Delhi District Court
Shiela Vanti & Ors. vs Mukesh Kumar & Ors. on 21 December, 2022
In The Court Of Ms. Paridhi Sharma, Administrative Civil Judge
cumCommercial Cases JudgecumAdditional Rent Controller,
South West District, Dwarka Courts, Delhi.
CNR No. : DLSW030007422015
Shiela Vanti & Ors. versus Mukesh Kumar & Ors.
a) Eviction Petition No. : 4464/2015
b) Name & address of the : 1) (a) Raj Kumari,
petitioners W/o Sh. Mahesh Kumar,
R/o 6/113, Geeta Colony,
New Delhi110031.
1) (b) Neelam,
W/o Sh. Vinod Kumar,
R/o House No. 2047,
Near PNB, Rajond,
Kaithal, Haryana
1) (c) Komal,
W/o Sh. Subhash
R/o 1039/17, Ward No. 24,
Near Pashu Hospital,
Bahadurgarh, Haryana.
1) (d)/2) Narender Kumar,
S/o Sh. Narain Dass,
R/o Property No. 810,
Som Bazaar, Haibatpura,
Near Radhunath Mandir,
Najafgarh,
New Delhi110043.
Civil Suit No. 22/2015 Shiela Vanti & Ors. versus Mukesh Kumar & Ors. Page 1/35
c) Name & address of the : 1) Mukesh Kumar,
respondents Shop No. 2, Property no.
810, Som Bazaar,
Haibatpur, Near Raghunath
Mandir, Najafgarh,
New Delhi110043.
: 2) Rakesh Kumar,
Shop No. 2, Property no.
810, Som Bazaar,
Haibatpur, Near Raghunath
Mandir, Najafgarh,
New Delhi110043.
Date of institution : 18.11.2015
Judgment pronounced on : 21.12.2022
Eviction Petition under section 14(1)(e) read with section 25B of
The Delhi Rent Control Act, 1958.
JUDGEMENT
1. Vide this judgement, I shall dispose of the instant petition filed by legal heirs of Shiela Vanti and Narender Kumar (hereinafter referred to as the "petitioners") against Mukesh Kumar and Rakesh Kumar (hereinafter referred to as the "respondents") for eviction of the respondents from the tenanted premises under section 14(1)(e) of The Delhi Rent Control Act, 1958 (hereinafter referred to as 'DRC Act').
Civil Suit No. 22/2015 Shiela Vanti & Ors. versus Mukesh Kumar & Ors. Page 2/352. Factual Matrix: It is stated in the petition that shop no. 2, Property no. 810, Som Bazaar, Haibatpura, Near Raghunath Mandir, Najafgarh, New Delhi 110043 admeasuring 8 feet x 12 feet (hereinafter referred to as the "tenanted premises") was let out to the respondents in the year 1986 by the petitioners. The petitioners have contended that the property was owned by the husband of petitioner no. 1 (now deceased) and the father of petitioner no. 1(d)/2 namely, Sh. Narain Dass who expired on 31.10.1984. It is the case of the petitioners that pursuant to his death, they became the owners and landlord of the tenanted premises. The petitioners have pleaded that they do not have any other accommodation available with them to fulfill their bona fide requirement.
3. The petitioners have stated that the ground floor of the property consists of eight shops, details of which are given as below:
Shop no. 1: Petitioner no. 1(d)/2 is carrying on his business of sale and purchase of plastic goods in the said shop. Shop no. 2: The same is the tenanted premises. Shop no. 3: The same is used by the petitioners as a godown. Shop no. 4: The same has been let out to one Rajiv Jain. Shop no. 5: The said shop has been let out to one Sant Lal. Shop no. 6: The said shop has been let out to one Ashok Kumar.Civil Suit No. 22/2015 Shiela Vanti & Ors. versus Mukesh Kumar & Ors. Page 3/35
Shop no. 7: The said shop has been let out to one Prakash Chand.
Shop no. 8: The said shop is used by the petitioners to park his twowheeler and bicycle.
4. The petitioners have pleaded that they require all the abovementioned shops for their bona fide requirement. The petitioners contended that their mother was a senior citizen and was aged 80 years old. She was residing with the petitioner no. 1(d)/2 and his family members which includes two daughters and his wife. Petitioner namely, Narender Kumar contended that he earns around Rs. 15,000/ to Rs. 17,000/ per month and does not have any other source of income. It is the case of the said petitioner that his family members are dependent on him and he wants to expand his business to cater to the growing needs of his family. The said petitioner has further asserted that owing to paucity of space, he has to store his goods in the house situated on the first floor. He, therefore, requires shops no. 5, 6 & 7 for residential purposes as he wants to convert the shops into a bedroom and living room.
5. It is the case of the petitioners that deceased namely, Shiela Vanti was a seniorcitizen and it was onerous for her to descend the stairs from the first floor for the purposes of visiting a doctor or to go elsewhere. Petitioner, Narender has further asserted that his elder daughter is 25 years old and requires a separate space Civil Suit No. 22/2015 Shiela Vanti & Ors. versus Mukesh Kumar & Ors. Page 4/35 and room of her own. Likewise, his younger daughter also needs an independent room for privacy and studies. The petitioner has added that his elder daughter, pursuant to her marriage, shall visit his home to stay with them and would hence, require a room of her own. Narender Kumar has further claimed that he has three sisters, all of whom are married and visit him during the vacation. Owing to insufficiency of space, it gets difficult for him to accommodate his guests and family members at such times. Having projected such need, the petitioners have approached this court with the instant petition seeking eviction of the respondents from the tenanted premises.
6. Written Statement: The respondents filed written statement wherein he stated that the case of the petitioner is based on falsified facts. The respondents contended that the projected need of the petitioner is absolutely imaginary and is mala fide. The respondents has alleged that the petitioner seeks to evict him merely because he wants to let out the tenanted premises at an enhanced rate. The respondents have claimed that the petitioners belong to a lower middle class family and considering their socioeconomic status, they have sufficient space for their business and residence. The respondents have further alleged that the petitioner is using all the three rooms on the first floor and a fourth one on the second floor for residential purposes.
Civil Suit No. 22/2015 Shiela Vanti & Ors. versus Mukesh Kumar & Ors. Page 5/357. The respondents have contended that it is not possible to remove the intervening walls between shops no. 5 and 6 or shops no. 7 and 8 as the building will collapse, if construction is carried out. Thus, the petitioners cannot merge the two shops in order to convert the same into a bedroom and living room. The respondents have alleged that there are no columns and beams on the roofs of the said shops. The respondents have also alleged that the petitioner has obtained eviction orders in respect of shops no. 5, 6 & 7. It is the case of the respondents that the dimensions of shop no. 8 are incorrectly given by the petitioners and the latter has concealed the availability of the said shop which can be used as a godown. The respondents have claimed that pagri was paid to the landlord at the time of commencement of tenancy and hence, the transaction is not purely of the nature of landlord and tenant but is instead of an agreement to sell with delivery of possession. Lastly, the respondents have submitted that the elder daughter of the petitioner got married in 2016 itself. With these contentions, the respondents have sought dismissal of the eviction petition. Replication was filed by the petitioner wherein he denied all the averments put forth in the written statement.
8. Issues framed: After the application for leave to defend filed by the respondents was allowed vide order dated 15.11.2016, issues were framed by the court on 18.11.2017 which are as follows: Civil Suit No. 22/2015 Shiela Vanti & Ors. versus Mukesh Kumar & Ors. Page 6/35
(a) Whether the petitioner is the landlord of the tenanted premises and the respondent is a tenant in the said premises? (OPP)
(b) Whether the tenanted premises is bonafidely required by the petitioner for herself or any of her family members dependent upon her? (OPP)
(c) Whether the petitioner does not have any other reasonable suitable accommodation? (OPP)
(d) Relief.
9. Evidence adduced by the petitioners: Petitioner namely, Narender Kumar got himself examined as a witness i.e. PW 1 and tendered his evidence by way of an affidavit which is Ex. PW 1/A bearing his signatures at points A & B. The said petitioner relied on the following documents:
Ex. PW1/1: site plan.
Ex. PW1/2: copy of the partition deed vide which Sh. Narain Dass became the owner of the premises.
Ex. PW1/3 (colly): copy of the rent receipts. Ex. PW1/4 (colly): photographs of the said premises. Ex. PW1/5: copy of CD containing the video of the suit premises.
10. When subjected to crossexamination, the witness testified that it is correct that he performed the marriage of his daughter namely, Yogita in February 2016. PW1 stated that Yogita Civil Suit No. 22/2015 Shiela Vanti & Ors. versus Mukesh Kumar & Ors. Page 7/35 now has a son aged about one and a half years and that she is living in her matrimonial home. PW1 stated that his affidavit, Ex. PW1/A was drafted by his counsel on his instructions. He deposed that he has understood the contents of his affidavit and that the same are correct. PW1 admitted that he signed the affidavit on 18.11.2017.
11. PW1 avouched that the statement in para 16 of Ex.
PW1/A that "the petitioner wish to marry Ms. Yogita Paruthi" is mistaken as she got married in February 2016. PW1 avowed that similarly, the portion marked as Mark A in para 15 of his affidavit is incorrect. The witness voluntarily clarified that he meant to say that she continues to visit them and on such occasions, he requires more accommodation. PW1 affirmed that statement in para 7 of Ex. PW 1/A that "he resides in his house with Yogita" is incorrect. The witness stated that these mistakes occurred because he does not know English and that the affidavit was drafted by his counsel.
12. PW1 claimed that shop no. 1 is his godown. PW1 stated that statement in para 18(i)(D)(a) that he carries on the business of sale and purchase of plastic goods from shop no. 1 is incorrect. PW1 clarified that he had told the said fact to his counsel and that the mistake is that of his counsel. The attention of the witness was navigated to para no. 8 on page 9 of his reply affidavit to the affidavit of leave to contest. PW1 admitted that he has a godown Civil Suit No. 22/2015 Shiela Vanti & Ors. versus Mukesh Kumar & Ors. Page 8/35 in shop no. 1 and carries on business in shop no. 3. PW1 claimed that the contrary statement in his affidavit is incorrect.
13. PW1 asserted that he had discussion with his tenants before filing the eviction petitions and that he had requested them to vacate the shops because he required the same. PW1 stated that there was no discussion about raising the floor level or the height of the tenanted shops. PW1 deposed that the tenants had asked him to give them a time of one year to vacate the properties. The witness testified that he had offered the same subject to payment of rent at the market rate. PW1 stated that the market rent was between Rs. 10,000/ to Rs. 12,000/ of each shop. He avouched that this discussion was held at his shop and that his wife was also present there.
14. PW1 denied the suggestion that he asked the tenants that he would not cause them to vacate the premises if they pay enhanced rent, etc. PW1 voluntarily stated that he had offered the tenants to continue in the tenanted shops for one/one and a half years on payment of market rent and further allowed them to raise the level of the shop by one feet provided they accept his offer.
15. The CD filed by respondents was then played with the permission of the court after which, PW1 admitted that the same Civil Suit No. 22/2015 Shiela Vanti & Ors. versus Mukesh Kumar & Ors. Page 9/35 contains his voice. He, however, added that the same is truncated and tampered. PW1 denied the suggestion that the audio recording is not tampered with in any way. PW1 admitted that eviction orders dated 16.09.2019 have been passed in respect of shops no. 5 & 6. He further admitted that size of both the shops is 12 feet x 8 feet each. PW1 further affirmed that an eviction order dated 15.05.2019 in respect of shop no. 7 has also been passed. He admitted that the said shop admeasures 8 feet x 8 feet. PW1 also affirmed that he wanted to convert the three shops for residential purposes for his mother and for accommodating his visiting relatives. PW1 admitted that after the demise of his mother on 06.09.2018, he does not require the said shops for construction of a separate room for his mother and that after vacation of shops no. 5, 6 & 7, he shall have the possession of shops no. 5 to 8.
16. PW1 stated that shop no. 8 admeasures 4 feet x 8 feet. He avouched that it might be correct that he had given the measurement of the said shop as 2 feet x 4 feet in his petition, etc. The witness voluntarily stated that the same might be due to an inadvertent mistake. He denied the suggestion that he had deliberately given wrong dimensions of the said shop in order to mislead the court.
17. PW1 affirmed that all the shopkeepers in the viccinity display their goods for sale outside their shops to the extent of 4 feet Civil Suit No. 22/2015 Shiela Vanti & Ors. versus Mukesh Kumar & Ors. Page 10/35 to 5 feet. PW1 claimed that it is not mandatory for all the shopkeepers, who have enough space in their shops, to do the same and that it depends on their will. PW1 avowed that the respondents do not have any other shop available with them other than the shop in question. Lastly, PW1 denied various suggestions put forth by the defence.
18. Respondents evidence: The respondent namely, Mukesh Kumar got himself examined as a witness that is, RW1 and tendered his evidence by way of an affidavit which is Ex. RW1/A. Respondent relied on the following documents:
Ex. RW1/1: order dated 16.09.2017 in RC Rev. 153/17. Ex. RW1/2: order dated 16.09.2017 in RC Rev. 156/17. Ex. RW1/3: order dated 15.05.2019 in RC Rev. 97/17. Ex. RW1/4: CD containing conversation with landlord. Ex. RW1/5: certificate under section 65 B of The Indian Evidence Act.
Ex. RW1/6: relinquishment deed in favour of Rakesh Jain.
19. During his crossexamination, RW1 inter alia deposed that he is aware of the contents of his affidavit. He stated that he does not remember the place where he had signed the same or where the same was attested. The respondent admitted that he took the shop on rent from deceased Shiela Vanti and that Narender Kumar is her son. The respondent added that he had received the Civil Suit No. 22/2015 Shiela Vanti & Ors. versus Mukesh Kumar & Ors. Page 11/35 rent receipts from Narender Kumar. The respondent testified that he does not know if the petitioner has any other property except the eight shops mentioned in the petition.
20. RW1 avouched that he is aware that shops no. 5, 6 & 7 have already been directed to be vacated by orders of the court. He admitted that the petitioner has claimed the shops for his/her own residential purposes. The respondent avowed that the CD placed on record by him contains the conversation between him, Narender, Rajiv Jain, Pradeep, Prakash Chand and Harsh Kumar. He admitted that the said conversation relates to some sort of settlement between the parties. The respondent voluntarily clarified that the petitioner wanted to increase the rate of rent and assured that the shops will not be vacated thereafter. RW1 stated that the said recording was carried out by Pradeep on his personal mobile phone and that he does not know who or where the said recording was copied to CD. The witness admitted that the said mobile phone was not sent for any forensic examination by the parties or by the court. The witness answered in the negative when he was quizzed about the fact whether Narender/petitioner knew about the recording done by Pradeep.
21. The respondent admitted that the rent receipts issued by Narender does not bear the name of Rakesh Jain. He voluntarily claimed that it bears the name of Laxmi Jewellers. The respondent Civil Suit No. 22/2015 Shiela Vanti & Ors. versus Mukesh Kumar & Ors. Page 12/35 admitted that Laxmi Jewellers is a proprietorship concern and that he is the proprietor thereof. Lastly, the respondent denied the suggestions put forth on behalf of the petitioner.
22. Final arguments: Final arguments were heard on behalf of both the parties. Learned counsel for the petitioner navigated the attention of the court to the facts of the present matter and the evidence adduced by the petitioners. Learned counsel argued that the bona fide requirement of the petitioners is genuine, honest and has been duly established by the petitioners. Learned counsel relied on a plethora of judgements in order to support his contentions. In light of the judgements cited at Bar and the submissions put forth, learned counsel submitted that the case of the petitioners has been duly proved by them and as such, the petitioners deserve to be granted the eviction order as sought for by them.
23. Per contra, learned counsel for the respondents argued that the case of the petitioner is far from the touchstone of the standard of proof which is preponderance of probabilities. Learned counsel stated that orders of eviction pertaining to shops no. 5, 6 & 7 have already been passed. Learned counsel argued that since Shiela Vanti has already expired, the projected need of the petitioners has extinguished. Learned counsel further asserted that the elder daughter of the petitioner is married and as such, does not require an Civil Suit No. 22/2015 Shiela Vanti & Ors. versus Mukesh Kumar & Ors. Page 13/35 accommodation/separate room. Learned counsel contended that there are various infirmities in the testimony of the petitioner and hence, his version is liable to be disbelieved. In light of these arguments, learned counsel submitted that the present eviction petition deserves to be dismissed. Learned counsel also filed written submissions wherein he distinguished the judgements cited at Bar by Learned counsel for the petitioner.
24. Appreciation of Evidence and Reasons: I have heard both the parties, perused the material placed on record and considered the submissions advanced.
25. Taking the cumulative view of the facts expounded, the evidence spelled out and the arguments advanced, it becomes incumbent to assay the law on the point of discharge of onus to prove and the axiom of the standard of poof in a civil dispute. A civil controversy is to be adjudged on the premise of preponderance of probabilities and the petitioner/plaintiff, in order to render himself entitled to a decree/relief in his favour, must discharge his burden to prove a fact which he asserts. In this backdrop, let us scrutinise the potentiality of the claims put forth by the petitioner.
26. The court is obligated to grant relief of eviction in favour of the petitioner and against the respondent if three factors are Civil Suit No. 22/2015 Shiela Vanti & Ors. versus Mukesh Kumar & Ors. Page 14/35 adjudged in favour of the petitioner. The same are enunciated as under:
Firstly, there must exist a landlordtenant relationship between the parties to the dispute and the landlord/petitioner must be the owner of the tenanted premises.
Secondly, the landlord must require the tenanted premises for his bona fide need or that of his family member/dependent. Lastly, the landlord must not have an alternate reasonably suitable premises/accommodation.
27. The burden of proving the factum of bona fide requirement rests on the petitioner. Though the petitioner, being the landlord is considered to be the best judge of his own requirement and such terms of use cannot be dictated upon the petitioner/landlord either by the court or by the tenant yet the averment of the landlord in this regard is not taken as a naked truth and the provability of the same is tested on the facts and circumstances of the case as also, on the strength of evidence adduced to pillar the same. The requirement, as put forth by the landlord, ought to be genuine, reasonable and bona fide from the standpoint of a reasonable man. Noteworthily, it is not expected of the landlord to assert and prove vagrancy before he could claim and eventually, become entitled to relief of eviction. He must put forth a claim that must inspire confidence and projection of the need must be such as the dispelling thereof is likely to result in unjustness, inequity and denial of his legit right to enjoy his own property.
Civil Suit No. 22/2015 Shiela Vanti & Ors. versus Mukesh Kumar & Ors. Page 15/35(a) Whether the petitioner is the landlord of the tenanted premises and the respondent is a tenant in the said premises?
28. The first aspect perimeters around the existence of landlordtenant relationship between the parties. The petitioners have contended that the tenanted premises was owned by the husband of Shiela Vanti and father of Narender Kumar, Late Sh. Narain Dass who expired on 31.10.1984. The ownership of the tenanted premises devolved upon the petitioners pursuant to the death of Narain Dass. The respondents were inducted as a tenant in the year 1986 and have been paying rent to the petitioners ever since. The respondents have affirmed that rent was accepted by the landlord and rent receipts were issued in favour of the respondents by the latter. Thus, there is no dispute as to the existence of landlordtenant relationship between the parties.
29. However, pertinently, the respondents have inconsistently pleaded in their written statement that they had paid pagri to the landlord at the time of them being inducted as a tenant. The respondents have thus, contended that the transaction between the parties cannot be said to be purely of the nature of landlord tenant. The respondents have added that the same is in the nature of agreement to sell with the delivery of possession. The said pleading Civil Suit No. 22/2015 Shiela Vanti & Ors. versus Mukesh Kumar & Ors. Page 16/35 is not in harmony with the earlier pleading of the respondents. Such mutually inconsistent pleas cannot be accepted.
30. Further, the onus to prove a fact rests on the person who asserts it as per section 103 of The Indian Evidence Act, 1872. It was incumbent on the respondents to adduce affirmative evidence to substantiate the pleading that the nature of transaction is an agreement to sell. A mere pleading to this effect shall not suffice to invalidate the fact that there exists a landlordtenant relationship between the parties. The respondents failed to bring forth on record any written agreement to sell in order to pillar their claim. In the absence of such evidence, the contention of the respondents is liable to be rejected. The petitioner, in a petition under section 14(1)(e) of DRC Act is not encumbered to prove his title so as to be rendered entitled to the relief sought. He merely has to prove that he has a better title than that of the respondents.
31. Reliance can profitably be placed on the judgment of Hon'ble High Court of Delhi in Manjeet Singh v. Vani Jain 2015 (1) RLR 331 wherein it has been held that:
"In the leave to defend application the petitioner has not denied paying rent to the respondent for the last about 26 years as shared by the respondent in the eviction petition.Civil Suit No. 22/2015 Shiela Vanti & Ors. versus Mukesh Kumar & Ors. Page 17/35
The claim is that the respondent is not the owner of the premises as no legal title has devolved upon her in respect of the premises as her father was not the registered owner of the premises nor any memorandum of gift was executed in her favour. It is trite las that in a petition under section 14(1)(e) DRC the landlord is not required to prove absolute ownership and is only required to prove that he has a claim on property better than that of the tenant. The factum of the petitioner paying rent to the respondent for the last about 26 years is not denied in the leave to defend application and hence the claim of the petitioner that the petitioner has raised a triable issue that the respondent is not the owner falls to the ground......."
32. In light of the aforesaid discussion, issue no. (a) is adjudged in favour of the petitioners and against the respondents.
Civil Suit No. 22/2015 Shiela Vanti & Ors. versus Mukesh Kumar & Ors. Page 18/35(b) Whether the tenanted premises is bonafidely required by the petitioner for herself or any of her family members dependent upon her?
33. The second aspect requites an existence of bona fide requirement of the petitioner. What constitutes bona fide need depends on the facts and circumstances of each case. Section 14 does not exhaustively enumerate the circumstances which can be classified as bona fide need. The same ought to be gauged from the vantage point of a reasonable man. The Hon'ble Apex Court has illustrated in a catena of precedents as to what may constitute bona fide requirement of a landlord. Hon'ble Supreme Court in Shiv Sarup Gupta v. Mahesh Chand Gupta (Dr.) 80 (1999) DLT 731 (SC) beautifully and artfully expressed the concept of bona fide need. Relevant excerpt of the judgment is reproduced herein below.
"Chambers 20th Century Dictionary defines bonafide to mean 'in good faith : genuine'. The word 'genuine' means 'natural; not spurious; real:
pure: sincere'. In Law Dictionary, Mozley and Whit ley define bonafide to mean 'good faith, without fraud or deceit'. Thus the term bonafide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by 'requires' is much more higher Civil Suit No. 22/2015 Shiela Vanti & Ors. versus Mukesh Kumar & Ors. Page 19/35 than in mere desire. The phrase 'required bonafide' is suggestive of legislative intent that a mere desire which is outcome of whim or fancy is not taken note of by the Rent Control Legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to ev.ict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of landlord and its bonafides would be capable of successfully withstanding the test of objective determination by the Court. The Judge of facts should place himself in the arm chair of the landlord and then ask the question to himselfwhether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, Civil Suit No. 22/2015 Shiela Vanti & Ors. versus Mukesh Kumar & Ors. Page 20/35 honest. If the answer be in the positive, the need is bonafide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord. Once the court is satisfied of the bonafides of the need of the landlord for premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the court. 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 Civil Suit No. 22/2015 Shiela Vanti & Ors. versus Mukesh Kumar & Ors. Page 21/35 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. An approach either too liberal or two conservative or pedantic must be guarded against."
34. In the instant case, the petitioner has pleaded that he requires the tenanted premises that is, shop no. 2 and other shops in the vicinity as the space available with him and his family members is insufficient. The requirement of the petitioner is two fold one for residential purposes and the other for commercial activities. The petitioner has contended that he requires the tenanted shops as he wants to convert the same into a bedroom and living room for his old and infirm mother who was 80 years old at the time when he filed the instant petition. The petitioner asserted that it becomes uncomfortably onerous for his mother to descend the stairs each time she had to visit a doctor or any other place. Pertinently, the mother of the petitioner i.e. erstwhile petitioner no. 1 expired on 06.09.2018.
Civil Suit No. 22/2015 Shiela Vanti & Ors. versus Mukesh Kumar & Ors. Page 22/35Learned counsel for the respondents argued that since Shiela Vanti expired, the aforesaid need stands extinguished.
35. The argument taken by learned counsel for the respondents cannot be accepted on the premise that the bona fide need of the petitioner is to be construed from the date of filing of the eviction petition. Any change of circumstance or occurrence of a subsequent event shall not have any bearing on the projected need of the petitioner. Such subsequent event can be considered by the court only in three contingencies that is, when the said event has rendered the relief sought as inappropriate, taking note of such event shall shorten the litigation and enable the court to do justice to both the parties and finally, when such event is brought to the notice of the court without any delay. The aforesaid view finds endorsement from the judgment pronounced by Hon'ble Supreme Court in Gaya Prasad v. Pradeep Srivastava (2001) 2 SCC 604 wherein it has been held that:
"We have no doubt that the crucial date for deciding as to the bona fides of the requirement of the landlord is the date of his application for eviction. The antecedent days may perhaps have utility for him to reach the said crucial date of consideration.
If every subsequent development during the post petition period is to Civil Suit No. 22/2015 Shiela Vanti & Ors. versus Mukesh Kumar & Ors. Page 23/35 be taken into account for judging the bona fides of the requirement pleaded by the landlord there would perhaps be no end so long as the unfortunate situation in our litigative slow process system subsists.
During 23 years after the landlord moved for eviction on the ground that his son needed the building, neither the landlord nor his son is expected to remain idle without doing any work, lest, joining any new assignment or starting any new work would be at the peril of forfeiting his requirement to occupy the building. It is a stark reality that the longer is the life of the litigation the more would be the number of developments sprouting up during the long interregnum. If a young entrepreneur decides to launch a new enterprise and on that ground he or his father seeks eviction of a tenant from the building, the proposed enterprise would not get faded out by subsequent developments during the traditional lengthy longevity of the Civil Suit No. 22/2015 Shiela Vanti & Ors. versus Mukesh Kumar & Ors. Page 24/35 litigation. His need may get dusted, patina might stick on its surface, nonetheless the need would remain intact. All that is needed is to erase the patina and see the gloss. It is pernicious, and we may say, unjust to shut the door before an applicant just on the eve of his reaching the finale, after passing through all the previous levels of the litigation, merely on the ground that certain developments occurred pendente lite, because the opposite party succeeded in prolonging the matter for such unduly long period."
36. Likewise, in Kamleshwar Prasad v. Pradumanju Agarwal (1997) 4 SCC 413, the appellanttenant had approached the Hon'ble Apex Court contending that the decree for eviction was bad in the eyes of law since the landlord for whose bona fide and reasonable need the suit was filed had passed away during the pendency of the appeal. Refuting the contention of the tenant, the Hon'ble Apex court observed that the crucial date for determining the bona fide and reasonable need is the date of filing of the suit. The mere fact that the landlord died during the pendency of the appeal does not mean that his legal heirs cannot use the property or carry Civil Suit No. 22/2015 Shiela Vanti & Ors. versus Mukesh Kumar & Ors. Page 25/35 on the business that the landlord wished to carry on in the tenanted premises.
37. That said, the aforesaid need of the petitioner cannot be doubted. Even otherwise, petitioner has additionally claimed that he requires the tenanted premises to comfortably accommodate his family members who are dependent upon him. The petitioner has further stated that he wants to expand his business so as to cater to the growing needs of his family for which purpose he requires shops no. 2 & 4. The petitioner has been aggrieved by the fact that owing to paucity of storage space, he has to store the goods in his residential premises on the first floor.
38. The family of the petitioner comprises of his wife and his two daughters. One of the said daughters is married. The petitioner has pleaded that the residential space available with him at present is not sufficient so as to accommodate his entire family and the visiting guests. Ld. Counsel for the respondents argued that since the elder daughter of the petitioner is married, bona fide requirement qua her or to accommodate her has also ceased. This argument cannot be accepted as a married daughter has an equal right to visit her parents pursuant to her marriage as does an unmarried son or daughter have to live with them. She does not cease to be a daughter only because she has been married in another family. Her need of a separate room infact, becomes more compelling in light of Civil Suit No. 22/2015 Shiela Vanti & Ors. versus Mukesh Kumar & Ors. Page 26/35 the fact that she would visit her parental home with her husband and would thus, require an additional room. A daughter cannot be treated as a stranger in a home where she spent her entire childhood and grew up as a responsible citizen under the umbrella of her parents. Ignoring her legit need to have a separate room in her parental home would be unjust, to say the least.
39. The above view finds legitimacy from the judgement pronounced in Tilak Raj v. Krishan Lal, 1992 RLR 33 wherein it has been held that a married daughter keeps on visiting her father's home and is well entitled to some accommodation (guest room) and hence, landlord was entitled to say that he wanted some accommodation for her use also.
40. At this juncture, it is pertinent to cite the precedent cited by learned counsel for the petitioner which also endorses the above view. In Darshan Garg v. Kishan Das, (1988) 36 DLT 3, Hon'ble Delhi High Court relied on the judgement in Dr. B.R. Malhotra v. M.R. Kukreja (1988) 1 RCR 220 wherein it was held that:
"Need of the visiting of close relations of the landlord including all the married daughters has to be given due importance. The word "himself" appearing in section 14(1)
(e) would not mean that only the Civil Suit No. 22/2015 Shiela Vanti & Ors. versus Mukesh Kumar & Ors. Page 27/35 physical need of residence of the landlord is to be taken note of. After all, a human being is not only a physical being but is also an emotional and social being. It is the need of the landlord himself that contemplates taking into consideration the need of the family members living with him, may be those family members are not financially dependent on the landlord. Similarly, it is the emotional needs of the landlord that necessitate the visits of married daughters to his house often and keeping in view the way of living of our society, it is also clear that such married daughters stay with their parents quite for sometime for every year."
41. The respondents have contended that the petitioner belongs to a lower middle class family and that he has sufficient space, in view of his needs and also in accordance with his socio economic status. The expression of the said contention is an abject failure of the respondents to appreciate the fact that any person living Civil Suit No. 22/2015 Shiela Vanti & Ors. versus Mukesh Kumar & Ors. Page 28/35 in the society has a right to uplift himself and to rise to a higher strata of the society. It is not upto the respondents to determine the socio economic status of the petitioner. The respondents cannot subjectively state as to how much space is sufficient to live for a person who belongs to any class of a society. Further, a tenant cannot dictate as to how the landlord is supposed to use his own premises. Such terms cannot be dictated by a tenant. The landlord cannot be unjustly expected to accommodate himself in a defficient space as per the wishes of the tenant. In this regard, reliance can be placed on judgement pronounced in Shiv Sarup Gupta (supra). Relevant paragraph of the said judgement is reproduced herein below:
"It could not have been the intendment of the rent control law to compel the landlord in such facts and circumstances to shift to a different house and locality so as to permit the tenant to continue to live in the tenanted premises. If the landlord wishes to live with comfort in a house of his own, the law does not command or compel him to squeeze himself tightly into lesser premises protecting the tenants occupancy. "Civil Suit No. 22/2015 Shiela Vanti & Ors. versus Mukesh Kumar & Ors. Page 29/35
42. Also, in Rajwanti Dave v. Sardar Amar Singh 1987 (2) Rent Control Reporter 564, Hon'ble Delhi High Court observed that the need for additional accommodation for growing children is a bona fide requirement. The requirement of the petitioner for one room for herself also cannot be termed as mala fide or fanciful requirement. Merely because, the petitioner is living in the drawing room due to paucity of accommodation, it cannot be said that she does not require an independent room for herself. Similarly, the requirement of one room for the guest and the married daughter by the petitioner cannot be termed as fanciful.
43. Learned counsel for the respondents argued that shops no. 5 to 8, which also include the tenanted premises, do not have columns and beams on the roof and hence, it is dangerous to renovate/raise construction therein. Learned counsel added that the same shall cause the entire structure to collapse and hence, construction/renovation is not feasible. The said argument does not hold much water on the edifice that it is not a condition precedent under section 14(1)(e) that the premises must not be in a dilapidated state before a tenant can be evicted under the said provision. The fact that the petitioner may need to extensively repair/renovate the tenanted premises has no bearing on the bona fide requirement of the petitioner. The argument is thus, invalidated.Civil Suit No. 22/2015 Shiela Vanti & Ors. versus Mukesh Kumar & Ors. Page 30/35
44. Learned counsel for the respondents ambitiously relied on a CD placed on record which is Ex. RW1/4 to reinforce his submissions that the petitioner wants to get the respondents evicted from the tenanted premises as the latter are not conceding to the demand of paying higher rent at the market rate. Learned counsel submitted that the projected need of the petitioner is a fabricated one and is laced with greed. In view of the constraints of the law, argument of learned counsel and reliance placed on the CD cannot be accepted for the reasons given hereafter.
45. Pertinently and admittedly, one Pradeep Kumar had recorded the conversation of the petitioner and the respondents in his mobile phone which was subsequently copied to the CD which is placed on record. Thus, the respondents are not the maker of either the voice recording or the contents of the CD. The respondents did not call and examine the author of the abovementioned recording and CD and hence, the very admissibility of the CD, which is Ex. PW 1/4, is questionable. It was incumbent upon the maker of the CD to take the witness stand and go through the rigours of cross examination.
46. Hon'ble Parent High Court observed the same in a judgement pronounced in H C Lekh Raj (8090/DAP) v. Govt. of Nct of Delhi OA No. 2387/2008. It was held in the said case that:Civil Suit No. 22/2015 Shiela Vanti & Ors. versus Mukesh Kumar & Ors. Page 31/35
"CD is not to be treated as a document unless the maker of it is examined and this has not been proved either by primary or secondary evidence. The decision of the Apex Court in Ram Pal Singh Bisen (supra) clearly mentions such evidence as not admissible even in disciplinary proceedings".
47. Similarly, in James Eazy Franky v. DRI, CRL. A.No. 372/2009, Hon'ble Delhi High Court held that:
"96. The appellant, in his statement dated 06.01.2009, tendered under Section 313 Cr.P.C. had denied the allegations. As regards to his statement, he talked of some retractions Ex.DXZ and Ex.DXZ1.
According to him, he had retracted the statement when he was produced before the Court. This is contrary to judicial record. It is also not understood as to how the alleged retractions were exhibited. No document can be exhibited unless the maker thereof enters the Civil Suit No. 22/2015 Shiela Vanti & Ors. versus Mukesh Kumar & Ors. Page 32/35 witness box and faces the cross examination." (emphasis supplied)
48. Even if the contention of the respondents that the petitioner demanded enhanced rent from them is accepted on its face value, the same shall not attribute any mala fide on the part of the petitioner. The court is obligated to refrain from presuming that the need of the petitioner is not bona fide. When other conditions, enunciated under section 14(1)(e), stand fulfilled and the petitioner successfully illustrates a prima facie case, the court ought to draw a presumption that the requirement of the petitioner is bona fide.
49. As far as the contention that shops no. 5, 6 & 7 have been directed to be vacated is concerned, the said contention has no bearing on the bona fide requirement of the petitioner as the petitioner requires all the shops to fulfill such need. Moreover, there is nothing on record to show or suggest that pursuant to passing of the eviction orders, possession has been handed over to the petitioners in accordance with law.
50. Lastly, learned counsel for the respondents argued that the petitioner did not furnish correct details in respect of shop no. 8. Learned counsel asserted that the peititoner deliberately mentioned wrong dimensions of the said shop. The said argument is also of no Civil Suit No. 22/2015 Shiela Vanti & Ors. versus Mukesh Kumar & Ors. Page 33/35 consequence as shop no. 8 is admittedly in possession of the petitioner and is not the subject matter of the present proceedings. Thus, the argument is rejected.
51. Thus, issue no. (b) is decided in favour of the petitioners and against the respondents.
(c) Whether the petitioner does not have any other reasonable suitable accommodation?
52. The last aspect which requires deliberation is the availability of alternate suitable accommodation with the petitioner.
Relevantly, the respondents have not raised any plea as to the fact that the petitioner has other reasonable and suitable accommodation in the same vicinity so as to fulfill his bona fide requirement. When questioned about the same during his crossexamination, respondent namely, Mukesh Kumar claimed ignorance about the existence of any such reasonable alternate accommodation available with the petitioners. Thus, the said aspect does not require a detailed exhibition of discussion as the same is not a contentious issue. Thus, issue no. (c) is also decided in favour of the petitioners and against the respondents.
Civil Suit No. 22/2015 Shiela Vanti & Ors. versus Mukesh Kumar & Ors. Page 34/3553. Conclusion and Relief: In view of the reasons spelled above, it is hereby, concluded that the petitioners have successfully established that they require the tenanted premises bona fide and that they have no reasonable and suitable accommodation to cater to such need. Thus, the tenanted premises that is, shop no. 2 of property bearing no. 810, Som Bazaar, Haibatpura, near Raghunath Mandir, Najafgarh, New Delhi110043 is hereby, directed to be vacated by the respondents. However, as per the statutory requirement under section 14(7) of DRC Act, this eviction order would become executable only after a lapse of six months.
54. Parties shall bear their own costs.
55. File be consigned to the record room after necessary compliance.
Announced in the open court today i.e. 21.12.2022 Paridhi Sharma ACJCCJARC/South West Delhi:21.12.2022 Civil Suit No. 22/2015 Shiela Vanti & Ors. versus Mukesh Kumar & Ors. Page 35/35 Civil Suit No. 22/2015 Shiela Vanti & Ors. versus Mukesh Kumar & Ors. Page 36/35