Delhi District Court
Ankur Kathuria vs Ms Ivory Mart on 25 November, 2023
IN THE COURT OF SWATI GUPTA-I
ARC-CUM-ACJ-CUM-CCJ, NDD, PHC, NEW DELHI
RC ARC No.5688/2016
Sh. Ankur Kathuria,
S/o Sh. Inder Kumar Kathuria
R/o D-133, East of Kailash,
New Delhi-110065 .......... Petitioner
Vs.
M/s. Ivory Mart (a partnership firm)
F-22, Connaught Place,
New Delhi-110001
Through Its Partner (s) ........... Respondent
PETITION UNDER SECTION 14(1)(e) READ WITH SECTION 25-
B OF DELHI RENT CONTROL ACT, 1958.
Date of Institution of the petition : 02.07.2011 (More than 10 year old)
Date on which Judgment was reserved : 21.09.2023
Date of Pronouncement of Judgment : 25.11.2023
Decision : Petition allowed
JUDGMENT
1. Petitioner has filed the present petition u/S 14(1)(e) r/w Section 25- B of Delhi Rent Control Act 1958 (in short "DRC Act") against the respondent in respect of property bearing No. F-22, Connaught Place, New Delhi-110001 comprising of entire ground floor measuring 80 sq. meters approximately (hereinafter referred to as the "tenanted premises").
Case of Petitioner
2. Briefly stated the case of the petitioner as stated in the petition is RC ARC No. 5688/2016 Ankur Kathuria vs. Ivory Mart Page No. 1 of 32 that he is the owner/landlord of the tenanted premises, which was let out to the respondent firm by the predecessor-in-interest of petitioner for use as a shop / showroom by it. As per the petition, the tenanted premises bearing No. F-22, Connaught Place, New Delhi-110001 is on ground floor measuring 160 sq. meter approx. with mezannine measuring 80sq. meter approx. The said premises are stated to be shown in Red colour in site plan annexed with the petition. The rent of tenanted premises is stated to be Rs.416.50/-pm besides house tax, electricity and all other similar charges. As per the petitioner, he is the owner and landlord in respect of the tenanted premises on the basis of sale deed dated 23.05.1996 executed by the erstwhile owners of the tenanted premises in favour of the petitioner. The said sale deed is stated to be duly registered. It is also the case of the petitioner that he has been duly recognized to be the owner/ landlord qua the tenanted premises by land & development officer and by NDMC. The said premises has been mutated in the name of petitioner in the relevant records and the petitioner has been regularly paying property tax thereupon to NDMC since 1996-1997.
3. It is also the case of the petitioner that the tenanted premises is required bonafide by him for himself and his family members including his wife & father. In this regard, it is the case of the petitioner that he carries on business in the name & style of M/s Sterling Management Services from his office in Gurgaon and his wife Smt. Prachi Kathuria also carries on business in the name & style of Traceries from Gurgaon. His father Sh. I. K. Kathuria is scouting for new business to explore and expand their present businesses and he is the one who handles entire liaison work of the two businesses. The petitioner, his wife and his father reside in East of Kailash, New Delhi, which is at a distance of 24 km from RC ARC No. 5688/2016 Ankur Kathuria vs. Ivory Mart Page No. 2 of 32 their place of work in Gurgaon. As per petitioner, it is difficult for them to commute from East of Kailash, Delhi to Gurgaon everyday for their business. Accordingly, the petitioner bonafidely requires the tenanted premises for shifting his business as well as his wife's business from Gurgaon to Connaught Place, Delhi. It is also stated that the premises from which the petitioner and his wife are running their business in Gurgaon is rented premises. In this regard, it is further explained by the petitioner in his petition that while the rent being paid for property in Gurgaon is Rs.3,500/-pm but the rent being received from the tenanted premises is only Rs.416.60/-pm. Petitioner also avers in the petition that he has necessary sources to expand his business. Further, it is also stated that the petitioner, his wife or even his father do not possess or own any other similarly situated commercial/ office accommodation at New Delhi and thus, their requirement for tenanted premises is bonafide.
Case of respondent
4. In response to the aforesaid petition, the respondent was given notice and consequently, it filed an application for leave to defend which was allowed vide order dated 28.10.2013. Subsequently, written statement to the petition was filed by the respondent. In the said written statement, respondent has challenged the ownership of the petitioner and has denied the landlord-tenant relationship. As per the written statement, the land whereon the tenanted premises is situated was allotted by the then Secretary of State for India to Mr. H. Mohd. Hayat vide perpetual lease deed dated 28.04.1924. Subsequently, the lessee constructed a building on the said plot of land. In May 1942, the subject premises were let out by the said owner to Sh. Suraj Pershad, who started the business under the name & style of M/s Ivory Mart. The said firm was later on converted into RC ARC No. 5688/2016 Ankur Kathuria vs. Ivory Mart Page No. 3 of 32 a partnership firm on 26.03.1996 and the tenancy of the subject premises was taken over by partnership firm. Thereafter, on 02.07.1954, Sh. Prabhuram Sukhram Das Ojha purchased the premises and respondent became a tenant under him under the same terms and conditions. Thereafter, in 1973, the subject premises was again sold to one Smt. Lakhbir Sawhney and Sh. H. S. Sawhney. Accordingly, respondent and all its partners became tenants under them. In 1989, the income tax department attached the rent of the tenanted premises which was payable by respondent towards realization of income tax arrears and on receipt of attachment order, respondent started paying rent to income tax department w.e.f. 01.04.1989. Furthermore, the tenanted premises was mortgaged by deposit of title deeds by the then owners Smt. Lakhbir Sawhney and Sh. H. S. Sawhney. In respect of the same, the lender bank had instituted proceedings before Debt Recovery Tribunal, Delhi and an injunction order was passed against them restraining them from selling the suit premises. As per the respondent, the said injunction order remained in operation till the disposal of said proceedings by Debt Recovery Tribunal vide order dated 01.05.2001. In view of the same, it is the case of the respondent that the alleged sale deed executed by the then owners namely Smt. Lakhbir Sawhney and Sh. H. S.Sawhney through their attorney Sh. I. K. Kathuria (father of petitioner) in favour of petitioner is a sham & collusive document. As such, it does not create any right, title or interest in favour of petitioner. As per the respondent, the sale deed executed in favour of petitioner is void, illegal and non-est.
5. It is further the case of respondent that after the settlement of bank dues, Smt. Lakhbir Sawhney and Sh. H. S. Sawhney have also executed a sale deed dated 31.03.2001 in favour of M/s Janki Das & Co.
RC ARC No. 5688/2016 Ankur Kathuria vs. Ivory Mart Page No. 4 of 32in respect of the suit premises. Thus, both the petitioner & M/s Janki Das & Co. are claiming to be the owners of the subject premises and the dispute of title between the two being sub-judice before the civil court, present petition is pre-mature and liable to be dismissed. As per respondent, he has never accepted petitioner as his landlord and has never paid any rent to him nor attorned to the petitioner. Thus, the relationship of landlord- tenant between the petitioner and respondent is denied.
6. As regards the rent of the tenanted premises, it is the case of the respondent that the tenanted premises were initially let out at a monthly rent of Rs.333/-pm but later on vide order dated 25.06.1957, standard rent of the tenanted premises was fixed at Rs.225/-pm, thereafter, the then owner Sh. Prabhuram Sukhram Das Ojha executed a lease deed dated 28.06.1965 in respect of the tenanted premises with the partners of the respondent, whereby the rent was revised from Rs.225/-pm to Rs.416.50/-pm.
7. As per the respondent, the petitioner has made false averments regarding his bonafide need and regarding his business. As per the respondent, the wife and father of the petitioner are not dependent upon him for accommodation, rather they are very qualified and independent. Thus, it cannot be said that the tenanted premises are bonafidely required for the family members of the petitioner. Even the petitioner has not filed any document to show the nature of his business, number of persons employed, ITR etc. and thus, he has not shown as to how his present business premises are not suitable. It is also the case of respondent that the petitioner has not filed any lease deed. Thus, in effect, the respondent has denied the landlord - tenant relationship between RC ARC No. 5688/2016 Ankur Kathuria vs. Ivory Mart Page No. 5 of 32 petitioner and respondent & the bonafide need of petitioner. Course of trial & evidence
8. Replication was filed by the petitioner reiterating the contents of the petition and denying the contents of the written statement. After completion of pleadings, matter was fixed for petitioner's evidence.
9. Petitioner examined only one witness namely, Sh. Ankur Kathuria i.e. the petitioner himself in support of his case. In his evidence, petitioner inter alia deposed that he and his father had purchased the property in question i.e. F-22, Connaught place New Delhi from the previous owners viz. Smt. Lakhbir Sahani and Harinder Sahani in 1996; that his father had general power of attorney from previous owners; sale deed of the property was executed in his name. He also deposed that the previous owner had written to all government departments and tenants about the sale of the property in question in his name. He also deposed that he required the property for himself and his family; that he was doing the business of logistic and hospitality at that time in the name of Sterling Management and Services, in which he was proprietor. The said business was being run from Gurgaon i.e. at S-6/24, DLF Phase-III Gurgaon, which premises were measuring approximately 1000 sq. ft. and he was giving rent of Rs. 3,500/- per month to the landlord. His wife is a fashion designer and is dependent upon him for her work and she was also working with the petitioner at Gurgaon at the above address. Petitioner and his wife are travelling to Gurgaon regularly and it takes approximately four hours every day for them to commute. He also deposed that their child was feeling neglected because of their travel time. It was also deposed by petitioner that he and his wife wanted to do their business from tenanted premises, which is situated at commercial area and is most suitable for RC ARC No. 5688/2016 Ankur Kathuria vs. Ivory Mart Page No. 6 of 32 running their respective businesses. He also deposed that he did not own any commercial property in Delhi for meeting the aforesaid requirement. Even his father and his wife do not own any commercial property in Delhi. During the course of his testimony, PW1 relied upon the following documents:-
i. Certified copy of GPA is Ex. PW-1/1.
ii. Certified copy of agreement to sell Ex.PW-1/2. iii. Certified copy of sale deed is Ex. PW-1/3 (objected to by Ld. Counsel for respondent).
iv. Rent receipts qua rent of property in Gurgaon are Ex. PW-1/4 and Ex. PW-1/5.
v. Site plan of property is Ex. PW-1/6.
vi. House tax receipts are Ex.PW-1/7 to Ex. PW-1/11 (OSR). vii. Assessment order dated 01.08.1997 is Ex. PW-1/12 (OSR).
10. PW1 was extensively cross examined by counsel for respondent and discharged. No other witness was examined and PE was closed.
11. Respondent examined RW-1 Sh. Samuel Chand who tendered his affidavit Ex. RW1/A. Respondent also examined RW-2 Sh. Satya Prakash who tendered his affidavit Ex. RW2/A. Respondent examined RW-3 Sh.Vikram Kapoor who deposed that he had purchased the property bearing no. F-22, Ground Floor, Connaught Place, New Delhi from Sh. Lakhbir Sawhney and Sh. Harinder Singh Sawhney in the year 2001 vide sale deed dated 31.3.2001 and that the said property is in the occupation of respondent at present. He relied upon the original sale deed as Ex. RW3/1 (OSR).
RC ARC No. 5688/2016 Ankur Kathuria vs. Ivory Mart Page No. 7 of 3212. Respondent examined RW-4 Satpal Singh, Office Superintendent, Income Tax, Civic Centre, New Delhi, who brought the screen shots of ITRs of the Petitioner for the Assessment Years 2009-10 to 2011-12 alongwith Certificate u/s. 65 B Indian Evidence Act, which are Ex. RW4/1 (Colly).
13. Respondent examined Smt. Sudha Saini, Superintendent, L&DO, Nirman Bhawan, New Delhi as RW5, who had proved the lease deed dated 8.2.1994 as Ex. RW5/1 (Colly). She also deposed that the property was lastly mutated in the name of Sh. Harinder Singh Sawhney and Ms. Lakhbir Sawhney and that as per record there was no other person in whose name the property stood mutated.
14. RW1, RW2 and RW3 were duly cross examined by counsel for petitioner and discharged.
Arguments & findings
15. I have heard Ld. Counsel for parties and have perused the record including the case laws relied upon.
16. In order to succeed in a petition for eviction filed u/S 14(1) (e) DRC Act, the petitioner must establish that :-
(a) He is the owner/ landlord in respect of the tenanted premises;
(b) The premises are required bonafide by him for himself or for any member of his family dependent upon him and;
(c) He has no other reasonably suitable accommodation.
17. Before proceeding to the ingredients of S. 14(1)(e), it is deemed RC ARC No. 5688/2016 Ankur Kathuria vs. Ivory Mart Page No. 8 of 32 appropriate to deal with an issue which is raised by ld. Counsel for the respondent with respect to the maintainability of the present case under the procedure prescribed in Chapter IIIA. Ld. Counsel for respondent challenged the applicability of Chapter IIIA to the present proceedings on the ground that the tenanted premises in the present case pertains to commercial use. In this regard, it was argued by ld. Counsel for the respondent that even though by way of the judgment rendered in the case of Satyawati Sharma vs Union of India reported in 2008 (5) SCC 287, S. 14(1)(e) DRC Act was made applicable to the commercial premises also in addition to residential premises, but the Hon'ble Supreme Court in the said judgment did not consider the procedure to be made applicable to the premises let out for commercial purposes. As per ld. Counsel for respondent, special procedure was never prescribed for commercial premises and thus, Chapter IIIA cannot be made available to the present case. In this regard, ld. Counsel for the Petitioner has relied upon the judgment of Hon'ble High Court of Delhi in the case of Rajbir Pal and Anr vs Kanwar Partap Singh reported in 2023 SCC Online Del 2320, wherein it has been held that judgment in the case of Satyawati Sharma vs Union of India (Supra) has to be relied upon. It is pointed out by ld. Counsel for the petitioner that similar arguments were raised by the same counsel in the said case, as noted in para 5 and 6 of the judgment, which are reproduced hereunder:
"5. Mr. Thareja, learned Counsel for the Petitioner, submits that the Supreme Court in Satyawati Sharma v. Union of India, (2008) 5 SCC 287, had not made any observations as to whether Section 25B of the DRC Act was applicable in the case of properties which were commercial in nature. He states that this observation can be buttressed by the observation of the Supreme Court in Vinod Kumar v. Ashok Kumar Gandhi, (2019) 17 SCC 237, wherein it has been stated that as Satyawati RC ARC No. 5688/2016 Ankur Kathuria vs. Ivory Mart Page No. 9 of 32 Sharma v. Union of India (supra) is silent with respect to the procedure prescribed for eviction of tenant to whom the premises have been let out for commercial activities. Relying upon the principles of interpretation of statutes, i.e. noscitur a sociis and ejusdem generis, the learned Counsel for the Petitioner submits that the surrounding provisions colour the interpretation of Section 14(1)(e), and thus, the special procedure under Section 25B of the DRC Act cannot be resorted to qua commercial properties.
6. Mr. Thareja further states that the sole observation in Satyawati Sharma v. Union of India (supra) was that the distinction made in Section 14(1)(e) with regard to bona fide need of property being used for residential purposes or commercial purposes was discriminatory. However, the scope of applicability of Section 25B to only residential properties remained the same. He raises a question as to whether the judgment of the Supreme Court in Satyawati Sharma v. Union of India (supra) is per incuriam on the ground that a Constitution Bench of the Supreme Court in Gian Devi Anand v. Jeevan Kumar, (1985) 2 SCC 683, had already advised the Legislature to remove the distinction in Section 14(1)(e) with regard to the nature of purpose of the property in question.
He states that when the Constitution Bench of the Supreme Court had refrained from legislating, it was not open to a Division Bench of the Supreme Court to do so."
18. In respect of the above arguments raised by the ld counsel, the Hon'ble High Court of Delhi held as under:
"31. What can be observed from the foregoing is that the validity of Satyawati Sharma v. Union of India (supra) and its reference to a larger Bench has already been settled by the Supreme Court in Vinod Kumar v. Ashok Kumar Gandhi (supra). Further, it would be unconscionable to assume that Section 25B, which clearly notes that it is applicable to Section 14(1)(e), would only be applicable to Section 14(1)(e) to the extent of the need pertaining to residential properties. Had that been the intention of the Supreme Court, there would have been a distinct reference to Section 25B in Satyawati Sharma v. Union of India, (supra) and its scope would have been confined to residential properties. In absence of such a distinction, it is evident that that was not the intention RC ARC No. 5688/2016 Ankur Kathuria vs. Ivory Mart Page No. 10 of 32 and that Section 25B of the DRC Act is applicable to Section 14(1)(e) as a whole, be it residential properties or commercial properties.
32. Moreover, the learned Counsel for the Petitioners has raised the above argument previously as well in the earlier petition for revision in R.C. Rev. No. 209/2010 and this Court vide Order dated 12.10.2011. has aptly referred to a Judgment of a Division Bench of this Court in Indian Airlines v. Union of India, (2006) 128 DLT 505, and observed that decisions of the Supreme Court cannot be assailed before the High Court, and that this Court is bound to follow the law laid down in Satyawati Sharma v. Union of India (supra). Paragraphs 7 and 8 of the said Judgment are as under:
"7. As far as the first argument advanced by the learned counsel for the petitioners to the effect that decision of Satyawati Sharma's case was rendered per incuriam is concerned and this Court should hold so the same cannot be accepted for the simple reason that the Supreme Court has, on a couple of occasions, held that no judgment of Supreme Court can be assailed before the High Court on the ground that certain aspects were not considered or relevant provisions were not brought to the notice of the Supreme Court. Those decisions were noticed by a Division Bench of this Court in the case of "Indian Airlines v. UOI", (2006) 128 DLT 505 and the Division Bench of this Court also held that the High Court cannot decline the law laid down by the Supreme Court as per incuriam. Para no. 23 of the judgment of the Division Bench, which deals with this aspect, as reproduced below:
"27. There is another reason also why the contention raised by the learned Counsel for the petitioner cannot be accepted. The issue, whether Standing Orders and/or the Standing Orders Act will apply to "air transport services", has already been decided by a Division Bench of this Court as well as the Supreme Court. A decision of the Supreme Court is binding under Article 141 of the Constitution of India. In view of the binding nature of the judgments of the Supreme Court we cannot hold and declare the law laid down by the Supreme Court as per incuriam or take a contrary view on the ground that the Supreme Court has failed to deal with certain aspects or some relevant provisions of law were not brought to its notice or some argument was not raised/examined. Merely because certain aspects of a matter RC ARC No. 5688/2016 Ankur Kathuria vs. Ivory Mart Page No. 11 of 32 were never examined or considered by the Supreme Court, does not entitle a High Court to refuse or follow the said decision. Decisions of the Supreme Court are binding under Article 141 of the Constitution of India and cannot be assailed before the High Court on the ground that certain aspects were not brought to the notice of the Supreme Court or considered by it. High Courts are duty bound to follow the judgment of the Supreme Court and it is only for the Supreme Court to re-examine and reconsider its earlier judgments. The Supreme Court in the case of Director of Settlement A.P. v. M.R. Apparao (2002) 4 SCC 638 : (2002) 2 SCR 661 has examined Article 141 of the Constitution of India and has unequivocally held that the law laid down by the Supreme Court is binding on all Courts in India and it cannot be assailed on the ground that certain aspects were not considered or relevant provisions were not brought to the notice of the Supreme Court. When an issue is decided by the Supreme Court it is the duty of the High Court or the subordinate Court to follow the said decision. Similarly, the Supreme Court in the case of Suganthi Suresh Kumar v. Jagdeeshan (2002) 2 SCC 420 : 2002 Cri LJ 1003 has held as under:
It is impermissible for the High Court to overrule the decision of the Apex Court on the ground that the Supreme Court laid down the legal position without considering any other point. It is not only a matter of discipline for the High Courts in India, it is the mandate of the Constitution as provided in Article 141 that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. It was pointed out by this Court in Anil Kumar Neotia v. Union of India (1988) 2 SCC 587 : (1988) 3 SCR 738 that the High Court cannot question the correctness of the decision of the Supreme Court even though the point sought before the High Court was not considered by the Supreme Court."
8. In view of the afore-said legal position, this Court is bound to follow the judgment of the Supreme Court in Satyawati's case (supra) irrespective of the fact that P. Ramachandra's judgment was not noticed."
RC ARC No. 5688/2016 Ankur Kathuria vs. Ivory Mart Page No. 12 of 3219. Thus, it is clear from the above that similar arguments have already been rejected by the Hon'ble High Court of Delhi, and this Court is bound by the aforesaid judgment and accordingly, there is no substance in the arguments of ld. Counsel for respondent to the extent of applicability of Chapter IIIA to the present case.
20. Now, the aforesaid three requirements are dealt with as hereunder.
(a) Petitioner is the owner/ landlord in respect of the tenanted premises.
21. In this regard, it is the case of the respondent that petitioner is neither the owner of the tenanted premises nor the landlord of the respondent. It has been vehemently argued by ld. Counsel for the respondent that the title of the petitioner is denied by the respondent inasmuch as the respondent never recognized the Petitioner as the owner or landlord of the premises in question and the respondent never attorned to the Petitioner by paying any rent to him and consequently, the landlord- tenant relationship between the petitioner and respondent is denied. As per ld. Counsel for respondent, Respondent did not even receive any communication from its landlord with respect to the purported sale/purchase/assignment of the leasehold rights in the tenanted premises in favour of the petitioner. Further, the arguments of the ld. counsel for respondent are manifold and are summarized as under:-
(i) Sale deed dated 19.4.1996 has not been proved as per law by examining relevant witnesses as per the provision of Section 63 to 65 of the Indian Evidence Act. No witness has been examined to RC ARC No. 5688/2016 Ankur Kathuria vs. Ivory Mart Page No. 13 of 32 prove the attestation and execution of the sale deed. Further, as per petitioner, documents Ex. PW1/1 to Ex. PW1/3 were lost, but no FIR was registered in this regard and thus, loss of original documents has not been proved. As per ld counsel for respondent, copy of the sale deed has been sought to be proved without taking permission of the Court to lead secondary evidence. Thus, documents Ex. PW1/1 to Ex. PW1/3 cannot be read.
(ii) It is also the case of the ld counsel for respondent that the sale deed dated 19.4.1996 is void as the same was without any consideration. In this regard, ld counsel for respondent pointed out that in the cross examination of the witness / PW1, he has not been able to give satisfactory answers to questions pertaining to consideration alleged to be paid under Ex. PW1/3. Also, it is argued that the father of PW1, has not entered into the witness box.
(iii) It is argued that false averments are made in the sale deed dated 19.4.1996. For eg, in the sale deed, assurance is given that the property under sale is free from mortgage, litigation etc but in fact the property was mortgaged with Vijaya Bank at the time of its execution. The factum of mortgage of the property is also admitted by the Petitioner in his cross examination. Rather, it is also admitted by the Petitioner that at the time of execution of Ex. PW1/1, the title deeds of the property were not available with him. It is also pointed out that in sale deed Ex. PW1/3, false averment is made regarding possession of the Petitioner, while admittedly he is not in possession of the property till date. Thus, as per ld. Counsel for respondent, the sale deed contains false recitals and the same is thus, a false and fabricated document.
(iv) As per respondent, there are two sale deeds on record, one filed RC ARC No. 5688/2016 Ankur Kathuria vs. Ivory Mart Page No. 14 of 32 with an affidavit of his father Sh. I K Kathuria and another filed as Ex. PW1/3. There is a contradiction in the said sale deeds, which has not been explained by the Petitioner.
(v) The original lease deed was executed by the Secretary of the State for India in Council. The same is Ex. PW-D/1. Any Grant made by the President of India or earlier by The Secretary of State for India, is a law in itself. Reliance in this regard is also placed upon the judgment of Hon'ble Supreme Court of India in the case of Express Newspaper vs. Union of India reported in 1986(1) SCC 133. The condition contained in clause 11 of the perpetual lease deed dated 08.02.1924 (Ex-PW-D/1) is not complied with. The said condition was meant to bind the assignee with the condition incorporated in the said perpetual lease deed. It is argued that admittedly, the petitioner has not given any undertaking to L&DO to abide by the conditions of the lease deed. Petitioner cannot become an owner of the property in question unless he gives an undertaking that he is ready to abide by all the terms and conditions of the lease deed. Further, no letter was ever written by the owners namely Sh. Harinder Singh Sawhney and Smt. Lakhbir Sawhney to L &D O to inform that an assignment had been made in favour of Petitioner.
(vi) As per ld. Counsel for respondent, the petitioner has not been recognized as a lessee either by lessor / L&DO or by NDMC. Thus, the petitioner cannot claim to be owner / landlord of the tenanted premises. In this regard, ld Counsel for respondent submitted that admittedly no mutation has been effected in favour of the petitioner till date. Ld. Counsel for respondent also relied upon the evidence of RW5 who stated that lastly the property was mutated in the name of Sh. Harinder Singh Sawhney and Smt. Lakhbir Sawhney.
RC ARC No. 5688/2016 Ankur Kathuria vs. Ivory Mart Page No. 15 of 32Further, it is also argued that even as per the assessment order passed by NDMC, mutation has not been done in favour of the petitioner by NDMC.
(vii) It is also argued by ld. Counsel for respondent that Transfer of Property Act is not applicable in the present case. He also argued that payment of taxes by the petitioner does not make him an owner of the property. Rather, he pointed out that receipts which are Ex. PW1/7 to ExPW1/11 are issued in the name of the owners namely Sh. Harinder Singh Sawhney and Smt Lakhbir Sawhney and not in the name of the Petitioner. Thus, the petitioner has not been accepted as on owner by NDMC.
(viii) As regards, documents Ex-PW1/D1, Ex-PW1/D2 & Ex-PW1/X, it is argued that these are also not admissible as these have not been proved by the petitioner. Petitioner has brought on record copies of the letter dated 19.04.1996 (as Ex-PW1/D1 & Ex-PW1/D2) without proving on record the loss of original documents and thus, the copy cannot be looked into as per the Indian Evidence Act. It is also argued by Ld. Counsel for respondent that the advocate to whom the aforesaid letter dated 19.04.1996 was address has not been examined as a witness and the said letter also contains false averments inasmuch as it states that the property was conveyed long back through proper channel & procedure. Letter dated 31.07.1996 (Ex-PW1/X) which is purported to be letter of attornment has also not been proved as the same is only a 'copy to copy'. It is also argued by Ld. Counsel for respondent that the said letter contains certain additions and overwriting by hand and thus, the same is a false & fabricated document.
(ix) Sale deed dated 31.3.2001 in favour of M/s. Janaki Das and Co. is RC ARC No. 5688/2016 Ankur Kathuria vs. Ivory Mart Page No. 16 of 32 to be given precedence over sale deed dated 19.4.1996 in favour of Petitioner, as the latter is executed by GPA while the former is executed by the owners.
(x) As regards the judgement dated 13.01.2014 passed in CS No.129/2010 titled as Ankur Kathuria vs Janaki Das and Company and Others, it is argued that the said judgment cannot be relied upon as the same is per incuriam and sub silentio. It is vehemently argued by the ld counsel for respondent that the said judgement does not refer to or discuss the previous lease deed dated 08.01.1924, which as stated above is a law in itself.
(xi) It was argued by Ld. Counsel for respondent that the petitioner first ought to have moved before Lessor / L& DO to recognize him as the transferee /assignee. As per ld. Counsel for respondent, the aforesaid suit being CS no. 129/2010 filed before Ld. ADJ-08, Central, Tis Hazari, filed without exhausting the remedy before L&DO is hit by 'Doctrine of Ripeness", or so to say that the suit was pre mature. As per Ld. Counsel for respondent, the judgment dated 13.01.2014 passed by Ld. ADJ-04 was without jurisdiction and the petitioner could not have been declared as the owner unless & until he or M/s Janki Dass & Co. was recognized as owner by lessor / L & DO. Ld. Counsel for respondent also argued that the said judgment dated 13.01.2014 is not binding in terms of Section 44 of Indian Evidence Act.
22. In view of the above, it is also argued by ld. Counsel for the respondent that unless the Petitioner becomes an owner, he cannot become something more than a tenant and thus, present petition is liable to be RC ARC No. 5688/2016 Ankur Kathuria vs. Ivory Mart Page No. 17 of 32 dismissed. Alternatively, it was also submitted during the course of arguments that as the appeal against judgement dated 13.01.2014 passed in CS no. 129/2010 is pending, the present case ought to be adjourned sine die.
23. On the other hand, it is the case of the petitioner that the petitioner has already been declared owner of the tenanted premises by virtue of judgment dated 13.1.2014 passed in CS no. 129/2010 titled as Ankur Kathuria vs M/a. Janaki Das & Company and Ors where the respondent was also impleaded as defendant no. 4. It is also argued by Ld. Counsel for petitioner that eviction petition is not a title suit and it is sufficient that on the date of filing of the petition, petitioner was a better title holder than the tenant/ respondent. In support of his arguments, Ld. Counsel for petitioner has relied upon the judgment of Hon'ble Delhi High Court in the case of Sujit Vs. Rukhmani Devi, RC/REV.529/2017.
24. After considering the arguments of both the sides and considering the record as well as necessary case law, I find it beneficial to refer to the case of Sushil Kanta Chakravarty vs Rajeshwar Kumar Civil Revision No.886 of 1996. DOD 24.03.1999. In the said case, the petitioner filed an eviction petition u/S 14 (1) (e) of the DRC Act against the respondents on 26.08.1993 claiming to be the owner of the property by virtue of agreement to sell and general power of attorney. The sale deed was executed and registered on 08.08.1997 (i.e. after the filing of the petition). The respondent / tenant argued that the petitioner could not be treated as owner as there was no transfer of the property in the hands of the petitioner till the sale deed was executed and registered. The Hon'ble High Court framed the question for determination as to whether " for the RC ARC No. 5688/2016 Ankur Kathuria vs. Ivory Mart Page No. 18 of 32 purposes of Rent Control Act wherein person in whose favour an agreement to sell- cum-power of attorney has been executed and has assumed possession after making substantial payment in terms of the agreement of the sale price, would be owner within the meaning of Section 14(1) (e) of the DRC Act". The question was answered in favour of the petitioner. It was held that to maintain a petition u/S 14(1) (e) of the DRC Act, the petitioner need not be an absolute owner. It has been explained that the word 'owner' in Section 14(1) (e) of the DRC Act is not to use the same in the sense of absolute owner but in contra-distinction with a 'landlord'. The word 'owner' occurring in Section 14(1) (e) of the DRC Act has been held to mean 'something more than a tenant'. Similarly, in the case of Sujit Vs. Rakhmani Devi (Supra), it was held that "Merely because a third party has challenged the title of the landlord would not entitle the tenant to contend that the landlord is barred from invoking the grounds of eviction under the Rent Act."
25. Now it has been noted from the record that PW1 has been extensively cross examined by the ld. counsel for the respondent and much reliance has been placed upon the same to contend that the sale deed dated 19.4.1996 has been forged / fabricated; that there are false averments in the sale deed; that the same has not been proved as per the Indian Evidence Act; or that no consideration was given by petitioner, etc. and thus, sale transaction was sham. Be that as it may. This court cannot ignore the settled legal position that an eviction petition is not a title suit and admittedly, the title suit filed by the petitioner against M/s. Janaki Das & Company which was CS 129/2010 has already been allowed in favour of the petitioner. It has been held in the said suit as follows:
RC ARC No. 5688/2016 Ankur Kathuria vs. Ivory Mart Page No. 19 of 32"In view of the above said discussions, the plaintiff is declared as owner and it is held that the sale deed dt. 31.03.01 does not confer any right, title or interest what so ever on defendant no.1 in the suit property and the same stands cancelled. The defendants, their agents, servants, agents, assignees and nominees are permanently restrained from selling, disposing of, transferring, parting with or in any manner creating any third party rights in the suit property. Parties are left to bear their own cost. Decree sheet be prepared accordingly. File be consigned to R/R "
26. The aforesaid finding of the ld. Civil Court clearly declares the petitioner as the owner and cancels the sale deed dated 31.3.2001 and the same has been given by a Court which is superior in grade to this court. Thus, in my considered opinion, the said finding cannot be impugned in the present proceedings which have a very limited scope. Moreover, it must be noted that the respondent herein was also a party to the title suit filed by the petitioner and it had also contested the suit by filing its written statement and by leading defence evidence. The respondent has chosen to not file an appeal against the aforesaid judgment dated 13.1.2014. Also, admittedly, even though an appeal is stated to be filed against the judgment dated 13.1.2014 by defendant no.1 therein, it is submitted by all the sides that there is no stay order against the operation of the said judgment. In my opinion, the aforesaid findings of the civil court apply with full force and vigor to the present proceedings, as the issue of title was directly in issue and petitioner as well as respondent were parties to the suit apart from M/s. Janaki Das & Company. To hold otherwise would imply that the respondent is allowed to agitate the same issue i.e. the title of the petitioner again, when he has already opposed it once before the civil court, which is contrary to the basic principles of res judicata.
27. Reliance must also be placed on the judgment of the Hon'ble High RC ARC No. 5688/2016 Ankur Kathuria vs. Ivory Mart Page No. 20 of 32 Court of Delhi rendered in the case of Kanchan Kapoor & Ors. versus Sarwan Kumar 2014 SCC OnLine Del 6552. In the said case, the finding of the Civil Court was that the plaintiff was held not to be the owner of the premises in question. The said finding was held to be binding on the Rent Controller when deciding the application for leave to defend in a petition u/s 14(1)(e) DRC Act. Relevant portion of the judgment is reproduced hereunder:
"6. At this stage, I would like to refer to Section 50 of the DRC Act and which provides that a judgment which is passed in the proceedings under the DRC Act deciding questions of title of the premises is not final and the issue of title has to be finally decided by the civil court. Section 50 reads as under : -
"50. Jurisdiction of civil courts barred in respect of certain matters - (1) Save as otherwise expressly provided in this Act, no civil court shall entertain any suit or proceeding in so far as it relates to the fixation of standard rent in relation to any premises to which this Act applies or to eviction of any tenant therefrom or to any other matter which the Controller is empowered by or under this Act to decide, and no injunction in respect of any action taken or to be taken by the Controller under this Act shall be granted by any civil court or other authority.
.........
......
(4) Nothing in sub-section (1) shall be construed as preventing a civil court from entertaining any suit or proceeding for the decision of any question of title to any premises to which this Act applies or any question as to the person or persons who are entitled to receive the rent of such premises."
7. Therefore, once the civil court has decided the issue of title against the respondent holding that the respondent is not the owner of the suit property, then by virtue of Section 50 of the DRC Act, that judgment of the civil court will prevail and it has to be held that respondent is not the owner of the suit premises. In a bonafide necessity eviction petition under Section 14(1)(e) of the DRC Act, a person who files the eviction RC ARC No. 5688/2016 Ankur Kathuria vs. Ivory Mart Page No. 21 of 32 petition not only has to be the landlord, but he also has to be the owner, and once the respondent herein, petitioner in the eviction petition, is not the owner of the suit property, not only the leave to defend application has to be allowed but in fact the eviction petition has to be dismissed.
*********
11. I am unable to agree with any of the arguments urged on behalf of the respondent in view of the categorical provision of Section 50 of the DRC Act which provides that it is the judgment of the civil court which will bind the parties with respect to deciding questions of title of the property and once the civil court has held that the respondent has no title to the property ie the respondent is not the owner of the suit premises, the necessary ingredient of respondent being the owner of the suit property as required by Section 14(1)(e) of the DRC Act is missing, and clearly therefore not only leave to defend will have to be granted but the eviction petition itself will have to be dismissed. I do not agree with the arguments urged on behalf of the respondent that petitioners/tenants are estopped from questioning the title of the respondent inasmuch as, the issue of estoppel against the petitioners under Section 116 of the Indian Evidence Act would operate only if there is no judgment of a civil court binding the parties giving its finding with respect to the title of the suit property. Once there is a finding of the civil court with respect to the title of the suit property, the said judgment and the principle of res judicata will operate against the respondent and in such a case the issue of estoppel cannot operate against the petitioners/tenants because the respondent could have urged and was bound to have urged the issue of estoppel under Section 116 of the Indian Evidence Act as one of his grounds in the civil suit for the civil suit to be decreed, but once the civil court has passed a judgment holding that the respondent is not the owner of the suit premises, all aspects which might or ought to have been urged before the civil court are deemed to have been urged and rejected in view of the doctrine of constructive res judicata contained in Section 11 of the Code of Civil Procedure, 1908 (CPC). The aforesaid has to be taken with the aspect that the issue of estoppel in the present proceedings are urged only at the interim stage of grant of leave to defend and is not decided against the petitioners/tenants in terms of a final judgment of the Additional Rent Controller and even if there is a final judgment of a Rent Controller/Additional Rent Controller, that judgment would not be final on the question of title of the suit property in view of the RC ARC No. 5688/2016 Ankur Kathuria vs. Ivory Mart Page No. 22 of 32 provision of Section 50 of the DRC Act as per which the judgment of the civil court prevails with respect to issue of title of the property. The first argument urged on behalf of the respondent is therefore rejected."
28. Thus, if the judgment of the civil court to the extent that petitioner was not the owner of the premises in question prevails and is binding on the Rent Controller/Additional Rent Controller, there is no reason why the finding of the civil court in the present case to the extent that the petitioner has been declared to be the owner of the premises in question should not become binding in these proceedings.
29. Another important fact that must be noted is that the respondent in the present case has not disputed its own status as a tenant in the premises in question nor has it disputed the title or landlord-tenant relationship qua the predecessor-in-interest of the petitioner. Once the respondent has admitted his status of tenant and the title of the petitioner has been declared by the civil court, I do not see any reason to give any contrary finding on this aspect. It may also be kept in mind that if the appeal against the judgment dated 13.1.2014 is decided in favour of the petitioner but the present case is decided in favour of the respondent, it may lead to an anomalous situation because it would mean that while the petitioner has been declared owner of the subject premises by the civil court, yet the eviction petition is disallowed on the ground that the petitioner is not held to be owner / landlord of the premises in question by the Rent Controller, even though the Rent Controller does not have the jurisdiction to decide the complicated question of title.
30. Another important point to be noted is that it has been held by the Hon'ble Supreme Court in the case of Jitendra Singh Versus State of RC ARC No. 5688/2016 Ankur Kathuria vs. Ivory Mart Page No. 23 of 32 Madhya Pradesh and Others 2021 SCC OnLine SC 802 that mutation is not the conclusive proof of title, as it neither creates nor extinguishes title. Relevant portion of the said judgment is reproduced hereunder:
"7. Right from 1997, the law is very clear. In the case of Balwant Singh v. Daulat Singh (D) By Lrs., reported in (1997) 7 SCC 137, this Court had an occasion to consider the effect of mutation and it is observed and held that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. Similar view has been expressed in the series of decisions thereafter.
8. In the case of Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186, it is observed and held by this Court that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. Entries in the revenue records or jamabandi have only "fiscal purpose", i.e., payment of land revenue, and no ownership is conferred on the basis of such entries. It is further observed that so far as the title of the property is concerned, it can only be decided by a competent civil court. Similar view has been expressed in the cases of Suman Verma v. Union of India, (2004) 12 SCC 58; Faqruddin v. Tajuddin, (2008) 8 SCC 12; Rajinder Singh v. State of J&K, (2008) 9 SCC 368; Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689; T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259; and Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70."
31. Thus, it is inconsequential for the purpose of Section 14 (1)
(e) DRC Act as to whether the property was mutated in favour of petitioner as on the date of filing of the petition or not.
32. Another ground raised by the ld. Counsel for respondent against the judgment dated 13.1.2014 is that the same is per incuriam and sub silentio. In this regard, the settled legal position is that the principle of per RC ARC No. 5688/2016 Ankur Kathuria vs. Ivory Mart Page No. 24 of 32 incuriam has relevance to the doctrine of precedents but not to the doctrine of res judicata. It has also been held that doctrine of per- incuriam merely takes away the precedent value of a decision but in no manner it dilutes or affects the binding nature of the decision on the parties inter-se. (Refer to S. Nagaraj (Dead) by LRs and Ors. versus B. R. Vasudeva Murthy and Ors. (2010) 3 SCC 353 and Ashutosh Kumar Upadhyay and Others Versus Vijay Kishore Anand and Others 2021 SCC OnLine All 472.) Thus, in the present case, the judgment dated 13.01.2014 cannot be disregarded on the ground of it being per-incuriam as alleged by the respondent, as the same is binding upon the parties thereto including the petitioner and the respondent herein.
33. It may further be noted that even though it is the case of the respondent that it has not paid any rent to the petitioner and has never attorned to the petitioner or accepted him as his landlord. However, it is also not the case of the respondent that he has been paying rent either to the previous owners i.e. Sh. Harinder Singh Sawhney and Smt. Lakhbir Sawhney or to M/s. Janaki Das and Company whose competing claim to title is being favoured by the respondent. It is not even the case of the respondent that he has been depositing the rent in Court. RW2 in his cross examination has also stated that "Janki Dass never sent any letter to us but they called us on telephone and asked for rent". It means that even M/s. Janaki Dass and Company never wrote any communication to the respondent demanding rent and in this regard, petitioner cannot be non- suited merely because there is nothing in writing given by him to the respondent to demand rent. Accordingly, in my opinion, considering the facts of the case, the respondent cannot take benefit by contending that no rent is ever paid by it to petitioner.
RC ARC No. 5688/2016 Ankur Kathuria vs. Ivory Mart Page No. 25 of 3234. In view of the aforesaid discussion, I am of the opinion that all the grounds raised by the respondent to dispute the sale deed dated 19.4.1996 or the judgement dated 13.1.2014 or the title of the petitioner are misconceived in view of the binding nature of the judgment dated 13.1.2014 on the present proceedings and thus, the arguments of the respondent are liable to be rejected. It follows that the landlord-tenant relationship between the parties stand proved.
35. Now let us deal with the second and third requirement together as both are interconnected.
(b) The premises are required bonafide by the petitioner for himself or for any member of his family dependent upon him; and
(c) Petitioner has no other reasonably suitable accommodation.
36. In this regard, the case of the petitioner is that he requires the tenanted premises for himself and his family and that he is doing the business of logistic and hospitality in the name of Sterling Management and Services, in which he is a proprietor. As per petitioner, the said business is being run from Gurgaon i.e. at S-6/24, DLF Phase-III Gurgaon, for which he is giving rent to the landlord. His wife is a fashion designer and is dependent upon him for her work and she is also working with the petitioner at Gurgaon at the above address. Petitioner and his wife are travelling to Gurgaon regularly and it takes approximately four hours every day for them to commute. As per petitioner, he and his wife want to do their business from tenanted premises, which is situated at commercial area and is most suitable for running their respective RC ARC No. 5688/2016 Ankur Kathuria vs. Ivory Mart Page No. 26 of 32 businesses. As per petitioner, he did not own any commercial property in Delhi for meeting the aforesaid requirement. Even his father and his wife do not own any commercial property in Delhi.
37. Ld counsel for petitioner has placed reliance upon the following judgements to support his case:
i. Department of Posts and Others versus Surinder Babu Jain, reported at 2022 SCC OnLine Del 1565 ii. Har Lal Gupta versus Anil Aggarwal, reported at 2021 LAWPACK (Del) 86206 iii. Raghunath G. Panhale (Dead) By Lrs. versus Chaganlal Sundarji And Co., reported at (1999) 8 SCC 1.
iv. Vimal Chandok versus Shiv Sharan Dass & anr., reported at 2016 LAWPACK (Del) 60916 v. M/s Geeta Press versus Ms. Madhu Rastogi, reported at 2021 LawPack (Del) 84740 vi. Rani Bhatia Versus Sadhna Jain & Another, reported at 2020 (266) DLT 433
38. On the other hand, it is argued by ld counsel for the respondent that during the course of the proceedings, the father of the petitioner has expired and as such his bonafide need, if at all, does not survive and the present petition ought to be dismissed as infructuous. It is also argued by ld counsel for respondent that the petitioner has not examined his wife as a witness to prove her requirement for the tenanted premises in question. It is also argued by ld counsel for respondent that no material whatsoever is filed by the petitioner regarding the business of his wife and in the absence of any material, her bonafide requirement cannot be presumed. It is also the case of ld counsel for respondent that the business of the petitioner is carried out through emails and his business operations do not require any direct or personal meetings with the clients and accordingly, RC ARC No. 5688/2016 Ankur Kathuria vs. Ivory Mart Page No. 27 of 32 no office space is required by the petitioner. In this regard, reliance is also placed upon the cross examination of the petitioner/PW1. As per ld counsel for respondent, Petitioner has failed to produce documents in support of his business and the cross examination of the Petitioner shows that he was evading the questions put by the Respondent in this regard. It is also pointed out by ld counsel for Respondent that the premises from where the petitioner claims that he and his wife are carrying out their business is a residential premises and moreover, the purported rent receipts are not reflected in the books of accounts or cash book of the petitioner. Even the father-in-law (claimed to be the landlord of petitioner) is not examined as a witness by the petitioner. It is also pointed out by ld counsel for respondent that the address where the business of the petitioner is registered with service tax department and the billing address of the petitioner is owned by the petitioner's father and not his father-in- law.
39. In this regard, firstly it may be noted that the death of father of petitioner during the pendency of the case does not affect the case of the petitioner inasmuch as the bonafide requirement of the petitioner and his wife still survives. Secondly, the case of the respondent is that the petitioner does not require the premises for his business. The settled law in this regard is that the tenant cannot dictate or instruct the landlord as to how and in which manner he should use his property or how should he adjust without the possession of the tenanted premises. Reference in this regard may be made to the Judgment of Hon'ble Supreme Court in the case titled as Sarla Ahuja Vs. United Insurance Company (1998) SCC
119. More specifically, it must be noted that the respondent cannot press for the argument that the business of petitioner is carried out by e-mail RC ARC No. 5688/2016 Ankur Kathuria vs. Ivory Mart Page No. 28 of 32 and his business operation do not require any direct or personal meeting with the client and accordingly, no office space is required by the petitioner. The petitioner has admitted in his cross examination that "My company, writes mails to different companies, seeking requirement for their accommodation and travel. In response to the same, various companies give me their requirements and accordingly we make arrangements for their accommodation and travel". Merely because the petitioner has stated so, it does not mean that he cannot require the tenanted premises for his business. It may also be noted the petitioner specifically denied the suggestion that on account of his business being run through e-mails substantially, he does not require the shop in question. He also stated that "It is correct that mostly, my business is run through e- mails but I do require space to operate".
40. Respondent has also tried to extensively cross examine the petitioner/PW1 on the aspect of his books of accounts. However, in my opinion, only thing that such cross examination may show is that the petitioner is either not aware or is deliberately evading the questions pertaining to books of account of his business. I fail to understand as to how the same may have any bearing on the requirement of the petitioner for the tenanted premises, considering that he has sufficiently proved that he is running the business in the name & style of Sterling Management & Services. In my opinion, the petitioner has proved his bank account details. Petitioner has also filed ITRs showing his income from profit & loss. Further, his ITRs are also proved by RW4 showing that he is declaring income under the head 'profits & gains from business other than speculative business and specified business'. In my considered opinion the said material is sufficient in the present case for satisfying the court RC ARC No. 5688/2016 Ankur Kathuria vs. Ivory Mart Page No. 29 of 32 qua the existence of petitioner's business and the petitioner cannot be non-suited for not deposing clearly regarding his books of accounts.
41. In my considered opinion, the petitioner in a case of eviction u/s. 14 (1) (e) DRC Act cannot be expected to produce all books of accounts and show that he is maintaining meticulous account books without any discrepancy. The purpose and scope of the present proceedings are that whether or not the tenant should be evicted on account of bonafide need of the owner/landlord for himself or for his family. Such bonafide need may be the result of any business/profession/occupation being carried out by the owner/landlord. Whether or not the accounts of the business are being maintained properly, whether or not the registrations of the business are in order, whether or not the landlord/owner is paying taxes in full, are considerations that are beyond the scope of these proceedings.
42. Once the existence of business is proved, it is for the respondent to show by cogent material as to why the tenanted premises are not bonafidely required by the petitioner. It is not disputed that the petitioner is residing in East of Kailash, Delhi. Petitioner's need for a commercial premises in Delhi which is comparatively near to his residence cannot be said to be malafide or non-existent or mere wishful. There is nothing on record to show that petitioner has any other similarly situated commercial property in Delhi, from where he can operate his business. Thus, in my opinion, petitioner has succeeded in showing bonafide requirement for the tenanted premises for running his business and in showing that no other reasonably suitable accommodation is available to him.
43. Respondent has also cross examined the petitioner/PW1 on property RC ARC No. 5688/2016 Ankur Kathuria vs. Ivory Mart Page No. 30 of 32 bearing No. K-10, 27-E, DLF Phase II, Gurgaon. However, in my considered opinion, the same will not affect the bonafide need of the petitioner for the tenanted premises inasmuch as the said premises are not in Delhi compared to the tenanted premises.
44. Petitioner/PW1 has also stated in his cross examination that the property bearing No. S-6/24/DLF, Phase III, Gurgaon belongs his father- in -law and that he has not filed any cash book record pertaining to payment of rent to father-in-law. In this regard, petitioner has also voluntarily stated in his cross examination that he pays the rent in cash to his father-in-law and necessary rent receipts are filed by him which are Ex-PW1/5. It is the case of the respondent that the said rent receipts are bogus as the same are not reflected in the cash book and books of account of the petitioner and even the father-in-law of the petitioner has not been examined to prove the rent receipts. I am not inclined to accept the submissions of ld. counsel for respondent inasmuch as it is already stated above that petitioner cannot be non-suited for not maintaining or not producing his entire books of accounts. Further, the property bearing No. S-6/24/DLF, Phase III, Gurgaon, admittedly belongs to the father-in-law of the petitioner and the same is in Gurgaon. Simply because the petitioner may not be paying any rent to his father in law, in respect of the said premises, it does not mean that he is not carrying the business at all. At the cost of repetition, it is noted that the existence of business of petitioner is sufficiently proved and in case he requires the tenanted premises for running the said business, his requirement has to be presumed to be bonafide.
45. On the basis of the entire facts and circumstances of the case and RC ARC No. 5688/2016 Ankur Kathuria vs. Ivory Mart Page No. 31 of 32 material on record, I am of the opinion that the bonafide requirement of tenanted premises in respect of the business of the petitioner has been sufficiently proved. It is immaterial that the wife of the petitioner has not been examined as a witness in the present case, to prove bonafide requirement of the tenanted premises for her business. Respondent has also filed to proved any alternative reasonably suitable accommodation being available to the petitioner for the purpose of running his existing business from Delhi.
Conclusion
46. Based on aforesaid appreciation of evidence led by the parties, I conclude that petitioner has been able to prove his case of bonafide requirement u/S 14(1)(e) of Delhi Rent Control Act, for the tenanted premises. Present eviction petition stands allowed and eviction order in favour of petitioner is passed in respect of tenanted premises viz. property bearing No. F-22, Connaught Place, New Delhi-110001, comprising of entire ground floor measuring 80 sq. meters approximately, as per the site plan. Respondent is given six months' time to vacate the premises in question.
47. File be consigned to record room after necessary compliance.
Announced in open Court (SWATI GUPTA)
on 25.11.2023 ARC/ACJ/CCJ: New Delhi
PHC/25.11.2023
RC ARC No. 5688/2016
Ankur Kathuria vs. Ivory Mart Page No. 32 of 32