private conversations. It is stated that the petitioner is running the business in the name of Bharat Printing Agency and his business is very big and the petitioner's needs are well satisfied out of his huge pension and business income. The petitioner is also running coaching centers and study centers for various competitive examinations at first floor. The petitioner is seeking eviction for extending the business of his son and not his own business. The respondent has denied that he is giving any assurance to vacate the tenanted premises for last 11 years.
18. The plea of the respondent that the petitioner is living a life of luxury as has pension and coaching institute's income and thus his ground of starting a book shop is not bonafide is without any merits as firstly, it has not been shown by bringing on record by the respondent that the petitioner is running the coaching centre. Secondly, even if he is running a coaching centre he can always start a books shop which would add to the household income. Merely because a person is not hand to mouth does not mean that he cannot start his business or additional business or his starting a business or additional business would be malafide. Obviously, earlier the petitioner was in a government job and had a small family but now with expansion of family and his grandchildren also having started working / giving coaching classes, in other parts of the property of which the shop in question is a part, he can also run a books shop to add to the household income. Also, there is no denying the fact that the parents and brothers do take care of gifts etc out of love and affection to the married sisters and daughters and their families as a custom obviously the pension income is not sufficient to sustain in todays inflation. Even otherwise income or no income is no ground to conclude malafide RC ARC No : 195/2021 Sh. Devki Nandan Sharma Vs. Sh. Harish Chauhan 9 of 14 on the part of the landlord. If a landlord has to start a book store or any other business then he cannot be expected to adjust in the existing property and not to take possession of the tenanted premises owned by him. The amount of pension, in view of the aforesaid, is irrelevant and not in question in this case. The petitioner has filed a certificate issued by National Institute of Open Schooling dated 19.01.2007 to show that his son Pravesh Sharma is the Co-ordinator of the coaching institute Satyam Institute of Computer Technology. In the light of these documents the name, mobile number and photographs of the petitioner in the brochure of the coaching institute is of no adverse effect on the case of the petitioner.
19. The respondent has not brought on record anything material apart from bald averments to show that petitioner is not supporting his grandchildren. Thus, the contention of the respondent in this regard is without any merits.
20. As regards the plea that the petitioner is a patron of the newspaper Sapath Patra Mail and thus does not require the premises in question is without any merits as there is nothing on record to show that the petitioner is earning anything from the said newspaper and also that being patron of the said newspaper he will not be able to run a book shop in the tenanted premises in question.
21. Similarly, the contention of the respondent that the petitioner is running the business in the name of Bharat Printing Agency and his business is very big and thus does not need the property in question is without any merits as no document in support of this contention has been placed on record by the respondent and mere bald assertions are of no assistance to the respondent. The petitioner has filed Form DP-1 of Dept. of Trade and Taxes dated 29.06.2015 etc to show that Bharat Printing Agency is run by his son Manoj Sharma.
22. The averments of the respondent that the petitioner has constructed the property afresh in the year 2000 and continued the tenancy of the respondent in this subject shop which has same space which was earlier there prior to construction in 2000 and the deposit of Rs.3 lakh was used by the petitioner in construction in RC ARC No : 195/2021 Sh. Devki Nandan Sharma Vs. Sh. Harish Chauhan 10 of 14 continuation of previous understanding that the respondent can continue for his life, however, the money of Rs.3 lakh had been taken from the respondent for giving life long tenancy to respondent and now the petitioner is ready to return the amount but he is denying the tenancy for the life and is creating irreparable damage to the respondent and that the petitioner has not issued any receipt in writing but he has admitted this fact always in the private conversations are of no assistance to the respondent as no document to show that respondent gave Rs. 3 Lakh to the petitioner has been brought on record especially when the petitioner has denied the said contentions on record.
23. The contention of the respondent that the voice recording/CD shows that the petitioner requires the premises in question for his son who gave security deposit of Rs. 6.5 Lakh for taking agency is without any merits as there is nothing to show which agency on which date was taken by which son of the petitioner.
24. The contention of the respondent that the petitioner gave NOC for the electricity in 2012 and thus contention of petitioner that for past 11 years respondent is not vacating the premises is false is without any merits as electricity is a basic amenity which is to be provided to a tenant by the landlord. The fact that NOC was given by the petitioner in favour of the respondent shows that the petitioner did not use any arm twisting method of disconnection of electricity of the shop in possession of the respondent to get it vacated and thus has no malafide.
25. As regards alternate accommodation in Sarwan Dass Bange vs Ram Prakash 2010 IV AD (Delhi) 252, observations made by Supreme Court in Baldev Singh Bajwa V Monish Saini MANU/SC/1239/2005 (2005) 12SCC 778, have been quoted as under :
It was held that the legislative intent is of expeditious disposal of the application for ejectment of tenant filed on the ground of requirement by the landlord of the premises for his own occupation; a special category of landlords requiring the premises for their own use has been created; if there is any breach by the landlord, the tenant is given right of restoration of possession; the landlord who evicts the tenant on the ground of his 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 inbuilt strong presumption that the need of the landlord is genuine;the restrictions and conditions imposed on the landlord make it virtually improbable for the landlord to RC ARC No : 195/2021 Sh. Devki Nandan Sharma Vs. Sh. Harish Chauhan 11 of 14 approach the court for ejectment of tenant unless his need is bonafide 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 his 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 bonafide. It was further held that a heavy burden lies on the tenant to prove that the requirement is not genuine. The tenant is required to give all necessary facts and particulars supported by documentary evidence if available to prove his plea in the affidavit itself so that the controller will be in a position to adjudicate and decide the question of genuine or bonafide requirement of the landlord; a mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine.
26. In Adarsh Electricals and others vs Dinesh Dayal - MANU/DE/2782/2010, it was held that " the concept of alternate accommodation means that accommodation which is reasonably suitable for the landlord, and the court would not expect the landlord to sacrifice on his own comforts and requirements merely on the ground that the premises is with a tenant . The problem had to be approached from the point of view of a reasonable man and not that of a whimsical landlord. The court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need."
27. The respondent has stated that the petitioner has fully constructed building in the industrial area with address 8/1A/4, Site 4, Sahibabad, Ghaziabad, UP which is used for business purposes and that the petitioner has alternative suitable premises and thus this petition is not maintainable but this contention is without any merits as the respondent has brought forth any material to show an alternative suitable accommodation Ghaziabad, UP. Clearly, this is a sham defence. It is well settled that the tenant is required to give all necessary facts and particulars supported by documentary evidence if available to prove his plea in the affidavit itself so that the controller will be in a position to adjudicate and decide the question of genuine or bonafide requirement of the landlord; a mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine. (See: Sarwan Dass Bange V. Ram Prakash 2010 IV AD (Delhi) 252). It is stated by counsel for the petitioner that the industrial plot no. 8/1A/4, Site 4, Sahibabad, Ghaziabad, UP is owned by Smt. Upasna Sharma w/o Sh. Manoj Sharma and documents in this regard have also been placed on record viz. temporary electricity bill for the period RC ARC No : 195/2021 Sh. Devki Nandan Sharma Vs. Sh. Harish Chauhan 12 of 14 20.06.2014 to 20.09.2014; agreement for transfer of leasehold rights dated 20.01.2011; possession letter dated 20.01.2011 of Sahibabad property. Furthermore, even if the said property in Ghaziabad is owned by the petitioner then also it cannot be said to be an alternative suitable accommodation as it is in an industrial area and the petitioner has to run a book store/shop.
28. Landlord is the best judge of his needs. It is well settled 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. From the aforesaid submissions of the petitioner, clearly, his need is bona fide. Also, there is no material on record to show that there is any alternative suitable accommodation for the petitioner apart from the tenanted premises in question. The petitioner-owner of the premises in question, is clearly not expected to accommodate himself and his family in other shop (s) when he bona fide requires the tenanted premises. In Mahendra Trivedi Vs. Jai Prakash Verma, 157 (2009) DLT 690 and Sudesh Kumar Soni & Anr. Vs. Prabhas Khanna & Anr. 153 (2008) DLT 652, it is held that If landlord wishes to live with comfort in a house of his own, law does not expect or compel him to squeeze himself lightly into lesser premises protecting tenants occupancy.
29. The decisions in Aggarwal Papers vs Mukesh Kumar - (2012) 194 DLT 605; Chander Sain Berry vs Avinash Mittal - (1997) 67 DLT 208; Sri Kempaiah vs Lingaiah (2001) 8 SCC 718; Inderjeet Kaur vs Nirmal Singh - (2001) 1 SCC 706; Manoj Kumar vs Bihari Lal - (2001) 4 SCC 655; Deepak Gupta vs Sushma Aggarwal - 202 (2013) DLT 121 relied upon by the respondent having been decided on different fact situation are of no assistance to the respondent and cannot be applied like a Euclid's theorem.
30. In view of the above discussion and the documents filed by the parties, there is no triable issue between the parties which entitles the respondent for leave to contest the present application for eviction. The application for leave to contest is without merits.
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31. Conclusion:
In these circumstances, the application for leave to defend filed by the respondent is dismissed and the respondent Harish Chauhan is liable to be evicted from the tenanted premises i.e. shop no. 3 at ground floor in property no. 1449/73, Durga Puri, Shahdara, Delhi-110093 as shown in red colour in the site plan (now exhibited as Ex P1) filed with the present petition. Accordingly, the petition filed by the petitioner u/s 14 (1) (e) r/w S. 25B of the DRC Act is allowed, subject to provisions u/s 19 of the DRC Act. However, the petitioner would not be entitled to initiate execution proceedings for recovery of possession of the tenanted premises before expiration of six months from today in view of provisions given in Section 14 (7) of the Act. No orders as to costs. Digitally signed by SNIGDHA SNIGDHA SARVARIA SARVARIA Date: 2022.04.05 16:23:16 +0530 Announced in the open Court (SNIGDHA SARVARIA) on April 05, 2022. ACJ/ARC/CCJ [This judgment contains 14 pages.] (SHAHDARA) KKD, DELHI.
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