Delhi District Court
Ashok Kumar vs Sukhdev @ Sukhdev Raj on 13 August, 2024
HARJEET Digitally
by HARJEET
signed
SINGH SINGH JASPAL
Date: 2024.08.16
JASPAL 14:08:00 +0530
IN THE COURT OF SH. HARJEET SINGH JASPAL, SCJ-
cum-RC CENTRAL DISTRICT, TIS HAZARI COURTS,
DELHI
CNR No.: DLCT03-001872-2016
RC ARC No.80114/2016
Shri Ashok Kumar
S/o- Late Sh. Mangal Sen,
R/o- 6165/1, Third Floor,
Gali No.4, Basti Reghur, Dev Nagar,
Karol Bagh, Delhi-110005 ..... Petitioner
Versus
Shri Sukhdev @ Sukhdev Raj
S/o- Late Sh. Pyare Lal,
At Vaishno Dhaba
Ground Floor, 6165/1, Block-1,
Gali No.3, Basti Regar, Dev Nagar,
Karol Bagh, New Delhi-110005 ... Respondent
DATE OF INSTITUTION : 27.05.2016
DATE OF RESERVING THE JUDGMENT : 25.07.2024
DATE OF DECISION : 13.08.2024
PETITION FOR EVICTION OF TENANT/RESPONDENT
UNDER SECTION 14(1)(e) READ WITH SECTION 25-B OF
THE DELHI RENT CONTROL ACT, 1958
JUDGMENT
1. This is an eviction petition under Delhi Rent Control Act, 1958 (hereinafter as the DRC Act), which is a special legislation and is beneficial in nature. Under the said special law, the courts are under compulsion to harmoniously read the provisions of the Act so as to balance the rights of the landlord and the obligations of the tenant toward each other keeping in mind that one of the objects of the legislature while enacting the RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 1 of 47 Act was to curb the tendency of the greedy landlords to throw out the tenants, paying lower rent, in the name of personal occupation and rent out the premises at the market rate. Reliance is placed on the judgment of Hon'ble Supreme Court in M/s. Rahabhar Productions Pvt. Ltd. Vs. Rajendra K. Tandon, AIR 1198 SC 1639.
2. The brief facts of the petition are as follows:-
i) That the petitioner claims himself to be the co-owner of the property bearing No.6165/1, Facing Gali No.3, Block-1, Khasra No.4084/193, Basti Regar, Dev Nagar, Karol Bagh, New Delhi-110005 consisting of two shops measuring 6'4" X 10'6"
and 6'10" X 14'5" (hereinafter referred to as the tenanted premises in question) as specifically shown in red colour in the site plan.
ii). That the rent of the tenanted premises in question is stated to be within the statutory limits of the DRC Act.
iii). As per the petitioner, the respondent is running a Dhaba/restaurant in the tenanted premises in question and there is no common wall between the said two shops and, therefore, the two shops together constitute the tenanted premises in question.
iv). That there is no written rent agreement and the tenancy is stated to be old.
v). That the petitioner requires the tenanted premises in RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 2 of 47 question to run his own livelihood. The petitioner is willing to start a restaurant of his own and claims that there is no suitable alternate accommodation available with him.
vi). At present, the petitioner is running a tea shop on the ground floor near the tenanted premises in question and is not able to fetch sufficient income.
vii). That the petitioner claims that the tenanted premises in question is a part of larger suit property No.6165/1, Gali No.4, Block-1, Municipal No.6165, situated in Khasra No.4084/193, Basti Regar, Dev Nagar, Karol Bagh, Delhi-5, which was owned by Late Smt. Shiv Devi i.e. grandmother of the petitioner and upon her death, the entire property came in the joint ownership of Budhsen, Soren Lal and Mangal Singh.
viii). That the petitioner herein is the son of Late Sh. Mangal Singh and upon a family partition/family settlement, the tenanted premises in question came to the share of the petitioner and his sister namely Smt. Manju Sharma.
ix). That the petitioner is residing on the third floor of the suit property and the tenanted premises in question is on the ground floor of the suit property.
x). That in an another eviction petition filed against the present respondent, the present respondent admitted that he is tenant and he is paying rent to Sh. Yash Pal, S/o- Soren Lal, who is the cousin of the present petitioner.
RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 3 of 47
xi). That Sh. Yash Pal Sharma vide letter dated 09.06.2015 has informed the respondent that the tenanted premises in question falls into the share of the petitioner and his sister and the rent was paid to them only. The said letter was replied by the respondent vide letter dated 14.09.2015.
xii). That the petitioner through his counsel replied the aforesaid reply of the respondent, vide letter dated 12.10.2015 sent through speed post on 15.10.2015 thereby the respondent was warned that despite knowing the fact that he has to pay monthly rent to the petitioner, he deliberately default in in paying the rent from June, 2015 onwards.
xiii). That since the respondent made willful default in paying the monthly rent to the petitioner and the petitioner and the tenanted shops/suit property was bonafidely required by the petitioner, the petitioner through his counsels vide tenancy termination notice dated 26.10.2015 terminated the tenancy of the respondent in the tenanted shops/suit property and asked him to vacate the tenanted shop/suit property and hand over its peaceful vacant possession to the petitioner.
xiv). That in view of the partition/settlement arose in partition suit CS (OS) No.1377/2009, the petitioner withdrew his eviction petition No.E-501/06/00, filed against the respondent, from the Court of Shri Tarun Yogesh, Ld. SCJ-cum-RC/Central/Delhi and the same was dismissed as withdrawn vide order dated 16.02.2016.
RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 4 of 47
xv). That despite knowing fully well that the petitioner is the landlord of the respondent, with respect to the tenanted shops/suit property, the respondent deliberately did not pay/tender him the monthly rent for the tenanted shops/suit property nor vacated the same despite receiving the tenancy termination notice dated 26.10.2015.
xvi). That the notice of the termination was given by the petitioner on 26.10.2015. It is prayed that the respondent be evicted from the tenanted premises in question.
3. On receipt of the summons, the respondent also appeared in the Court and filed the application seeking leave to defend. The same was allowed by the Ld. Predecessor of this Court vide order dated 03.04.2018. Thereafter, a written statement was filed by the respondent.
4. In his written statement, the following preliminary objections have been taken:-
i). That the petition of the petitioner is not maintainable as the petitioner has not come to this Hon'ble Court with clean hands and has the suppressed the true material facts and hence the petition is liable to be dismissed.
ii). That the father of the respondent named Pyare Lal was the old tenant in respect of the tenanted premises and after the expiry of the father who expired on 30.01.2000, the respondent became the tenant in respect of the above said tenanted premises by virtue of WILL dated 29.11.1999 executed by his father in RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 5 of 47 favor of the respondent. The father of the respondent was running the Vaishno Dhaba and now after his death the respondent is running the said Vaishno Dhaba in the tenanted premises after the demise of his father.
iii). That thereafter the petitioner and his sister Smt. Manju filed the eviction petition bearing eviction petition No.E-
501/2006 which was filed in the year 2001, on the ground of non- payment of rent under Section 14 (1) (a) of D.R.C. Act in respect of property i.e. one shop in property No.6165/4, Ground Floor, Block No.1, Dev Nagar, Karol Bagh, New Delhi.
iv). That after the death of the landlord Sh. Soran Lal Sharma, his wife Smt. Shanti Devi Sharma was receiving the rent from the respondent but not issued any rent receipt at any time. The respondent is tendering the rent for the tenanted premises to the wife of Sh. Soran Lal Sharma i.e. Smt. Shanti Devi through money orders @ Rs.250/- per month and she continuously received the rent through money order upto her death. The receipts of money orders are already on record.
v). That after the death of Smt. Shanti Devi, her children stopped receiving the rent from the respondent and also refused the money order and finding no other way the respondent filed a petition under Section 27 of D.R.C. Act for depositing of rent through the court of law and regularly deposited the rent through court of law upto 31.09.2010 and thereafter the son of Smt. Shanti Devi named Sh. Yashpal received the rent from the respondent through money order since 01.10.2011.
RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 6 of 47
vi). That in the said earlier eviction petition the petitioner filed replication thereby stating that Sh. Soran Lal was not the landlord of the tenanted premises and to this effect the petitioner has filed the WILL dated 17.03.1999 executed by their father Mangal Sain in favor of the petitioner and his sister. Even in the present petition the petitioner intentionally and deliberately has not disclosed about the said WILL dated 17.03.1999 on the basis of which the earlier eviction petition was filed by the petitioner by alleging that he is the absolute owner of the tenanted premises on the basis of the said WILL dated 17.03.1999.
vii). That in the earlier eviction petition the petitioner has also filed two rent receipts allegedly signed by the respondent dated 04.01.1997 and 11.05.1998. It is submitted that in the year 1997 and 1998, the respondent was not the tenant in respect of the tenanted premises and it was his father who was the tenant at that point of time. The respondent strongly challenged the said both the receipts on the ground that the said receipts are fictitious one and also moved an application under Section 151 C.P.C. for sending the said receipts for C.F.S.L. examination but the Ld. Predecessor Court dismissed the said application and thereafter the respondent moved the appropriate application for obtaining the opinion of hand writing expert the said application was allowed by this Hon'ble Court and said receipts were sent to hand writing expert and hand writing expert gave his opinion that the signature of the the respondent did not tally with the specimen signature of the respondent on the said both receipts. Besides this, admittedly the respondent became the tenant of the tenanted premises after the death of his father who has expired on RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 7 of 47 30.01.2000 so the question of signing the said receipts by the respondent at that time when his father was alive does not arise at all.
viii). That it is pertinent to mention here that the petitioners sent the legal notice dated 15.09.2000 to the respondent which was admitted by the respondent. But on perusing the said notice of para No.3, it is stated by the petitioners that, "the respondent is a very bad pay master of rent, and he has not paid the rent from April, 1999 (after the death of Sh. Soran Lal @ Swarn Lal) instead of several calls and demands". The copy of the said legal notice dated 15.09.2000 is attached herewith.
ix). That when the above said earlier eviction petition was at final stage, then the petitioner has filed an application under Section 151 CPC dated 22.11.2013 for adjourning the case as sine die. In this application the petitioner stated that partition suit vide C.S. (O.S.) No.1377/09 titled as, "Ashok Kumar Vs. Raj Kumar Sharma and others" is pending before the Hon'ble High Court of Delhi and in the said petition the petitioner is seeking the partition in the suit property upto his share along with the other shareholders who impleaded as party in the said suit. The petitioner also requested the court that the result of the said suit of High Court is awaited and this fact was concealed by the petitioner in the earlier eviction petition since 2009 and disclosed the said fact at the later stage by way of application dated 22.11.2013 and thereafter the said earlier petition was subsequently withdrawn by the petitioner Ashok Kumar on 16.02.2016 without the consent of another petitioner of the said RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 8 of 47 earlier eviction petition i.e. his sister named Manju who was the petitioner No.2 in the said earlier eviction petition. Resultantly, the petitioner No.2 namely Manju of the earlier eviction petition has also moved an application under Section 151 C.P.C. for re- opening the above said earlier eviction petition by alleging that the petitioner No.1 has not taken her consent for withdrawing the petition and further submitted that she had not given any authority to the petitioner Ashok to withdraw the said earlier petition and on this application the notice was issued to the petitioner Ashok as well as respondent Sukhdev Raj. The said application was disposed off with the finding that the right of the said Manju shall survive. It is pertinent to mention here that the petitioner before filing the present petition has not taken No Objection from said Manju.
x). That not only this the petitioner Ashok Kumar by misusing the process of law and by giving wrong address and wrong name of the husband of the petitioner No.2 Manju has also filed a civil writ petition bearing C.S. (O.S.) No.1377/2009 with some ulterior motive and in the said C.S. (O.S.) No.1377/2009 the petitioner compromised the matter with Yashpal Sharma and even in the said writ petition his sister Manju was proceeded ex- parte as her particulars were wrongly mentioned by the petitioner intentionally with ulterior motive. Moreover, the petitioner also mentioned that the mother of Ashok and Manju has expired whenever she is still alive and living some where in Rajasthan and this conduct of the petitioner also shows that the petitioner has no hesitation in making false statement even before the court with some ulterior motive and by concealing some material facts RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 9 of 47 which was later on came into the knowledge of the respondent that a family settlement has already arrived between the petitioner and Manju and as per the said family settlement dated 20.02.2004 the said Manju become the absolute owner of the portion/shops which is in possession of the respondent and the said petitioner using the tactic to defeat the said family settlement by misusing the process of law and giving the wrong address and wrong name of husband of Manju because he does not want that Manju to appear before the court and to disclose the real facts about the family settlement which has already been arrived. These facts were came into the knowledge of the respondent when the said Manju moved the petition before the Hon'ble High Court for challenging the settlement arrived at between petitioner and Yashpal before the Hon'ble High Court. It is pertinent to mention here that the said Manju also mentioned facts of the family settlement arrived at between Manju and petitioner and in the said writ petition filed by Manju challenging the mediation between petitioner and Yashpal which is based on false and fabricated story and by concealing the material facts from the Hon'ble Court as mentioned above. The said writ petition was also disposed off with the view that Manju is not bound by the settlement arrived at between petitioner and Yashpal. That the conduct of the petitioner proved that he is so greedy and without caring by misusing the process of law and by making false statement before the Hon'ble High Court by saying that his mother is no more despite the fact that she is still alive and living in Rajasthan and by giving the wrong address of Manju and name of her husband to grab the portion fallen in share of Manju as per the Family Settlement and to defeat the family RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 10 of 47 settlement he used illegal tactic.
xi). That it is submitted that the said Smt. Manju became the absolute owner in respect of the tenanted shops on ground floor as which are in possession of the respondent on the basis of WILL dated 17.03.1999 executed by the father of the petitioner and said Manju in favor of the said Manju as well as petitioner and thereafter a family settlement was arrived between said Manju and her brother Ashok Kumar Sharma i.e. petitioner on dated 20.2.2004 in the presence of marginal witnesses and as per the said settlement, the above said shops on ground floor which are in possession of respondent comes to the said Manju along with other portion. During the pendency of the present petition, the said Manju herself intends to sell the above said shops to the respondent along with all her right, title and interest in the said portion for which the respondent has also agreed to purchase the same on considering the averment of the petitioner in the earlier eviction petition about the execution of WILL and further on considering the Family Settlement and accordingly the respondent purchased the tenanted premises on the basis of Regd. Sale Deed having registration No.10543, Addl. Book No.1, Volume No.16738, Pages No.25 to 33 dated 15.12.2016 and since then the respondent became the absolute owner of the premises in question and on this ground alone the petition of the petitioner is liable to be dismissed and hence the petition of the petitioner is liable to be dismissed on this ground alone. All the original G.P.A., Family Settlement, and relevant documents are already on record which were filed by Manju and the copy of the Regd. Sale Deed 15.12.2016 is attached herewith.
RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 11 of 47
xii). That it is pertinent to mention here that after filing the application by Manju in the present petition by mentioning about the family settlement/G.P.A. arrived at between her and petitioner and copy of all the documents were also supplied to the petitioner in which the G.P.A. and family settlement are also there and thereafter the petitioner has also filed a civil suit for declaration and permanent injunction thereby declaring the said Regd. Sale Deed executed by Manju in favor of respondent Sukhdev as null and void but surprisingly the petitioner in the said civil suit not seeking the relief of declaring the G.P.A. and family settlement and other relevant documents as null and void which were already received by the petitioner in the present petition from Manju at the time of filing the application under Order I Rule 10 C.P.C., which itself proves that the said family settlement was genuine one and tenanted premises came into the share of Manju as per the family settlement and on the basis of which the respondent purchased the entire tenanted premises consideration.
5. A replication was also filed by the petitioner to the WS of the respondent wherein the averments of the WS were refuted and the claim of the petitioner was reiterated.
6. Thereafter, the matter was fixed for petitioner's evidence.
7. During petitioner's evidence, the petitioner has examined himself as PW-1. He appeared in the witness box and tendered his evidence by way of affidavit Ex.PW1/A. He has RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 12 of 47 relied upon the following documents:-
i). Ex.PW1/1- site plan. ii). Ex.PW1/2- photographs of tenanted shops in question and tea stall of petitioner. iii). Ex.PW1/3- certified copy of settlement report dated 24.04.2015 in CS (OS) No.1377/09. iv). Ex.PW1/4- certified copy of family settlement-cum-
compromise deed dated 24.04.2015 in CS (OS) No.1377/09.
v). Ex.PW1/5- certified copy of order dated 06.05.2015 in CS (OS) No.1377/09.
vi). Ex.PW1/6- certified copy of final order dated 21.05.2015 in CS (OS) No.1377/09.
vii). Ex.PW1/7- certified copy of order dated 16.02.2016 and statement of petitioner dated 16.02.2016 in E. No. E- 501/06/00.
viii). Ex.PW1/8- office copy of letter dated 17.06.2015.
ix). Ex.PW1/9- original reply of respondent dated 14.09.2015.
x). Ex.PW1/10 (colly.) - office copy of petitioner's reply dated 12.10.2015 with speed post receipt dated 15.10.2015.
xi). Ex.PW1/11 (colly.) - Office copy of tenancy termination notice dated 26.10.2015 alongwith original speed post receipt.
xii). Ex.PW1/12- original school fees receipts of children of petitioner.
xiii). Ex.PW1/13 (colly.) - original books issuing receipts of petitioner's children.
xiv). Ex.PW1/14 (colly.) - original challan receipts issued by MCD.
RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 13 of 47 xv). Ex.PW1/15- petition.
8. PW-1 was duly cross-examined by the Ld. Counsel for the respondent. Thereafter, vide separate statement, PE was closed and the matter was fixed for respondent's evidence.
9. During respondent's evidence, respondent has examined total three witnesses. RW-1 is petitioner himself, RW- 2 is Sh. Yogesh Sharma, Junior Secretariat Assistant, A & C Department, Karol Bagh Zone, MCD, Delhi and RW-3 is Sh. Prashant Tikdar, Senior Manager, at BSES Yamuna Power Ltd. Patel Nagar Division, New Delhi.
10. RW-1 is the respondent himself, who appeared in the witness box and tendered his evidence by way of affidavit Ex.RW1/A. He has relied upon the following documents:-
i). Mark A: Copy of eviction petition No.E-501/06 under Section 14(1)(a) DRC Act. (Same is not on record and accordingly de-exhibited).
ii). Mark B: Copy of Will dated 17.03.1999. iii). Mark C: copy of application for re-opening the earlier petition. iv). Mark D: Copy of amended memo of parties. v). Ex.RW1/1: Copy of GPA dated 01.11.2000. vi). Ex.RW1/2: Settlement Deed. vii). Ex.RW1/3: Copy of order dated 15.03.2016. viii). Ex.RW1/4: Registered Sale Deed dated 15.12.2016 (OSR). ix). Ex.RW1/5: Copy of Civil Suit. RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 14 of 47
x). Ex.RW1/6: Complaint dated 01.03.2017. (Same was already exhibited as Ex.PW1/R-1, Ex.PW1/R-2 and Ex.PW1/R- 3, thus Ex.RW1/6 is de-exhibited).
xi). Ex.RW1/7: Commercial electricity bill in the name of petitioner.
11. RW-2 Sh. Yogesh Sharma, Junior Secretariat Assistant, A & C Department, Karol Bagh Zone, MCD, Delhi is a summoned witness, who brought the summoned record i.e. original record of House Tax of property bearing No.6165, Two shops on Ground Floor, without roof/terrace rights, having its area 17.90 square meters approx., Khasra No.4084/193, situated at Block No.1, Gali No.3, Dev Nagar, Karol Bagh, New Delhi- 110005 pertaining to the year 2019-2020. The photocopy of the same is Ex.RW2/1 (OSR) (colly. six pages).
12. RW-3 Sh. Prashant Tikadar, Senior Manager at BSES Yamuna Power Ltd., is another summoned witness, who brought the summoned record i.e. K. Number file of Ashok Kumar against C.A. No.100601641 of property bearing No.6165, Gali No.3, Block-1, Dev Nagar, Karol Bagh, New Delhi-110005. The copy of the same was Ex.RW3/1 (OSR) (colly. 42 pages). He also brought the summoned record i.e. scanned self attested copy of name change file of Sh. Sukhdev Raj having C.A. No.100632093 of property bearing No.6165, Gali No.3, Block-1, Dev Nagar, Karol Bagh, New Delhi-110005. The scanned copy of the same is Ex.RW3/2 (colly. 19 pages). He has also brought the test report of connection earlier in the name of Piare Lal of property bearing No.6165, Gali No.3, Block-1, Dev Nagar, Karol RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 15 of 47 Bagh, New Delhi-110005. The photocopy of the same was Ex.RW3/3 (OSR) (colly. two pages). Certificate of the Indian Evidence Act was Ex.PW3/4.
13. RW-1 was duly cross-examined by the Ld. Counsel for the petitioner. After the conclusion of respondent's evidence, the matter was fixed for final arguments.
14. Ample opportunities were given to both the sides for arguments. Written submissions have also been filed on behalf of both the sides and the same have been duly considered.
15. It was argued by the Ld. Counsel for the petitioner that by way of oral and documentary evidence, the petitioner has proved his case on the scales of preponderance of probabilities. It was argued further that the petitioner has no alternate accommodation to satisfy the projected need and that is why it is prayed that the tenanted premises in question be vacated in favour of the petitioner.
16. Per contra, Ld. Counsel for the respondent has argued that the respondent has already purchased the share of the sister of the petitioner herein i.e. Smt. Manju Sharma, vide registered sale deed dated 15.12.2016 i.e. while the present proceedings were still pending and therefore, the respondent herein has become a part owner of the tenanted premises in question and consequently there can be no question of eviction. It has also been argued that on the day of the filing of the present eviction petition, the sister of the petitioner was also a co-owner and since RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 16 of 47 the petitioner herein has not placed on record any formal consent from the said sister/co-owner, the present eviction petition is bad in law.
17. On the other hand, Ld. Counsel for the petitioner argued that since the portion purchased by the respondent has been transferred in the course of the proceedings, the same finds protection by the rule of lis pendens. Therefore, as per the Ld. Counsel for the petitioner, the purchase of the share of the sister of the petitioner by the respondent will have no consequences and that the eviction shall follow.
18. Having heard the Ld. Counsels for both the sides and having perused the entire record (including the written submissions and case laws filed on behalf of both the sides), I shall now proceed to decide the matter on its merits.
19. The present petition is an eviction petition filed under Section 14 (1)(e) of DRC Act, whereby the petitioner is seeking eviction of the tenant on the ground of Bonafide Need. Hence, before proceeding to appreciate the contentions of the contesting parties in the light of evidence lead during the trial, it is appropriate to reproduce the bare provision of Section 14 (1)(e) of DRC Act. It reads as under;-
"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 and court or Controller in favor of the RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 17 of 47 landlord against a tenant:
Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:-
(a) ***
(b)***
(c)***
(d)***
(e) That the premises are required bona fide 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 the landlord or such person has no other reasonably suitable accommodation;
Explanation.- For the purpose of this clause, "premises let for residential purpose" include any premises which having been let for use as a residence are, without the consent of the landlord, used incidentally for commercial or other purposes;"
20. Thus, in order to establish the grounds for eviction of the tenant/respondent under section 14(1)(e) of the DRC Act, the petitioner must establish the following essentials, viz.
i) Landlord - tenant relationship between the parties; and
ii) Petitioner requires the premises bonafide for himself, or RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 18 of 47 for any member of his family dependent upon him; and
iii) That the petitioner does not have any other reasonable alternate suitable accommodation.
21. In the matter at hand, apart from a customary discussion on aforementioned three points and before proceeding to the examination and appreciation of the evidence of the parties to see if the petitioner has been able to satisfy and prove all the abovesaid conditions, it is essential to discuss the effect of purchase of a portion (undivided interest/share of the sister of the petitioner) of the tenanted premises in question by the respondent.
22. Whereas as per the petitioner, such purchase of the share of the sister of the petitioner will have no consequences since the purchase has been made after the filing of the present eviction petition. On the other hand, the respondent has argued that by way of registered sale deed Ex.RW1/4, he has become a part owner of the tenanted premises in question and since the shares have not been partitioned, the ownership would extend to every inch of the undivided share and, therefore, it is argued that there can be no eviction.
23. In this regard, the two counsels have placed on record the following authorities:-
Petitioner
i). Mohinder Prasad Jain Vs. Manohar Lal Jain (2006) 2 SCC 724.
ii). Dhanna Lal Vs. Kalawati Bai & Ors., (2002) 6 SCC RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 19 of 47
16.
iii). Raghvendra Kumar Vs. Firm Prem Machinary and Co. (2000) I SCC 679" (para 10). Copy annexed.
iv). Uday Shankar Upadhyay & Ors. Vs. Naveen Maheshwari, (2009) 15 Addl. SCR 1002".
v). Guruswamy Nadar Vs. V.P. Laxmi (2008) 5 SCC
796. Respondent:-
i). Raj Kumar Bhartiya & Ors. Vs. Harjit Singh, RCT No.05/19, decided on 04.01.2021.
24. In the considered opinion of the Court, the dispute between the parties gets crystallized in the form of following questions:-
Q. No.i). Whether the present eviction petition is bad in law since the petitioner herein, being an admitted co-owner, has not placed on record a formal no objection/consent from the other co-owner i.e. his sister Ms. Manju Sharma, at the time of filing of the present eviction petition?
Q. No.ii). Whether the respondent herein, having purchased a portion of the undivided share, in the tenanted premises in question, has become the co-owner of the tenanted premises in question and, therefore, whether the same amounts to the termination RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 20 of 47 of the tenancy? Its effect?
Q. No.iii). Whether there exists a landlord-tenant relationship between the petitioner and the respondent?
Q. No.iv). Whether the need projected by the petitioner is bonafide?
Q. No.v). Whether the alternatives suggested by the respondent can be called reasonably suitable alternatives, so as to disentitle the petitioner from the eviction?
Question No.1 Whether the present eviction petition is bad in law since the petitioner herein, being an admitted co-owner, has not placed on record a formal no objection/consent from the other co-owner i.e. his sister Ms. Manju Sharma, at the time of filing of the present eviction petition?
25. In the considered opinion of this court, the said question ought to be answered in negative.
26. In the DRC Act, the word 'owner' has not been defined. The word "owner" as used in the Act, has to be construed in the background of the purpose and object of enacting it. The use of the word "owner" in this clause seems to have been inspired by the definition of the word "landlord" as contained in Section 2(e) of the Act which is wide enough to include a person receiving or entitled to receive the rent of any RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 21 of 47 premises on account of or on behalf of or for the benefit of any other person. Construed in the context in which the word "owner" is used in clause (e). The concept of ownership in a landlord-tenant litigation governed by Rent Control Laws has to be distinguished from the one in a title suit. The ownership is a relative term the import whereof depends on the context in which it is used.
27. The respondent herein has admitted his status as that of tenant, however, it is stated that the petitioner is not a landlord, rather he is a co-owner at best. Even in the WS, the respondent has admitted the status of petitioner as part owner/co-owner.
28. It is settled law that the tenant cannot question the title of co-owners. In the matter at hand, the tenancy has been admitted. It is also admitted that the present petitioner is the co- owner of the property in question, in such situation there are no merits in saying that being a 'co-owner only', the petitioner cannot initiate eviction proceedings.
29. A landlord can be said to be the owner if he is entitled in his own legal right as distinguished from, and on behalf of someone else, to evict the tenant and then to retain, control, hold and use the premises for himself. In a landlord- tenant dispute, the owner is one who has better rights than that of the tenant and it is not incumbent upon him to prove beyond shadow of doubt that he is the owner of the property as he is contesting a suit challenging his title. Reliance is placed on RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 22 of 47 Sheela & Ors. Vs. Prahlad Rai Prem Prakash, (2002) 3 SCC SCC194 375/ AIR 2002 SC 1264.
30. It is trite law that the landlord has only to show that he is one who has right to exclude everyone holding a lesser title than him. Reliance is placed on MM Quasim Vs. Manohar Lal, AIR 1981 SC 1113.
31. In the matter at hand as well, since the respondent has clearly admitted that the present petitioner is at least a co- owner in the tenanted premises in question, it can be said that the petitioner has right to exclude everyone holding lesser title than him.
32. As far as the question of formal consent is concerned, it is once again settled law that an eviction petition cannot be called bad in law merely because a co-owner has not given an express consent.
33. It must be kept in mind that there is a sea of difference between not giving formal consent and making objection. Whereas the former means an inaction or lack of interest by a co-owner, the latter is a specific choice wherein the co-owner decides specifically to make an objection to the eviction of the tenant. The matter at hand too can best be called an example of the former. It is not the case that any co-owner has come forward to object to the eviction. The choice between the two has to be seen on the basis of the pleadings, on the date of filing of the eviction petition. It is once again settled law that in RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 23 of 47 an eviction proceeding, the relevant date necessary for adjudication is the date of filing that is to say that the projected need etc. is to be adjudicated on the basis of the situation which existed on the day of the filing of the eviction petition.
34. The judgment of the Hon'ble Delhi High Court in Khanna Jewellers Vs. Kapil Tandon & Ors, decided on 11.01.2021 [2021 (2) CLJ 323 (Del.)] provides that even one of co-owners/co-landlords can file a suit for eviction of tenant. It is not necessary for co-owner to show before initiating eviction proceedings before Rent Controller that he had taken option or consent of other co-owners, however, in the event a co-owner objects thereto, same may be a relevant fact.
35. In the present case as well, there is no opposition or objection by any of other co-owners to the eviction of tenant i.e. the aforesaid sister of the petitioner Ms. Manju Sharma has not raised any objection, at the time of filing of the present eviction petition or even thereafter.
36. It is also not the case that the eviction petition has been filed for a part of the tenanted premises in question, there is no question of splitting of tenancy.
37. Furthermore, the judgment of the Hon'ble Supreme Court of India in India Umbrella Vs. Bhagabandei Agarwala, in Appeal (Civil) 5357 of 1996, decided on 05.01.2024 by the RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 24 of 47 bench of HMJ R.C. Lahoti and HMJ Ashok Bhan, is relevant and is squarely applicable. In the said judgment, the Hon'ble Apex Court observed that it is well settled that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners. This principle is based on the doctrine of agency. One co-owner filing a suit for eviction against the tenant does so on his own behalf in his own right and as an agent of the other co-owners.
38. One of the co-owners cannot withdraw his consent midway the suit so as to prejudice the other co-owner. The suit once filed, the rights of the parties stand crystallized on the date of the suit and the entitlement of the co-owners to seek ejectment must be adjudged by reference to the date of institution of the suit. Reference can also be made to the judgment of the Hon'ble Delhi High Court in Dharam Veer Goyal Vs. Renu Jain & Anr., decided on 11.01.2023, by HMJ Sachin Dutta.
39. In the matter at hand, the eviction proceedings were filed before the averred purchase of the portion of the tenanted premises in question by the respondent. The eviction petition once filed, the rights of the parties stand crystallized on the date of the suit and the entitlement of the co-owners to seek ejectment must be adjudged by reference to the date of institution of the eviction petition, since on the said day i.e. the day of institution of the eviction petition, there was no objection by the admitted co-owner and since there was no purchase by the respondent herein, the right of the parties has stood crystallized that is to say RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 25 of 47 that the respondent is the tenant and petitioner's omission to place on record a formal consent will not make the eviction proceeding bad in law.
40. In the light of the aforesaid discussions, the first question stands answered to the effect that the present eviction petition is not bad in law since the petitioner herein, being an admitted co-owner, has not placed on record a formal no objection/consent from the other co-owner i.e. his sister Ms. Manju Sharma.
Question No.2 Whether the respondent herein, having purchased a portion of the undivided share, in the tenanted premises in question, has become the co-owner of the tenanted premises in question and, therefore, whether the same amounts to the termination of the tenancy? Its effect?
41. The question that whether the tenancy gets terminated upon tenant's purchase of a portion of the tenanted premises, came before the Hon'ble Supreme Court in the case titled as Pramod Kumar Jaiswal and Ors. vs. Bibi Husan Bano and Ors., Civil Appeal no. 336/2004, decided on 03.05.2005, by a Three-Judge Bench of HMJ R.C. Lahoti, HMJ G.P. Mathur and HMJ P.K. Balasubramanyan.
42. After hearing the submissions and after perusal of the record, it appears that it is the admitted case of both the parties that respondent herein is registered owner of a portion of the RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 26 of 47 tenanted premises, having purchased the same from the sister of the petitioner, the share is undivided as so far there is no partition. Ld. Counsel for petitioner has specifically pleaded before the court that a separate litigation for cancellation of aforesaid sale deed registered in favour of the respondent is pending between the parties.
43. Be that as it may be, in respondent's words he is the co-owner of the property in question as per the registered sale deed Ex.RW1/4 dated 15.12.2016, with respect to unpartitioned share, though without consent and concurrence of the other co- owner i.e. the petitioner herein.
44. The respondent herein has claimed himself to be both the tenant and "co-owner of every inch of the tenanted premises", since there is no partition and consequent crystallization of rights. To say it in other words, the respondent herein is also the tenant of "every inch of the tenanted premises".
45. It is trite law that there is no bar for the Controller to decide an eviction application on the ground that a title suit relating to the suit property is also pending before the civil court. Reference is made to the judgment of the Hon'ble Delhi High Court in Ramesh Chand Vs. R.S. Aggarwal & Ors., 1982 (2) R.C.R. 107.
46. The respondent has challenged the jurisdiction of this Court being Rent Controller since the respondent has become co- owner. For the grant of an order of eviction under Section 14(1) RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 27 of 47
(e) of DRC Act, it is necessary for the Controller to determine if the petitioner is the owner/landlord. It cannot be denied that the undersigned, being the Rent Controller, has powers u/s 14 of the DRC Act to pass an order of eviction against a tenant, provided tenancy gets established. On the admitted facts and based on the arguments, the only question that requires to be considered is the effect of the purchase of the rights of certain co-owner/landlords by the tenant of the building, on the lease originally taken by him and on the basis of which he held the tenanted premises in question.
47. In Pramod Kumar Jaiswal (supra), the Hon'ble Supreme Court observed that a lease in terms of Section 105 of the Transfer of Property Act gets determined on the happening of one of the events referred to in Section 111 or the Transfer of Property Act. Insofar as it is relevant, Section 111 (d), Transfer of Property Act reads:-
"Section 111: Determination of lease - a lease of immovable property determines -
(a) x x x x
(b) x x x x
(c) x x x x
(d) In case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right.
(e) x x x x
(f) x x x x
(g) x x x x
48. The Hon'ble Apex Court held that on a plain reading RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 28 of 47 of the provision, it is clear that in a case where a tenant takes an assignment of the rights of the landlord or the reversion, the lease is determined, only in a case where by such assignment, the interests of the lessee and the lessor in the whole of the property, become vested in the tenant. The emphasis in the Section is clearly on the coalescing of the entire rights of the lessor and the lessee in the whole of the property in the hands of the lessee.
49. In the matter at hand, it is undisputed that the tenancy is covered by the provision of Delhi Rent Control Act, however, on the question of law (i.e. question No.2 as framed hereinabove), the analogy can be drawn from the aforementioned judgment in Pramod Kumar Jaiswal (supra).
50. In the present case, the respondent has claimed ownership over part of the tenanted premises in question, having purchased the same from co-owner i.e. the sister of the petitioner Smt. Manju Sharma, while also admitting his status as that of the tenant, on the date of filing of the present eviction petition, thus in a nutshell, it is pleaded that the respondent is both co-owner and tenant.
51. In view of this paradox wherein the respondent claims himself to be the tenant and the landlord at the same time, the question that arises here is can a person be a tenant and co-owner at the same time.
52. The same can be answered in negative by reference to the aforementioned judgment in Pramod Kumar Jaiswal (Supra).
RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 29 of 47
53. The contextually relevant portion of the aforesaid judgment is being reproduced hereunder :-
"A plain and grammatical interpretation of Section 111 (d) of the Transfer of Property Act leaves no room for doubt that unless the interests of the lessee and that of the lessor in the whole of the property leased, become vested at the same time in one person in the same right, a determination of the lease cannot take place. On taking an assignment from some of the co- owner landlords, the interests of the lessee and the lessor in the whole of the property do not become vested at the same time in one person in the same right. Therefore, a lessee who has taken assignment of the rights of a co-owner lessor, cannot successfully raise the plea of determination of tenancy on the ground of merger of his lessee's estate in that of the estate of the landlord. It is, thus, clear that there is no substance in the contention of the counsel for the appellants that in the case on hand, it should have been held that the tenancy stood determined and the application of the landlord for a direction to the tenant to deposit the rent in arrears should have been dismissed. The position of the appellants as tenants continues and they are bound to comply with the requirements of the Rent Control Act under which the order for deposit has been passed against them. The High Court has rightly dismissed the revision.
54. The aforementioned ratio of the Hon'ble Supreme Court leaves no iota of doubt that on acquisition of title of part of the tenanted premises from co-owners/part owners, the tenant does not become the owner of the property in question/tenanted premises and his status remains that of tenant itself.
55. At the cost of repetition, it is reiterated that in the matter at hand, the eviction proceedings were filed before the averred purchase of the portion of the tenanted premises in question by the respondent. The suit/eviction proceedings once RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 30 of 47 filed, the rights of the parties stand crystallized on the date of the suit and the entitlement of the co-owners to seek ejectment must be adjudged by reference to the date of institution of the suit, since on the said day i.e. the day of institution of the eviction petition, there was no objection by the admitted co-owner and since there was no purchase by the respondent herein, the right of the parties has stood crystallized that is to say that the respondent is the tenant and his purchase of the portion of the undivided share in the tenanted premises in question will not extinguish his status as that of a tenant. Furthermore, it cannot be forgotten that the respondent very well knew that the tenanted premises in question is unpartitioned and his seller i.e. Smt. Manju Devi is only a part owner, he very well knew the fact that eviction proceedings are pending and he is purchasing the unpartitioned share without consent and concurrence of the other co-owner i.e. the petitioner herein; With these in background, it cannot be said that the respondent is a bonafide purchaser in context of the present eviction proceedings and, therefore, no benefit can be granted to him. The purpose of removal of all doubts, it is necessary to clarify herein that being Rent Controller, the adjudication herein is qua eviction proceedings and not qua title.
56. Accordingly, the Court finds no substance in the argument seeking dismissal of the present eviction petition on the ground that the respondent is the co-owner of the property in question/tenanted premises and that the tenancy has been terminated by the purchase of the said portion.
57. Accordingly, the question No.2 is answered in negative RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 31 of 47 to say that upon purchase of a portion of the tenanted premises in question by the respondent, the tenancy does not come to an end and therefore, for the purposes of the present proceedings, the status of the respondent shall remain as that of the tenant and not owner/part owner.
Question No.3 Whether there exists a landlord-tenant relationship between the petitioner and the respondent?
58. The respondent herein has admitted his status as that of tenant, however, it is stated that the petitioner is not a landlord, rather he is a co-owner at best. In the WS (para no.5), the respondent has categorically admitted that upon the death of his father on 30.01.2000, "the respondent became the tenant of the tenanted premises in question by virtue of law". Furthermore, even in his cross-examination dated 19.07.2019, he has admitted his tenancy.
59. It is settled law that the tenant cannot question the title of co-owners. In the matter at hand, the tenancy has been admitted. It is also admitted that the present petitioner is the co- owner of the property in question, in such situation there are no merits in saying that being a co-owner only, the petitioner cannot initiate eviction proceedings. A landlord can be said to be the owner if he is entitled in his own legal right as distinguished from, and on behalf of someone else, to evict the tenant and then to retain, control, hold and use the premises for himself. In a landlord-tenant dispute, the owner is one who has better rights RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 32 of 47 than that of the tenant and it is not incumbent upon him to prove beyond shadow of doubt that he is the owner of the property as he is contesting a suit challenging his title.
60. It is trite law that the landlord has only to show that he is one who has right to exclude everyone holding a lesser title than him. Reliance is placed on MM Quasim (supra). In the matter at hand as well, since the respondent has clearly admitted that the present petitioner is at least a co-owner in the tenanted premises in question and since the respondent has admitted his status as that of a tenant, at the time of filing of the eviction proceedings, it can be said that the petitioner has right to exclude everyone holding lesser title than him, including the respondent herein, since his status stands crystallized as that of tenant, on the date of filing of the eviction proceedings.
61. The clinching evidence of the relationship between the petitioner and the respondent is the respondent's own testimony on 28.04.2022, where he admits the receipt of document Ex.PW1/A i.e. a letter written to the respondent by Sh. Yashpal Sharma, wherein he disclosed to the respondent that the tenanted premises in question has fallen in the share of the present petitioner and his sister. It is worth mentioning here that the respondent, in the WS, has categorically admitted the said Sh. Yashpal Sharma to be his landlord, as he is paying rent to him. The perusal of the contents of the letter shows that the respondent was told by Sh. Yashpal Sharma to henceforth pay rent to the petitioner.
RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 33 of 47
62. Furthermore, it cannot be forgotten that whereas the respondent herein admits the family settlement, by virtue of which the petitioner and his sister got right over the tenanted premises in question, on the other hand, he denies the right of the petitioner. This is clearly a contradictory stand; in the same breath, he is admitting the right of the sister of the petitioner, but is denying the claim of the petitioner. Needless to say that the respondent cannot be allowed to blow hot and cold in the same breath. Therefore, in the light of the aforementioned discussion, it can be said that there exists a jural relationship of landlord- tenant between the parties. Ergo, the question No.3 is answered in affirmative.
Question No.4 Whether the need projected by the petitioner is bonafide?
63. It is settled law that where eviction is sought on the ground of bonafide requirement, the petitioner is required to show 'need', as opposed to 'mere wish' and necessarily an element of genuineness must be shown. The whole emphasis of the requirement is on the element of genuine need which has to be established.
64. In Sarla Ahuja Vs. United India Insurance Company Limited; AIR 1999, SC 100, Apex court observed;
"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 RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 34 of 47 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 in bona fide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself."
65. In M/s John Impex (Pvt.) Ltd. Vs. Dr. Surinder Singh & Ors., 135 (2006) Delhi Law Times 265, it was held;
"The conspectus of the aforesaid judgments shows that the broad principles have been set down of the requirement of a landlord not being a RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 35 of 47 mere whim or fanciful but that it should be a genuine need of the landlord. It is only then that the requirement can be said to be bona fide within the meaning of under Section 14(1) (e) of the said Act. This would naturally require all the necessary matrix in terms of the factual averments and the evidence to be adduced in that behalf. Simultaneously it has to be kept in mind that the landlord is the best judge of his requirement and a tenant cannot dictate the terms on which the landlord should live. The bona fide requirement of the landlord would also depend on his financial status and his standard of living".
66. The phrase 'required bonafide' is suggestive of legislative intent that a mere desire which is outcome of whims 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 a mere pretense 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.
67. It is settled law that the question to be asked for deciding the bonafide by a judge of facts, is by placing himself in RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 36 of 47 the place of the landlord, is, whether in the given facts proved by the material on record the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer is in positive, the need is bonafide. The concept of bonafide need or genuine requirement needs a practical approach instructed by the realities of life.
68. 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 need.
69. Coming to the matter at hand, the petitioner has pleaded that the tenanted premises in question is needed for the personal requirement of the petitioner. Petitioner is currently running a tea stall on the pavement/footpath, right next to the tenanted premises in question and wants to start a restaurant/dhaba at the tenanted premises in question.
70. The respondent himself is running a dhaba at the tenanted premises in question, from past many years and, therefore, it cannot be said that the tenanted premises in question is not a place suitable for the projected need.
71. Furthermore, the law is settled in this regard that the landlord is the best judge of his own requirement and that the RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 37 of 47 tenant cannot dictate terms.
72. Respondent has averred that the petitioner is running a cloth business and his wife is running a tea stall. In the cross- examination of PW-1/petitioner, it has been suggested that the tea shop is in coloured portion and that it get challaned (fined) by MCD. This means that the respondent admits the tea shop. Even if the averments of the respondent are assumed to be correct, that by itself does not disentitle the landlord/petitioner from starting a new venture/business at the tenanted premises in question. A landlord cannot be prejudiced merely because he has a running business or that he has rental income or that his spouse is earning handsomely. It is not the intent of the Rent Control Legislation that the landlord must starve himself before seeking eviction.
73. Having heard the submissions and having perused the record, I find no merits in the submissions of the Ld. Counsel for the respondent. It has not been argued that the petitioner suffers from any kind of disability or incapacity, which disallows him from starting a dhaba at the tenanted premises in question. It goes without saying that a Dhaba being a bigger establishment than a 'Tea Shop' on pavement, is a promotion, both in terms of economic and social status and therefore, a landlords's desire to seek economic improvement for himself and his family cannot be called 'malafide', merely because the respondent/tenant says so.
74. In the matter at hand, the petitioner has unequivocally projected his need that the tenanted premises in RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 38 of 47 question is needed to start a Dhaba at the tenanted premises in question, which has come to the share of the petitioner by way of family settlement, alongwith his sister.
75. In the entire testimony of PW-1 i.e. the petitioner, as such there are no contradictions which could prompt the Court to disbelief the testimony. It can be said that as such nothing has come in the cross-examination of PW-1, which can make the Court doubt the requirement of the petitioner or to label it as malafide. It can be said that petitioner has survived the test of cross-examination.
76. Even otherwise, it cannot be forgotten that in a matter under Section 14(1)(e) of the DRC Act, there is a presumption, though rebuttable, in the favour of the projected need being bonafide. Reliance is placed on the Division Bench's judgment of the Hon'ble Supreme Court in Abid-Ul-Islam Vs. Inder Sain Dua (decided on 07.04.2022 in civil Appeal No.9444/2016, by the Bench of H.M.J M.M. Sundresh and H.M.J S.K. Kaul). Sarla Ahuja (Supra) too is a judgment of the Hon'ble Apex Court on the same lines.
77. The aforesaid judgments guide that the degree of probability is one of preponderance, to the satisfaction of the Rent Controller, thus, the quality of adjudication is between mere moonshine and adequate material. Before a presumption is drawn, the landlord is duty bound to place prima facie material in support of his averment, which in the present matter the petitioner has done.
RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 39 of 47
78. In the matter at hand, the respondent has not denied the ability/capacity of the petitioner to start a Dhaba at the tenanted premises in question, his only argument is that the petitioner is already gainfully employed, as he has rental income and runs a cloth business/tea shop right adjacent to the tenanted premises in question. Since the respondent has already admitted that the petitioner is running a tea shop, there is no merit in the argument that he would not run a dhaba or that his requirement of the tenanted premises in question to start a dhaba is not bonafide. The respondent's suspicion, in the considered opinion of this Court, is no ground to disallow eviction in favour of the landlord. Even an affluent businessman cannot be prejudiced merely because he has existing businesses, the law does not require that a landlord must starve himself before coming to the Court of a Rent Controller. A person's desire to expand business is understandable and unless contrary is proved, it is natural human desire. If the petitioner too wants the same, it cannot be called malafide merely because he has an existing source of income. The landlord is made the sole arbiter of his own requirements but he must prove that he, in fact, wants and genuinely intends to occupy the premises.
79. Having taken the facts and circumstances in its entirety, this Court is of the opinion that the 'need' projected by the petitioner is not a mere moonshine and has been sufficiently demonstrated, on the scales of preponderance of probabilities, to the satisfaction of the Court.
RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 40 of 47
80. Ergo, question No.(iv) qua bonafide requirement is answered in favour of the petitioner.
Question No.5
Whether the alternatives suggested by the
respondent can be called reasonably suitable alternatives, so as to disentitle the petitioner from the eviction?
81. The respondent has pleaded that the petitioner is in possession of two shops in the suit property and the said two shops can be used for the projected need. As per the respondent, since an alternative is available with the petitioner, there is no question of eviction.
82. Per contra, the petitioner has argued that he does not have any suitable alternative and currently the petitioner is running a tea shop/tea stall from pavement. It has also been submitted that the alternatives suggested by the respondent cannot be compared to the tenanted premises in question on account of the difference in size and location. It is pointed out that the tenanted premises in question is situated on the ground floor, on the road and has good measurement, on the contrary, the alternative suggested is merely an Almirah shop, which cannot be called suitable for running a dhaba.
83. The following properties have been suggested by the respondent as alternatives, whether or not they are suitable is to be decided:-
i). Two shops adjacent to the tenanted premises in question.
RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 41 of 47
ii). Two rooms on the third floor of the suit property i.e. on the third floor above the tenanted premises in question.
iii). Space adjacent to the tenanted premises in question on which a Ganna Machine has been installed.
84. At this stage, it needs to be understood what is meant by suitable alternate accommodation.
85. The concept of alternate accommodation means that accommodation which is 'reasonably suitable' for the landlord. As to alternative accommodation disentitling the landlord to the relief of possession, it has been held time and again that it must be reasonably equivalent as regards suitability in respect to the accommodation he was claiming.
86. 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. In short, the concept of bonafide need or genuine requirement needs a practical approach instructed by realities of life.
87. The gist of the aforesaid discussions it that the apples and oranges cannot be compared. The landlord is the master of his choice and it is for him to decide what suits his interest the best, a tenant can neither dictate terms nor can he thrust his choice upon the landlord.
RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 42 of 47
88. Coming to the matter at hand, to begin with it needs to be understood that the tenanted premises in question consists of two shops, situated on the ground floor, on the road. The petitioner resides on the floors above. Any shop/premises which can be called a suitable alternate accommodation must be reasonably equivalent to the tenanted premises in question and must have the aforesaid attributes i.e. ground floor, similar or larger physical measurement, must be in the vicinity of the residence of the petitioner.
89. It may also be added here that the respondent is running a dhaba at the tenanted premises in question and the petitioner too wants to start a dhaba only. Therefore, it cannot be said that the tenanted premises in question is not unsuitable for the projected need.
90. In the considered opinion of this Court, the alternatives suggested by the respondent cannot be called suitable alternatives or equivalent to the tenanted premises in question sheerly on the account of comparative analysis of size and location. The respondent in his cross-examination dated 19.07.2019 has admitted that the shop in the possession of the petitioner, facing gali No.3, is an Almirah shop, which means a shop which has small measurements and is like an almirah.
91. It may be pointed out here that in the course of the cross-examination of PW-1, the respondent himself has suggested that the portion from which the petitioner is currently running the tea stall gets "challaned" (penalised) by MCD, RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 43 of 47 meaning thereby the counsel himself is admitting that the portion from which the tea stall is being run is not completely legal and it is at best "an extended portion". In light of this, the said two averred shops i.e. garment and tea shop cannot be called reasonably equivalent to the tenanted premises in question.
92. It goes without saying that the property at the third floor cannot be compared with the tenanted premises in question, which is situated on the ground floor, purely on account of difference of location and ease of access. It might not be the best idea to start a dhaba on the third floor as opposed to a ground floor property, situated on the road.
93. In reference to the property which is averred to be space adjacent to the tenanted premises in question, on which a Ganna Machine has been installed, it does not appear to be any shop or enclosed physical space, therefore, it cannot be called suitable alternative.
94. The law does not permit the tenant to dictate terms nor can the tenant, in the matter at hand, make choices for the petitioner so as to disentitle him from starting a business. It is settled law that the ultimate master is the landlord and he cannot be forced to sacrifice his choices only so that the tenant does not feel inconvenience. With the aforesaid discussion in mind, the only suitable answer to the projected need is the tenanted premises in question and I find no merits in the submissions of the respondent that the other properties, as discussed hereinabove and as mentioned in the WS, can be occupied for the projected RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 44 of 47 need.
95. Ergo, in light of the said discussion, this Court finds no reason to doubt the bonafides of the need projected by the petitioner and it cannot be said that the petitioner is in possession of suitable alternative, the projected need can be satisfied. As such, the respondent has failed to show that the requirement is not bonafide and that the petitioner has alternate accommodations available.
96. Respondent/tenant lastly claims that the he is in possession of the tenanted premises for many years now and the Landlord, who is a wealthy person and has a number of properties, should not seek to evict the Tenant because of the hardships which the Tenant will face would weigh out the need of the Landlord. In this regard, it would be pertinent to refer to Bosco Joseph vs Raj Kumar 2022 SCC OnLine Del 2029, wherein Delhi High Court has made following observation:
"Unlike a few of the Rent Control statutes where comparative hardship is one of the tests that a Rent Controller applies, under the Delhi Rent Control Act, 1958, there is no test of comparative requirement. Under the Delhi Rent Control Act, all that has to be shown is that the tenanted premises is bona fide required by the Landlord or by any member of the family who is dependent on the Landlord for the said premises or that other member of the family for whose benefit the premises is sought for is dependent on him and no other reasonably suitable accommodation is available. There is no test of comparative hardship in the Delhi Rent Control Act. The argument of the learned Counsel for the Petitioner that the Landlord, coming from a wealthy family and having more than 100 people working under him, cannot be permitted to evict the Tenant, who is solely dependent on the RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 45 of 47 tenanted premises for his livelihood, cannot be accepted. It is not disputed that the younger son of the Landlord has become a graduate and the need of a father to settle his son cannot be said to be not bona fide".
97. It is clear that once the landlord establishes its bonafides, the hardship of the tenant cannot be taken into consideration for declining an eviction. If it is accepted that tenancy should be protected either on the ground of long residency or because of non-availability of house with the tenant, no landlord will ever be able to get an eviction order. Even otherwise, the law contemplates a buffer period of 6 months for the tenant in which he can arrange for a shelter.
98. To sum up, the concept of bonafide need or genuine requirement needs a practical approach instructed by realities of life. As long as the landlord is able to establish that he/she in good faith and genuinely wishes to occupy the premises in possession of the tenant and that good faith or genuineness is of a reasonable man, it would not be open to the Controller to weigh the claim of the landlord in a fine scale.
99. In view of the above finding, the present petition is allowed. Accordingly, an eviction order is passed against the respondents qua the tenanted premises i.e. two shops measuring 6'4" X 10'6" and 6'10" X 14'5" situated at Ground Floor in property bearing No.6165/1, Facing Gali No.3, Block-1, Municipal No.6165, situated in Khasra No.4084/193, Basti Regar, Dev Nagar, Karol Bagh, New Delhi-110005, as specifically shown in the red colour in the site plan attached with RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 46 of 47 the petition.
100. However, the petitioner would not be entitled to obtain possession of the above tenanted premises before the expiry of the period of six months from the date of this order in terms of Section 14 (7) of Delhi Rent Control Act, 1958.
101. File be consigned to Record Room. Copy of judgment be given dasti to both the sides on request.
Digitally signedHARJEET by HARJEET SINGH JASPAL SINGH Date:
JASPAL 2024.08.16 14:08:17 +0530 Announced in the open Court (Harjeet Singh Jaspal) on this 13th day of August, 2024 SCJ-cum-RC (Central) Tis Hazari Courts, Delhi RC ARC No.80114/2016 Ashok Kumar Vs. Sukhdev @ Sukhdev Raj Page No. 47 of 47