Delhi District Court
Sh. Vikas Tyagi vs Sh. Girish Gupta on 27 March, 2015
IN THE COURT OF MS BHAWANI SHARMA: ACJ/CCJ/ARC
SHAHDARA: KARKARDOOMA COURTS: DELHI
E - 97/2013
Unique Identification No.02402C0271142013
Sh. Vikas Tyagi
S/o late Sh. Dwarka Prasad Tyagi,
R/o H.No. 14/1C (New No.C520),
Netaji Subhash Marg, Chhajjupur,
Shahdara, Delhi.
..... Petitioner
Versus
Sh. Girish Gupta
S/o late Sh. Chandra Prakash Gupta,
Proprietor of M/s Girish Medicos,
Shop situated at 14/1C, Netaji Subhash Marg,
Chhajjupur, Shahdara, Delhi.
..... Respondent
Application for Eviction of tenant under Section 14 (1) (e) of the
Delhi Rent Control Act, 1958
Petition filed on : 26.08.2013
Order reserved on : 27.03.2015
Date of Order : 27.03.2015
Decision : Leave to defend application of the
respondent dismissed and
eviction order passed.
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Vikas Tyagi vs. Girish gupta Page 1 of 16
ORDER
1. This is a petition for eviction of tenant under Section 14 (1) (e) of Delhi Rent Control Act, 1958 (hereinafter referred to as the 'DRC Act').
2. The petitioner Sh. Vikas Tyagi filed a petition under Section 14 (1)
(e) of the DRC Act. Summons under prescribed format were served upon the respondent on 30.09.2013. An application seeking leave to defend the petition was filed on 14.10.2013. Petitioner filed reply to the same.
3. (a) The petitioner has sought an eviction stating that the petitioner is the owner of the property bearing no. 14/1C, Netaji Subhash Marg, Chhajjupur, Shahdara, Delhi and the respondent is a tenant in respect of a shop situated at ground floor in the above said property at a monthly rent of Rs.1350/ per month excluding electricity charges. It is submitted that the respondent is a tenant under the father of the petitioner, who unfortunately expired about one year ago and after the death of his father, the petitioner became the owner of the said property, therefore, the respondent has become the tenant of the petitioner by operation of law.
(b) It is submitted that the tenacy of the respondent is bonafidely required for the petitioner for himself as he wants to increase the business and want to open mobile showroom, presently he is running E - 97/13 Vikas Tyagi vs. Girish gupta Page 2 of 16 a mobile shop. It is submitted that the numbers of showrooms are running in the area, therefore, the income of the petitioner is not sufficient to maintain himself and his family members. It is submitted that the property in question consists of two shop, out of those, one shop is under the possession of the respondent and other one is in possession of the petitioner where he is running a mobile shop. The tenanted shop is adjacent to the shop in question and the same is more suitable for the business of petitioner.
(c) It is submitted that the petitioner is a married person and has wife, minor son and widow mother and the income of the petitioner is very small and he is unable to maintain his family members therefore the petitioner required the tenanted premises for his bonafide need. It is submitted that the respondent is owner of one shop situated in the same locality and also is the owner of property bearing no.11/153, Yamuna Vihar, Delhi110053 and there are three shops in the said property. It is submitted that the petitioner has no other accommodation except the shop in question and the shop of the respondent is suitable accommodation to open the mobile shop. It is, therefore, prayed to pass an eviction order against the respondent.
4. (a) Ld. counsel for the respondent has argued that the present E - 97/13 Vikas Tyagi vs. Girish gupta Page 3 of 16 petition has been filed by the petitioner with malafide motive and intention in order to evict the respondent from the tenanted premises by hook or crook. It is argued that the petitioner had not supplied the correct copy of site plan. However, the correct site plan has been filed by the respondent which clearly shows that the property in question is the constructed property upto four storeys. It is argued that on the ground floor, there is tenanted shop of the respondent and adjacent shop is of the petitioner which is 11 x 10 sq. ft. and on the first floor, the petitioner is residing with his family members and on the second & third floor he had let out the portion to the tenants and earning rental income from his rented property approx. Rs.10,000/ per month. It is further argued that adjacent to the present property, there was available property of 125 sq. yds. which was constructed upto second floor with the petitioner and on dated 17.05.2012, the said property was sold out in two parts.
(b) It is argued that the relationship of landlord and tenant is not denied by the respondent however, the property was originally let out by the father of the petitioner namely Dwarka Prasad Tyagi. It is submitted that requirement of the petitioner is not bonafide for the reason being that the petitioner claiming himself to run mobile showroom in the said premises but to the utter surprise he has not filed any document to show E - 97/13 Vikas Tyagi vs. Girish gupta Page 4 of 16 whether he is having any agency or any company's agency or he is any agent or he wants to do any work of showroom of mobile on which basis.
(c) It is argued that the respondent is running a medical shop in the tenanted premises since 1987 and all his old customers used to come for the medicine at his shop and if he shifted it to any other place then it will be a loss of business and income to the respondent. The respondent is having no other alternative accommodation or shop to run the business of medical shop. It is submitted that neither the respondent is owner of any shop in the locality nor he is owner of any property at Yamuna Vihar and he is not having any other three shops in any property. It is submitted that the petitioner is not at all interested in any work in the tenanted premises but he is only interested in getting it vacate and thereafter get it sold to third person as the rate of rent of the property is raising.
Thus, it is argued on behalf of the respondent that the respondent has very good defence and sufficient cause and evidence to defeat the case of the petitioner and he is entitled to leave to defend.
5. Before adverting to the submissions of the parties, it would be apposite to encapsulate the legal provision under Section 14 (1) (e) of the Delhi Rent Control Act, 1958, which governs the current litigation. E - 97/13 Vikas Tyagi vs. Girish gupta Page 5 of 16 Section 14 (1) (e) provides that:
14. Protection of tenant against eviction. (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of landlord against a tenant: Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one ore more of the following grounds only, namely:
(e) that the premises are required bona fide by the landlord for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation.
6. In Shambhoo Singh vs. Triloki Nath Sharma 2012 (2) Rent LR 52, it was held that the essential ingredients to establish a case under Section 14 (1) (e) of the DRC Act are :
(a) The applicant has to be the landlord/owner.
(b) The premises should have been let out for residential or commercial purposes or both.
(c) The said premises are required bona fide by the landlord for occupation for himself or for his family member dependent upon him.
(d) The said landlord or family member dependent upon him has no other reasonably suitable residential accommodation.
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7. In the present case the petitioner has filed the petition stating that he is the landlord of the tenant/respondent in respect of a shop situated at ground floor in the property bearing no.14/1C, Netaji Subhash Marg, Chhajjupur, Shahdara, Delhi. The petitioner has also claimed that the reason for eviction is a bonafide claim for himself. He has no other property except the declared property in the vicinity of Delhi.
8. What has to be seen now is whether the leave to defend application moved by the respondent has raised any triable issues or not for which evidence is to be led? I shall deal with all the defences raised in the leave to defend application of the respondent in a sequential manner:
9. The first ground on which leave to defend is sought is that the present petition has been filed by the petitioner with malafide motive and intention in order to evict the respondent from the tenanted premises by hook or crook. It is argued that the petitioner had not supplied the correct copy of site plan. However, the correct site plan has been filed by the respondent which clearly shows that the property in question is the constructed property upto four storeys. It is argued that on the ground floor, there is tenanted shop of the respondent and adjacent shop is of the petitioner which is 11 x 10 sq. ft. and on the first floor, the petitioner is residing with his family members and on the second & third floor he had E - 97/13 Vikas Tyagi vs. Girish gupta Page 7 of 16 let out the portion to the tenants and earning rental income from his rented property approx. Rs.10,000/ per month. It is further argued that adjacent to the present property, there was available property of 125 sq. yds. which was constructed upto second floor with the petitioner and on dated 17.05.2012, the said property was sold out in two parts.
10. The ground of objection that the petitioner was in possession of sufficient accommodation before filing of the present petition, is not tenable as it is date on which bonafide need of the petitioner arisen is considered and not date prior or subsequent to the same is taken into consideration. In the present case, as per averments the bonafide need arose in the year 2013. It is the prerogative of the owner to exercise right to dispose off the property owned by him. While replying to the same, it is submitted that the property adjacent to the tenanted property is not owned by the petitioner, in fact his mother owned the same who disposed it off to two persons namely Ms. Sukarma Devi and Ms. Sunita Garg and to one Mr. Verma and rather applicant purchased the property in his son's name from the said Ms. Sukarma Devi and Ms. Sunita Garg. Hence, contention of availability of suitable alternative accommodation with the petitioner is of no avail.
11. This leg of argument is not tenable and same is rejected in as much E - 97/13 Vikas Tyagi vs. Girish gupta Page 8 of 16 as the petitioner has established prima facie existence of his necessity raising presumption in law that his need is bonafide. Further, the property in front and on ground floor rather than in behind and on first floor would not attract lucrative business. In Namdev vs. Sanjay Gupta 2012 (2) Rent LR 44 it was held that where for expansion of business of landlord as presently he has not outlet from where he can carry out his retail business to display all articles of various ranges - landlord needs ground floor. The contention of the tenant alleging that alternative accommodation available on first and second floor is not a concealment on the part of the landlord. Customer cannot be expected to visit the first and second floor to examine the goods, in fact a wary and watchful customer would definitely not compromise on his stand to visit first, second and third floor, he would rather go to another shop where he can purchase the same goods at the ground floor level. Therefore, the accommodation available on first, second and third floor can in no manner be set to be reasonably suitable alternate accommodation. In Gulab Chand Pukhraj vs. R.B. Jinender Raj & Anr., 2009 (4) Civil Court Cases 748 (SC), it was held that once it is not disputed that landlord is in bonafide need of premises, court cannot dictate to landlord which floor he should use for his business. Moreover, it is well settled E - 97/13 Vikas Tyagi vs. Girish gupta Page 9 of 16 law that it is the landlord's prerogative as to in which location he prefers to run business and law should not and cannot prevent such preference by a landlord in order to meet his bonafide requirement. Further more, compelling the landlord/owner to succumb to the arrangement proposed by the respondent would not only be detrimental to the petitioner but also to the business of the petitioner. A landlord/owner is the best judge of his own requirements. In Krishan Lal vs. R.N. Bakshi, cited as 169 (2010) Delhi Law Times 769, it was held by the Hon'ble High Court of Delhi that it is settled law that it is not for a tenant to dictate the terms to the landlord as to how and in what manner he should adjust himself, without calling upon the tenant to vacate a tenanted premises. While deciding the question of bonafides of requirement of landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted. When the landlord shows a prima facie case, a presumption that the requirement of the landlord is bonafide, is available to be drawn. It is also settled position of law that the landlord is the best judge of his requirement for residential or business purpose and he has got complete freedom in the matter and it is no concern of the Courts to dictate to the landlord how and in what manner, he should live or to prescribe for him a residential standard of their own. The tenant cannot E - 97/13 Vikas Tyagi vs. Girish gupta Page 10 of 16 compel a landlord to live in a particular fashion and method until and unless the requirement shown is totally mala fide or not genuine.
12. As regards the argument that the petitioner has not filed the correct site plan, copy of which has not been supplied and the respondent has filed the correct site plan is not tenable as supplying or nonsupplying of site plan can not raise a triable issue under Section 14 (1) (e) of the DRC Act in as much site plan showing the nonavailability of the accommodation except the tenanted premises with the petitioner, is filed by the petitioner.
13. Another ground taken by the respondent is that requirement of the petitioner is not bonafide for the reason being that the petitioner claiming himself to run mobile showroom in the said premises but to the utter surprise he has not filed any document to show whether he is having any agency or any company's agency or he is any agent or he wants to do any work of showroom of mobile on which basis.
14. In Tej Prakash vs. Idrish & Ors. 2012 (2) R.C.R. (Rent) 536, it was held that it was prerogative of the landlord when to remain unemployed or to do his business. No prior experience or arrangement is required by the landlord to start a new business. A person can start a new E - 97/13 Vikas Tyagi vs. Girish gupta Page 11 of 16 business even if he has no experience [(2010) 1 SCC 164 relied].
15. In Raghubar Dayal Om Prakash vs. Jai Kishan Rohtagi 2012 (2) Rent LR 36 it is held that "it is not for the tenant or court to dictate terms to the landlord as to how and in what manner he has to meet his need for an accommodation. The certificate filed by the petitioner issued by Bar Council of Delhi substantiate the fact that Sh. Virender Singh is qualified Law graduate and eligible to do practice and in fact genuinely intended to do so from the tenanted premises."
16. Further in 2009 (2) RCR 455 titled as Ram Babu Agarwal vs. Jay Kishan Das, the Apex Court observed that "However, as regards the question of bonafide need, we find that the main ground for rejecting the landlord's petition for eviction was that in the petition the landlord had alleged that he required the premises for his son Giriraj who wanted to do footwear business in the premises in question. The High Court has held that since Giriraj has no experience in the footwear business and was only helping his father in the cloth business, hence there was no bonafide need. We are of the opinion that a person can start a new business even if he has no business in the new business. That does not E - 97/13 Vikas Tyagi vs. Girish gupta Page 12 of 16 mean that his claim for starting the new business must be rejected on the ground that it is a false claim. Many people start new businesses even if they do not have experience in the new business, ad sometimes they are successful in the new business also".
17. Next ground taken by the respondent is that he is running a medical shop in the tenanted premises since 1987 and all his old customers used to come for the medicine at his shop and if he shifted it to any other place then it will be a loss of business and income to the respondent. The respondent is having no other alternative accommodation or shop to run the business of medical shop. It is submitted that neither the respondent is owner of any shop in the locality nor he is owner of any property at Yamuna Vihar and he is not having any other three shops in any property. It is submitted that the petitioner is not at all interested in any work in the tenanted premises but he is only interested in getting it vacate and thereafter get it sold to third person as the rate of rent of the property is raising.
18. The arguments as advanced on behalf of the respondent to contend the bonafide requirement of the petitioner by stating that respondent is earning livelihood from the tenanted shop and he is having the tenanted shop, only source of income, does not raise any triable issue for the E - 97/13 Vikas Tyagi vs. Girish gupta Page 13 of 16 purpose of adjudication of the present petition. Firstly, the financial status of the respondent or for that matter of the petitioner is not relevant for the purpose of determining whether a triable issue raised or not. Secondly, inconvenience or hardship to be faced by the applicant/respondent are of no avail for the purpose of proceedings with present petition in trial. Thirdly, the bonafide requirement of the petitioner has been generally challenged. In Gurcharan Lal Kumar vs. Smt. Satyawati & Ors. 2013 (2) CLJ 28 (NOC) Del., the court observed as under: "it is not necessary for landlord to indicate nature of business intended to start - sons and grandsons of the landlord have no other suitable alternate accommodation to carry out business - application for leave to defend dismissed with cost."
19. As regards the arguments that after getting the premises vacated, the petitioner may sold it to third person as the rate of rent of the property is raising. In this regard reference can also be had to the judgment of Hon'ble High Court of Delhi in Shafiqqudin vs. Mohd. Ibrahim, in R.C.Rev 502/2012, wherein it was held that: "It is important for the tenant, in any leave to defend application to submit relevant documents on record to E - 97/13 Vikas Tyagi vs. Girish gupta Page 14 of 16 support any triable issue raised by him. In absence of any material, the ARC cannot come to a conclusion as to the weight of the issue raised by the tenant. Thus impairing his power to decide whether an issue raised is triable or not."
It is also a settled law that it is for the landlord to decide how and what accommodation to use for meeting his bonafide requirement and tenant cannot dictate the same to the landlord.
Conclusion:
20. It is well settled law that leave to defend can be granted to the tenant in case of any triable issue has been raised by him, which can be adjudicated by consideration of additional evidence. The mere existence or averment of any triable issue is not sufficient. The nature of the triable issue raised by the tenant must be such that it would disentitle the landlord from obtaining the eviction order. The whole purpose and import of summary procedure under Section 25B of the Act would otherwise be defeated. The prayer for leave to contest should be granted to the tenant only where a prima facie case has been disclosed by him. In the absence of the tenant having disclosed a prima facie case i.e. such facts which disentitles the landlord from obtaining an order of eviction, the Court should not mechanically & in routine manner grant leave to E - 97/13 Vikas Tyagi vs. Girish gupta Page 15 of 16 defend.
21. In the light of the aforesaid legal ratio, all the pleas taken by the respondent seems to be sham and moonshine, which have failed to raise any requisite triable issues. The contents of the application for leave to defend have failed to rebut the presumption of bonafide qua the need of the petitioner. The application for leave to defend filed by the respondent is thus rejected.
22. Consequently, an eviction order is passed under Section 14 (1) (e), hop DRC Act against the respondent in respect of suit property i.e. a s Shop situated at ground floor in the property bearing no. 14/1C, Netaji Subhash Marg, Chhajjupur, Shahdara, Delhi as shown in red colour in the site plan filed by the petitioner in this case.
23. However in light of Section 14 (7) DRCA, the aforesaid eviction order shall not be executable for a period of six months from today.
24. The parties are left to bear their own costs.
25. File be consigned to Record Room after due compliance.
(Announced in the open (Bhawani Sharma)
Court on 27.03.2015 ACJ/CCJ/ARC (Shahdara)
(Order contains 16 pages.) Karkardooma Courts, Delhi.
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