Delhi District Court
Dinesh Chandra Gupta vs M/S Kaushal Stationary House on 14 January, 2022
IN THE COURT OF MS. SNIGDHA SARVARIA
ACJ-cum-CCJ-cum-ARC, SHAHDARA
KARKARDOOMA COURTS, DELHI.
ARC. No. 778/2016
Dinesh Chandra Gupta
S/o Sh. Shiv Charan Lal Gupta
Commandant MH, Bhopal EME Centre
Bairagarh, Bhopal - 462031
Madhya Pradesh .....Petitioner
VERSUS
M/s Kaushal Stationary House
176/2, South Anarkali,
Delhi-110051
Through its proprietor
Smt. Kaushal Sharma .....Respondent
ORDER ON LEAVE TO DEFEND
1. The present petition U/Sec. 14 (1) (e) r/w 25-B of Delhi Rent Control Act, 1958 has been filed by the petitioner against the respondent for its eviction from one shop 7 ½' x 9' on the ground floor of property bearing No. 176/2, South Anarkali, Delhi-110051 out of Musattil No. 12, Kila No. 24, situated at South Extension, Mausa Khureji, Illaqa Shahdara, Delhi (hereinafter called tenanted premises).
2. Brief facts of the case as discernible from petition are that petitioner purchased the premises in question from respondent's erstwhile landlord ARC. No. 778/16 Dinesh Chandra Gupta Vs. Kaushal Stationary House Page 1/28 Smt. Ramwati Devi w/o Sh. Mahesh Chand Gupta, r/o 176/2, South Anarkali, Delhi-110051 vide registered sale deed duly registered as document no. 9863 in Book No. 1, Vol. No. 2511 on page 150 to 157 on 18th August, 2006 with Sub-Registrar VIII, New Delhi/Delhi.
3. That the respondent is liable to pay Rs.200/- per month as rent of the shop to the petitioner exclusive of electricity and other charges. That the respondent was served a notice dated 27.08.2006 (actually posted on 28.08.2006) by her erstwhile landlord Smt. Ramwati Devi through her advocate Syed Qamr-Ul-Hasan Rizvi stating the factum of execution of sale deed and the respondent was requested to pay all the rent along with other charges of the premises in question to petitioner. It was further stated in that notice that petitioner herein shall have full right and power in the capacity of landlord for the shop let out to respondent. Petitioner herein is the absolute unchallenged owner of the shop let out to respondent for all purposes and intent with every right, title and interest in the property. And also petitioner has every right and power to recover the rent and other charges from respondent and he is liable to pay the same.
4. That a public notice in this regard was also published in the news paper `The Statesman' dated 26.08.2006 at its page 2 with regard to the aforesaid sale deed and the same is applicable to respondent also along with public at large. That in view of this transfer of ownership and landlordship, the respondent has been paying electricity bills as per her actual consumption directly to BSES in the name of petitioner but the respondent has not been paying rent to petitioner since the date of purchase of the premises in ARC. No. 778/16 Dinesh Chandra Gupta Vs. Kaushal Stationary House Page 2/28 question by him despite service of notice in this regard. As such, the respondent has been a persistent defaulter in payment of rent of the premises in question.
5. That the petitioner is having two major children among which one named Saurabh Gupta has completed his MBA course. This son of petitioner named Saurabh Gupta is in need of the premises in question for opening his office of consultancy in the field of business process outsourcing industry and finance. As such, petitioner is in need of the said premises in question as the current rent rates of properties in Delhi are very much high. For establishing the office as stated, petitioner needs the space not less than the total three shops owned by him at the sme address of respondent which include the premises in question let out to him and two adjoining shops where eviction order passed against another tenant of petitioner named M/s Neeraj Kirana Store is under challenge from his side before Hon'ble High Court of Delhi vide RC Rev. No. 416 of 2012. That petitioner does not have any property in Delhi and he is now helpless as he cannot use the said premises in question. Further, the petitioner does not have sufficient means to purchase some other property in Delhi and he doctor by profession in armed forces and is about to get retire within a short period of time and is willing to start his clinic by using the premises or part thereof in question. On the other hand, respondent is economically very sound having big assets in Delhi. Petitioner as such stands in bonafide requirement of the said commercial property in question. Hence, the present petition filed by the petitioner.
ARC. No. 778/16 Dinesh Chandra Gupta Vs. Kaushal Stationary House Page 3/286. Notice of this eviction petition was sent to the respondent in the prescribed format which was duly served on the respondent. In response to which the respondent has filed leave to defend application within limitation period.
7. Respondent in his leave to defend has averred that there is no relationship of owner/landlord and tenant between the parties since the petitioner is neither the owner nor the landlord of the premises in question and as such has no right to file the present petition against respondent. That petitioner has not filed any document in his favour showing his ownership of shop in question as such he cannot claim the ownership of the suit property. That petitioner has failed to issue a proper and legal notice of attornment because of the fact that no copy of alleged sale deed was ever supplied to the deponent along with the notice. That no detailed grounds of eviction have been mentioned in the petition and in the absence of the same the petitioner is not entitled to the relief claimed in his petition as such same is liable to be dismissed. That the foremost requirement of section 14 (1) (e) of the DRC Act is that there must exist relationship of owner/landlord and tenant between he petitioner and the respondent, whereas in the present case there exists no such relation between the parties because of the fact that respondent entered into the said premises as tenant in the year 1982 under the ownership of Smt. Ramwati Devi, who kept on accepting the rent from the respondent till the year 1993 and when she stopped accepting the rent, the respondent deposited the rent under section 27 of DRC Act vide DR No. 580/1993, wherein Smt. Ramwati Devi appeared in the court on 04.06.1999 and stated that she is ready to withdraw the rent. That vide judgment dated 04.04.2005 passed by Ms. Kamini Lau, the then Ld. ARC, ARC. No. 778/16 Dinesh Chandra Gupta Vs. Kaushal Stationary House Page 4/28 KKD, Delhi, the eviction petition filed by the petitioner, herein, against respondent, was dismissed. That appeal filed against the dismissal of aforesaid eviction petition was also dismissed by the court of Sh. P.S. Teji, Ld. District Judge/Addl. Rent Control Tribunal, KKD, Delhi on 23.11.2009. That petitioner does not require the shop in question for his bonafide use or for the use of any of his family members dependent upon him. That petitioner is serving officer in Indian Army and his son Saurabh Gupta for whom the petitioner is seeking possession of the shop in question is not a dependent family member of petitioner for alleged need of accommodation as Saurabh Gupta is an MBA, employed with an MNC, earning handsomely and is well settled along with his family in Mumbai. That the plea of bonafide requirement taken by petitioner in his application is false, frivolous, vexatious and petitioner has created a false ground of paucity in his favour in order to get the tenanted premises vacated from respondent. That petitioner is having alternative suitable and sufficient accommodation in his possession. That there are triable issues in the present matter and the same cannot be decided without allowing the parties to lead their respective evidence.
8. Reply to leave to defend was filed by the petitioner in which the petitioner has denied the averments of leave to defend application and reiterated the contents of his petition.
9. I have heard Ld. Counsels for the parties, perused the record and have gone through the relevant provisions of law.
ARC. No. 778/16 Dinesh Chandra Gupta Vs. Kaushal Stationary House Page 5/2810. The Supreme Court had in "Inderjeet Kaur Vs.Nirpal Singh", [2000]Supp 5 SCR 707, laid down the following guidelines to be followed by the Courts while deciding the applications for leave to contest filed by the tenants under Section 25(4) of the Delhi Rent Control Act,1958:-
"11. As is evident from Section 25B(4) & (5) of the Act, burden placed on a tenant is light and limited in that if the affidavit filed by him discloses such facts as would disentitle the landlord from obtaining an order for the recovery of the possession of the premises on the ground specified in Clause
(e) of the proviso to Section 14(1) of the Act, with which we are concerned in this case, are good enough to grant leave to defend.
12................................"
13. We are of the considered view that at a stage when the tenant seeks leave to defend, it is enough if he prima facie makes out a case by disclosing such facts as would disentitle the landlord from obtaining an order of eviction. It would not be right approach to say that unless the tenant at that stage itself establishes a strong case as would non-suit the landlord leave to defend should not be granted when it is not the requirement of Section 25B(5). A leave to defend sought for cannot also be granted for mere asking or in a routine manner which will defeat the very object of the special provisions contained in Chapter IIIA of the Act, Leave to defend cannot be refused where an eviction petition is filed on a mere design or desire of a landlord to recover possession of the premises from a tenant under Clause (e) of the proviso to Sub-section (1) of Section 14, when as a matter of fact the requirement may not be bona fide. Refusing to grant leave in such a case leads to eviction of a tenant summarily resulting in great hardship to him and his family members, if any, although he could establish if only leave is granted that a landlord would be disentitled for an order of eviction. At the stage of granting leave to defend, parties rely on affidavits in support of the rival contentions. Assertions and counter-
ARC. No. 778/16 Dinesh Chandra Gupta Vs. Kaushal Stationary House Page 6/28assertions made in affidavits may not afford safe and acceptable evidence so as to arrive at an affirmative conclusion one way or the other unless there is a strong and acceptable evidence available to show that the facts disclosed in the application filed by the tenant seeking leave to defend were either frivolous, untenable or most unreasonable. Take a case when a possession is sought on the ground of personal requirement, a landlord has to establish his need and not his mere desire. The ground under Clause (e) of the proviso to Sub- section (1) of Section 14 enables a landlord to recover possession of the tenanted premises on the ground of his bona fide requirement. This being an enabling provision, essentially the burden is on the landlord to establish his case affirmatively. In short and substance wholly frivolous and totally untenable defence may not entitle a tenant to leave to defend but when a triable issue is raised a duty is placed on the Rent Controller by the statute itself to grant leave. At the stage of granting leave the real test should be whether facts disclosed in the affidavit filed seeking leave to defend prima facie show that the landlord would be disentitled from obtaining an order of eviction and not whether at the end defence may fail. It is well to remember that when a leave to defend is refused, serious consequences of eviction shall follow and the party seeking leave is denied an opportunity to test the truth of the averments made in the eviction petition by cross-examination. It may also be noted that even in cases where leave is granted provisions are made in this very Chapter for expeditious disposal of eviction petitions. Section 25B(6) states that where leave is granted to a tenant to contest the eviction application, the Controller shall commence the hearing of the application as early as practicable. Section 25B(7) speaks of the procedure to be followed in such cases. Section 25B(8) bars the appeals against an order of recovery of possession except a provision of revision to the High Court. Thus a combined effect of Section 25B(6), (7) and (8) would lead to expeditious disposal of eviction petitions so that a landlord need not wait and suffer for long time. On the other hand, when a tenant is denied leave to defend although he had fair chance to prove his defence, will suffer great hardship. In ARC. No. 778/16 Dinesh Chandra Gupta Vs. Kaushal Stationary House Page 7/28 this view a balanced view is to be taken having regard to competing claims.
"14. This Court in Charan Dass Duggal v. Brahma Nand (1983)1SCC301 while dealing with the question in the matter of granting leave to defend to contest the eviction petition filed on the ground of personal requirement, in para 5 has stated thus:
"5. What should be the approach when leave to defend is sought for? There appears to be a mistaken belief that unless the tenant at that stage makes out such a strong case as would non-suit the landlord, leave to defend cannot be granted. This approach is wholly improper. When leave to defend is sought for, the tenant must make out such a prima facie case raising such pleas that a triable issue would emerge and that in our opinion should be sufficient to grant leave. The test is the test of a triable issue and not the final success in the action (see Santosh Kumar v. Bhai Mool Singh). At the stage of granting the leave parties rely in support of their rival contentions on affidavits and assertions and counter- assertions on affidavits may not afford such incontrovertible evidence to lead to an affirmative conclusion one way or the other. Conceding that when possession is sought for on the ground of personal requirement, an absolute need is not to be satisfied but a mere desire equally is not sufficient. It has to be something more than a mere desire. And being an enabling provision, the burden is on the landlord to establish his case affirmatively. If as it appears in this case, the landlord is staying at Pathankot, that a house is purchased, may be in the name of his sons and daughters, but there may not be an apparent need to return to Delhi in his old age, a triable issue would come into existence and that was sufficient in our opinion to grant leave to defend in this case."
15. In the same judgment, in para 7 it is further observed:
"7. The genesis of our procedural laws is to be traced to principles of natural justice, the principal amongst them being that no one shall suffer civil or evil or pecuniary consequence at his back without giving him an adequate and effective opportunity to participate to disprove the case against him and provide his own case. Summary procedure does not clothe an ARC. No. 778/16 Dinesh Chandra Gupta Vs. Kaushal Stationary House Page 8/28 authority with power to enjoy summary dismissal. Undoubtedly wholly frivolous defence may not entitle a person leave to defend. But equally a triable issue raised, enjoins a duty to grant leave: May be in the end the defence may fail. It is necessary to bear in mind that when leave to defend is refused the party seeking leave is denied an opportunity to test the truth of the averments of the opposite party by cross-examination and rival affidavits may not furnish reliable evidence for concluding the point one way or the other. It is not for a moment suggested that leave to defend must be granted on mere asking but it is equally improper to refuse to grant leave though triable issues are raised and the controversy can be properly adjudicated after ascertainment of truth through cross- examination of witnesses who have filed their affidavits........................................................."
11. Same view has been reiterated by the Supreme Court in a judgment in "Rachpal Singh and Ors.Vs. Gurmit Kaur and Ors.", (2009)15 SCC 88, in para no.12 which is re-produced below:-
"12. If some triable issues are raised then the controversy can be properly adjudicated after ascertainment of truth through cross-examination of witnesses who have filed their affidavits and other material documents. Burden is on the landlord to prove his requirements and his assertion is required..........................."
12. Proviso (e) to Section 14(1) is a special provision which has been enacted by the legislature for the class of landlords who require the premises genuinely and their requirement is bona-fide and they do not have any suitable accommodation. The essential ingredients for attracting the proviso (e) of the Section 14(1) are : -
a) there exists landlord tenant relationship;
b) the premises were let out for residential or commercial purpose;
c)The said premises are bona-fide required by the landlord either for ARC. No. 778/16 Dinesh Chandra Gupta Vs. Kaushal Stationary House Page 9/28 himself or for his dependant family member.
d) The landlord or the dependant family member has no other reasonable suitable accommodation.
13. The thresholds hereinabove are to be satisfied conjunctively in order to attract the provisions of Section 14(1)(e) and the absence of even one of the said ingredients clearly makes the said provision inapplicable.
14. For the purposes of leave to defend, the respondent had to show some defence which would disentitle the petitioner of the relief claimed.
15. The respondent has disputed the landlord-tenant relationship between the parties. In Jag Jit Kaur vs Mool Chand And Ors. : 22 (1982) DLT 154, 1982 (3) DRJ 244, 1982 RLR 421, it was held as under:
The word 'Landlord' has been defined in Section 2 (e) of the Act as follows: "LANDLORD" means a person who, for the time being is receiving, or is entitled to receive, the rent of any premises, whether on his own account or on account of or on behalf of, or for the benefit of any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent, if the premises were let to a tenant".
Under this definition any person who is entitled to receive rent is the landlord. In other words, an owner who is entitled to receive rent is landlord' within the meaning of Section 2(e) of the Act. Further any person, who for the time being is receiving rent whether on his account or on account of or on, behalf of, or for the benefit of any other person is also a landlord. The definition of the word landlord' as given in the Act is the widest. An owner of the property is also a landlord. Any person who realise the rent on' behalf of another is also landlord' within the meaning of the Act.ARC. No. 778/16 Dinesh Chandra Gupta Vs. Kaushal Stationary House Page 10/28
16. The petitioner is claiming his ownership and thus landlordship of the tenanted premises in question by virtue of the registered sale deed dated 18.08.2006 executed by Smt. Ramwati Devi in his favour.
17. In this behalf, the judgment of Hon'ble Delhi High Court in PlastiChemicals Company v. Ashit Chadha and Anr 114 (2004) DLT 408, 2004 (76) DRJ 654 says that if a landlord is able to show by producing a document of his ownership on record, landlord is deemed to have discharged his burden of ownership vis-a-vis the Rent Control Act and such a document can at best be challenged by the heirs of the owner and not by the tenant. The fact that in the case herein the petitioner is claiming his ownership and thus landlordship of the tenanted premises in question by virtue of the registered sale deed dated 18.08.2006 executed by previous owner Smt Ramwati Devi in his favour, the tenants i.e. respondents herein cannot assail now that petitioner is not the landlord. In view of the aforesaid clearly, the landlord tenant relationship between the petitioner and the respondent exist.
18. Also, it has not been stated by the respondents that if the petitioner is not the owner/landlord then who is the owner/landlord of the tenanted premises in question. The respondent is estopped under S. 116 of the Indian Evidence Act from assailing the title of the landlord.
19. In Ramesh Chand vs. Uganti Devi reported as 157 (2009) DLT 450 ARC. No. 778/16 Dinesh Chandra Gupta Vs. Kaushal Stationary House Page 11/28 the Hon'ble High Court of Delhi held:
".......... The imperfectness of the title of the premises cannot stand in the way an eviction petition under section 14 (1) (e) of the DRC Act, neither the tenant can be allowed to raise the plea of imperect title or title not vesting in the landlord and that too when the tenant has been paying rent to the landlord. Section 116 of the Evidence Act creates estoppels against such a tenant. A tenant can challenge the title of landlord only after vacating the premises and not when he is occupying the premises. In fact, such a tenant who denies the title of the landlord, qua the premises, to whom he is paying rent acts dishonestly........."
20. As per the respondent, respondent was inducted as a tenant in 1982 under Smt ramwati and paid rent to her till 1993 and thereafter deposited rent under S. 27 DRC Act, which was withdrawn by her. Since the rent had been admittedly paid by the respondent to the predecessor-in- interest of the petitioner, so he is now estopped from denying the title of the petitioner under Section 116 of the Evidence Act.
The Hon'ble Supreme Court in the case of Bansraj Laltaprasad Mishra v. Stanley Parker Jones (2006) 3 SCC 91 held that:
".....13. The underlying policy of section 116 is that where a person has been brought into possession as a tenant by the landlord and if that tenant is permitted to question the title of the landlord at the time of the settlement, then that will give rise to extreme confusion in the matter of relationship of the landlord and tenant and so the equitable principle of estoppel has been incorporated by the legislature in the said section.
14. The principle of estoppel arising from the contract of tenancy is based upon a healthy and salutary principle of law and justice that a tenant who could not have got possession but for his contract of tenancy admitting the right of the landlord situation taking undue advantage of the possession that he got ARC. No. 778/16 Dinesh Chandra Gupta Vs. Kaushal Stationary House Page 12/28 and any probable defect in the title of his landlord. It is on account of such a contract of tenancy and as a result of the tenant's entry into possession on the admission of the landlord's title that the principle of estoppel is attracted.
15. Section 116 enumerates the principle of estoppel which is merely an extension of the principle that no person is allowed to approbate and reprobate at the same time......."
21. In another case titled as Atyam Veerraju v. Pechetti Venkanna (1996) 1 SCR 831, the Hon'ble Supreme Court quoted with approval the judgment of the Privy Counsel in Bilas Kunwar v. Desraj Ranjit Singh, wherein it was observed as follows:
" A tenant who has been let into possession cannot deny his landlords title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord."
22. The principle attracted herein is once a tenant always a tenant.
The tenant cannot dispute the title of his landlord or his successor-in- interest. Since the predecessor-in-interest of the petitioner had inducted the respondent as a tenant, the respondent is estopped from challenging the title of the petitioner, in view of the provisions of section 116 of the Evidence Act. Further, if the transfer of the landlord's title is valid, and even if the tenancy is not attorned in favour of the transferee, the lease continues. Thus, a transferee of the landlord's rights, steps into the shoes of the landlord with all the rights and liabilities of the transferor landlord in respect of the subsisting tenancy.
23. As regards the plea of the respondent that no attornment notice was given, it is well settled that the attornment by the tenant is unnecessary to confer validity to the transfer of the landlord's rights and there is no ARC. No. 778/16 Dinesh Chandra Gupta Vs. Kaushal Stationary House Page 13/28 such statutory requirement. Reference may be made to the case of Hajee K. Assainar vs. Chacku Joseph AIR 1984 Ker 113. In the case of Mahendra Raghunathdas Gupta vs. Vishvanath Bhikaji Mogul AIR 1997 SC 2437, it was held that attornment by tenant is not necessary though it is desirable. Mere non-payment of rent by tenant even for a considerably long period does not extinguish the landlord- tenant relationship. The possession of a tenant cannot be adverse to his landlord. The petitioner is therefore, the landlord and owner of the tenanted premises.
24. Even otherwise, the previous owner Smt. Ramwati Devi had issued a notice dated 27.08.2006 to the respondent and also published in newspaper The statesman dated 26.08.2006 stating change of ownership of property in question. Notice with postal receipts and publication in this regard have also been placed on record.
25. The respondent has assailed landlord -tenant relationship between the parties on the ground that in a petition filed under S. 14 (1) (a) against the respondent herein E no. 2011/2000 the petition of the petitioner was dismissed vide order dated 04.04.2005 by Ld. ARC on the ground that there was no landlord-tenant relationship between the parties and said order was upheld by Ld RC in RCA no. 93/2005 dated 23.11.2009 so the present petition is not maintainable is without any merits as the present petition has been filed on the basis of the regd sale deed dated 18.08.2006, which was executed after order dated 04.04.2005 of Ld. ARC.
ARC. No. 778/16 Dinesh Chandra Gupta Vs. Kaushal Stationary House Page 14/2826. Thus, the petitioner is the owner of the tenanted premises and that there is a relationship of landlord and tenant between the petitioner and the respondent herein in respect of the tenanted premises for the purpose of section 14 (1) (e) of Delhi Rent Control Act.
27. The petitioner landlord states that he requires the tenanted premises comprising of one shop for the bonafide need of his son Sh. Saurabh Gupta who has completed his MBA and wants to open his office of consultancy in the field of business process outsourcing industry and finance.
28. In order to evaluate whether the need of the petitioner is bonafide or not, let us understand the legislative and judicial connotation of the term, ' bonafide'. In landmark case Deena Nath v. Pooran Lal, (2001) 5 SCC 705 wherein the Supreme Court observed thus:
"The Legislature in enacting the provision has taken ample care to avoid any arbitrary or whimsical action of a landlord to evict his tenant. The statutory mandate is that there must be first a requirement by the landlord which means that it is not a mere whim or a fanciful desire by him; further, such requirement must be bonafide which is intended to avoid the mere whim or desire. The 'bonafide requirement' must be in presenti and must be manifested in actual need which would evidence the Court that it is not a mere fanciful or whimsical desire. The legislative intent is made further clear by making the provision that the landlord has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. This requirement lays stress that the need is pressing and there is no reasonably suitable alternative for the landlord but to get ARC. No. 778/16 Dinesh Chandra Gupta Vs. Kaushal Stationary House Page 15/28 the tenant evicted from the accommodation. Similar statutory provision is made in subsection (e) of Section 12(1) of the Act in respect of accommodation let for residential purposes. Thus, the legislative mandate being clear and unambiguous, the Court is dutybound to examine not merely the requirement of the landlord as pleaded in the eviction petition but also whether any other reasonably suitable nonresidential accommodation in his occupation in the city/town is available. The judgment/order of the court/authority for eviction of a tenant which does not show that the court/authority has applied its mind to these statutory requirements cannot be sustained and the superior court will be justified in upsetting such judgment/order in appeal/second appeal/revision. Bonafide requirement, on a first look, appears to be a question of fact. But in recording a finding on the question the court has to bear in mind that statutory mandate incorporated in Section 12(1)(f). If it is found that the court has not applied the statutory provisions to the evidence on record in its proper perspective then the finding regarding bonafide requirement would cease to be a mere finding of fact, for such erroneous finding illegally arrived at would vitiate the entire judgment."
Chambers 20th Century Dictionary defines bona fide to mean "in good faith and genuine". Requirement is not a mere desire. The degree of intensity contemplated by "requires" is much more higher than in mere desire. The phrase "required bonafide" is suggestive of legislative intent that a mere desire which is the 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 mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of the landlord and its bonafides would be capable of successfully withstanding the test of objective determination by the court. In short, the concept of bonafide need or genuine requirement needs a practical approach ARC. No. 778/16 Dinesh Chandra Gupta Vs. Kaushal Stationary House Page 16/28 instructed by the realities of life. 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 meaning of "bonafide" in the context appears to be in two folds. (a) the need of the landlord must be a genuine one and not a frivolous one. (b) landlord is not motivated by extraneous considerations in trying to recover the possession from the tenant with a view to let it out again to another tenant at a higher rent.
29. The Apex Court in the case of Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta reported in SCFBRC 1999 Page 330, has observed as under:
"In Prativa Devi (Smt.) v. T.V. Krishnan, 1996 (5) SCC 353, this Court has held that in considering the availability of alternative accommodation, not availability merely but also whether the landlord has the legal right to such accommodation has to be considered.
Reverting back to the case at hand, the landlord has been living on the ground floor of the Defence Colony house. It was conceded at the Bar that as on the day the family of the landlord consists of the landlord himself (a practicing doctor), his son (again a practicing doctor), the daughter-in-law and two grand children who are gradually growing in their age. Looking at the size of the family, available of three bed rooms in the premises in which the landlord may live, is a requirement which is natural and consistent with the sense of decency-not to talk of comfort and convenience. There is nothing unreasonable in a family with two practicing doctors as members thereof needing a room or two or a room with a verandah to be used as a residential-clinic divided into a consultation room and a waiting place for the patients. A drawing room, a kitchen, a living room and a garage are bare necessities for a comfortable living. The landlord has been living in Defence Colony locality for more than 35 years. The first floor which was let out to the tenant in the year 1978 as ARC. No. 778/16 Dinesh Chandra Gupta Vs. Kaushal Stationary House Page 17/28 being an accommodation surplus with the landlord has with the lapse of time become a necessity for occupation by the landlord and his family members. More than ten years by now have been lost in litigation. The death of the wife of the landlord and the death of landlord's mother-in-law, are events which have hardly any bearing on the case of felt need of the landlord, The need as pleaded and proved by the landlord is undoubtedly natural sincere and honest and hence a bona fide need. There is no material available on record to doubt the genuineness of such need. It continues to subsist inspite of the two deaths. It is not the case of the tenant-appellant that while seeking eviction of the tenant the landlord is moved by any ulterior motive or is guided by some other thing in his mind. It will be most unreasonable to suggest that the landlord may continue to five on the ground floor of the Defence Colony house and some members of the family may move to Sarvodaya Enclave House if the whole family cannot be conveniently and comfortably accommodated as one unit in the Defence Colony house. It would be equally unreasonable to suggest that the entire family must shift to Sarvodaya Enclave House which is admittedly situated at a distance of about 7-8 kms. from Defence Colony. The landlord and his family are used to living in Defence Colony where they have developed friends and acquaintances, also familiarity with the neighbourhood and the environment. The patients usually visiting or likely to visit the residential clinic know where their doctor would be available. Shri Arun Jaitley, learned Senior Counsel for the respondent, has very rightly submitted that it could not have been the intendment of the Rent Control Law to compel the landlord in such facts an circumstances to shift to a different house and locality so 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 rightly into lesser premises protecting the tenant's occupancy."
30. Further, in another landmark case of "Sarla Ahuja v. United ARC. No. 778/16 Dinesh Chandra Gupta Vs. Kaushal Stationary House Page 18/28 India Insurance Co. Ltd., reported as AIR 1999 SUPREME COURT 100", whereby it was held that :
".....The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bonafides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself....".
31. As regards alternate accommodation in Sarwan Dass Bange vs Ram Prakash 2010 IV AD (Delhi) 252, observations made by Supreme Court in Baldev Singh Bajwa V Monish Saini MANU/SC/1239/2005 (2005) 12SCC 778, have been quoted as under :
It was held that the legislative intent is of expeditious disposal of the application for ejectment of tenant filed on the ground of requirement by the landlord of the premises for his own occupation; a special category of landlords requiring the premises for their own use has been created; if there is any breach by the landlord, the tenant is given right of restoration of possession; the landlord who evicts the tenant on the ground of his own requirement is not only prohibited from letting out the premises or disposing of the same but also required to use the same for his own residence only. It was held that these restrictions and conditions inculcate inbuilt ARC. No. 778/16 Dinesh Chandra Gupta Vs. Kaushal Stationary House Page 19/28 strong presumption that the need of the landlord is genuine;the restrictions and conditions imposed on the landlord make it virtually improbable for the landlord to approach the court for ejectment of tenant unless his need is bonafide no unscrupulous landlord in all probability, under this section, would approach the court for ejectment of the tenant considering the onerous conditions imposed on him. It was further held that his inbuilt protection in the Act for the tenants implies that whenever the landlord would approach the court his requirement shall be presumed to be genuine and bonafide. It was further held that a heavy burden lies on the tenant to prove that the requirement is not genuine. The tenant is required to give all necessary facts and particulars supported by documentary evidence if available to prove his plea in the affidavit itself so that the controller will be in a position to adjudicate and decide the question of genuine or bonafide requirement of the landlord; a mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine.
32. In Adarsh Electricals and others vs Dinesh Dayal - MANU/DE/2782/2010, it was held that " the concept of alternate accommodation means that accommodation which is reasonably suitable for the landlord, and the court would not expect the landlord to sacrifice on his own comforts and requirements merely on the ground that the premises is with a tenant . The problem had to be approached from the point of view of a reasonable man and not that of a whimsical landlord. The court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the court would not in such a case thrust its own ARC. No. 778/16 Dinesh Chandra Gupta Vs. Kaushal Stationary House Page 20/28 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."
33. It is pleaded on behalf of the respondent tenant that the son Sh. Saurabh Gupta of the petitioner landlord is well employed and is earning handsomely. Petitioner is an officer in Indian Army. It is stated that son of the petitioner has completed MBA from IIM, Ahmedabad and has been working as Vice President with M/s. Sun Apollo Real Estate Advisors Pvt Ltd and is earning Rs. 15 Lakh per annum and his employer gave him flat and vehicle. It is stated that now he has joined KKR, Mumbai as Principal in February 2014. It is stated that petitioner's son Saurabh Gupta for whom the petitioner is seeking possession of the shop in question is not a dependent family member of petitioner for alleged need of accommodation as Saurabh Gupta is an MBA, employed with an MNC, earning handsomely and is well settled along with his family in Mumbai. That the plea of bonafide requirement taken by petitioner in his application is false, frivolous, vexatious and petitioner has created a false ground of paucity in his favour in order to get the tenanted premises vacated from respondent.
34. On the other hand, the plea of the petitioner is that the son of the petitioner is dependant on him for accommodation and not for finance. It is stated that his son wants to open his office of consultancy in the field of business process outsourcing industry and finance and the three shops under the tenancy of the petitioner viz. one shop in possession of ARC. No. 778/16 Dinesh Chandra Gupta Vs. Kaushal Stationary House Page 21/28 the respondent and 2 shops which were in possession of M/s Neeraj Kirana store are required bona fide since the rate of rent in Delhi are very high and the petitioner has no financial capacity to buy a new premises. Also, the premises are required as the petitioner is a doctor in Indian Army and would retire in about a year and wants to open a clinic in a part of the premises in question.
35. As regards the plea of dependency of the son of the petitioner, it is worthwhile to consider that in Anil Kumar Gupta V Deepika Verma, 14.10.2015, Hon'ble Delhi High Court, while dealing with revision petition with respect to eviction petition on the aspect of 'dependent' member, held:
In order to lay to rest, the ambiguity attached with the word 'dependent' it is critical to appreciate the intent of the legislature behind the design of section 14 of the Act. From perusal of the Act itself it is evident that the aforesaid was not intended to be against the requirement of a landlord or to act in any way as an antilandlord provision but was designed to proctect the interest of the tenant that is to provide him with a safety net in case an eviction was sought either out of sheer mischief or in hope of higher monetary gains. It is trite law that the rent contorl law does not ensvisage or confer a better right than the landlord, on the tenant with respect to the bonafide enjoyment of the tenanted premises. The same is reflected from the judgment of this Court in Punjab State Co- operative Supply and Marketing Federation Limited Vs. Amit Goel and Another; 204(2013)DLT63 wherein it was held that "the law is settled that unless shown to the contrary, the presumption would be in favaour of the landlord's need". ....... "Customarily or in common parlance a dependent would be defined as any person who is relient on another either for financial or physical support for sustenance of life.ARC. No. 778/16 Dinesh Chandra Gupta Vs. Kaushal Stationary House Page 22/28
It is pertinent to note that the word dependent or as to whawt constitutes a family has nowhere been defined in the Delhi Rent Control Act. Rather, the legislator consciously and deliberately have used the words "any member of family dependent on the landlord" instead of defining a clear degree of relations so as to construe a wider meaning to the aforesaid words as man is a social creature and part of a complex societal system involving myriad of relations from which he cannot be isolated. It is significant to understand that the dependency is not restricted to financial or physical but will also include emotional reliance on another person. The Hon'ble Supreme Court in Corporation of the City of Nagpur Vs. The Nagpur Handloom Cloth Market Co. Ltd., AIR (1963) SC 1192 while interpreting the word "Family"
observed as under : "But the expression "family" has according to the contest in which it occurs a variable connotation, It does not in the setting of teh reules postulate the existence of relationship either of blood or by marriage between the persons residing in the tenement even a single person may be regarded as a family, and a master and servant would also be so regarded.
36. As it crystalizes from the aforesaid the word dependent cannot be constructed in a narrow and literal manner. The same have to be interpreted judiciously keeping in mind the intent of the legislators.
37. In the present case, the petitioner / landlord has projected need for his son. Merely because the landlord has mentioned separate address of himself, does not imply that his son will seize to be a member of his family. Parents and children are considered to be a part of the family and dependent on each other for the need of the property. Hence, the defence taken by the respondent that the son of the petitioner is not dependent upon him is rejected.
ARC. No. 778/16 Dinesh Chandra Gupta Vs. Kaushal Stationary House Page 23/2838. Also, merely because a person is employed cannot mean that such a person should not leave his job and start his own business in a premises which is owned by his own father. Respondent has not brought on record any material to the contrary to support his plea that the son of the petitioner shall not move from Mumbai where he is well settled to the premises in question to run his business. It is well settled that the tenant is required to give all necessary facts and particulars supported by documentary evidence if available to prove his plea in the affidavit itself so that the controller will be in a position to adjudicate and decide the question of genuine or bonafide requirement of the landlord; a mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine. (See: Sarwan Dass Bange V. Ram Prakash 2010 IV AD (Delhi) 252). Hence, the defence that the requirement of the petitioner for his son is not bonafide is without any merits.
39. The fact that the rate of rent are high in Delhi is not disputed. Obviously, when the petitioner has a space/accommodation/premises available with him in the form of shop in question then it cannot be expected out of the petitioner landlord that he will rent a shop or buy new premises and so it cannot be said that the requirement of the petitioner is not bona fide.
40. It is also settled principle of law that the landlord is entitled to seek eviction of tenanted premises not only for himself/herself, but for other ARC. No. 778/16 Dinesh Chandra Gupta Vs. Kaushal Stationary House Page 24/28 dependant family members. There is no dispute that the parents are under moral obligation to help establish their son in business and can seek eviction of the tenanted premises for them. Reference in this regard can be made to the case of Joginder Pal v. Naval Kishore Behal, (2002) 5 SCC 397, where the Supreme Court held that:
"The requirement is not the requirement of the landlord alone in the sense that the landlord must for himself require the accommodation and to fulfill the requirement he must himself physically occupy the premises. The requirement of a member of the family or of a person on whom the landlord is dependent or who is dependent on the landlord can be considered to be the requirement of the landlord for his own use......... Keeping in view the social or socio-religious milieu and practices prevalent in a particular section of society or a particular region, to which the landlord belongs, it may be the obligation of the landlord to settle a person closely connected with him to make him economically independent so as to support himself and/or the landlord. To discharge such obligation the landlord may require the tenancy premises and such requirement would be the requirement of the landlord."
41. In Kharati Ram Khanna & Sons. vs. Krishna Luthra, 2010 (172) DLT 551, it was observed that the requirement of the landlord to settle down her two sons separately and independently was found to be genuine and bonafide. In Labhu Lal vs. Sandhya Gupta, 2010 (173) DLT 318, it was observed that the landlord's son and daughter in law are dependent for accommodation on respondent the requirement of the landlord's son and daughter in law for expanding clinic being run in premises in question is genuine. In Sh. Ravinder Singh v Sh. Deepesh Khorana (RC. Rev. No.3/2011, Date of decision: 10th December, 2012), it was observed that the son of the respondent is unemployed ARC. No. 778/16 Dinesh Chandra Gupta Vs. Kaushal Stationary House Page 25/28 and is dependent on respondent for his livelihood. It is nothing but bona fide for the respondent to require the suit shop to set up a computer business for his son and to help him find a source of income and subsequently settle down in life. In Brij Mohan vs. Shri Pal Jain, 49 (1993) DLT 543, it was observed that it is settled law that grown up children require separate rooms to live in a manner he or she likes. In Ram Babu Aggarwal v. Jay Kishan Das, 2009 (2) RCR 455, the court recognized the right of the landlord for possession of his property for setting up a business for his son.
42. In the case of Mohd. Ayub vs Mukesh Chand- (2012) 2 SCC 155, it was observed that "the hardship Appellants would suffer by not occupying their own premises would be far greater than the hardship the Respondent would suffer by having to move out to another place. We are mindful of the fact that whenever the tenant is asked to move out of the premises some hardship is inherent. We have noted that the Respondent is in occupation of the premises for a long time. But in our opinion, in the facts of this case that circumstance cannot be the sole determinative factor."
43. The respondent has raised the plea that the petitioner has alternative suitable premises and thus this petition is not maintainable is without any merits as neither the respondent has brought forth any material to show an alternative suitable accommodation nor details of such alternative suitable accommodation is given. Clearly, this is a sham defence. It is well settled that the tenant is required to give all ARC. No. 778/16 Dinesh Chandra Gupta Vs. Kaushal Stationary House Page 26/28 necessary facts and particulars supported by documentary evidence if available to prove his plea in the affidavit itself so that the controller will be in a position to adjudicate and decide the question of genuine or bonafide requirement of the landlord; a mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine. (See: Sarwan Dass Bange V. Ram Prakash 2010 IV AD (Delhi) 252).
44. The decisions relied upon by the respondents is of no assistance to the respondents as it has been decided on different fact situation and cannot be applied like a Euclid's theorem.
45. In view of the above discussion and the documents filed by the parties, there is no triable issue between the parties which entitles the respondents for leave to contest the present application for eviction. The applications for leave to contest are without merits.
46. Conclusion:
In these circumstances, the applications for leave to defend filed by both the respondent is dismissed and the respondent Kaushal Sharma, proprietor of Kaushal Stationary House is liable to be evicted from the tenanted premises i.e. one shop measuring 7 ½' x 9' on the ground floor of property bearing No. 176/2, South Anarkali, Delhi-110051 out of Musattil No. 12, Kila No. 24, situated at South Extension, Mausa Khureji, Illaqa Shahdara, Delhi as shown in red colour in the site plan (now exhibited as ARC. No. 778/16 Dinesh Chandra Gupta Vs. Kaushal Stationary House Page 27/28 Ex P1) filed with the present petition. Accordingly, the petition filed by the petitioner u/s 14 (1) (e) r/w S. 25B of the DRC Act is allowed, subject to provisions u/s 19 of the DRC Act. However, the petitioner would not be entitled to initiate execution proceedings for recovery of possession of the tenanted premises before expiration of six months from today in view of provisions given in Section 14 (7) of the Act. No orders as to costs.Digitally signed by
SNIGDHA SNIGDHA SARVARIA
SARVARIA Date: 2022.01.04
13:32:53 +0530
Announced though VC (SNIGDHA SARVARIA)
on 14th Day of January, 2022. ACJ/ARC/CCJ
[This judgment contains 28 pages.] (SHAHDARA) KKD, DELHI.
ARC. No. 778/16 Dinesh Chandra Gupta Vs. Kaushal Stationary House Page 28/28