Delhi District Court
Shri Gyanender Verma vs Shri Satish Kumar on 29 May, 2012
IN THE COURT OF SH. RAKESH KUMARIII ACJ/ARC/WEST DELHI
E NO: 327/11
Date of institution: 16.12.11
Date of Judgment:29.05.2012
Shri Gyanender Verma
S/o Shri Ram Krishan
R/o WZ1671, Second floor,
Nangal Raya, New Delhi
............. Petitioner
Versus
Shri Satish Kumar
S/o Shri Vakil Chad
Shop No. 6, Ground Floor,
WZ1671, Nangal Raya,
new Delhi110046
............. Respondent
ORDER
1. Vide this order I shall dispose off an application U/s 25B (4)(5) of DRC Act but filed under wrong provision i.e. U/o XXXVII Rule 5 CPC read with section 151 CPC by the respondent seeking leave to contest the present eviction petition.
2. Facts briefly stated in the petition are as under : E No. 327/11 Page 1 of 17
3. That the petitioner is the owner/landlord of the property in question which was let out by the petitioner orally by delivery of possession in 1993 after purchase of the property to the respondent at a monthly rent of Rs. 1700/ per month exclusive of electricity and other charges. The last paid rent is Rs. 3011.54 per month. The petitioner is residing in the same building on second floor alongwith his family members consisting of himself, two grown up married daughters and one son. The petitioner has no source of income other than the rental income from the first floor and third floor and the shop on the ground floor. There is only one shop available on the ground floor. The son of the petitioner is a diploma holder in Visual Effects and with great efforts he could get the salary of Rs. 7500/ at Mohali. The petitioner is unable to find out a suitable match of him on account of his meager salary. The petitioner wants to settle his son in the shop in question and as such the premises are required bonafidely by the petitioner for settling his son in the said shop where the son of the petitioner would set up his own business of general store and confectionery in which the petitioner will be able to help him. The premises are required bonafidely by the petitioner since he has no other alternate accommodation available to him for the business in Delhi.
4. Petitioner prayed for an eviction of the respondent from the tenanted Shop No. 6, ground floor forming part of 1671, Nangal Raya, New Delhi110046 as shown within red lines in the site plan. E No. 327/11 Page 2 of 17
5. An application for leave to defend and an affidavit was filed by the respondent and seeks unconditional leave to contest the petition on the grounds and objection taken during arguments that the petitioner has wrongly stated in the petition that he has no other source of income and also wrongly stated that he has any bonafide necessity of the suit property for his son as he has been already working in Mohali as stated by the petitioner itself in the petition. It has also been already stated that his son has got diploma in Visual Effects which is contrary to that the petitioner again saying that he wants to settle his son in the shop in question after set up his own business of general store and confectionery. It is further stated by the respondent that the suit of the petitioner is barred under the law of limitation and against the CPC and the same has been filed is prima facie misconceived, based on false, frivolous, fabricated documents and concocted facts and devoid of justification in order to harass the respondent and as such is liable to rejected. It is stated that the present suit is filed by the petitioner against the respondent with ulterior motive and to extract money from the respondent and same is absolute malafide and the petitioner has not approached with clean hands by not stating the correct facts in plaint and hence suppressed the material facts from this Court. Lastly it is stated that respondent has disclosed such facts which are sufficient to entitle him to defend the present suit.
6. Petitioner in his reply taken objection that the present application has been filed under wrong provision hence not maintainable. Petitioner in his counter affidavit denied all the grounds for leave to defend and submitted that the property in question is bonafidely required by him in order to establish his son E No. 327/11 Page 3 of 17 by setting up his own business since his son is earning very low i.e. Rs. 7500/ per month with less TDS of Rs. 750/. It is further submitted that diploma of his son in Visual Effects does not debar the son of the petitioner to start any general store or confectionery business. Further rest of the paras are denied with request to dismiss the leave to defend application.
7. The respondent also filed the rejoinder to the reply to the said application in which he reiterated his grounds for seeking leave to defend/contest the case and denied almost all averments of petition.
8. Rejoinder to the counter affidavit on behalf of petitioner also filed wherein reiterated all the averments of petition and denied the grounds for leave to defend.
9. I have heard the arguments and perused the case file.
10. The law has been settled by the Hon'ble Supreme Court that bonafide can be claimed by the owner/landlord of property in respect of commercial premises as per the law laid down by the Appex Court in case reported as 'Satyawati Versus Union of India' "A landlord will be entitled to an order of eviction under Section 14 (1)
(e) if he is able to prove that:
E No. 327/11 Page 4 of 17
(a) The premises in question were let out for commercial premises.
(b) The petitioner is the landlord and an owner of the said premises.
(c) That the premises are bona fide required by the petitioner owner/landlord of the property for himself as well as any member of his family dependent upon him or any other person for those benefits the premises are held.
(d) That the landlord or such other person has no other reasonable suitable residential accommodation."
From the perusal of record it is admitted case that there is no dispute between the parties as regard to landlord and tenant relationship as well as the ownership and the purpose of letting are concerned. The only dispute is in respect of the bonafide requirement of the petitioner, suppression and concealment of material fact. Hence the first and foremost contention of the respondent is that the need of the suit property by the petitioner is not bonafide rather it is malafide as the son of the petitioner is already working in Mohali as stated by the petitioner himself and has also got diploma in Visual Effect which is totally contrary to the saying of the petitioner that he wants to settle his son in the shop in question after set up his own business of general store and confectionery. But I find no force in this contention as the shop in question is required bonafidely by the petitioner for his son in order to settle him which E No. 327/11 Page 5 of 17 shows that the son of petitioner wants to start his business in his own shop as such appears that he wanted to increase his financial status and his standard of living and secondly the tenants could not stop their landlord from starting any business for augmenting his income. The bonafide requirement of a landlord does not become malafide just because he wants to run business for augmenting his income. The consequent hardship to tenant from eviction order could also not convert otherwise bonafide requirement into malafide requirement. It is held by Hon'ble Supreme Court in Ganga Devi Vs. District Judge, Nanital, 2008 (1) RCR (Rent) 590, "Bonafide requirement - Comparative hardship - Landlord retired from Government service and getting pension which is not sufficient to support family members - Need of landlord for shop to augment his income is bonafide
- Comparative hardship of tenant could not be looked into in such a case - The Court would not determine the question on the basis of sympathy and sentiment."
In Brij Mohan Vs. Sirpal Jain, 49 (1993) DLT 543 the Hon'ble High Court held that: "It is the settled law that even those children who have capacity to earn themselves could always be dependent upon their father for the purpose of E No. 327/11 Page 6 of 17 their residence. The circumstances of earning does not prevent them to be included in the list of dependents on their father for the purpose of residence."
In Shri Hukum Rai Vs. Chhail Bihari Lal and anr. 1978 (1) RCR 591 P & H:
"Landlord wanted his own house to save higher rent which he was paying in rented house. Need Bona Fide. The word 'require' involves an element of need or necessity."
Further it is also not out of mention to place here that the tenant cannot create clog on the extension of business of landlord or dictate terms to the landlord.
As it has been held in Sarla Ahuja Vs. United India Insurance Co. Ltd. (1998) 8 SCC 119 passed by Hon'ble Supreme Court:
"The crux of the ground envisaged in clause (e) of Section 14 (1) of Act is that the requirement of the landlord for occupation of the tenanted premises must be bonafide. 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 bonafide. When other conditions of the clause are E No. 327/11 Page 7 of 17 satisfied and when the landlord shows a prima facie case, it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bonafide. It is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bonafides of the requirement of the landlord, it is quite unnecessary to make an endeavor as to how else the landlord could have adjusted himself"
In Ashok Kumar Vs. Raj Kumar, 2007 (1) RCR (Rent) 417, that "Bonafide requirement Landlord seeking eviction of tenant from shop for manufacturing of trunks - Contention of tenant, need of landlord was not bonafide as he was already running the manufacturing work in rented premises quite close by and was paying less rent - Contention of tenant repelled - Tenant cannot create clog on the extension of business of landlord or dictate terms to the landlord."
In case title Nireanjan Deva Tagal, AIR 1982 (SC 1518 S. K. Dey Vs. D. C. Gogerna, 1984 (2) RCR 615, (referred) "Choice of landlord to reside in particular premisesWeight age to, ScopeBona fide requirementEviction of tenant sought for on ground of bona fide requirementNot for tenant to dictate terms as how and where the landlady should live."
E No. 327/11 Page 8 of 17
In Satyawati Sharma (Deceased) by LRs Vs. U.O.I and others reported in III (2008) SLT 553 wherein it is held that:
"a business premises can be got vacated by the owner landlord for carrying on his own business by his son and grandson if the owner/landlord does not have any other premises for carrying on the business"
In Ram Babu Aggarwal Vs. Jay Kishan Das, reported in 2009 (2) RCR 455, Supreme Court observed:
"We are of the opinion 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 starts new business even if they do not have experience in the new business, and sometimes they are successful in the new business."
In Sait Nagjee Purushotham and Co. Ltd. V. Vimlalabai Prabhulal and Ors. (2005) 8 Supreme Court Cases 252, it was observed:
"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."
E No. 327/11 Page 9 of 17
11. It is also not out of mention to place here that respondent is old tenant in respect to the shop in question being never disturbed at any point of time for last more than 15 years. Since the claim of the petitioner is to settle his son by setting up of his own business hence the need of the petitioner cannot be said as malafide. It is held by Hon'ble Supreme Court in Rishi Kumar Govil Vs. Maqsoodan, 2007 (1) RCR (Rent) 405 "It is the choice of the landlord to choose the place for the business which is most suitable for him. He has complete freedom in the matter."
Similarly in the present case the petitioner has the complete freedom to choose the most suitable accommodation for running business and the respondents could not dictate terms to the petitioner/landlord.
12. It is further also not out of mention to place here that while assessing bona fides of the landlord, the approach of the Court should not be unrealistic and impermissible. Nor should it be too technical devoid, of realities. E No. 327/11 Page 10 of 17
As it has been held as per the judgment passed by Hon'ble Justice Vipin Sanghi as reported in 174(2010) DLT 64 in case entitled as 'Mukesh Kumar versus Rishi Prakash', which is as under : "(i) Delhi Rent Control Act, 1958 - Section14(1)(e) - Bona fide requirement - Setting up office of son, an Advocate - Leave to defend - Respondent did not raise any triable issue - No material produced that petitioner is running his professional office from first floor of property - Not difficult for respondent who himself a practicing Advocate, to produce photographs or other documents along with his application to seek leave to defend to substantiate his plea -Petitioner was not obliged to discuss in his eviction petition the manner in which lower floors were being used by him as these floors were being used by him for a totally different purpose than the purpose for which tenanted premises were required - Eviction order is passed against respondent and in favour of petitioner - Impugned order cannot be sustained as it does not appear to be in accordance with law."
It has also been held as per the judgment passed by Hon'ble Justice V.B.Gupta in case titled as 'Veeran Wali Versus Kuldip Rai Kochar', which is reported in Vol. 174(2010) DLT 328, which is as under: E No. 327/11 Page 11 of 17
"Delhi Rent Control Act, 1958 - Section 25B(8) - Leave to Defend
- Failure to raise any triable issue by petitioner - tenant - Besides basement, respondent landlord is not having any other suitable and readily available accommodation with him in entire premises - Respondent has categorically stated that basement is not suitable for him to carry on business, as same is being used for storage and parking purposes - Any business which is run from ground floor of premises will attract more customers than business being run from basement - Tenant cannot dictate landlord as to how and in what manner landlord should use his own property - Respondent in his eviction petition in clear and unequivocal terms mentioned about his requirements - Concept of alternate accommodation means accommodation which is reasonably suitable for landlord Problem to be approached from point of view of reasonable man and not whimsical landlord - Petition failed to raise any triable issue which if proved might disentitle respondent from getting order of eviction in its favour - Trial Court has given detailed and reasoned order which does not call for any interference nor same suffer from any infirmity or erroneous exercise of jurisdiction."
Further it has also been held as per the judgment passed by Hon'ble Justice V.B.Gupta as reported in Vol.173 (2010) 189 titled as 'Navneet Lal versus Deepak Sawhney' which is as under :
E No. 327/11 Page 12 of 17
"(i) Delhi Rent Control Act, 1958 - Sections 14(1)(e), 25 B(8) - Leave to Defend - Bonafide requirement - Petitioners failed to raise any triable issue, which if proved might disentitle respondent from getting an order of eviction in his favour - During pendency of petitions, respondent has got vacant possession of two shops - Averments made by respondent in its eviction petition with regard to accommodation available with him on ground floor and grounds on which he requires shop in question, not disputed by petitioner tenants in their leave applications - Area of shops is very small and would not meet entire requirement of respondent and his family members - Trial Court has given detailed and reasoned order which does not call for interference nor same suffers from any infirmity of erroneous exercise of jurisdiction."
Also in the case Meenakshi V. Ramesh Khanna and Anr. [60 (1995) DLT 524] wherein it has been held that:
"(6).....The tenants are well aware that once leave to contest is granted, the cases go on for trial for years. Their purpose is achieved. Keeping this in mind, the Controllers should rather have positive approach in such matters of as to discourage such vague and frivolous pleas which are most of the time false to the knowledge of persons raising them."
E No. 327/11 Page 13 of 17
Further in Sartaz Malik Vs. Mithilesh Rani RC. REV. No. 30/11 wherein in para 7 of the order it has been observed by the Hon'ble High Court that "...In my view, even if it is accepted that the two sons were employed that fact would not disentitle the respondent from securing the order of eviction against the petitioner since it is not only financial dependency which matters but even the dependency of a child on his/her parents for having some premises, which belongs to the parents, to live or to do business also can be pressed into service by a landlord. No mala fides can be attributed to the respondent in initiating the eviction proceedings against the petitioner.
Also in a very recent case in Abdul Malik Vs. Shashi Bhalla reported in Rajdhani Law Reporter 2012 wherein it has been held by the Hon'ble High Court of Delhi: 'that a landlord is the best judge of his needs and it is not open for the Court or for the tenant to dictate to him the terms. It was held in John Impex vs. Dr. Surinder Singh 2007.1. AD 89=135. DLT, 265 "If requirement of landlord is not a mere whim or fanciful but a genuine need then requirement can be said to be bona fide within the meaning of S. 14 (1) (e) of the Act--The Bona fide need would also depend upon his financial status and his standard of living of petitioner' hence the plea of the petitioner is that the property in question is required for starting the business by his son as such appears that petitioner wants to establish his son separately and independently in his property, then by no stretch of imagination it can be said that requirement of petitioner are neither bonafide nor genuine. E No. 327/11 Page 14 of 17
13. After taking into consideration the facts and circumstances and the ratio of judgments discussed above, I am of the consider view that the requirement of the petitioner for property in question is most bonafide and as the son of petitioner is dependent upon him hence requirement of the petitioner cannot be thrown out merely on the averment of denial by the respondent. Thus the plea of respondent regarding that present eviction petition has been filed with malafide intention cannot be considered being untenable hence rejected.
14. So far as the next contention of the respondent regarding concealment and suppression of material fact is concerned, there is no as such document or pleading produced by the respondent in support of his contention that what things are concealed by the petitioner while approaching the Court. Moreover it is also not out of mention to place here that the premises are required bonafidely by the petitioner since he has no other alternate accommodation available to him for the business in Delhi which is no where disputed by the respondent in his leave to defend application. So, I am of the considered view that the petitioner has not concealed or suppressed E No. 327/11 Page 15 of 17 any material fact from this Court and has successfully established that he has bonafide requirement of tenanted premises hence this plea is also rejected being bald allegation.
15. So, in the light of the aforesaid observations it is clear that the respondent has failed to raise any triable issue which, if proved would disentitile the landlord/petitioner from obtaining an order for recovery of possession of the tenanted premises, and therefore, the application of the respondent for leave to defend is dismissed and eviction order is passed in favour of the petitioner and against the respondent in respect to the tenanted Shop No. 6, ground floor forming part of 1671, Nangal Raya, New Delhi110046 as shown within red lines in the site plan. However, in view of Sec. 14(7) of DRC Act, this order shall not be executed before the expiry of period of six months.
Announced in the open Court (Rakesh KumarIII)
on 29.05.2012 ACJ/ARC(West)/29.05.2012
E No. 327/11 Page 16 of 17
E No. 327/11
29.05.2012
Pr. Proxy counsel for parties.
Vide my separate order leave to defend application of the respondent is dismissed and eviction order is passed in favour of the petitioner and against the respondent in respect to a tenanted Shop No. 6, ground floor forming part of 1671, Nangal Raya, New Delhi-110046 as shown in red colour in the site plan. However, in view of Sec. 14(7) of DRC Act, this order shall not be executed before the expiry of period of six months. File be consigned to record room.
(Rakesh KumarIII) ACJ/ARC(W)/29.05.2012 E No. 327/11 Page 17 of 17