Delhi District Court
Sneh Prabha Jain vs Abhinav Gupta on 28 February, 2024
Sneh Prabha Jain Vs. Abhinav Gupta
IN THE COURT OF MS. ARJINDER KAUR, ARC-02 (CENTRAL),
TIS HAZARI COURTS, DELHI
ARC no. 233/2020
E-24/2020
In the matter of:
1. Ms. Sneh Prabha Jain
Since Deceased through LRs.
A. Sh. Kaushal Chand Jain ( Son)
S/o Late Sh. Nemi Chand Jain
R/o D-53, Kamla Nagar,
Delhi-110007.
B. Sh.Abhay Chand Jain (Son)
S/o Late Sh. Nemi Chand Jain
R/o 81 Usha Colony,
Malviya Nagar, Jaipur
Delhi-110007.
C. Smt. Asha Kumari Jain (Wife)
W/o Late Sh. Surender Kumar Jain
R/o 3/59, Jawahar Nagar,
(ARJINDER KAUR)
ARC-02 (Central), THC,
28.02.2024
Page No. 1 of 20
Sneh Prabha Jain Vs. Abhinav Gupta
Jaipur, Rajasthan.
D. Smt. Achla Jain (Daughter)
D/o Late Sh. Surender Kumar Jain
R/o 407-A, Satyam Building,
Bori Wolli(West) Mumbai.
E. Smt. Sharda Jain (Daughter)
Since deceased through LRs.
(i) Sh Amar Chand Jain
R/o 31, Kapil Vihar,
Pitampura, Delhi-110034.
(ii) Sh. Amit Jain
R/o 31 Kapil Vihar
Pitampura Delhi-110034.
(iii) Smt. Archana Bhandari
59/8, Haji Mansion Khar
West Mumbai-400052.
(iv) Smt. Suchira Jain
R/o 31 Kapil Vihar
Pitampura Delhi-110034.
(ARJINDER KAUR)
ARC-02 (Central), THC,
28.02.2024
Page No. 2 of 20
Sneh Prabha Jain Vs. Abhinav Gupta
(v) Smt. Samridhi Maini
R/o B-Wing 506, harmony Society
Vasai Road, Nallasopara East,
Mumbai 401208.
......................Petitioners
Versus
Sh. Abhinav Gupta
S/o Sh. Narender Dev Gupta
R/o 28, Bazar Lane, Bengali Market,
New Delhi-110001.
Second address
D-53, Kamla Nagar,
Delhi-110007
......................Respondent
ORDER
1. The application under consideration is the one filed by the respondents under Section 25(B)(4) of Delhi Rent Control Act, 1958 (in short "DRC Act") for seeking leave to defend the present eviction petition filed by the petitioner against the respondent under section 14 (1) (e) read with Section 25-B DRC Act in respect of the entire ground floor as shown (ARJINDER KAUR) ARC-02 (Central), THC, 28.02.2024 Page No. 3 of 20 Sneh Prabha Jain Vs. Abhinav Gupta in red Colour in the site plan in respect of H.No. D-53, Block D Kamla Nagar, Delhi-110007 as (hereinafter referred as subject property).
THE PETITION
2. The petitioner claims himself to have become owner of the tenanted premises after the death his husband Sh. Nemi Chand Jain on 03.08.2000 who had become the owner of the subject property by virtue of indenture deed dated 31.12.1955.
2.1 It is further averred that respondent is tenant under the petitioner in respect of the subject property which was originally let out to Late Sh. Devki Nandan Gupta, the grand father of the respondent, and now respondent is paying rent to the petitioner. 2.2 It is further averred that tenanted premises is required bonafidely by the petitioner for herself and her family members dependent upon her for the purpose of accommodation. The petitioner requires the premises in question for her son Shri Kushal Chand Jain for selling sarees because he is running his business in rented accommodation and also for her grandson Sh. Saurabh Jain who has no proper space for his office and storage of goods. The petitioner has mentioned about the other properties available with her but has averred that the subject premises is most suitable for the requirement of the (ARJINDER KAUR) ARC-02 (Central), THC, 28.02.2024 Page No. 4 of 20 Sneh Prabha Jain Vs. Abhinav Gupta petitioners.
THE APPLICATION SEEKING LEAVE TO DEFEND
3. Summons were served upon the respondents who filed leave to defend application with document(s) along with separate detailed affidavit seeking leave to appear and contest the petition mainly on the ground that he is not the tenant in the subject premises and the actual tenant is the company Quam Electronics Private Limited who has been in possession of the property since 19.05.1992. 3.1 Upon these grounds, the respondents prayed that there exist triable issue(s) that would disentitle the petitioner from obtaining an eviction order in respect of tenanted premises.
REPLY BY PETITIONER
4. Reply to leave to defend application has been filed by the petitioner alongwith supporting affidavit wherein he has denied that the present petition is based on false and frivolous grounds and does not contain the ingredients of Section 14(1)(e) of DRC Act. The petitioner denies all the allegations and assertions made in leave to defend application and affidavit.
REJOINDER BY RESPONDENT
5. No Rejoinder was filed by the Respondent.
(ARJINDER KAUR) ARC-02 (Central), THC, 28.02.2024 Page No. 5 of 20 Sneh Prabha Jain Vs. Abhinav Gupta 5.1 Arguments as advanced by Ld. counsels duly heard and noted. Record duly perused THE LAW
6. The present petition for eviction is under clause (e) of proviso to sub-section (1) of section 14 of Act 59 of 1958 which after the judgment of Hon'ble Supreme Court in "Satyawati Sharma Versus Union of India", on 16.04.2008 reads as under :-
14.(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 the 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 or more of the following grounds only, namely:- ***
(e) that the premises are required bona fide by the landlord for occupation for himself or for any member of his family dependent on him, if he is the owner thereof, (ARJINDER KAUR) ARC-02 (Central), THC, 28.02.2024 Page No. 6 of 20 Sneh Prabha Jain Vs. Abhinav Gupta or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation.
7. In order to succeed in a petition for eviction filed under section 14 (1) (e) of the DRC Act, the petitioner must establish the following ingredients: -
(i) That he is the owner of the tenanted shop and there exits relationship of landlord and tenant between him and the respondent.
(ii) That tenanted shop is required bonafide by the petitioner for himself or for any member of his family dependent upon him.
(iii) That the petitioner does not have any other alternate, reasonable and suitable accommodation.
8. It is now well settled that while deciding the question of the grant of leave to contest under the provisions of section 25B of Act 59 of 1958, the Rent Controller should see the affidavit filed by the tenant and the counter affidavit filed by the landlord. The Controller is not required to conduct a full-fledged trial and should only see that if the affidavit of the tenant raise any triable point the decision on which may disentitle the landlord from recovering possession of the premises. At the time of the decision on the question of leave, the Controller is not required to seek (ARJINDER KAUR) ARC-02 (Central), THC, 28.02.2024 Page No. 7 of 20 Sneh Prabha Jain Vs. Abhinav Gupta the proof of the defense of the tenant. The tenant should only disclose such facts in his affidavit that would disentitle the landlord from recovering possession of the disputed premises. At the stage of granting the leave to defend, the Rent Controller should confine himself to the affidavit and reply, if any. The controller does not have to undertake the task of testing the veracity of the issues raised by the tenant, since that stage of the case will arise only after a leave to defend application has been allowed. The level of proof at this stage is that of a prima facie case. Reference at this point can be made to the landmark judgment of the Apex Court in "Precision Steel Engineering Works and Anr. Versus v. Prem Deva Niranjan Deva Tayal, 1982 (2) RCR 544: AIR 1982 Supreme Court 1518", wherein it was held that:-
"If the averments in the affidavit disclose such facts which, if ultimately proved to the satisfaction of the Court, would disentitle the landlord from recovering possession, that by itself makes it obligatory upon the Controller to grant leave.
It is immaterial that facts alleged and disclosed are controverted by the landlord because the stage of proof is yet to come. It is distinctly possible that a (ARJINDER KAUR) ARC-02 (Central), THC, 28.02.2024 Page No. 8 of 20 Sneh Prabha Jain Vs. Abhinav Gupta tenant may fail to make good the defence raised by him. Plausibility of the defence raised and proof of the same are materially different from each other and one cannot bring in the concept of proof at the stage when plausibility has to be shown."
9. Further, the above cited case also poses a statutory duty on the Controller to grant leave to defend, if the tenant is able to disclose certain facts which would have to be tested at a later stage. Relevant paragraphs of the judgment are as under:-
"Statutory duty is cast on the Controller to give leave as the legislature uses the expression 'the Controller shall give' to the tenant leave to contest if the affidavit filed by the tenant discloses such fact as would disentitle the landlord for an order for recovery of possession. The Controller has to look at the affidavit of the tenant seeking leave to contest. Browsing through the affidavit if there emerges averment - of facts which on a trial, if believed, would non-suit the landlord, leave ought to be granted. Let it be made clear that the statute is not cast in a negative form by enacting that the Controller shall refuse to give to (ARJINDER KAUR) ARC-02 (Central), THC, 28.02.2024 Page No. 9 of 20 Sneh Prabha Jain Vs. Abhinav Gupta the tenant leave to contest the application unless the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order etc.... The language of sub-section 5 of section 25B casts a statutory duty on the Controller to give to the tenant leave to contest the application, the only precondition for exercise of jurisdiction being that the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground mentioned in section 14(1) (e)."
ANALYSIS OF PRESENT CASE IN LIGHT OF THE LAW APPLICABLE
10. The facts and circumstances of the present case are being analyzed hereunder keeping in view the principle of law as discussed above.
I. Ownership of the petitioner over the tenanted shop as well as existence of landlord-tenant relationship between the petitioner and the respondents.
11.1 The ownership of the petitioner over the tenanted premises has not been challenged by the respondent. However the respondent (ARJINDER KAUR) ARC-02 (Central), THC, 28.02.2024 Page No. 10 of 20 Sneh Prabha Jain Vs. Abhinav Gupta stated that the petition is labeled to be dismissed on account of non joinder of necessary and proper party because the suit premises were at all the times used for running office initially by Hindustan Electronics Pvt Ltd as its registered office where the affairs of the said company were being managed by the grandfather of the respondent and since 19.05.1992 Qualm electronics Private Limited has been in continuous possession of the subject property as its registered office and the payment of rent at all the times were made from the accounts of the said company by way of cash, cheque or DD and each of the payments were made by the company and not by the respondent the unqualified acceptance of such payments by the petitioner shows that the tenancy rights always vested with the company and not with the respondent. As per the respondent and he is only a director at the said company and is therefore not a tenant with the meaning of DRC 1958 and the present eviction petition should have been filed only against the company.
11.2 The petitioner in her reply stated that the respondent has failed to disclose as to whether the qualm electronics private limited was ever admitted as the tenant in the subject premises and has also not denied various counterfoils of rent receipts filed by the petitioner which have been signed by the respondent himself.
(ARJINDER KAUR) ARC-02 (Central), THC, 28.02.2024 Page No. 11 of 20 Sneh Prabha Jain Vs. Abhinav Gupta 11.3 It is evident from the leave to defend application of the respondent that the respondent has failed to explain as to how the company Qualm Electronics Private Limited became to be the tenant in the subject premises. Also, the perusal of copy of as many as nine counterfoils of rental slips duly signed by the respondent have been placed on record by the petitioner which have not been denied by the respondent. Since the respondents signed the counterfoils in his individual capacity and not as director of the above said company now it does not lie in the mouth of the respondent to say that he is not the tenant in the subject premises and the present petition is bad for not joining the said company. Also, the respondent has failed to bring on record any document that prior to 1992 the tenancy was in name of a company Hindustan Electronics Pvt Ltd and not his grandfather.
11.3 Thus the petitioner has remained successful in establishing That she is the owner of the subject premises and there is a relationship of landlord and tenant between the petitioner and the respondent herein.
II. Bonafide need and availability of alternate reasonable accommodation
12. The bonafide need as mentioned by the petitioner is that (ARJINDER KAUR) ARC-02 (Central), THC, 28.02.2024 Page No. 12 of 20 Sneh Prabha Jain Vs. Abhinav Gupta Kushal Chand Jain, the son of the petitioner is running the business of selling sarees at a rented shop and now his landlord is forcing him to vacate the premises and has stopped issuing rent receipts to him which fact has not been denied by the respondent in his application for leave to defend. Also, the petitioner has annexed the copies of rent receipts issued in the favor of Shri Nemi Chand Jain as annexure F. Petitioner has further stated that his grandson Saurabh Jain is doing business of notebooks but he does not have any accommodation to maintain his office and store his goods and currently he is doing business only digitally and using one shop on the ground floor for combined purpose of office and storage. None of these facts have been denied by the respondent in his application for leave to defend. As such the bonafie requirement of the Petitioner stands established.
The Respondent has further stated in his leave to defend application that petitioner is co-owner of property situated at 11 A, Block UA, Jawahar Nagar Delhi which has been let out to different persons The Respondent further contended that one hand the petitioner has sought possession of the suit property for setting up shops by the Petitioner's son and grandson, while on the other hand the other hand the petitioner continues to let out portions of the Jawahar Nagar property to at least five (ARJINDER KAUR) ARC-02 (Central), THC, 28.02.2024 Page No. 13 of 20 Sneh Prabha Jain Vs. Abhinav Gupta different tenants. No eviction proceedings have been intiated by the Petitioner against the tenants at the Jawahar Nagar property and the only reason the instant proceedings have been sought to be initiated against the respondent is inability of parties to arrive at an amicable solution to the Petitioner's demand for exorbitant rent.
14. The Petitioner has already disclosed about the above mentioned property in her petition and has also filed its site plan (Annexure G) mentioning the names of tenants/occupants in each portion. Petitioner is having only one room on the first floor of the said property which cannot satisfy the need of the petitioner of doing business of selling sarees for which Kamla Nagar property is more suitable being a commercial area for selling sarees and readymade garments. These facts have not been denied by the respondent in his leave to defend application.
15. Further the Respondent submitted in his leave to defend application that each of the rooms which were in possession of different tenants is lying vacant and submitted that entire first floor, second floor are being used for residential purpose and they are not suitable for to carry out commercial activity. In her petition also the petitioner has mentioned the first floor and second floor of the subject property is used (ARJINDER KAUR) ARC-02 (Central), THC, 28.02.2024 Page No. 14 of 20 Sneh Prabha Jain Vs. Abhinav Gupta by petitioner for residential purpose. The Petitioner also mentioned details of her family members which facts have not been controverted by the respondent. The legal position in this regard is well settled and was recently reiterated by Hon'ble High Court of Delhi in Sh. Satish Chand and ors Vs. Girdhar Gopal Gupta and ors, date of decision 10.01.2023 as follows:-
".............18.The Supreme Court in Abid-Ul-Islam v. Inder Sain Dua, (2022) 6 SCC 30 has held that in a petition filed under Section 14(1)(e) of the DRC Act, the Court is concerned only with the requirement of a bona fide purpose. The contention regarding availability of alternative accommodation can at best be only an 'incidental one'.
19.The Trial Court has examined the pleas of the tenant with respect to the existence of alternate accommodation threadbare in the impugned orders dated 16.02.2022 and 03.12.2022 and after perusing the evidence on record held that the tenants' plea that the said alternate accommodations are suitable for the Respondent, has no merit.
20. The Supreme Court in Anil Bajaj and Anr. V. Vinod Ahuja, (2014) 15 SCC 610, has held as under:
"6. .... What the tenant contends is that the landlord has several other shop houses from which he is carrying on different businesses and further that landlord has other premises from where the business proposed from the (ARJINDER KAUR) ARC-02 (Central), THC, 28.02.2024 Page No. 15 of 20 Sneh Prabha Jain Vs. Abhinav Gupta tenanted premises can be effectively carried out. It would hardly require any reiteration of the settled principle of law that it is not for the tenant to dictate to the landlord as to how the property belonging to the landlord should be utilised by him for the purpose of his business. Also, the fact that the landlord is doing business from various other premises cannot fore close his right to seek eviction from the tenanted premises so long as he intends to use the said tenanted premises for his own business." (Emphasis Supplied).
21. In the present petition there is no plea challenging the finding of the Trial Court with respect to the bona fide need of the landlord and his son addressed during the arguments. It is not disputed that Sh. Amit Gupta, son of the landlord is carrying on business and therefore the contention of the landlord that he needs the tenanted premises for his son's business stands sufficiently established on record.
22. As per Section 14(1)(e) of the DRC Act, the landlord/landlady, is required to prove his/her bona fide need for the tenanted premises as well as that he/she has no other reasonably suitable accommodation, to satisfy their requirement. However, recently the Supreme Court in Abid-Ul-Islam (Supra) has held that in an eviction petition filed under Section 14(1)(e) of the DRC Act, the Court is concerned only with the requirement of a bona fide need and that the plea of alternative accommodation is 'incidental one' at best. The relevant paragraph of the said judgment read as under:
"29. Section 14(1)(e) deals with only the requirement of (ARJINDER KAUR) ARC-02 (Central), THC, 28.02.2024 Page No. 16 of 20 Sneh Prabha Jain Vs. Abhinav Gupta a bona fide purpose. The contention regarding alternative accommodation can at best be only an incidental one. Such a requirement has not been found to be incorrect by the High Court, though it is not even open to it to do so, in view of the limited jurisdiction which it was supposed to exercise. Therefore, the very basis upon which the revision was allowed is obviously wrong being contrary to the very provision contained in Section 14(1)(e) and Section 25B(8)." The word 'incidental' as defined in the Oxford dictionary, sixth edition, refers to 'occurring as something casual or of secondary importance'. This would mean that availability of alternate accommodation should not become the decisive or pivotal factor in eviction proceedings. Therefore, in view of the law laid down by the Supreme Court in the aforesaid decision, once a landlord/landlady has sufficiently established his/her plea of bona fide need, the mere availability of alternate accommodation at the disposal of the landlord/landlady is but a secondary factor and not a primary one and therefore the same cannot become the sole basis for permitting the tenant to retain the tenanted accommodation to the peril of the landlord/landlady particularly once the other factors entitling him/her to recovery the premises have been established. The landlord/landlady having duly disclosed the alternate available accommodation and having reasonably explained that the same are not adequately suitable for his/her requirement, the fact that tenant contends that the said alternate accommodation is suitable cannot detain the Court from passing the eviction order. The Court will reject the explanation offered by the landlord/landlady with respect to the unsuitability of the (ARJINDER KAUR) ARC-02 (Central), THC, 28.02.2024 Page No. 17 of 20 Sneh Prabha Jain Vs. Abhinav Gupta alternate accommodation only if it is perverse, however the Court need not substitute the preference for tenanted premises shown by landlord/landlady with the dictates of the tenant. The preference shown by landlord/landlady for the possession of the tenanted premises vis-à-vis another alternative accommodation available to him/her cannot be rejected on the say-so of the tenant so as to set at naught the salutary purpose of Section 25B of the DRC Act.[The Technological Institute of Textiles and Sciences v. M/s Shree Nath Ji Developers, RC. REV. 174/2020]............"
20. It was next contended on behalf of the respondents that the petitioners wants to sell/let out the tenanted premises. Here it would be relevant to state that the said apprehension is already taken care of in the DRC Act itself by our legislative forefathers while enacting the laws who have already considered possibility of misuse in the hands of unscruplous landlords and thereby inserted Section 19 of DRC Act whch reads as follows:-
"Where a landlord recovers possession of any premises and the premises are not occupied by the landlord or by the person for whose benefit the premises are held, within two months of obtaining such possession, or the premises having been so occupied are, at any time within (ARJINDER KAUR) ARC-02 (Central), THC, 28.02.2024 Page No. 18 of 20 Sneh Prabha Jain Vs. Abhinav Gupta three years from the date of obtaining possession, relet to any person than the evicted tenant without obtaining the permission of the Controller such tenant can be put back to the premises or can be paid such compensation as the Controller thinks fit."
21. Hence, if the requirement of landlord is not bonafide and if a landlord abuses the process of the court, obtains an order of eviction, subsequently lets out the property or sells the same, the tenant can always apply for restitution under section 19 of the DRC Act.
22. Hence, in these circumstances, the need of the petitioners not only seems to be genuine but greater than the respondents.
23. Hence, the present petition for eviction is allowed. Petitioner is held entitled for recovery of the entire ground floor as shown in red Colour in the site plan in respect of H.No. D-53, Block D Kamla Nagar, Delhi-110007 annexed with the petition. However, the petitioner would not be entitled to initiate execution proceedings for recovery of the possession of the tenanted premises before expiration of six months from (ARJINDER KAUR) ARC-02 (Central), THC, 28.02.2024 Page No. 19 of 20 Sneh Prabha Jain Vs. Abhinav Gupta today in view of provisions given in Section 14 (7) of the Act.
24. In view of the provisions of sub-section (7) of section 14 of Act 59 of 1958 this order for recovery of possession of premises shall not be executed before the expiration of a period of six months from the date of this order.
25. In the facts and circumstances of the case there shall be no order as to costs.
26. File be consigned to the record room after due compliance.
(ARJINDER KAUR) ARC-02 (Central) Tis Hazari Courts, Delhi (Announced in open court on 28.02.2024).
(This judgment contains 20 pages) (ARJINDER KAUR) ARC-02 (Central), THC, 28.02.2024 Page No. 20 of 20