Delhi District Court
Sh. Rakesh Kumar Taneja vs Sh. Mohan Kumar Garg on 17 December, 2015
IN THE COURT OF SH. SATISH KR. ARORA, SENIOR CIVIL JUDGE
CUM RENT CONTROLLER (EAST), KKD COURTS, DELHI
E. No.60/14
Unique Case ID No.: 02402C0172252014
In the matter of:
Sh. Rakesh Kumar Taneja
S/o Late Sh. Krishan Lal Taneja
R/o V20, Naveen Shahdara,
Delhi32. .....Petitioner
Versus
Sh. Mohan Kumar Garg
s/o Late Sh. S.N. Garg
r/o M/s Tiny King Knit Wear
Shop No.3, (Self Marked)
in property no.9/7079
at ground floor, Guru Nanak Street,
Gandhi Nagar, Delhi110031 ....Respondent
Date of Institution : 04.06.2014
Date of Arguments : 28.11.2015
Date of Pronouncement : 17.12.2015
O R D E R
1. This order shall dispose of the application filed by the respondent seeking leave to appear and defend the eviction petition. Before adverting to the grounds taken up by the respondent in his application, a brief E60/14 Rakesh Taneja v. Mohan Kr. Garg Page 1 of 24 look on the facts as narrated by the petitioner in his eviction petition can be taken note of.
2. Petitioner in his eviction petition has claimed himself to be owner of entire ground floor portion (except stairs and one shop measuring 6'6'' X 10' more specifically shown in green in the attached site plan) of property bearing 9/7079, ground floor, Guru Nank Street, Gandhi Nagar, Delhi110031 and respondent to be his tenant in respect of one shop therein which is shop No.3 (self marked) more specifically shown in red in the site plan filed with the eviction petition and hereinafter referred to as the tenanted shop.
2.1 It is claimed by the petitioner that whereas shop no.3 is under the tenancy of the respondent herein, shop no.2 (self marked) is under the joint tenancy of Sh. Vijay Kr. Garg and Sh. Ajay Kr. Garg who are running their business under the name & style of M/s N.D. Kids Wear and shop no.1 (self marked) is being used by the petitioner himself to earn his livelihood and he is running the business under the name and style of M/s Taneja Garments. It is further stated that petitioner has filed an eviction petition on the grounds of bonafide requirement against the other tenants of shop no.2 as well.
2.2 It is further claimed that the bonafide of petitioner is apparent from the fact that due to paucity of space available with him, petitioner was forced to take a godown on the prevailing market rent and the godown is E60/14 Rakesh Taneja v. Mohan Kr. Garg Page 2 of 24 approximately measuring 12 X 25 at 9/7099, Guru Nanak Gali, Near Laxmi Narain Mandir, Gandhi Nagar, Delhi.
2.3 It is further claimed that the petitioner is a very religious person and believes in the welfare of the society and pursuing many charitable works. In pursuance thereto, petitioner is running a homeopathic clinic at 1/9739, Behl Gali, West Gorakh Park, Shahdara, Delhi110032 at ground floor situated in a residential premises. Petitioner opens the said clinic just for two hours in the evening at 8 pm to 10 pm everyday except Sunday and on Monday by appointment to help the needy people.
2.4 Petitioner further claims that his family comprises of himself, his wife, two daughters namely Ms. Richa Taneja who is doing a job in media and Ms. Surbhi Taneja who is pursuing her CA (Chartered Accountancy) and a son namely Gaurav Taneja who has completed his schooling in the year 2013. It is further claimed that the two children namely Surbhi Taneja and Gaurav Taneja are dependent upon the petitioner for commercial premises which the petitioner is duty bound to provide to settle them for a bright future.
2.5 The bonafide requirement of the tenanted shop in the present eviction petition is claimed by the petitioner by asserting that his daughter namely Ms. Surbhi Taneja has completed her graduation in the year 2012 and has also passed the Integrated Professional Competence Examination held by the Institute of Chartered Accountants of India in the year 2011 itself and now E60/14 Rakesh Taneja v. Mohan Kr. Garg Page 3 of 24 she is willing to start her own Tax Consultancy Firm. The copy of the provisional certificate of her graduation and certificate of Integrated Professional Competence Examination has been annexed with the eviction petition as necessary reference. Further, petitioner or any of his family member do not own or possess any commercial/suitable premises to do any sort of business independently except the tenanted shop and shop no.2 in the given property. As already stated, an eviction petition on the grounds of bonafide requirement has been filed against the tenants occupying shop no.2 for the bonafide requirement of the petitioner to expand his business and also for his son to start his own business from the said tenanted shop. The property no.1/9739, Behl Gali, West Gorakh Park, Shahdara, Delhi110032 is residential in nature and wherein the petitioner is already running his charitable homeopathic clinic.
3. Coming on to the leave to defend application and supporting affidavit of the respondent, he has taken up following grounds:
3.1 That the petitioner is in actual, vacant and physical possession of the first floor and second floor of the property bearing no.1/9739, Behl Gali, West Gorakh Park, Shahdara, Delhi. The petitioner had deliberately and purposely not filed the site plan of the said property on record with a malafide intention to conceal the exact construction in the said property as is existing on its ground floor, first floor and second floor. That the respondent is filing photographs of the said property showing that it consists of ground, E60/14 Rakesh Taneja v. Mohan Kr. Garg Page 4 of 24 first and second floor.
3.2 That the petitioner is in actual and physical possession of the property bearing no. W22, Naveen Shahdara, Delhi32 and had deliberately not filed its complete site plan on record.
3.3 That the petitioner is in actual and physical possession of the property bearing no. 1/9509, West Rohtas Nagar, Shahdara, Delhi32 and had deliberately and purposely not filed its complete site plan on record. 3.4 That the petitioner has also concealed that he is in actual and physical possession of property bearing no. V20, Naveen Shahdara, Delhi32 and had deliberately and purposely not filed its complete site plan. 3.5 That the petitioner has created a false and frivolous ground of bonafide requirement of the alleged need of his daughter Surbhi Taneja in respect of the tenanted shop. The petitioner is trying to create a false ground of eviction in the guise of bonafide requirement which is malafide. The daughter of the petitioner has not become Chartered Accountant and she had only cleared the Integrated Professional Competence Examination.
Thereafter, a training of three years is compulsory and then the student appears for final examination. It is only after clearing the final examination that the Institute of Chartered Accountants of India grants license by making the student a member of the said Institute and thereafter, a person can practice independently. Hence, unless the daughter of the petitioner clears the final exam and thereafter becomes the member of the ICAI, she is not E60/14 Rakesh Taneja v. Mohan Kr. Garg Page 5 of 24 competent to practice independently as Tax Consultant. Thus, the alleged need or requirement of the daughter is not in existence at present and the alleged need is based upon the likelihood in future.
3.6 That the eviction petition is also liable to be dismissed as the petitioner had already accepted the rent of the tenanted premises from the respondent up to March, 2017.
3.7 That without prejudice to the rights and contentions of the respondent and without admitting the averments of the eviction petition, respondent claim that the alleged need of the petitioner is of additional accommodation and it is settled law that cases of additional accommodation can only be decided after leading of evidence by both the parties.
4. Petitioner by filing his reply with supporting counter affidavit, refuted the claim of the respondent on the following terms: 4.1 That the petitioner had himself mentioned in the eviction petition that he is running a charitable homeopathic clinic from the ground floor of property bearing no.1/9739, Behl Gali, West Gorakh Park, Shahdara, Delhi and as such there is no concealment on his part. As far as the first and second floor of the said premises is concerned, there is no second floor and it is only one toilet at the terrace. Even the photographs of the respondent itself shows that the said floors are residential premises and not commercial. Even otherwise it will not fetch any customers and the whole idea of the petitioner settling his daughter will be ruined.
E60/14 Rakesh Taneja v. Mohan Kr. Garg Page 6 of 24 4.2 That the petitioner has no right or interest whatsoever in property bearing no. W22, Naveen Shahdara, Delhi and if the said property is lying vacant, respondent can occupy the same with the permission of the original owner.
4.3 That it is also denied that the petitioner is owner of property bearing no.1/9509, West Rohtas Nagar, Shahdara, Delhi. In fact, this property was under the ownership of the petitioner which was used as a residence and in the year 2012, petitioner sold it off and later purchased the second floor of property bearing no. V20, Naveen Shahdara, Delhi which is his present residence address.
4.4 That the property bearing no. V20, 2nd floor, Naveen Shahdara, Delhi32 is the residence of the petitioner and there has been no concealment on his part. Also, property no. V20, Naveen Shahdara, Delhi is not the independent property of the petitioner and he only owns its second floor which is residential in nature.
4.5 That the daughter of petitioner has successfully completed her graduation and has good knowledge about taxation. Also, it has nowhere been stated that petitioner's daughter is willing to start Chartered Accountants Firm for which she needs to clear the final examination conducted by the Institute of Chartered Accountants. What has been claimed is that she is willing to start her Tax Consultancy Firm and for that no chartered accountancy degree/license is required.
E60/14 Rakesh Taneja v. Mohan Kr. Garg Page 7 of 24 4.6 That the respondent himself of his own choice had deposited the advance rent amount upto March, 2017 directly into the bank account of the petitioner.
5. Respondent filed the rejoinder with his supporting affidavit to the reply/counter affidavit of the petitioner therein reiterating and reaffirming the averments of his leave application and the supporting affidavit.
6. Ms. Bhawna Chopra, Ld. Counsel for the petitioner and Sh. Yashbir Thakur, Ld. Counsel for the respondent were heard and the file was carefully perused. Ld. Counsel for the petitioner also relied upon the following citations : A. Surinder Singh v. Jasbir Singh,172 (2010) DLT 611;
This was a case concerning filing of eviction petition by the landlord for extension of business and for his son dependent upon him. It was held that merely because the landlord did not disclose the basement and first floor available with him, it in itself will not prove fatal to his case as the same cannot be said to be an alternative accommodation for the purpose of bonafide requirement. B. Uday Shankar Upadhyay & Ors. v. Naveen Maheshwari, 2010 (1) RCR 554;
This was a case where eviction petition was filed by the landlord seeking eviction of the tenant from the shop on the grounds that his two major sons wanted to start business separately. The plea of the tenant that landlord has available with him an alternative accommodation in the form of a hall over the suit shop was declined. It was observed that once it is not disputed that the landlord is in bonafide need of the E60/14 Rakesh Taneja v. Mohan Kr. Garg Page 8 of 24 premises, it is not for the Courts to say that he should shift to the first floor or any higher floor. It is well known that shops and businesses are usually (though not invariably) conducted on the ground floor because the customers can reach there easily. The Court cannot dictate to the landlord which floor he should use for his business; that is for the landlord himself to decide.
C. Ragavendra Kumar v. Firm Prem Machinery & Company, AIR 2000 SC 534;
This case was concerning the bonafide requirement of the tenanted premises by the landlord for opening show room of Indo Suzuki Motorcycles and TVS 50 Mopeds for which he was appointed Sub Dealer. It was observed that it is well settled that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter.
D. Kharati Ram Khanna & Sons v. Krishna Luthra, 172 (2010) DLT 551;
In this case the law was reiterated that it is not for tenant to dictate terms to landlord as to how else he can adjust himself without getting possession of tenanted premisessuitability has to be seen for convenience of landlord and his family members and on the basis of circumstances including their profession, vocation, style of living, habit and background.
E. Labhu Lal v. Sandhya Gupta, 173 (2010) DLT 318;
In this case, the requirement of the landlord's son and daughter in law for expanding the clinic being run in premises in question was held to be bonafide and genuine. The law as laid down in Sait Nagjee Purushotham & Co. Ltd. v. Vimlabai E60/14 Rakesh Taneja v. Mohan Kr. Garg Page 9 of 24 Prabhulal & Ors., (2005) 8 SCC 252 was reiterated that it is always the prerogative of the landlord that if he requires the premises in question for his bonafide use for expansion of business, this is no ground to say that the landlords are already having their business at Chennai & Hyderabad, therefore, it is not a genuine need. It is not the tenant who can dictate the terms to the landlord and advise him what he should do and what he should not. It is always the privilege of the landlord to choose the nature of the business and the place of business. F. Sait Nagjee Purushotham & Co. Ltd. v. Vimlabai Prabhulal & Ors., (2005) 8 SCC 252.
G. Shanti Devi v. Rajesh Kumar Jain & Anr., 2012 IX AD (Delhi)
246. This case was concerning the landlord's intention to open an officecumdisplay counter on the side facing the main road. The need was held to be bonafide and genuine and the law as declared in Sait Nagjee's case (supra), was reiterated and relied upon.
H. Ram Babu Agarwal v. Jay Kishan Das, 209 (4) RCR (Civil)
748;
It was observed in this case that a person can start a new business even if he has no experience in the new business. That does not mean that his claim for starting the new business must be rejected on the ground that it is a false claim. Many people start new businesses even if they do not have experience in the new business, and sometimes they are successful in the new business also.
I. Raj Kumar Khaitan v. Bibi Zubaida Khatun, AIR 1995 SC 576; E60/14 Rakesh Taneja v. Mohan Kr. Garg Page 10 of 24 In this case it was observed that it is not necessary for the landlord to indicate the precise nature of the business which he intends to start in the premises. Even if the nature of business would have been indicated nobody could bind the landlord to start the same business in the premises after it was vacated.
J. Anil Bajaj & Anr. v. Vinod Ahuja, AIR 2014 SC 2294;
This case was concerning the bonafide claim of the landlord of the tenanted shop on the grounds that he was carrying on his business from a shop located in a narrow lane. The need of the landlord was held to be bonafide and genuine.
K. Pawan Kumar v. Paramjeet Singh Gill, RC Rev. 50/2015 decided on 25.03.2015 by the Hon'ble High Court of Delhi; The need of the landlord of the tenanted premises to start a coaching centre business for his daughter was held to be bonafide and genuine.
L. Sudesh Kumar Soni & Anr. v. Prabha Khanna & Anr., 153
(2008) DLT 652;
This case was concerning the requirement of the landlord of the tenanted premises for the purposes of residence of himself and his family members. He was in possession of six rooms and there were 12 family members in the family of landlord. The need of the landlord was held to be bonafide and genuine as the alternative accommodation which were two rooms vacated by another tenant was held to be not sufficient.
M. Gulab Singh Pukhraj v. R.B. Jinender Raj & Anr., 2009 (4) CCC 748 (SC);
It was observed in this case that a landlord is not precluded to seek eviction of E60/14 Rakesh Taneja v. Mohan Kr. Garg Page 11 of 24 tenant from any non residential building even if he is having another non residential building if landlord is able to satisfy that non residential building occupied by him is not sufficient and suitable for the purpose of expansion of his business or for the purpose of a new business which he bonafide proposes to commence.
N. Shri Gurdial Nagdev v. Smt. Devi Bai, 1979 (1) RCR (Rent) 119;
In this case, the claim of the landlord of the tenancy premises required for residential purposes for herself and for her family members dependent upon her was held to be bonafide and genuine.
O. Namdev v. Sanjay Gkupta, RCR 271/2011 decided on 28.05.2012 by Hon'ble High Court of Delhi;
In this case, the need of the landlord of the tenancy premises on the grounds that the business carried on by him could not be adequately run in a small shop was held to be bonafide and genuine and the non disclosure of the availability of first and second floor was held to be not a material concealment in the light of the given facts where the business of the landlord was concerning sale of various varieties of herbs, crude drugs, dry fruits and spices was held to be requiring sufficient display space in the open market.
7. For the petitionerlandlord to succeed u/s 14 (1) (e) of the DRC Act, following needs to be satisfied by him:
(i) That the tenanted premises is bonafide required;
(ii) That no other reasonably suitable accommodation is available with the E60/14 Rakesh Taneja v. Mohan Kr. Garg Page 12 of 24 landlord.
8. It is well settled that the scope of the inquiry of the Controller who is seized of the application seeking leave to defend is confined to see the affidavit and enquire as to whether there is tenable ground which has been made out which can casts doubts as to the bonafide need or the availability of the alternative accommodation requiring trial in the proceedings. If yes, the Controller is bound to grant the leave to defend as per the statutory mandate and otherwise no. While deciding the leave to defend, the Controller is not expected to examine the success or failure of the plea raised but has to examine merely a tenable case. The Controller is estopped in view of settled law from recording a finding as to disputed questions of fact.
Hon'ble Supreme Court in Charan Dass Duggal v. Brahma Nand, (1983) 1 SCC 301 had observed that, 'What should be the approach when leave to defend is sought? There appears to be a mistaken belief that unless the tenant at that stage makes out such a strong case as would nonsuit the landlord, leave to defend cannot be granted. This approach is wholly improper. When leave to defend is sought, 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. 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 E60/14 Rakesh Taneja v. Mohan Kr. Garg Page 13 of 24 incontrovertible evidence to lead to an affirmative conclusion one way or the other. Conceding that when possession is sought 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."
It was further observed that, '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 E60/14 Rakesh Taneja v. Mohan Kr. Garg Page 14 of 24 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 is 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.'
9. As can be seen from the grounds taken up and agitated by the respondenttenant in his leave application/supporting affidavit, there has been no challenge either to the ownership of the petitionerlandlord or to the relationship of landlordtenant between the parties. The thrust of the respondent has been to challenge the eviction petition on the grounds that there is no bonafide requirement of the petitioner of the tenanted shop and availability of alternate accommodation.
10. In my considered view, respondent has succeeded in raising triable issues in respect of the bonafide requirement of the petitionerlandlord and of the availability of reasonably suitable accommodation. The reasons therefor are given as hereinunder:
10.1 Petitionerlandlord has claimed the bonafide requirement of the tenanted shop on the ground that one of his daughters namely Ms. Surbhi Taneja has completed her graduation in the year 2012 and has also passed the Integrated Professional Competence Examination held by the Institute of Chartered Accountants of India in the year 2011 and that now she is willing to start her own Tax Consultancy Firm. The nature of work/business sought to E60/14 Rakesh Taneja v. Mohan Kr. Garg Page 15 of 24 be started by the petitioner's daughter unlike other routine businesses requires a minimum level of professional competence and skill. It is not the case where the petitioner's daughter wants to start any routine business in respect of which the law is well settled that no experience is required and it was also so held by the Hon'ble Apex Court in Ram Babu Agarwal's case (supra).
Here, the claim of the petitioner is that his daughter wants to start a Tax Consultancy Firm. Merely because she is a graduate and has cleared her Integrated Professional Competence Test as held by ICAI doesn't give her the necessary profession skill to start the Tax Consultancy Business. It would be akin to saying that a student of medicine who has completed his first or second year wants to start his clinic. There appears to be a serious doubt on the veracity of the claim of the petitioner of his bonafide requirement of the tenanted shop. Ever since the provision u/s 14 (1) (e) of the DRC Act was made applicable to the premises let out for commercial purposes, there has been a class of landlords who on one pretext or the other wants to evict the tenant from the commercial premises and in the said urge file the eviction petition on grounds which are flimsy and frivolous or are yet to mature so as to give the mere desire the status of bonafide need/requirement. 10.2 Even otherwise, if it is believed that on the basis of the qualifications which the petitioner's daughter has, she is capable of starting her Tax Consultancy Firm, still, there is a doubt in the bonafide need on the grounds of availability of alternative accommodation. It is an admitted fact E60/14 Rakesh Taneja v. Mohan Kr. Garg Page 16 of 24 that besides the property in question, petitioner also owns one more property bearing no.1/9739, Behl Gali, West Gorakh Park, Shahdara, Delhi32. It is also the admitted case of petitioner that from the ground floor thereof, he is running a homeopathic clinic on some given days and timings. The claim of the petitioner that it is of charitable nature is also under a cloud of doubt as neither the photographs placed on record nor the visiting card suggests it to be one. The visiting card of the petitioner of his running a homeopathic clinic from the said premises was filed on record by the petitioner himself and therein he claims himself to be a DHMS (Homeopathic Physician) and a Director of Homeopathic Height & Growth Centre. He also claims himself to be a special consultant in height and growth and chronic diseases. By no stretch of imagination, the specialty in height and growth can be said to be for the charitable purposes. Even the photographs of the said shop/clinic doesn't show it to be a charitable clinic. What is reflected from the sign board is Homeopathic Height & Growth Centre. Also, petitioner did not file on record either the site plan or the photographs of the said property giving the details thereof as to how much it is constructed and what use it has been put to. It was the respondent who filed its photographs therein showing that besides the shop on the ground floor, the said property is constructed on the first and second floor as well. What the petitioner agitated in his reply that even from the photographs it can be gathered that the other portions of the said property are residential in nature. This is a vague reply when the respondent in his E60/14 Rakesh Taneja v. Mohan Kr. Garg Page 17 of 24 leave application is taking a specific plea that petitioner has available with him alternate accommodation at premises no.1/9739 as above noted. In these given facts when the existence of the said property is not in dispute and has been claimed by the respondent to be a reasonable suitable accommodation, it is expected of the petitioner to atleast give a specific denial thereof by way of his counter affidavit and/or other material either in the form of documents or photographs. Admittedly, nothing has been placed on record by the petitioner to disbelieve the claim of respondent. Also, the proposition that only ground floor is suitable for the alleged bonafide claim of the petitioner, cannot be believed in all circumstances. As has been noted above, the petitioner's daughter wants to start her Tax Consultancy Firm which unlike other routine businesses doesn't necessarily require the premises to be situated on the ground floor. No doubt, the landlord is the best judge of his requirement and it is not for the tenant to dictate the terms to the landlord as to how he can adjust himself, still, it cannot be said to be a thumb rule. 10.3 Reference herein can be made to the judgment of Hon'ble High Court of Delhi in Davinder Pal Singh & Ors. v. M/s Pritam Prakash Dawar & Sons (Huf), RC Rev. No.222/2013 decided on 6th of November, 2013 wherein it was observed that, 'It is not the thumb rule that in every case the landlord always is the best judge and the Court is helpless by not scrutinizing the stand of the tenant while testing the reasonableness and suitability of the alternative accommodation. Actually it depends upon case to case basis. The E60/14 Rakesh Taneja v. Mohan Kr. Garg Page 18 of 24 Courts in many cases have held that even though the landlord is the best judge to decide his needs and he cannot be compelled by the tenant to accommodate at the place which is lesser in any way then the place which is sought to be evicted, still the Court would examine the reasonableness and suitability of the existing accommodation by weighing what is available with the landlord viz. a viz. the plea of a tenant." While so observing, Hon'ble High Court also referred to the judgment of Hon'ble Supreme Court in the case of M.M. Quasim v. Manohar Lal, AIR 1981 SC 113 wherein it was observed that, "Before turning to the next topic, a word about the judicial approach to the question of personal requirement of the landlord under the Rent Act would not be out of place. The Ld. Judge of the First Appellate Court while upholding the claim of personal requirement of respondent has observed that it is for the plaintiffs to decide whatever they think fit and proper. It is not for the defendant to suggest as to what they should do. The defendant has led evidence to show that the plaintiffs have got some more houses at girdih...................................... This approach betrays a woeful lack of consciousness relatable to circumstances leading to enactment of Rent Acts in almost all states in the country. The time honoured notion that the right of reentry is unfettered and that the ownerlandlord is the sole judge of his requirement has been made to yield to the needs of the society which had to enact the Rent Act specifically devised to curb and fetter the unrestricted right of reentry and to provide that only on proving some enabling grounds set out in the Rent Act the landlord can reenter. One such ground is of personal requirement of landlord. When examining a case of personal requirement, if it is pointed out that there is E60/14 Rakesh Taneja v. Mohan Kr. Garg Page 19 of 24 some vacant premises with the landlord which he can conveniently occupy, the element of need in his requirement would be absent. To reject this aspect by saying that the landlord has an unfettered right to choose the premises is to negative the very raison de'etre of the Rent Act. Undoubtedly, if it is shown by the tenant that the landlord has some other vacant premises in his possession, that by itself may not be sufficient to negative the landlord's claim but in such a situation the Court would expect the landlord to establish that the premises which is vacant is not suitable for the purpose of his occupation or for the purpose for which he requires the premises in respect of which the action is commenced in the Court. It would, however, be a bald statement unsupported by the Rent Act to say that the landlord has an unfettered right to choose whatever premises he wants and that too irrespective of the fact that he has some vacant premises in question which he would not occupy and try to seek to remove the tenant. This approach would put a premium on the landlord's greed to throw out tenants paying lower rent in the name of personal occupation and rent out the premises in his possession at the market rate." 10.4 It was further held by the Hon'ble High Court that, 'It is well settled principle of law by the Apex Court as well as this Court in catena of cases that in the cases where the eviction is sought by the landlord on the ground of the bonafide need and in case after seeing the material available on the record, it is found that the case in hand is essentially of the additional accommodation rather than having no alternative reasonably suitable accommodation, it becomes a doubtful case which requires the fact finding in the trial and the Court should normally grant the leave to defend in such cases so that the question of the E60/14 Rakesh Taneja v. Mohan Kr. Garg Page 20 of 24 genuineness of the need can be thrashed out completely in the trial.' 10.5 Reference can also be made to the judgment cited as Khem Chand & ors. v. Arjun Jain & ors., RC Rev. no. 442/2012 decided on 13.09.2013 wherein while dealing with the issue of reasonably suitable accommodation, it was observed that, "The wordings reasonably suitable accommodation are to be interpreted by looking at from the common mans perspective as to what in the given circumstances can be said a reasonably suitable accommodation. It is essentially a question of fact. In a given case, some premises may not be a reasonably suitable accommodation as the same may be inconvenient for the landlord to adjust or fit or put him to hardship but in another case it may act as a reasonable suitable accommodation. But one thing is certain which is that the mere denial by the landlord of a particular premise to be categorized as existing accommodation as not reasonably suitable accommodation cannot be said to be a sole ground to determine a reasonably suitable accommodation. It is equally true that the tenant cannot insist that the particular place/premise can be reasonably suitable accommodation when as a matter of fact it is not." It was further observed that, "It has to be seen from the eyes of common persons prudence and the question should be asked as to whether in the particular case a person has a reasonably suitable accommodation or not to reside or to carry on business. If the answer comes in affirmative, then no matter what the landlord says in order to evict the tenant then the provisions of Section 14 (1) (e) of the Act does not get attracted. If the answer comes in negative, then no matter what the tenant states to refute the reasonableness and suitability of the accommodation, the E60/14 Rakesh Taneja v. Mohan Kr. Garg Page 21 of 24 eviction has to follow." It was further observed that, "There are collective factors which aids to the determination of the reasonableness and suitability of the accommodation include the financial status of the landlord which will help in understanding what can be his reasonable requirement, proximity of the required premises with the existing accommodation where it is required by the landlord or his family members, the availability of the other properties with the landlord within the same location or equivalent place, in the case of commercial premises, the operation of the business by the other persons in the similar area or premises. All these factors are merely inclusive and not exhaustive which may enable to court to arrive at the finding as to what can constitutes the reasonably suitable accommodation. It was further observed that, "It is clear that there cannot be any straight jacket formula to determine what can be reasonably suitable accommodation available with the landlord and it cannot be certainly only depends upon the demands of the landlord. Therefore, one cannot really say that one proposition which may hold good in one case can be equally applied to another case with equal strength without seeing the difference in the facts of the case. Where there is a doubtful case whether a particular accommodation can or cannot act as reasonably suitable accommodation in such cases too, the court seized of the eviction proceedings should postpone the decision making of reasonableness and suitability of accommodation as a fact finding to the trial rather than to evict the tenant by granting the leave to defend. The reasonableness and suitability of the accommodation is a question of fact and has to be seen on case to case basis, therefore, the proposition that the ground floor is always a reasonable E60/14 Rakesh Taneja v. Mohan Kr. Garg Page 22 of 24 accommodation than the first floor or the basement cannot be an absolute proposition. This has to be seen on case to case basis as to in which case a basement is not reasonable accommodation available with the landlord and thus ground floor is required and in which case the first floor can act as a reasonable accommodation."
10.6 It was further observed that, "It is well settled principle of law that the judgments are precedent of the statement of law laid down therein which is called as ratio decidendi and not the finding of the fact arrived by the court. Thus, the proposition that the ground floor is always advantageous than any other floor no matter what floor it is, where it is located and what is the prevailing conditions in the area are as to conduct of the business cannot be an absolute proposition of law and cannot be said to be a precedent in each case to negate the argument of the reasonableness and suitability of the accommodation particularly when the application for leave to defend is being considered. At this stage the Court is to see whether averments in the affidavit in support of application for leave to defend discloses facts which need investigation by evidence and trial, the leave to defend normally should not to be refused."
10.7 Thus, from the above it is apparent that not only there is a serious doubt as to the bonafide of the petitioner, even there is a reasonable doubt concerning the availability of alternative accommodation.
11. In the light of aforesaid discussion, it is held that the respondent has succeeded in raising triable issues in his leave to defend application. Accordingly, the application of the respondent seeking leave to defend the E60/14 Rakesh Taneja v. Mohan Kr. Garg Page 23 of 24 eviction petition is allowed. Let the WS be filed within four weeks from today with copy to the other side.
Ordered accordingly.
Announced in the open court (Satish Kumar Arora)
Dated:17.12.2015 Senior Civil Judge/Rent Controller (East)
Karkardooma Courts, Delhi
E60/14 Rakesh Taneja v. Mohan Kr. Garg Page 24 of 24